Williams, Clifton Lamar

• Court: Court of Appeals of Texas
• Decided: July 15, 2015
• Docket: WR-71,296-02
• Status: Published

Opinion

WR-71,296-02 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/15/2015 4:23:34 PM Accepted 7/15/2015 4:38:19 PM ABEL ACOSTA CLERK

EX PARTE § IN THE COURT OF RECEIVED § COURT OF CRIMINAL APPEALS 7/15/2015 § CRIMINAL APPEALS ABEL ACOSTA, CLERK § CLIFTON WILLIAMS § AUSTIN, TEXAS

MOTION FOR EMERGENCY STAY

A motion and an Amended Motion for an Emergency Stay were filed in the

114th Judicial District Court of Smith County, Texas on July 15, 2015. Copies

are attached as Exhibit B and C to this Motion. It is Counsel’s understanding

that the trial court is not available to rule on the motions and has instructed the

Smith County District Court to file the motions with the Court of Criminal

Appeals.

A. CASE HISTORY

Clifton Williams was convicted by a jury for the for the offense of capital

murder in Smith County on October 13, 2006. The conviction was affirmed by

the Court of Criminal Appeals on November 27. 2008. Williams v. State, 270

S.W.3d 112 (Tex. Crim. App. 2008). The first state writ of habeas corpus was

denied without written opinion by the Court of Criminal Appeals. Ex parte

Williams, No. WR-296-01, 2009 Tex. Crim. App. Unpub. LEXIS 206 (Tex. Crim.

App. 2009).

The federal writ of habeas corpus was filed alleging eight issues. Each claim was denied bvy the district court. Williams v. Thaler, No. 1:09CV271,

2013 U.S. Dist. LEXIS 43187, EDTX March 26, 2013. This was affirmed by the

Court of Appeals. Williams v. Thaler, 761 F. 3d 561 (5th Cir. 2014), cert. denied,

U.S. , 135 S. Ct. 1735, 1914 L. Ed. 2d 706 (April 6, 2015).

On June 11, 2015, the trial court entered an order setting the date of

execution as July 16, 2015. The petition seeking clemency was filed and was

denied on July 14, 2015 by the Texas Board of Pardons and Paroles.

B. REASON FOR STAY

On July 15, 2015, Counsel was notified by the Texas Attorney General’s

Office, Mr. Ed Williams and Ms. Fredericka Sargeant by phone that they

received notice from the Texas Department of Public Safety which affects this

case. The letter from the Department of Public Safety, attached as Exhibit A

and incorporated for all purposes, is dated June 30, 2015. This is a general

disclosure letter and provides no meaningful information as to what errors were

made and specifically how they affect the analysis of this case.

During trial, Mr. James Nickels testified from the Department of Public

Safety regarding the statistics and also Cassie Johnson testified from Orchid-

Cellmark. While it is believed that both witnesses used these incorrect FBI

population database, what is not clear is what affect the errors by the FBI had

on their analysis. The letter from the Department of Public Safety states that if requested in writing, the results will be recalculated.

This disclosure one day prior to the scheduled execution date raises serious

issues as to proper notice and due process. The fact that this information was

known to the Department of Public Safety and held for a period of time, then

disclosed by the Attorney General’s Office one day prior to execution denies Mr.

Williams due process of law under the United States Constitution and due

course of law under the Texas Constitution.

This disclosure the day before the scheduled execution date places counsel,

the trial court, and this Court in an untenable position. The trial court did not

participate in the trial of this case, and has no recollection of the testimony or

other evidence. Counsel was appointed for purposes of a clemency petition.

The Texas Legislature has recently enacted SB 1071 which amends Article

43.141 requiring notice of the setting of an execution date to the last counsel and

the Office of Capital Writs; and that an execution date cannot be set earlier than

the 91st day following the entry of the order setting the execution date. That 90

day period allows counsel the opportunity to verify and rule out or urge these

issues. The 90 day window was not used by the trial court in this case. While

that statute does not take effect until September 1, 2015, it is clear the

Legislature and Governor recognize the seriousness of these issues and the

importance of due process of law. C. CONCLUSION

Mr. Williams seeks a stay of at least 60 days for counsel to be appointed

pursuant to Article 11.071 of the Texas Code of Criminal Procedure to fully

investigate this disclosure and any other remedy to which he might be entitled

to at law.

Respectfully submitted,

Law Office of James W. Huggler, Jr. 100 E. Ferguson, Suite 805 Tyler, Texas 75702 Tel: (903) 593-2400 Fax: (903) 593-3830

By:_James Huggler___________________ James W. Huggler, Jr. State Bar No. 00795437 Attorney for Clifton Lamar Williams

CERTIFICATE OF SERVICE

This is to certify that on the 15th of July, 2015, a true and correct copy of the

above and foregoing document was served on the District Attorney's Office of Smith

County, 100 North Broadway Ave., 4th Floor, Smith County Courthouse, Texas, Texas

75702, by hand delivery, fax, or electronic filing and on the Office of the Attorney

General by electronic filing.

_/s/ James Huggler_____________ James W. Huggler, Jr. CERTIFICATE OF CONFERENCE

I certify that on July 15, 2015 I spoke with Assistant District Attorney Mike

West who informed me that the Smith County District Attorney’s Office opposes a stay

being granted in this case.

_/s/ James Huggler James W. Huggler, Jr.