                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-3618
                         ___________________________

                             United States of America,

                        lllllllllllllllllllllPlaintiff - Appellant,

                                            v.

 Daniel Lewis Lee, also known as Danny Lee, also known as D. L. Graham, also
                        known as Daniel Lewis Graham,

                       lllllllllllllllllllllDefendant - Appellee.
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                            Submitted: January 16, 2020
                               Filed: June 1, 2020
                                 ____________

Before COLLOTON, KELLY, and ERICKSON, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

       Daniel Lee was convicted in federal court of murder in aid of racketeering and
sentenced to death. See United States v. Lee, 274 F.3d 485 (8th Cir. 2001). On
December 6, 2019, with Lee’s execution scheduled for three days later, the district
court granted Lee’s motion to stay the execution. The court ordered that the sentence
of death must “not be carried out until further order of this Court, the Eighth Circuit,
or the Supreme Court.” The execution date passed, and the government pursued this
appeal of the district court’s order.

       Lee argues that the government’s appeal is moot because the execution date has
passed and the execution has not been rescheduled. We disagree: the district court’s
order prevents the government from carrying out the sentence on a rescheduled date.
The order was not limited to the execution date of December 9, 2019; it forbids the
government to carry out the sentence of death at any time without further order of a
court. There is thus a live controversy over the validity of the court’s ongoing
injunction. That another district court also had enjoined Lee’s execution on different
grounds, see In re: Federal Bureau of Prisons’ Execution Protocol Cases, 955 F.3d
106 (D.C. Cir. 2020) (per curiam), does not preclude the government from appealing
this order too. Both orders were live obstacles to carrying out Lee’s sentence.

       In the district court, Lee moved to stay his execution in part on the ground that
a case pending at the Supreme Court, Banister v. Davis, No. 18-6943, might impact
the outcome of his case. Banister concerns whether and under what circumstances
a timely motion under Federal Rule of Civil Procedure 59(e) should be characterized
as a second or successive petition for a writ of habeas corpus that may not be filed
without authorization by a court of appeals. See 28 U.S.C. § 2244(b)(2). The district
court in this case earlier had rejected a Rule 59(e) motion from Lee on the grounds
that it was a successive motion under 28 U.S.C. § 2255(h) and lacking in merit.
United States v. Lee, No. 4:06-CV-1608GTE, 2010 WL 5347174, at *5-6 (E.D. Ark.
Dec. 22, 2010). Lee now seeks under Rule 59(e) to renew his contention that the
district court erred in rejecting his claim that trial counsel were ineffective in failing
to object to certain testimony of a government expert about future dangerousness.

      In staying Lee’s execution, the district court relied on Chambers v. Bowersox,
197 F.3d 308 (8th Cir. 1999) (per curiam), which blocked an execution of a state

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prisoner pending a decision by the Supreme Court. The prisoner unsuccessfully had
sought a writ of habeas corpus in federal court, and this court had affirmed the denial
of relief after considering several issues identified in a certificate of appealability.
Chambers v. Bowersox, 157 F.3d 560 (8th Cir. 1998). The case pending at the
Supreme Court concerned whether a prisoner in Chambers’s position was required
to obtain a certificate of appealability in order to appeal an issue. This court’s
decision granting a stay in Chambers reasoned that if the pending case at the Supreme
Court were resolved favorably to the prisoner, it would mean that Chambers should
have received plenary appellate review of certain issues that the court had declined
to consider as outside the certificate of appealability. The court then concluded that
the State should not “be allowed to execute Chambers when there is thus an
appreciable chance that he has not received the full review process to which he is
entitled.” 197 F.3d at 309. In this case, the district court concluded that “those same
circumstances are present here given the pending outcome of Banister and that
Chambers remains controlling law.”

      The government challenges the district court’s order on several grounds, but
we need address only one to determine that the order should be vacated. We
conclude that the district court’s order applied an incorrect legal standard based on
Chambers to justify a stay of execution pending a decision by the Supreme Court in
Banister.

       The government argues that Chambers has been superseded by later decisions
of the Supreme Court that require a prisoner to show a significant possibility of
success on the merits before a court may grant a stay. E.g., Dunn v. McNabb, 138 S.
Ct. 369, 369 (2017); Hill v. McDonough, 547 U.S. 573, 584 (2016); Nelson v.
Campbell, 541 U.S. 637, 649-50 (2004). Chambers did not address the prisoner’s
likelihood of success and focused instead on the “appreciable chance” that he “should
have received plenary appellate review of all issues properly raised in his habeas
petition.” 197 F.3d at 309.

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       Even assuming that Chambers survives the subsequent decisions, a matter we
need not decide, it is limited to its procedural context. The concern in Chambers was
that the prisoner might not have received the plenary appellate review to which he
was entitled on his first petition for writ of habeas corpus, because the court imposed
a certificate of appealability requirement that might not have been applicable. Id. In
this case, by contrast, it was settled that Lee was required to obtain a certificate of
appealability, and he received full appellate review on that basis. See United States
v. Lee, 715 F.3d 215 (8th Cir. 2013). If Chambers made an exception to the rule that
a prisoner seeking a stay of execution must satisfy the ordinary requirements for a
stay, see Hill, 547 U.S. at 584, it does not extend beyond the situation in that case.
And Lee already received one full round of review on his present claim of ineffective
assistance: the district court ruled that the claim was “lacking in merit,” Lee, 2010
WL 5347174, at *5-6, and this court denied a certificate of appealability on that issue.
See Motion to Expand Certificate of Appealability, at 70-90, United States v. Lee, No.
11-1380 (8th Cir. June 20, 2011); Order, No. 11-1380 (Feb. 17, 2012).

       The district court thus did not apply the correct legal standard in evaluating
Lee’s motion for stay. An appreciable chance that Banister could allow for additional
judicial consideration of Lee’s previously denied Rule 59(e) motion was not
sufficient to justify a stay of execution. Accordingly, we vacate the district court’s
order of December 6, 2019.
                         ______________________________




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