Williams v. Kelley, s. 17-1892

Decision Date27 April 2017
Docket NumberNos. 17-1892,17-1896,17-1893,s. 17-1892
Citation858 F.3d 464
Parties Kenneth Dewayne WILLIAMS, Petitioner v. Wendy KELLEY, Director, Arkansas Department of Correction, Respondent
CourtU.S. Court of Appeals — Eighth Circuit

858 F.3d 464

Kenneth Dewayne WILLIAMS, Petitioner
v.
Wendy KELLEY, Director, Arkansas Department of Correction, Respondent

Nos. 17-1892
17-1893
17-1896

United States Court of Appeals, Eighth Circuit.

Submitted: April 26, 2017
Filed: April 27, 2017


James H. Moreno, Assistant Federal Public Defender, Shawn Nolan, FEDERAL COMMUNITY DEFENDER OFFICE, Philadelphia, PA, for Petitioner.

Kenneth Dewayne Williams, Pro Se.

Nicholas Jacob Bronni, Kelly Hook Fields, Kathryn Henry, Kent G. Holt, Assistant Attorney Generals, ATTORNEY GENERAL'S OFFICE, Little Rock, AR, for Respondent.

Before WOLLMAN, RILEY, and KELLY, Circuit Judges.

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

858 F.3d 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 factfinder 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 argued

858 F.3d 468

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.

Williams thereafter filed a petition for writ of habeas corpus in federal district court under 28 U.S.C. § 2254, arguing, among other things, that the denial of funds for an investigation into juror bias and misconduct was an unreasonable application of Williams v. Taylor . This petition did not include an Atkins claim. Williams argued that Taylor established that the investigation of jurors constitutes a reasonable litigation expense, and he urged the district court to authorize funds for an investigation into juror misconduct. The district court rejected Williams's argument that the Arkansas Supreme Court misapplied Taylor and concluded that state courts were not required to provide funds for investigation of jurors "merely upon a request that is unsupported by any allegation reflecting the existence of juror misconduct or a hint thereof." Williams v. Norris , No. 5:07cv00234, 2008 WL 4820559, at *16 (E.D. Ark. Nov. 4, 2008).

The district court denied Williams's habeas petition and granted a certificate of appealability on several grounds, including whether the circuit court had erred in denying Williams funding to investigate claims of juror bias and misconduct. We concluded that "Williams had no right to funding for an investigation to develop entirely speculative claims" and affirmed the denial of habeas relief.

858 F.3d 469

Williams v. Norris , 612 F.3d 941, 959 (8th Cir. 2010) ("[T]he Court specifically precluded this type of claim when it wrote, ‘[w]e do not suggest the State has an obligation to pay for investigation of as yet undeveloped claims.’ " (quoting Taylor , 529 U.S. at 443, 120 S.Ct. 1479 )), cert. denied , 562 U.S. 1290, 131 S.Ct. 1677, 179 L.Ed.2d 622 (2011).

On February 27, 2017, Arkansas Governor Asa Hutchinson scheduled Williams's execution for April 27, 2017. On April 11, Rosenzweig, who had represented Williams throughout Williams's state post-conviction proceedings and federal habeas proceedings, moved in federal district court for the appointment of co-counsel, which the court granted. Thereafter, James Moreno, an Assistant Federal Defender from the Capital Habeas Unit in the Eastern District of Pennsylvania, entered his appearance, and on April 21, the district court granted Rosenzweig's motion to withdraw from Williams's habeas matter. As set forth above, Williams thereafter filed in district court the motion for relief and the petition for writ that have been transferred here and also filed in this court an application for a certificate of appealability and a protective application to file a second or successive habeas petition.3

II. Motion for Relief from Judgment

We first consider William's argument that he is entitled...

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