Williams v. Kelley

858 F.3d 464, 2017 U.S. App. LEXIS 7508, 2017 WL 2346158
Court of Appeals for the Eighth Circuit·Decided April 27, 2017·No. Nos. 17-1892, 17-1893, 17-1896·Published·Cited by 40 cases

Opinions

PER CURIAM.

Kenneth Dewayne Williams is scheduled to be executed on April 27, 2017. On April 25, 2017, Williams filed in federal district court a motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6), an amended petition for writ of habeas corpus, and related motions to stay the execution. Williams argued that extraordinary circumstances of juror misconduct and bias justified the reopening of his federal habeas proceedings under Rule 60(b)(6) and that his Eighth Amendment claim that he is categorically ineligible to [467] be executed based on his intellectual disability should not be subject to the strictures of 28 U.S.C. § 2244(b). The district court determined that the motion for relief and the petition for writ constituted second or successive habeas corpus applications that were not previously authorized by this court. The district court thus determined that it was without jurisdiction to entertain the matters and exercised its discretion to transfer them to this court. See 28 U.S.C. § 2244(b)(3); Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002) (per curiam).

On April 26, 2017, Williams filed an application for a certificate of appealability, reiterating his argument that he is ineligible to be executed based on his intellectual disability. He also filed a protective application under 28 U.S.C. § 2244, seeking leave to file a second or successive habeas petition in light of the Supreme Court’s March 28, 2017, holding in Moore v. Texas, — U.S.-, 137 S.Ct. 1039, 197 L.Ed.2d 416 (2017), and because no reasonable fact-finder could have sentenced Williams to death, had it known about his intellectual disability. In both matters, Williams filed related motions for stay of execution.

We consolidate the three matters now pending before us. With respect to the case transferred from the district court (No. 17-1892), we conclude that the motion for relief and the petition for writ constitute second or successive habeas applications, and we deny authorization for the district court to consider them. We deny Williams’s application for a certificate of appealability (No. 17-1893) as moot. We deny Williams’s protective application to file a second or successive habeas petition (No. 17-1896). We also deny the motions for stay of execution that are currently pending in each of the three cases.

I. Background

Williams began serving a life sentence on September 15, 1999, for capital murder, attempted capital murder, kidnapping, aggravated robbery, theft, and arson. He was imprisoned at the Cummins Unit of the Arkansas Department of Corrections. On October 3, 1999, Williams escaped from prison and proceeded to the nearby residence of Cecil Boren, where he killed Boren and stole Boren’s firearms and vehicle. Williams was captured the next day, after a high-speed car chase that ended when the vehicle he was driving collided with a water truck, killing its driver.

In 2000, Williams was convicted of the capital murder of Boren. During trial, Dr. Mark Cunningham, a clinical and forensic psychologist, testified that Williams suffered from a number of psychological problems and that he had an IQ score between 67 and 75, which Cunningham described as being on the “borderline between mental retardation and ... borderline intellectual functioning.” The verdict form included a mitigating circumstance of “borderline mental retardation,” and the jury did not indicate that it found evidence of this mitigating circumstance. Williams was sentenced to death. The Arkansas Supreme Court affirmed his conviction and sentence. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002).

Williams, through attorney Jeffrey Rosenzweig, thereafter petitioned for state post-conviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure. During the Rule 37 litigation, Williams requested authorization “to retain an investigator to probe into issues of jury bias and misconduct.” Williams v. State, 369 Ark. 104, 251 S.W.3d 290, 301 (2007). Williams pointed out that his case was tried in the county where the Cummins Unit is located, that many residents of that county were thus associated with the prison system, and that Boren had been an official of the prison system. Accordingly, Williams ar[468] gued that if any of the jurors had falsely represented “that neither they nor their families had association with the prison system or the Boren family, such false representations would entitle Williams to relief and would give him grounds to amend or supplement the Rule 37 petition to include a juror misconduct claim.” Id The circuit court denied funds for an investigation into juror misconduct. The Arkansas Supreme Court,held that the circuit court did not abuse its discretion in doing so, concluding that Williams had failed to demonstrate the need for an investigator. Id. at 302 (citing Williams v. Taylor, 529 U.S. 420, 443, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000)).

Williams’s Rule 37 petition also included a claim that trial counsel was ineffective in failing to submit evidence of mental retardation,1 which exempts a person from the death penalty under Arkansas law, and a claim that Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), precluded the imposition of the death penalty against him because he was mentally retarded. The circuit court granted Williams’s motion for funds to hire an expert and an investigator on his Atkins claim, whereupon Rosenzweig retained Dr. Ricardo Weinstein, a psychologist, as an expert, and Mary Paal, as a mitigation specialist. At a later evidentiary hearing, however, Rosenzweig informed the circuit court that Williams would not pursue either of the claims that were based on Williams’s alleged mental retardation. The circuit court denied Williams’s remaining claims, and the Arkansas Supreme Court affirmed the denial of post-conviction relief.2 See Williams, 251 S.W.3d at 303.

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Williams v. Kelley, 858 F.3d 464, 2017 U.S. App. LEXIS 7508, 2017 WL 2346158 (8th Cir. 2017).

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