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In the
Supreme Court of The United States
KENNETH D. WILLIAMS,
Petitioner,
v.
WENDY KELLEY,
Respondent.
LESLIE RUTLEDGE
Attorney General
LEE RUDOFSKY*
Solicitor General
NICHOLAS J. BRONNI
Deputy Solicitor General
Introduction
delay his lawful execution. Since February, Williams has been scheduled for
execution this evening for the cold-blooded murder of Cecil Boren nearly two
decades ago. His conviction and death sentence have been examined in complete
rounds of direct and collateral review in state court and federal habeas corpus
(E.D. Ark. Nov. 4, 2008), affd by Williams v. Norris, 612 F.3d 941, 959 (8th Cir.
2010), cert. denied sub nom. Williams v. Hobbs, 562 U.S. 1290 (2011).
On April 25, 2017, in his federal habeas corpus proceeding, which has been
final since 2008, Williams filed a new petition raising a claim for relief under Atkins
v. Virginia, 536 U.S. 304 (2002). Williams, 5:07cv00234 SWW, Doc. No. 45. He also
filed a motion for relief from the judgment under Federal Rule of Civil Procedure
60(b)(6), seeking to litigate a new claim of juror misconduct, which he faults his
transferred them to the Court of Appeals for the Eighth Circuit. Id., Doc. No. 57.
That court filed the matter as an application for authorization to file a successive
habeas corpus petition and docketed it under USCA case number 17-1892.
minute filings containing claims that could have been asserted years ago in both
state court and in his original habeas-corpus proceedings, Williams then filed in the
notice of appeal and request for certificate of appealability from the order
transferring the petition that raised the Atkins claim; 2) a related motion for stay of
successive petition raising the Atkins claim in No. 17-1896; and 4) a motion for stay
of execution in the same. The Court of Appeals consolidated the three matters, and
correctly concluded that in the case transferred from the district court (No. 17-
1892), the motion for relief from the judgment and the petition for writ of habeas
corpus constituted second or successive applications for which the court denied
17-1896, slip op. at 2 (8th Cir. 2017)(per curiam)(unpublished). The court further
1893) as moot. Id. It also correctly denied Williamss protective application to file a
3
second or successive habeas petition (No. 17-1896), as well as the motions for stays.
Id.
Williams wrongly suggests that this Court should stay his imminent
execution to review each of these cases. Williams has had many years in which to
litigate the claims at issue here, and ultimately elected not to do so until just days
before his execution. Indeed, even after his execution was scheduled, Petitioner
waited two months till the eve of his execution to raise his latest series of
challenges. His dilatory and piecemeal litigation tactics alone warrant denying his
last second certiorari and the application for a stay. Moreover, even if the
particularly inappropriate vehicle for resolving that question because the record
clearly establishes that Petitioner is not intellectually disabled and that he raised
possibility that this Court will reverse the Arkansas Supreme Courts decision.
Jurisdiction
4
Background
On September 15, 1999, Williams was sentenced to life without parole for the
December 13, 1998 capital murder of Dominique Herd, the attempted capital
was sent to the Cummins Unit of the Arkansas Department of Correction (ADC)
Less than two weeks later, on September 26, 1999, Williams told Eddie
Gatewood, a friend who visited him at the Cummins Unit, that he could not serve a
life term and solicited Gatewoods help to escape. During that visit, Williams asked
Gatewood to find him some clothes, a dress, and a wig, and asked Gatewood to leave
them out on the highway close to the prison. A week later, on October 3, 1999,
Williams escaped from prison while on a release from his barracks for a morning
religious call.
Once outside the prison, on the morning of October 3, Williams reached the
home of Cecil and Genie Boren. Earlier that morning, Genie Boren had gone to
church, leaving her husband Cecil at home working in the yard. When she returned
sometime after noon, she found her home had been ransacked and that Cecil was
missing. She contacted a neighbor and she and the neighbor began frantically
searching for Cecil. During their search, they discovered that all the Borens
Cecils lifeless bodylying face down without shoes or socksnear a bayou not far
5
from the Borens home. Cecil had been show seven times and scrape marks on his
body revealed that his body had been dragged to the location where it had been
found. The subsequent investigation established that Williams had shot Cecil
closer to the house, and that Williams had stolen Cecils truck, wallet, other
asking for a map. Williams was driving Cecils truck. Gatewood testified at
Williamss trial that Williams told him he had killed a person to get the truck.
The next day, on October 4, 1999, Cecils truck was spotted in Lebanon,
Missouri, by police officer Dennis Mathis. Officer Mathis attempted to stop the
truck. Initially, Williams pulled over, but drove off before Officer Mathis could
approach him. A high-speed chase began involving multiple police units covering
roughly 60 miles. Speeds went as high as 120 miles per hour. Williams was only
stopped when he struck a water truck that was turning left in front of him.
Williams struck the truck in the cab, and the trucks driver, Michael Greenwood,
was ejected and killed. Although the truck Williams stole was disabled by the
More than 114 personal items belonging to Cecil and Genie Boren were
removed from Cecils truck, including the firearms stolen from their home. At the
time of his arrest, Williams was wearing Cecils coveralls and two of Cecils rings.
6
At trial, Arkansas was unable to link the .22 caliber fragments taken from
Cecils body to the firearms found in Williamss possession at the time of his arrest.
However, there was testimony that the fragments likely came from one of six
semi-automatic pistol, it was taken from his house the day of his murder, and,
although the gun was never found, a clip to a Ruger .22 automatic was found in the
truck when Williams was arrested. The jury was free to conclude that Williams
shot and killed Cecil with his stolen Ruger pistol and disposed of the weapon in his
flight from Arkansas but kept the ammunition for use with the remaining stolen
weapons. At trial, Williams did not claim that he was intellectually disabled, and
after hearing this evidence, a jury found Williams guilty of theft of property and
capital murder.
At his sentencing, evidence of two prior crime sprees was introduced, and on
August 30, 2000, a jury convicted Williams of the capital-felony murder of Cecil
Boren and theft. Williams was sentenced to death on the capital-murder conviction
In the sentencing phase of Williamss trial, the jury heard evidence that on
December 5, 1998, Williams kidnapped and robbed Sharon Hence. According to the
record, Hence was using an ATM machine in Pine Bluff when Williams got into her
car, pulled a gun, and demanded that she get more money out of the machine.
When Hence was unable to do so, Williams ordered her to drive away. As they
7
drove around Pine Bluff, Williams rifled through Hences purse and threatened to
shoot her. Eventually, Hence stopped the car on a dead-end street. Williams
ordered her to give him all of her jewelry, empty her pockets, and, thankfully,
allowed Hence to get out of the car. Hences car was later found burning roughly
two and one-half blocks away from Williamss apartment. At Williamss subsequent
August 1999 jury trial for arson, kidnapping, theft, and robbery, Hence identified
Williams as the man who had kidnapped, robbed, and terrorized her. He was
sentenced to respective terms of six, ten, five, and five years in prison, to be served
consecutively.2
The jury also heard evidence that in December 1998, Williams kidnapped
Peter Robertson and Dominique Herd, two students at the University of Arkansas
at Pine Bluff, and murdered Herd. On December 13, 1998, Robertson and Herd had
borrowed a friends car to go to church and eat at the Bonanza Steak House. Upon
exiting the restaurant, Williams approached the couple, briefly talked with them,
and then pulled a gun and forced them into their car. Williams sat in the back seat
of the car and directed Robertson where to drive. He first made them go to a bank
8
withdraw money from Herds account, but in her terror, Herd could not remember
During the drive, Williams continued to tell the terrified couple that they
would be fine and directed them to drive around town. Eventually, Williams
directed them down a dead-end street and made the couple get out of the car.
Williams then lifted Herds dress and pulled down her underwear and, horrifically,
Williams then directed the couple to drive to another dead-end street, get out
of the car, climb a fence, go behind a shed, and kneel down. Williams initially got
into the car and departed. But Williams then backed up, asked Herd for her purse,
and asked, Where did you say you were from again? Herd answered, Dallas, and
Robertson answered, New Jersey. Williams responded, I dont like the niggers
from Dallas anyway, and shot the couple, emptying the gun in the process.
Williams left them there to die. Miraculously, Robertson survived the shooting and
was able to call the police. Herd died from a gunshot to her head. After fleeing the
murder scene, Williamsas he had with Hences cartorched and abandoned the
victims car.
man who had kidnapped, terrorized, robbed, and shot both him and Herd. On
September 14, 1999, a jury convicted Williams of the capital murder of Herd, the
9
arson. 3 Williams was sentenced to life imprisonment without the possibility of
parole. Just 18 days later, Williams escaped from prison, murdered Cecil Boren,
Supreme Court. He raised twelve different claims, including arguing that: (1) the
state circuit court abused its discretion by ordering that he appear at trial wearing
prison garb, shackles, and handcuffs; (2) two of the jurors seated on his jury, Brenda
Patrick and LaRhonda Washington, should have been removed for cause; (3) the
state circuit court erroneously admitted evidence that Williams was apprehended in
Missouri following a high speed chase that resulted in a traffic fatality; (4) there
which was one of the two felonies that the State relied on in prosecuting Williams
for capital-felony murder; (5) there was insufficient evidence to support his capital-
murder conviction; (6) the jury ignored mitigation evidence; (7) the state circuit
court erred by denying his motion for funds to hire a corrections expert; (8) the state
3Williamss convictions for those crimes were affirmed by the Arkansas Supreme
Court in Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001).
10
circuit court erred by admitting victim-impact evidence during the penalty phase,
and that it was improperly used; (9) it was error to submit Ark. Code Ann. 5-4-
604(5) (Repl. 1997) as an aggravating factor because there was no evidence that the
appellant committed the murder to avoid arrest, (10) it was error to submit Ark.
Code Ann. 5-4-604(4) (Repl. 1997) as an aggravating factor because there was no
evidence that Williams caused multiple deaths during the same criminal episode;
(11) Ark. Code Ann. 5-4-604(2) and Ark. Code Ann. 5-4-604(5) were
unconstitutionally duplicative; and (12) the state circuit court erred by denying
Williamss motion for mistrial based on the seating of an alternate juror for the
Williams claims and affirmed his conviction and death sentence. Williams v. State,
claims that (1) his trial counsel was ineffective for failing to submit evidence of
disabled and ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304;
(3) his trial counsel was ineffective for failing to object to improper victim-impact
evidence; (4) his trial counsel was ineffective for failing to object to a biased juror;
(5) his trial counsel was ineffective for failing to properly object to the jurys failure
to consider mitigating evidence; (6) his trial counsel was ineffective for failing to
11
introduce the supporting expert mitigation evidence; and (7) his rights were
violated by the requirement that he wear prison clothing and be shackled in front of
the jury, as well as placement of several uniformed officers in his immediate vicinity
and, to the extent that the issue was not adequately preserved, that he received
Prior to his state postconviction hearing, the state circuit court granted
Williamss motion for funds to hire an expert on the question of whether Williams
Ricardo Weinstein of Encinitas, California for that purpose. (PCR. 31). The court
also granted Williamss motion for funds to hire an investigator for that claim and
related issues. (PCR. 36). At the beginning of the September 8, 2005 state
collateral review hearing, Williamss postconviction counsel informed the court that,
Claims One and Two, we are not going to pursue in this matter. That
deals with the retardation issue. And this was propounded and
investigated in good faith. And there, in fact, was testimony in the
trial record about borderline mental issues. But afterand the Court
did authorize full testing of Mr. Williams. And after that testing was
done, it waswe have decided not to pursue thatthose two claims.
So Claims One and Two would not be pursued at this time. And I
wanted just to let the Courtlet the Court know.
(PCR. 137). The state circuit court noted the abandonment of those two claims in
its order denying Rule 37 relief. (PCR. 116). The Arkansas Supreme Court
4The state trial and postconviction records were submitted per Habeas Rule 5 in
the district court in Williams v. Kelley, No. 5:07CV00234-SWW (E.D. Ark.), ECF No.
8.
12
affirmed the denial of relief on March 1, 2007. Williams v. State, 369 Ark. 104, 251
On September 10, 2007, Williams filed a petition for writ of habeas corpus in
the Eastern District of Arkansas. In that petition, he raised seven separate claims
that: (1) his Eighth Amendment rights were violated by the refusal to provide
funds for or permit the presentation of mitigation evidence that the ADC bore some
responsibility for the events causing Borens death; (2) the state circuit court
argument was defaulted by trial counsel, counsel was ineffective; (3) trial counsel
was ineffective for failing to properly object to a biased juror; (4) trial counsel was
ineffective for failing to properly object to the jurys failure to consider mitigating
evidence; (5) trial counsel was ineffective for failing to introduce the supporting
violated by being required to stand trial shackled, in prison attire, and with
numerous uniformed guards around him, and, to the extent trial counsel defaulted
the argument, he was ineffective; and (7) his Sixth Amendment rights were violated
by the denial of funds for an investigator to probe issues of juror bias and
misconduct. On November 4, 2008, the district court denied his petition in its
entirety. Williams v. Norris, No. 5:07cv00234, ECF No. 10, 2008 WL 4820559 (E.D.
13
Williams appealed, and the Eighth Circuit addressed each of the seven issues
as to which the district court denied relief. On July 15, 2010, it affirmed the district
courts decision denying relief. Williams v. Norris, 612 F.3d 941 (8th Cir. 2010).
Williams subsequently filed a petition for writ of certiorari, which was denied on
March 28, 2011. Williams v. Norris, 562 U.S. 1290 (2011), E.D. Ark. No.
Williams execution for April 27, 2017. Williams then waitednearly two months
until April 21, 2017, to launch his most recent individual claims. His filings are
little more than an obvious and continuing attempt to overwhelm the courts with
last-minute filings containing claims that could have been raised long ago.
On April 21, Williams asked the Arkansas Supreme Court to recall its 10-
Virginia, 536 U.S. 304 (2002), as well as claims of juror and prosecutorial
nobis relief. On the night of April 24, 2017, he also filed a second motion to recall
the mandates of both his direct and postconviction cases in the Arkansas Supreme
The Arkansas Supreme Court denied his claims on April 26, 2017.
On that same date that he filed his first motions in the Arkansas Supreme
Court, Williams also filed a petition for writ of habeas corpus in state circuit court
14
and a motion in the Arkansas Supreme Court to stay his execution pending that
state habeas corpus proceedings. In both of those petitions, he argued that his
Atkins claim is a basis for state-habeas-corpus relief. Both those motions have been
denied, and shortly before this filing, Williams appealed the denial to the Arkansas
On April 24, 2017, Williams filed four pleadings in his long-closed federal
include: (1) Docket No. 39, a motion for relief under Rule 60(b)(6), (2) Docket No. 40,
a motion for a stay based on the 60(b)(6) motion, (3), Docket No. 45, a petition for
habeas-corpus relief, and (4) Docket 46, a motion for a stay of execution based on
the habeas petition. The district court transferred all of these filings to the Court of
Appeals for the Eighth Circuit. Williams v. Kelley, No. 17-1892 (8th Cir.) (filed Apr.
Williams v. Kelley, No. 17-1892, Williams separately filed: 1) a notice of appeal and
request for certificate of appealability from the order transferring the petition that
raised an Atkins claim, No. 17-1893; 2) a related motion for stay of execution in
Williams v Kelley, No. 17-1893 (8th Cir.); 3) an application for authorization to file a
second or successive petition raising the Atkins claim in case Williams v Kelley, No.
17-1896 (8th Cir.); and 4) a motion for stay of execution in Williams v Kelley, No. 17-
As noted, this evening the Eighth Circuit denied relief in each of these case.
15
Reasons for Denying a Stay and Writ of Certiorari
warrant this Courts review and, even if they did, granting an execution eve stay to
review claims that Petitioner intentionally declined to bring earlier would validate
his strategically dilatory and piecemeal litigation tactics. This Court should deny
1892; it denied his protective application for authorization in 17-1896; and it denied
that, by his petition for writ of certiorari, Petitioner is seeking review of the Eighth
habeas corpus petition to raise an Atkins claim and to raise a claim of juror
not be appealable and shall not be the subject of a petition for rehearing or for a
Turpin, 518 U.S. 651, 661 (1996), that this provision precludes [it] from reviewing,
file a second habeas petition in district court. Jurisdiction, thus, does not lie for
Williamss petition, and it should be denied along with his request for a stay of
execution.
16
B. Petitioners dilatory and piecemeal litigation tactics cannot overcome
the strong equitable presumption against granting a stay to consider
claims that could (and should) have been brought earlier.
presumption against the grant of a stay where a claim could have been brought at
stay. Hill v. McDonough, 547 U.S. 573, 584 (2006) (quoting Nelson v. Campbell,
541 U.S. 637, 650 (2004)) (emphasis added). Here, there is no dispute that
Petitioner engaged in what amounts to little more than strategic and malicious
claim splittingbringing and dismissing claims for tactical reasons and holding
back certain arguments so that he could use them as justification for seeking an
execution eve stay. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (one of the
1. Atkins Claim
could (and actually did) raise that claim more than a decade-and-a-half ago. In fact,
on May 16, 2002, his counsel filed a petition for post-conviction review under Ark.
R. Crim. P. 37.5 and actually claimed that his trial counsel was ineffective for
failing to submit evidence of intelectual disability for finding under Ark. Code Ann.
5-4-618 and that Williams was intellectually disabled and ineligible for the death
17
penalty under Atkins v. Virginia. (R. 37 R. 4, 7-16).5 Additionally, to ensure he had
an adequate opportunity to litigate his Atkins claim, the state circuit court actually
granted Williamss motion for funds to hire an expert on the question of whether
Williams was mentally retarded and authorized expenditure of $10,000 to hire Dr.
Ricardo Weinstein of Encinitas, California for that purpose. (R. 37 R. 31). The
court also granted Williamss motion for funds to hire an investigator for his claim.
(R. 37 R. 36). Having fully investigated the basis for that claim, Williams then
Claims One and Two, we are not going to pursue in this matter. That deals
with the retardation issue. And this was propounded and investigated in
good faith. And there, in fact, was testimony in the trial record about
borderline mental issues. But afterand the Court did authorize full testing
of Mr. Williams. And after that testing was done, it waswe have decided
not to pursue thatthose two claims. So Claims One and Two would not be
pursued at this time. And I wanted just to let the Courtlet the Court know.
(R. 37 R. 137). That voluntary, strategic decision was based upon I.Q. testing that
demonstrated Williams had an adjusted I.Q. of 78, placing him well outside the
intellectually disabled range.6 In its order denying relief, court noted the
5 The State will refer to the record in Williamss direct appeal, Arkansas Supreme
Court No. CR-01-364 as (T.R.) and the record in Williamss Rule 37 appeal as (R.
37 R.). Because this all is a part of the public record already filed with the
appellate court in Williamss earlier appeals, this Court is free to consider all of
these, as well as Williamss appeals of convictions in other cases, in this recall
case. Johnson v. State, 366 Ark. 286, 291, 234 S.W.3d 858, 862 (2006) (quoting
Drymon v. State, 327 Ark. 375, 378, 938 S.W.2d 825, 827 (1997) (per curiam)). See
also Davis v. State, 2013 Ark. 118, at 3 (per curiam).
6 Significantly, Williams has filed his Atkins claims in several different courts,
including the Arkansas Supreme Court, attaching the I.Q. testing table at page A-
145 of his Appendix to his Corrected Petition for Writ of Habeas Corpus filed in the
Lincoln County Circuit Court on April 25, 2017. The State has filed responses in all
cases raising an Atkins issue noting that the majority of his corrected I.Q. scores
18
abandonment of those two claims. (R. 37 R. 116). Additionally, even before Atkins,
Williams had the opportunity to raise essentially the same claim at trial under
demonstrate that this case is a poor vehicle for reviewing Williamss claim that he
the past and then wait till the eve of his execution to reassert those claims
demonstrate that he has been dilatory and engaged in piecemeal litigation. That
fact alone warrants denying his last second request. Indeed, granting a stay in
Petitioner has done here. Both the application for a stay and the writ should be
denied.
attempt to bring a second petition on his juror misconduct claim because he was
dilatory and could have interviewed the jurors and raised that claim at any point
contained at page A-145 still are, in large part, above the cutoff for intelectual
disability. In an obvious response to the fact that the scores contained on page A-
145 do not establish intellectual disability, Williams today has filed an amended
table within his Stay Motion artificially lowering the scores contained on A-145.
(Motion to Stay at 16). Nevertheless, Williams admits that the average I.Q. score of
these newly lowered scores is 71.8, still above the cutoff for intelectual disability.
Up until now, Williams has asserted, based on new tests conducted in conjunction
with this last-minute litigation, that his average Full Scale I.Q. was 75. (A-186).
19
prior to the eve of his execution. Slip Op. at 9. Thus, the writ and stay request
should be denied.
Petitioner does not show that this Courts review is warranted to resolve an
unresolved question concerning Section 2244. Nor does he point to any split in
authority that would warrant this Courts review. Indeed, this Courts opinions are
clear and he cannot show that this Court would likely overturn the Eighth Circuits
decision.
Citing Panetti v. Quarterman, 551 U.S. 930, 945 (2007), Williams argues
disability are akin to claims of incompetence to be executed and, thus, ripen upon
(1986), did not amount to a successive petition because the claim was not ripe until
prisoners to file premature claims, particularly when many of these claims will not
be colorable even at a later date, does not conserve judicial resources, reduc[e]
523 U.S. 637, 643644 (1998) (petitioner's Ford claim that he is not competent to be
20
executed should not be treated as second or successive petition, despite the fact
that it had been raised in a prior petition and dismissed as unripe). The Eighth
Circuit rejected this contention and distinguished Ford from Atkins. The court
noted that Ford and its progeny focus on the inmates competency at the time of
execution which the court felt makes sense because competency can be lost or
Atkins which focused exclusively on the prisoners culpability at the time the crime
was committed. (Slip Op. at 11). See also Ochoa v. Workman, 669 F.3d 1130,
113738 (10th Cir. 2012); Williams v. Mitchell, 792 F.3d 606,619 (6th Cir. 2015)
Panetti was discussed by the Court in Magwood v. Patterson, 561 U.S. 320,
(2010) : [I]f the petitioner had no fair opportunity to raise the claim in the prior
and 2244(b)(2)'s bar does not apply[, such as] where the claim was not yet ripe at
the time of the first petition. Magwood, 561 U.S. at 345 (Kennedy, J., dissenting).
Williams does not argue that his intellectual disability is a recently obtained
duration and faults his state postconviction counsel for abandoning a claim of
was intellectually disabled in his prior habeas corpus petition, and that ends the
question.
21
In fact, the inmate in Atkins did not obtain review of his claim of intellectual
disability only upon the setting of an execution date. And, death sentenced inmates
traditionally do not wait until an execution date is set to argue that their executions
should not be carried out under Atkins. Rather, it is in their initial district court
habeas proceedings that claims of intellectual disability regularly get fleshed out
and decided. See Sasser v. Hobbs, 735 F.3d 833 (8th Cir. 2013) (litigating an
intellectual disability claim absent a set execution date), Jackson v. Norris, 615
F.3d 959 (8th Cir. 2010) (remanding to district court for an Atkins hearing even
though no execution date set), Simpson v. Norris, 490 F.3d 1029 (2007) (same). See
also Decay v. Kelley, No. 5:15-CV-00203 KGB (E.D. Ark.), Greene v. Kelley, U.S.D.C.
No. 5:04CV373 SWW (E.D. Ark), and Sales v. Kelley, 5:15-cv-00248-BM (E.D. Ark.).
Petitioner does not point to any split in lower Court authority on this issue
1. Williams has not made a prima facie showing that his claims satisfy
the stringent gatekeeping criteria set forth in 2244(b)(2).
quintessential abuse of the writ. Felker v. Turpin, 518 U.S. 651, 664
AEDPA greatly restricts the power of federal courts to award relief to state
22
prisoners who file second or successive habeas corpus applications. Tyler v. Cain,
533 U.S. 656, 661 (2001). Under these provisions, in order to receive authorization
to file a second petition, Williams must make a prima facie showing that his new
Williamss claim does not satisfy the statute, which reads, in pertinent part:
(b) (2) A claim presented in a second or successive habeas corpus application
under section 2254 that was not presented in a prior application shall be
dismissed unless
***
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense.
not have brought his claim before he filed his previous habeas application. 28
that the facts underlying his claim, if proven, would be sufficient by clear and
Williams has not satisfied the threshold criteria that would allow him to
proceed with another federal habeas action under the AEDPA. That is, his
allegations and proffered evidence do not satisfy the mandatory gatekeeping criteria
23
for consideration of his successive petition. Consequently, the application for
factual predicate for his claims could not have been discovered previously through
the exercise of due diligence. Williams has pleaded nothing that demonstrates he
contrary, Williams has affirmatively pleaded that his current counsel readily
investigated and developed his claim of juror bias and misconduct in just a matter
of days this month, and he faults his previous federal habeas counsel for not having
done so, complaining that he could have done so long ago, but he opted instead only
finally done the investigation that he contends should have been done long ago is
wrong. That his counsel just talked to various jurors and others recently and
obtained declarations from them only tells us that he has received the evidence that
underlies his claims. It tells us nothing about whether or why, with diligence, the
factual predicate of the claims could not have been discovered sooner. The factual
predicate of a claim does not mean every possible scrap of evidence that might . . .
support [a petitioners] claim. Earl v. Fabian, 556 F.3d 717, 726 (8th Cir.
2009)(quoting Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998)(internal
24
quotations omitted)). The inquiry is an objective one, and the burden rests on
Williams to satisfy it. Johnson v. Dretke, 442 F.3d 901, 908 (5th Cir. 2006)(citing
cases). He has not done so; in fact, he has affirmatively demonstrated the factual
predicate was available long before he filed his first federal petition. And, as noted,
Williams cannot rely on the alleged merits of his claim of juror bias or misconduct,
diligence. Johnson, 442 F.3d at 908, 910-11. Nor may he rely on the ineffective-
It is not enough that Williams may regard his factual posture to have
improved of late because the focus is on whether due diligence would have
uncovered the vital facts to support his claim in time to present it in a prior habeas
proceeding or else more than a year before his petition was filed. In Engesser v.
Dooley, 686 F.3d 928 (8th Cir. 2012), for example, Engesser, who had been convicted
of vehicular homicide and vehicular battery after a drunken car accident in which
his passenger was killed, sought to file a second petition to pursue a Brady claim.
Engesser, 686 F.3d at 930. The claim was based, inter alia, on the testimony of two
witnesses who saw Engessers car shortly before the accident and would have
testified that it was Engessers passenger, and not he, in the drivers seat. Id. at
930-35. The witnesses, Eckholm and Fowler, however, were identified in police
records that were turned over to the defense before trial, and were subsequently
described in Engessers state habeas proceedingswhich took place before his first
25
federal petitionas offering exculpatory information. Id. at 937 (quotations
omitted).
This Court subsequently held that because [t]he existence of Eckholm and
Fowler as potential witnesses and the testimony they would have provided was . . .
discoverable through the exercise of due diligence at the time Engesser filed his first
2254 petition[,] his second federal petition failed to satisfy subsection (b)(2)(B)(i).
Id.; cf., e.g., Rues v. Denney, 643 F.3d 618, 622 (8th Cir. 2011) (holding that the
analyze bunter marks on ammunition casings[,] was not new evidence in the
context of equitable tolling of the AEDPA statute of limitations, because the study
was not the first source to analyze this question[,] and because Rues raised the
Here, as Williams points out, his counsel sought funds to investigate whether
juror bias or misconduct existed based, apparently, on his understanding that the
community where Boren, a former prison employee, was killed was a small
community where many of the residents had worked at the prison. However,
Williams alleges that counsel, himself, apparently did not conduct even the minimal
bias to support his request for funding. The identities of the jurors, of course, would
have been readily ascertainable to counsel from the trial record. And presumably,
based on the small size of the community, it would not have been difficult to make
the necessary inquiries, just as his current counsel purport to have done. Thus, the
26
factual predicate for Williamss new allegations were discoverable well over a
decade ago when this case was on review in state court. Because his application
concedes he could have, but did not, make any effort to discover and present his
current claim in federal habeas until April 2017, Williamss application fails to
Again, although the State has done so here, 2244(b)(2)(B)(i) does not place
the burden on the State to demonstrate that the factual predicate of Williamss
claim could have been discovered with diligence sooner. Rather, the burden is
have uncovered the factual predicate of his claim sooner. He has not carried his
burden, and for that reason his application should be denied. See Case v. Hatch,
actual innocence that is, demonstrate that the facts underlying his claims if
establish by clear and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found him guilty of the underlying offense. 28
27
U.S.C. 2244(b)(2)(B)(ii). Williamss application falls far short of meeting this
demanding standard.
proceedings. McQuiggin v. Perkins, ___ U.S. ___, ___, 133 S.Ct. 1924, 1933-34
to establish that the facts of his claims, if proven and viewed in light of the evidence
merely require a showing that a reasonable doubt exists in the light of the new
evidence, but rather that no reasonable juror would have found the defendant
guilty. See Schlup v. Delo, 513 U.S. 298, 329 (1995)(applying pre-AEDPA
standard). Having been convicted following a jury trial, Williams no longer enjoys
the presumption of innocence that once required the State to prove his guilt beyond
a reasonable doubt. Rather, the circumstances are reversed, and he stands before
the Court with a strong and in the vast majority of cases conclusive
presumption of guilt. Schlup, 513 U.S. at 326 n.42. Indeed, [i]n the eyes of the
law, [Williams] does not come before the Court as one who is innocent, but on the
28
contrary as one who has been convicted by due process of law of [a] brutal
evidence Williams puts forth here would probably produce an acquittal on retrial or
whether it had some effect on the outcome, as his application apparently posits. It
is not even whether a reasonable juror might find reasonable doubt based on the
conviction burden for overcoming the near conclusive presumption that he is guilty
extraordinary. A petitioner does not meet that standard, unless he persuades the
district court that, in light of the new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 329.
apparent, as is the case here, that despite the allegedly new evidence, there is any
juror who, acting reasonably, would have found the petitioner guilty beyond a
reasonable doubt. Id. at 333 (OConnor, J., concurring). This means that if, upon
its appraisal of the evidence, a court believes there is a single juror in the universe
of reasonable jurors who would have voted to find Williams guilty beyond a
reasonable doubt, despite the new evidence, he will not have satisfied the
heard. Thus, the apparent premise of Williamss petition for relief that he need
29
only demonstrate a viable claim of constitutional error or some likelihood of a
proffered evidence at face value and in isolation from other relevant evidence.
determin[e] whether actual innocence has been reliably shown. Perkins, 133 S.Ct.
at 1928. This means that where a habeas petitioner has been convicted at a trial,
presented in the trial, including any evidence tenably claimed to have been wrongly
excluded or illegally admitted, with due regard to any unreliability of it, as well as
the new evidence that was unavailable at trial. Schlup, 513 U.S. at 328. See also
Case v. Hatch, 731 F.3d at 1038 (noting 2244(b)(2)(B)(ii) analysis consists only of
evidence presented at the time of trial, adjusted for evidence that would have been
Williamss petition overstates the content of his proffered, new evidence, and
fails to accurately account for the trial evidence in a meaningful way, much less
failed to account for the requirement that he demonstrate his claims satisfy
2244(b)(2), his vague contention that a review of his new evidence demonstrates a
30
As noted, supra at __, the case against Williams was damning, and it reached
far beyond the brutal murder of Cecil Boren. Williams killed Boren in the course of
his escape from prison, where, just weeks before, he had ruthlessly shot Dominique
Herd in the head, killing her, and attempting to kill her companion, Peter
Robertson, after kidnapping and robbing the pair. Shortly after he arrived in
prison, Williams made elaborate plans with a friend outside the prison, Eddie
Gatewood, to help him escape. One week later, he escaped and happened upon
Boren, working in his yard alone. Williams saw his opportunity to obtain valuables
and an escape vehicle and ruthlessly killed Boren, dragging his dead body to a
bayou and stealing his truck. Shortly thereafter, he arrived at Gatewoods house
and, when asked how he got the truck he was driving, he confessed he had killed
someone to get it. Not long afterward, in an effort to continue his flight, killed
officers.
about the lack of forensic evidence and about Williamss escape from prison just
before the murder and the fact that Williamss prison-issued shirt had not been
found during the initial search for him. (T.R. 1932-40). In sentencing, Williams
attempted to shift the blame for Borens murder to the prison based on a theory that
it had been negligent in its confinement of Williams, permitting his escape and
31
The declarations Williams submits with his application do not undercut the
find him guilty. Indeed, most of the declarations do not concern the guilt-phase at
all. For instance, Henley Tucker, identified only as Juror A by Williams, indicates
that the decision as to guilt was made quickly; that the evidence of guilt was strong
against [Williams]; but that sentencing took more time because the jury knew how
serious a decision [it] was. The declaration implies that it was in the penalty-
phase deliberations in which Henley purportedly states that the foreman led the
group in prayer and in which Henley told the jurors about the different prison
While Harold Lunsfords declaration, SA-64, indicates the jury prayed at both
declaration, SA-53, make clear that prayer was used simply for strength and
unspecified in the declaration, she knew Cecil Boren and another juror were
patients of her husband, a medical doctor. Importantly, the declaration does not
indicate that she knew these facts at the time of the trial. Also notably absent from
her declaration is any indication the such knowledge, if she did have it at the time
of trial, impacted her decision as to guilt. She made clear, moreover, that she did
32
Brenda Patricks declaration indicates the jury took its responsibilities very
her view. Williams was just remorseless about everything. While Williams
evidence, and allowed the evidence of guilt to influence her sentencing decision, the
declaration quite clearly indicates, for example, that she considered Williamss
apparently because so does everyone, and not everyone commits murder. SA-54.
offense thus, the evidence demonstrating guilt is perhaps the single most
indicates that following the strong showing of guilt, nothing would have changed
her mind about sentencing, she subsequently indicates that she engaged in prayer
with the others in an effort to make the decision between life and death. SA-53.
sheriff falsely told one or more jurors that Mr. Williams had made violent threats
against them[,] Doc. No. 39 at 14, that characterization is belied by the declaration
itself. SA-62. The declaration simply states that a threat had been made against
the jury. The declaration does not state the threat came from Williams, and it does
33
not state the threat was false or violent. Thus, there is no indication whatsoever in
the declaration that this or any juror linked any threat to Williams, much less that
innocent. Indeed, at his recent clemency proceeding, he called out the names of
each of his past victims, discussed autopsy images as to one of them, and
acknowledged having murdered each of them, saying he honored them. The Court
Respondent in connection with Petitioners other applications for a stay filed today
in this Court.
Further, even at this late date, Williams cannot establish that he meets the
Williams on May 24, 1999, prior to his trial for the Boren murder, by examiners
David Nanak and Dr. William Cochran revealed that Williams had a Full Scale I.Q.
of 74; however, they deemed the score a minimum estimate due to Williamss lack
34
asked if he had to complete the tests, and again it was explained to him that
this was a court ordered assessment and that I had to make a report back to
the court. I explained to him that if he refused to take the testing that would
be reported back to the judge.
Williamss Rule 37 counsel had Williamss I.Q. tested in conjunction with that
results of the testing were provided to him. By Williamss own submissions in his
motion to recall the mandate case, his adjusted I.Q. score at the time of the Rule 37
proceeding was a 78, (see Appendix to Corrected State Habeas Petition at A-145, A-
179), placing him well above the cut-off for intellectual disability and fully
explaining postconviction counsels reason for withdrawing the claim in Rule 37.
Williamss claim is also belied by his prolific criminal record. For example, on
August 26, 1999, just over a month before escaping the Cummins unit and
kidnapping, aggravated robbery, and theft of property for his December 5, 1998,
crimes against Sharon Hence. At that trial, Williams testified in his own defense.
He explained that, in December 1998, he was working a full-time job and paying his
35
own bills. Williams v. State, No. CACR 00-432, at 217-18. He denied committing
the crimes, testified that he was at home when the robbery occurred, and he
recalled in detail his purported alibi during the time period of those crimes.
Williams v. State, No. CACR 00-432, at 219-34. A review of his testimony from that
trial reveals that Williams was coherent, well-spoken, thoughtful, and recalled
In his trial for the capital murder of Cecil Boren, Williams filed several pro se
pleadings, including a Motion for Recusal and a Motion for Dismissal of Court
Appointed Counsel. T.R. at 118-24. Moreover, two months before trial, Williamss
experienced criminal-defense attorneys Dale Adams and John Cone filed a Motion
extraordinary confidence, not only in Williamss ability to assist in his own defense,
Based on the nature and circumstances of this case, it is expected that this
will be an extended and complex trial. Further, it appears that most, if not
all, of the evidence which will be presented in this matter lies within the
Defendants personal knowledge and in many instances, the clarification of
such evidence may lie within his exclusive knowledge.
jury did not check the box for that mitigator. T.R. at 500(c)-500(g). Thus, the jury
36
did not conclude that the evidence presented was sufficient to establish that
vigilantly acted to protect his rights in in federal court. See Jackson v. Norris, 2016
disability under Atkins.) Acting pro se, Williams filed on February 14, 2001, a
petition under 42 U.S.C. 1983, alleging the denial of medical attention. (A copy of
Exhibit A).7 He was denied relief in the United States District Court. Williams
then filed a timely appeal to the United States Court of Appeals for the Eighth
Circuit, which affirmed the denial of relief. Williams v. Byus, 79 F. Appx 242, 243
Arkansas Parole Board on March 14, 2017, he has studied and become a minister
during his time on death row. (A copy of Williamss clemency petition is attached to
in Religion and an honorary Doctor of Divinity from the Universal Life Church.
created board games called Gang Proof, Bully Proof, and Drug Proof, with the
hope that young persons who read [his] writing and play these games will be
warned off the path that [he] took in his earlier years. (Respondents Exhibit B to
Mandate, Williams spoke to the Parole Board for more than an hour, giving a
quoted scripture from the Old Testament and New Testament, understood and
extracted themes of redemption from those passages, applied them to his own life,
and communicated those tenets into a plea for mercy from the Board.
Williams is acclimated to, and functions well in, his current environment and that
he performs extremely complex tasks. For example, on February 12, 2016, when
visited by the mental-health staff, Williams discussed [with staff] doing his taxes
29, filed separately under seal). In several other mental-health visits, Williams
38
relayed that he is working on his autobiography. (Respondents Exhibit D to
April 22, 2016, Williams filed a pro se Petition to Establish Paternity in Jefferson
County Circuit Court Case No. 35DR-16-397. (A redacted copy of that petition is
apparently had difficulty with service of process on the defendant in that case, he
wrote on June 29, 2016, a coherent, well-reasoned letter explaining his struggle and
January 23, 2017, he wrote a letter to the circuit court clerk with the following
request:
Petitioner request that a paternity test be ordered, that Ms. Johnson make
available [D.J.], the son Petitioner believes is his biological son. Petitioner
request this be done soon as possible, consider he is a death row prisoner
without any remaining appeals.
Response to Motion for Recall as Exhibit G). This letter, written only three months
ago, shows Williamss persistence in asserting and protecting his rights, as well as
thoughtful planning relating to the exhaustion of his appeals and his recognition
39
In the end, Atkins recognized that, among other things, the intellectually
disabled may face a special risk of wrongful execution because of the possibility
that they will unwittingly confess to crimes that they did not commit, [and] their
lesser ability to give their counsel meaningful assistance. Atkins, 536 U.S. at
Missouri after Cecil Borens murder, he requested an attorney, which led to the
suppression of his pre-trial statements in the Boren murder. (T.R. at 580-81, 587,
attorneys thought Williams capable enough to actively assist in his own defense of
that case.
Atkins also noted it was probable that capital punishment could serve as a
deterrent only when murder is the result of premeditation and deliberation, and
that exempting the intellectually disabled from the death penalty would not affect
the cold calculus that precedes the decision of other potential murderers. Atkins,
536 U.S. at 319, . (quoting Gregg v. Georgia, 428 U.S. 153, 186 (1976)). The Court
added: Indeed that sort of calculus is at the opposite end of the spectrum from
his escape from prison strongly suggests that he is not a stranger to cold
calculation. He carefully planned and premeditated his escape, made his way to the
Boren household, and after murdering Cecil Boren, deliberately stole his truck in
40
order to put greater distance between himself and the prison. The evidence
rule, a restraint on what is called in habeas corpus practice abuse of the writ.
Felker, 518 U.S. at 664. Contrary to Williamss argument here, this Court has
made clear that [t]he added restrictions which the [AEDPA] places on second
petitions are well within the compass of [the evolutionary process of habeas
a-half. Beyond the dilatory and piecemeal nature of the last-minute litigation
the panel was unanimous that Prisoner Williams had not shown a likelihood of
success on any of his claims. Even the one judge who dissented on an issue of legal
doctrine regarding section 2241 agreed that Prisoner Williams did not make the
showing necessary on any of his claims for a stay of execution. See Williams v.
41
Kelley, Nos. 17-1892, -1893, and -1896, Slip Op. at 25 (Kelly, J., dissenting and
concurring). Prisoner Williams cannot has not shown that he could possibly succeed
Conclusion
For the foregoing reasons, the application for a stay and the petition for a
Respectfully submitted,
LESLIE RUTLEDGE
Attorney General
LEE RUDOFSKY
Solicitor General
NICHOLAS J. BRONNI*
Deputy Solicitor General
42
Nos. 16-8921 & 16A1043
KENNETH D. WILLIAMS,
Petitioner,
v.
WENDY KELLEY,
Respondent.
CERTIFICATE OF SERVICE
I hereby certify that I did on the 27th day of April, 2017, send electronically
from Little Rock, Arkansas, a copy of the foregoing. All parties required to be
served have been served electronically.