Williams v. Kelley

• Decision Date: 24 April 2017
• Docket Number: No. 17-1825,17-1825
• Citation: 854 F.3d 1002
• Parties: Marcel Wayne WILLIAMS, Petitioner–Appellant v. Wendy KELLEY, Director, Arkansas Department of Correction, Defendant–Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

854 F.3d 1002

Marcel Wayne WILLIAMS, Petitioner–Appellant

v.Wendy KELLEY, Director, Arkansas Department of Correction, Defendant–Appellee

No. 17-1825

United States Court of Appeals, Eighth Circuit.

Submitted: April 24, 2017

Filed: April 24, 2017

Scott Braden, Assistant Federal Public Defender, Jason Phillip Kearney, Josh Lee, Assistant Federal Public Defender, Little Rock, AR, Bruce Eddy, Federal Public Defender, Fayetteville, AR, Federal Public Defender's Office, for Petitioner–Appellant.

Marcel Wayne Williams, Pro Se.

Nicholas Jacob Bronni, Kelly Hook Fields, Christian Harris, Kent G. Holt, Assistant Attorney General, Adam Donner Jackson, Assistant Attorney General, Rachel Marie Kemp, Attorney General's Office, Little Rock, AR, for Defendant–Appellee.

Before WOLLMAN, LOKEN, and SHEPHERD, Circuit Judges.

PER CURIAM.

Arkansas inmate Marcel Williams moves for a stay of his execution scheduled to be carried out on April 24, 2017. Williams was convicted of capital murder, kidnaping, rape, and aggravated robbery and sentenced to death on January 14, 1997 in the Circuit Court of Pulaski County. The Arkansas Supreme Court affirmed his conviction and sentence on direct appeal. Williams v. State , 338 Ark. 97, 991 S.W.2d 565 (1999). Williams sought and was denied state post-conviction relief. Williams v. State , 347 Ark. 371, 64 S.W.3d 709 (2002). He petitioned for a federal writ of habeas corpus, which the district court granted in part, but on appeal we denied in its entirety, Williams v. Norris , 576 F.3d 850 (8th Cir. 2009), cert. denied , Williams v. Hobbs , 562 U.S. 1097, 131 S.Ct. 558, 178 L.Ed.2d 542 (2010). His first Rule 60(b) motion for relief from judgment was denied in 2015. Williams v. Norris , No. 15–2665 (Sept. 14, 2015). Williams challenged the State's lethal injection method of execution with other Arkansas inmates in Kelley v. Johnson , 2016 Ark. 268, 496 S.W.3d 346, 357–60 (2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 1067, 197 L.Ed.2d 235 (2017). Six days after the Supreme Court denied certiorari in Kelley , Arkansas Governor Asa Hutchinson set Williams's execution date for April 24, 2017. In consolidated federal cases, Williams has unsuccessfully challenged the three-drug lethal injection method, seeMcGehee v. Hutchinson , No. 17–1804, 854 F.3d 488, 2017 WL 1404693 (8th Cir. Apr. 17, 2017) (per curiam), cert. denied , 580 U.S. ––––, 137 S.Ct. 1275, 197 L.Ed.2d 746, 2017 WL 1414915 (2017) (No. 16–8770), and the "frantic pace" of the execution schedule as a due process violation, Lee v. Asa Hutchinson , No. 17–1822, 854 F.3d 978, 2017 WL 1414658 (8th Cir. April 20, 2017) (per curiam). The Arkansas Parole Board denied Williams's clemency petitions in June 2011 and April 2017.

On the eve of the scheduled execution, Williams filed this new Rule 60(b)(6) motion seeking to re-open the denial of federal habeas relief in 2009. Renewing his claims of ineffective assistance of counsel at the guilt and penalty phases of his trial, Williams argues that post-conviction counsel's failure to properly raise these claims in the state collateral proceedings was an extraordinary circumstance resulting in procedural defaults that are now excused under recent United States Supreme Court decisions. The district court¹ denied Rule 60(b) relief but granted a certificate of appealability. Williams appealed and now moves for a stay of execution pending full briefing of his appeal. We deny the motion for a stay.

I.

Williams abducted, robbed, raped, and murdered Stacy Erickson in November 1994. At trial, Williams was defended by Herbert Wright, who had five years criminal defense experience, including involvement in three other capital cases; Phillip Hendry, who had four years experience, including training in representing capital murder defendants, and took the lead during the penalty phase; and William James, an attorney licensed for less than one year. Given the State's overwhelming evidence, the defense conceded guilt in its opening statement at trial but challenged the State's evidence. At the penalty phase, the defense argued six mitigating circumstances, but introduced only the testimony of a former death row inmate as mitigation evidence. The State introduced "compelling" evidence of three aggravating circumstances. The jury found the State "proved three aggravating circumstances beyond a reasonable doubt, that Williams proved one mitigating circumstance—acceptance of responsibility—by a preponderance of the evidence, and that the aggravating circumstances outweighed the mitigating circumstance beyond a reasonable doubt." Williams , 576 F.3d at 855. The jury unanimously recommended death, the trial court accepted the jury's recommendation, and the Supreme Court of Arkansas affirmed. Williams v. State , 338 Ark. 97, 991 S.W.2d 565.

Williams then sought post-conviction relief under Arkansas Rule of Civil Procedure 37, arguing that trial counsel were ineffective because they did not properly develop and present mitigation evidence regarding his troubled past during the penalty phase. Williams was represented by William McLean, an attorney who had "practiced criminal law for over ten years, served as lead counsel in other capital murder cases, handled other post-conviction matters, and tried at least 100 jury cases." Williams , 576 F.3d at 854–55. At the Rule 37 hearing, "all three [members of Williams's trial team] testified that their trial strategy was to concede guilt, in the face of the State's overwhelming evidence, and to seek mercy at the penalty phase." Id. at 855. To obtain mitigation evidence, they ordered a mental evaluation of Williams and reviewed his school, medical, and prison records but made the decision not to present the evidence obtained through these investigations:

[T]hey decided not to have Williams testify at the penalty phase because they feared damaging cross-examination about his drug use and criminal history and the gruesome details of the crime.... [They] considered Williams not to be a credible witness because of the numerous fabrications in his custodial statement. Williams told counsel he did not wish to testify. Counsel twice tried to interview Williams's mother, Sara Riggs ... [but] elected not to call Riggs during the penalty phase because she was ‘not very cooperative.’

Williams , 576 F.3d at 856. The state trial court found that Williams failed to show prejudice under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Arkansas Supreme Court affirmed, concluding Williams failed to show either deficient performance or prejudice. Williams , 64 S.W.3d 709 (2002). The Court determined that trial counsel's decision not to present mitigation evidence was "a reasonable trial strategy" and that Williams "failed to show what the omitted testimony was and how it could have changed the outcome." Id. at 715–16.

Williams's amended petition for a federal writ of habeas corpus raised 20 grounds for relief. As relevant here, Claim II argued ineffective assistance of trial counsel for failure to present mitigation evidence at the penalty phase. Claim III argued ineffective assistance during the guilt phase. The district court dismissed Claim III as procedurally defaulted because Williams had not raised guilt phase ineffective assistance in state court. Williams v. Norris , No. 5:02-cv-450, 2006 WL 1699835, at *6 (E.D. Ark. June 19, 2006).

As to the penalty phase issues raised in Claim II, the district court concluded that the Supreme Court of Arkansas unreasonably determined that trial counsel's performance was not deficient, based primarily on the assumption that counsel were unaware they could present mitigation evidence through a social history expert. Williams , 2006 WL 1699835 at *8. The court concluded the state court record was inadequate on the prejudice issue and held an evidentiary hearing at which Williams introduced mitigation evidence. Trial counsel Wright and James testified they were unaware mitigation evidence could include testimony by a social history expert. A psychologist "recounted Williams's social history based on interviews with Williams, his mother, half-sister Peggy O'Neil and a cousin, and reviews of Williams's medical, training school, and prison records. O'Neal, four cousins, and a training school counselor also testified." Williams , 576 F.3d at 856. The district court concluded it was reasonably likely Williams would not have been sentenced to death had this mitigation evidence that was not before the state court been presented. Williams v. Norris , 2007 WL 1100417 at *3 (E.D. Ark. Apr. 11, 2007). The court granted federal habeas relief and set aside the death sentence.

On appeal, we reversed the grant of penalty phase habeas relief and denied Williams's petition for a writ of habeas corpus. We concluded the evidentiary hearing the district court held was barred by 28 U.S.C. § 2254(e)(2) because there was no evidence that Williams had not been able to develop his claim in state court. We also questioned whether the social history testimony would have been admissible in state court without corroborating testimony (Williams refused to testify and his mother was uncooperative and not credible), and whether its admission would have changed the outcome, because it was based on a record damaging to Williams. We concluded the state court did not unreasonably apply Strickland in finding that Williams failed to show prejudice from allegedly ineffective assistance at the penalty phase. Although we ruled based on the prejudice prong of Strickland , we noted that the district court, in concluding counsel were guilty of deficient performance, assumed that Hendry, lead trial counsel at the penalty phase, was ignorant of the ability to present social history mitigation evidence, based solely on the testimony of his co-counsel; "we are inclined to think the district court clearly erred" in that assumption. Williams , 576 F.3d at 856 n.1. The Supreme Court denied...