Lisa Marie Montgomery v. T. J. WATSON, Warden

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
January 12, 2021
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21-1052
LISA MARIE MONTGOMERY,
Petitioner-Appellee,
v.
T. J. WATSON, Warden, et al.,
Respondents-Appellants.
Appeal from the
United States District Court for the
Southern District of Indiana,
Terre Haute Division.
No. 2:21-cv-00020-JPH-DLP
James P. Hanlon,
Judge.
O R D E R
In December 2004 Lisa Marie Montgomery murdered Bobbie Jo Stinnett, who
was then eight months pregnant, and cut the baby out of her womb, claiming the child
as her own. In 2007 a federal jury in the Western District of Missouri convicted her of
kidnapping resulting in death and recommended a sentence of death. The district court
imposed the capital sentence. The Eighth Circuit affirmed on direct appeal, United States
v. Montgomery, 635 F.3d 1074 (8th Cir. 2011), and her petition for postconviction relief
under 28 U.S.C. § 2255 failed.

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No. 21-1052 Page 2
On October 16, 2020, the Department of Justice announced an execution date of
December 8, 2020. Montgomery responded with several actions in the District of
Columbia and elsewhere seeking to delay the execution. As a result of that litigation, on
November 23, 2020, the execution was rescheduled to today at 5 p.m.
On Friday evening, January 8, Montgomery filed a habeas petition pursuant to
28 U.S.C. § 2241 in the Southern District of Indiana, where she is confined. She sought to
raise a claim under Ford v. Wainwright, 477 U.S. 399 (1986), that because of mental
illness, she lacks a rational understanding of the government’s reason for executing her.
For support the petition relied on declarations from three proposed experts, but none
has had any recent contact or communication with Montgomery. Two of the proposed
experts last examined her in 2016, and the third last saw her in 2010. She moved for a
stay of execution.
Last night the district court issued a stay of execution. The government appealed
and filed an emergency motion to vacate the stay. This morning we ordered a response,
and Montgomery has now complied.
We vacate the stay. As the Supreme Court has repeatedly emphasized, “[l]ast-
minute stays [of execution] should be the extreme exception, not the norm.” Bucklew v.
Precythe, 139 S. Ct. 1112, 1134 (2019). That principle is particularly strong where, as here,
the petitioner’s claim could have been brought earlier. Id. Montgomery and her defense
team were given notice of today’s execution date many weeks ago and yet waited until
after the close of business on Friday to file a § 2241 petition and a stay motion—fewer
than four days before the scheduled execution. The delay appears strategic, but at the
very least, it “implicate[s] the ‘strong equitable presumption’ that no stay should be
granted ‘where a claim could have been brought at such a time as to allow
consideration of the merits without requiring entry of a stay.’” Id. n.5 (quoting Hill v.
McDonough, 547 U.S. 573, 584 (2006)). Nothing in Montgomery’s stay request or § 2241
petition overcomes this “strong presumption.”
In addition, the proponent of a stay must make a “strong showing” of a
likelihood of success on the merits of the underlying claim. Nken v. Holder, 556 U.S. 418,
434 (2009). Montgomery has not done so. As noted, the expert declarations she tendered
with her § 2241 petition rest on extremely outdated evaluations, two conducted more
than four years ago and another as long as ten years ago. These stale observations
cannot support a claim about her current mental state. The submission does not satisfy
Nken.

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No. 21-1052 Page 3
Because Montgomery has not overcome the strong presumption against last-
minute stays, Bucklew, 139 S. Ct. at 1134, and has not made a strong showing of a
likelihood of success on her proposed Ford claim, Nken, 556 U.S. at 434, we vacate the
district court’s stay of execution.
MOTION G RANTED; STAY VACATED

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