IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
MARCEL WAYNE WILLIAMS,
Appellant,
v.
WENDY KELLEY, 1 Director
Arkansas Department of Correction,
Appellee.
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CAPITAL CASE
EXECUTION DATE APRIL 24,
2017 at 7:00 pm
CASE NO. 17-1825
_____________________________________________
MOTION FOR STAY OF EXECUTION
_____________________________________________
JENNIFFER HORAN
FEDERAL DEFENDER
Scott W. Braden
Assistant Federal Public Defender
Chief Capital Habeas Unit
Ark Bar Number 2007123
1401 W. Capitol Suite 490
Little Rock, AR 72201
Phone: (501) 324-6114
E-mail: [email protected]
1
Jason P. Kearney
Federal Public Defender Office
Capital Habeas Unit
Ark Bar Number 2008208
104 W. Capitol Suite 490
Little Rock, AR 72201
Phone: (501) 324-6114
E-mail: [email protected]
Director Kelley is substituted for Mr. Larry Norris under Fed. R. Civ. P. 25(d).
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INTRODUCTION
Petitioner Marcel Williams respectfully requests a stay of execution pending
appeal. The district court has issued a Certificate of Appealability. Mr. Williams is
therefore entitled to a stay so that this Court may resolve the issues after full
briefing by the parties.
Mr. Williams seeks relief from judgment pursuant to Federal Rule of Civil
Procedure 60(b)(6) in order to pursue a merits ruling on his procedurally defaulted
ineffective-assistance-of-trial-counsel claims. Those claims include numerous
counsel errors occurring during both the guilt and penalty phases of Mr. Williams’s
trial. State post-conviction counsel’s subsequent failure to properly raise these
claims has consistently prevented Mr. Williams from addressing their merits in
front of a court of competent jurisdiction. As a result, Mr. Williams is now
scheduled to be executed in less than a week on the basis of a death sentence
handed down in violation of his constitutional rights by a jury that was never
presented with significant, and likely dispositive, factors in mitigation.
The District Court issued its decision on April 18, 2017. While denying
relief, the District Court granted a Certificate of Appealability (COA). See
Opinion and Order, Williams v. Kelley, Case No. 5:02-cv-00450-JLH (E.D. Ark.
Apr. 18, 2017). Dkt. No. 141. Accordingly, the District Court has ruled that the
questions it decided adversely to Mr. Williams – namely, whether he has filed
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“within a reasonable time,” established “extraordinary circumstances” as required
under Federal Rule of Civil Procedure 60(b), and whether his request to reconsider
his penalty-phase claims represent a second or successive habeas petition – are
worthy of appellate review because “the issues are debatable among jurists of
reason; . . . a court could resolve the issues [in a different manner]; or . . . the
questions are adequate to deserve encouragement to proceed further.” Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983) (internal quotation marks omitted, bracketed
material in original); Slack v. McDaniel, 529 U.S. 473, 483 (2000); Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003).
Under Barefoot and this Circuit’s Local Rules, when the District Court
grants a COA, a stay of execution pending appeal must be granted so the issues
can be given the full appellate briefing, argument, and judicial review that they
deserve. Barefoot, 463 U.S. at 893-94 (“[A] circuit court, where necessary to
prevent the case from becoming moot by the petitioner’s execution, should grant a
stay of execution pending disposition of an appeal when a condemned prisoner
obtains a certificate of probable cause.”); Eighth Circuit Local Rule 47A (“[I]n an
in forma pauperis appeal in which a certificate of appealability has been issued, the
court will afford 14 days’ notice before entering summary disposition if the briefs
have not been filed.”) (emphasis supplied). A stay should therefore be granted.
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HISTORY OF THE CASE
A.
Guilt Phase
Mr. Williams was charged in the Circuit Court of Pulaski County, Arkansas,
with capital murder for causing the death of Stacy Errickson. Mr. Williams was
represented at trial by Herb Wright, Jr., Phillip Hendry, and William James. The
Honorable Chris Piazza presided over the trial.
Leading up to his trial, Mr. Williams’s attorneys devised a plan to concede
his guilt in an attempt to curry favor with the jury in hopes that it would return a
life sentence. Counsel, however, failed to investigate for mitigating facts and as a
result they failed to develop a competent mitigation strategy. During voir dire, the
lack of any mitigation plan led to counsel ineffectively questioning potential jurors
about their ability to consider mitigation evidence. (Trial Record 94 – 94. 99).
Counsel also failed to move for the removal of potential juror Kay Barfield after
she stated that she could not consider mitigation. (TR. 238). This occurred despite
counsel only having used two peremptory strikes at that time. Mrs. Barfield was
seated on the voting jury. (TR. 240).
Other prejudicial errors were made by counsel during the trial’s guilt phase.
Counsel failed to object when highly inflammatory victim impact evidence was
introduced during direct examination of the victim’s mother. (TR. 574). Because
they elected not to contest guilt, counsel failed to request funding for an expert to
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examine the state’s DNA evidence and also failed to ask even one crossexamination question of the state’s DNA expert. (TR. 967). The state’s DNA
expert was allowed to testify about a t-shirt that was found in the bedroom of Mr.
Williams’s then girlfriend, which had his DNA on it. (TR. 964). There was no
testimony, however, that this shirt somehow linked Mr. Williams to the murder of
Stacy Errickson. Because the expert was not cross-examined, the implication was
not refuted in front of the jury. There were also other pieces of physical evidence –
a towel (TR. 966), panty hose (TR. 966, 1033), and a vaginal swab (TR. 967) –
which contained “inconclusive DNA evidence. The state’s DNA expert was
allowed to imply that each of these items somehow tied Mr. Williams to the crime,
but was not challenged on the inconclusive nature of the DNA evidence in front of
the jury.
Counsel also failed to effectively raise and argue the issue of prosecutors
striking four potential jurors in an intentionally racially discriminatory manner.
These four challenges were made against potential jurors Shirley Ann Artis (TR.
168 – 172), Columbus Strain (TR. 367), Lou Chandler (TR. 428) and Cynthia
Collins (TR. 462). Juror Collins was ultimately reseated by the Court in response
to the defense objection; the other three jurors were excused. The state ultimately
used only six of its peremptory challenges. Prosecutors, in each instance, gave
purportedly racially-neutral reasons for striking these potential jurors that were
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later revealed as being pre-textual, as white potential jurors were not challenged for
those same reasons. Trial counsel failed to further press the impermissible
challenges under Batson v. Kentucky, 476 U.S. 79 (1986).
In response to the Batson issued being raised, the trial court indicated its
hostility to the Batson decision generally, labeling it a “ridiculous concept” and a
“terrible mistake.” (TR 465). According to the court, the United States Supreme
Court did not set forth sufficient guidelines to the courts as to how to implement
Batson and, as such, placed “a burden on the judiciary that is just untenable.” Id.
Trial counsel made no objection based upon these comments. Ultimately, Mr.
Williams’s juror had three less black members because of trial counsels’ failure to
properly argue the Batson issue, a jury which was ultimately majority white.
B.
Penalty Phase
The jury heard no mitigating evidence about Mr. Williams. The evidence
which was presented to his jury consisted solely of testimony from a prisoner who
was at the time serving a sentence of life without parole in the Arkansas
Department of Correction. (TR. 1070). This prisoner had never met Mr. Williams
and knew nothing about him or his family. (TR. 1072). He was not an expert in any
field of social science or childhood development. In fact, he could offer nothing
more than his opinion that serving a sentence of life without parole was not
preferable to living on death row – and was perhaps worse than being put to death.
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(TR. 1079). Mr. Williams’s trial attorneys failed miserably in their duty to
investigate and present mitigation evidence to the jury.
Not one fact about Mr. Williams himself was presented to the jury at any
point during trial or sentencing. His attorneys altogether failed to seek the
assistance of investigators, doctors and other experts to explain the effects of
trauma to jurors. No family members were interviewed. No records or other
sources of family history were requested or obtained. At that time, Mr. Williams’s
attorneys should have known that failing to present certain mitigation evidence
during the sentencing phase of trial would very likely mean that Mr. Williams
would be barred from trying to present that same evidence later in appellate or
post-conviction proceedings. Common rules of law well known to any competent
attorney make it very difficult to raise issues or present facts when you failed to
present them during the first opportunity to do so (usually trial). Considering that
essentially no mitigation evidence was presented at his trial, it would seem likely
that Mr. Williams would be forever barred from bringing up any part of his past as
justification for being spared a death sentence.
The jury sentenced Mr. Williams to death on January 14, 1997. The
Arkansas Supreme Court affirmed the conviction and sentence on June 10, 1999.
See Williams v. State, 991 S.W.2d 565 (1999). Mr. Williams did not seek
certiorari review.
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C.
State Post-conviction.
Mr. Williams was appointed attorney Bill McLean to represent him through
his state post-conviction proceedings (Rule 37). The primary allegation asserted
was that Mr. Williams’s trial attorneys provided ineffective assistance of counsel
by failing to investigate mitigating evidence and present it to the jury during
sentencing. This was set forth in one sentence, buried within a four page petition
submitted to the trial court. It was not supported by any facts or references to law –
the lone sentence stood unaccompanied. A hearing was scheduled to entertain this
allegation of trial counsel ineffectiveness.
In order to obtain relief on such a claim, two things needed to be proven at a
Rule 37 hearing: 1) that trial counsels’ failure to present such evidence constituted
representation which fell below the constitutionally acceptable standard, and; 2)
that Mr. Williams was prejudiced as a result of this failure and was denied a fair
trial. In order to satisfy the second part of this test, counsel must actually present
the evidence that should have put forth in the first place, so that the post-conviction
judge can make a determination as to whether that evidence would have made a
difference at sentencing. Thus, the post-conviction attorney is required to
undertake the same investigative process required of trial counsel, and present such
mitigating evidence during the Rule 37 proceeding – as if it were a sentencing
hearing.
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Bill McLean did not undertake such an investigation. He did nothing to
look into Mr. Williams’s background. He did not interview any friends or family
members. He failed to request or obtain school, health or social records for Mr.
Williams. He did not seek the assistance of any investigators, doctors or other
experts, or ask the Court to appoint such experts at no cost to Mr. Williams
(assistance which is routinely granted in capital cases). McLean’s sole approach
was to have Mr. Williams’s trial attorneys describe all of the evidence they should
have or would have presented at trial, in hindsight. Indeed, their testimony was the
only evidence presented on Williams’ behalf at the Rule 37 hearing (and the
transcript of Williams’s original sentencing hearing). There were no other
witnesses, experts or items of evidence put forth. In denying Williams’s Rule 37
petition, the trial judge said that Attorney McLean “no factual substantiation that
convinces this Court that there is a reasonable probability that the outcome of the
sentencing phase of the trial would have been different had the jury heard specific
testimony of a specific witness.” (Post-Conviction Record p. 31).
D.
Federal Habeas.
After he was denied relief in the state courts, Mr. Williams filed a federal
habeas petition challenging his death sentence on, inter alia, the grounds that his
trial lawyers rendered ineffective assistance of counsel at the guilt and penalty
phases of his trial. The specific factual grounds, supporting facts from the trial
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record, and legal premises were categorically different from those presented during
Mr. Williams’s Rule 37 proceedings. Mr. Williams’s Amended Petition was filed
on April 8, 2005.
On June 19, 2006, the District Court issued a 21 page opinion, ruling that the
habeas pleadings and record dictated a finding that trial counsels’ performance was
deficient during the penalty-phase. The claims concerning counsel’s
ineffectiveness during the guilt-phase were denied as being procedurally defaulted,
for not having been fairly presented to the state courts.
Citing trial counsels’ admission that they were simply ignorant of the
“concept of using a psychiatrist or psychologist or some type of mitigation
specialist to come and present a life history of the client,’” the court found that “the
failure to put on any mitigation evidence was not a strategy; it was purely the result
of the fact that his lawyers ... did not know how to present the mitigation
evidence.” Dkt. 35 at 11. As the court put it, particularly because they “concede[d]
guilt” at the first stage, “it was incumbent upon Williams’s lawyers to do
something at the sentencing phase; but, in effect, they did nothing at the sentencing
phase.... [D]oing nothing at the sentencing phase was not a strategy.” Id. The court
further determined that the Arkansas Supreme Court's finding to the contrary was
“clearly erroneous,” “an unreasonable determination of the facts,” and rebutted “by
clear and convincing evidence.” Id. at 11-12.
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An evidentiary hearing was held on December 13, 2006 to determine
whether counsels’ errors at the penalty phase rendered the penalty phase
unreliable. For his part, Mr. Williams elicited, without objection, testimony from
lay and expert witnesses proving that his trial attorneys would have presented a
compelling case in mitigation had they performed as the reasonably effective
advocates guaranteed by the Sixth Amendment. As the district court found, Mr.
Williams proved that the jury would have heard:
that Marcel Wayne Williams was subject to every category of traumatic
experience that is generally used to describe childhood trauma. He was
sexually abused by multiple perpetrators. He was physically abused by
his mother and stepfather, who were his primary caretakers. He was
psychologically abused by both of his primary caretakers. He was subjected
to gross neglect in all categories of neglect: medical, nutritional,
educational. He was a witness to violence in the home and his
neighborhood throughout his childhood. As an adolescent, he was
violently gang-raped in prison.
Dkt. 94 at 4.
On April 11, 2007, the district court granted habeas corpus relief on Mr.
Williams’s ineffective assistance of penalty-phase counsel claim. On the merits,
the district court held that the “evidence here is as compelling as the evidence in
Wiggins v. Smith, 539 U.S. 510 (2003)], where the Supreme Court granted a
petition for writ of habeas corpus under the AEDPA. Id at 5.
“Likewise,” the court held, “the evidence here is as compelling as the
evidence in Simmons v. Luebbers, 299 F.3d 929 (8th Cir. 2002), where the court
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also granted a petition for writ of habeas corpus ... for fail[ure] to present at the
penalty phase evidence that the defendant had been abused and neglected during
childhood.” Id. The court concluded:
The lawyers who defended Marcel Wayne Williams were ineffective in
failing to present mitigation evidence at the penalty phase of his capital
trial, and it is reasonably likely that, had that evidence been presented,
the jury would have returned a verdict of life without parole rather than
death. Williams's death sentence was imposed in violation of his right to
counsel as clearly established by the United States Supreme Court in
Strickland . ... The decision of the Arkansas courts to the contrary is an
unreasonable application of the holding of Strickland to the facts of this
case. Therefore, Williams's death sentence must be set aside.
Id.
On August 17, 2009, this Court reversed the grant of habeas relief on appeal.
This Court defined “[t]he critical question” as “whether the district court erred by”
“grant[ing] habeas relief on an evidentiary record never presented to the state
courts.” Williams v. Norris, 576 F.3d 850, 859 (8th Cir. 2009). The Court held:
The district court erred in granting an evidentiary hearing when the
mandatory restrictions in § 2254(e)(2) barred a hearing. Accordingly, we
must decline to consider the evidence presented at that hearing and
review .... the state court determination that Williams failed to prove
Strickland prejudice on the factual record he developed in state court. On
that record, the state court decision was neither contrary to nor an
unreasonable application of Strickland. Accordingly, habeas relief on this
claim must be denied.
Id. at 862 - 63. This Court rejected Mr. Williams’s claim that § 2254(e)(2) should
not be considered, and entered its Mandate on December 2, 2009. Dkt. 115.
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A STAY IS WARRANTED AS APPELLANT HAS MADE A
SUSBSTANTIAL SHOWING OF HIS RIGHT TO REOPEN THE
JUDGMENT AND OF SUCCESS ON THE MERITS OF HIS CLAIM
Marcel Williams endured a childhood marred by poverty, instability, and
abuse – both sexual and violent. But Mr. Williams’s jury did not hear of his
upbringing or how the childhood trauma he suffered should be viewed as mitigating.
His counsels’ errors assured that he would never be able to tell his story to any jury.
Those same errors also failed to ensure that the only jury Mr. Williams would ever
have would be free of bias, and open to mitigation evidence. Mr. Williams was
doomed to be sentenced to death when his trial attorneys were appointed. He now
faces an imminent execution while the ineffectiveness of counsel remains without
review and uncorrected. This Court should grant a stay to permit full briefing of the
procedural and substantive issues raised herein.
I.
Appellant Meets the Standard for Reopening the Judgment Under Rule
60(b)(6).
Recently, in Buck v. Davis, 137 S. Ct. 759, 777-78 (2017), the Supreme
Court made clear that Rule 60(b)(6) is the proper vehicle to reopen a judgment
where claims of trial counsel ineffectiveness were deemed defaulted by state postconviction counsel. As did the petitioner in Buck, Mr. Williams demonstrates his
eligibility for relief under Rule 60(b).
A.
Claims of Ineffective Assistance of Counsel at the Penalty Phase
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were not decided on the Merits in State Court
A petitioner must present both the law and the facts are presented to the state
court to preserve the claim for federal review. Keithly v. Hopkins, 43 F.3d 1216,
1217 (8th Cir. 1995) (“both the factual and legal premises of his claims to the state
courts in order to preserve them for federal habeas review.”); Flieger v. Delo, 16
F.3d 878, 884 (8th Cir.) (quoting Cox v. Lockhart, 970 F.2d 448, 454 (8th
Cir.1992)), cert. denied, 513 U.S. 946 (1994).
The District Court is to look to the state court record to determine what was
presented to the state court. Nothing was presented in state post-conviction
proceedings about Mr. Williams’s upbringing, about the trauma of the poverty he
suffered growing up, the effects thereof or any of the evidence presented to the
District Court during habeas proceedings. Because none of these facts, which
support the claim of trial counsel ineffectiveness, were introduced during state
post-conviction proceedings, the claims were not fairly presented in state court.
The Eighth Circuit case of Flieger v. Delo, 16 F.3d 878 (8th Cir. 1994) is
particularly instructive. There, like here, the appellate court was trying to
determine whether a claim of ineffective assistance of trial counsel had been
exhausted in state court. Mr. Flieger had presented to the state court a broad claim
of ineffective assistance of counsel with some “specific ineffectiveness claims.” Id.
The court held that presenting a few instances had not “properly presented all
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conceivable specific variations for the purpose of federal habeas review.” Id. at
885. The court held “[w]e reiterate the settled law of this Circuit that a habeas
petitioner must have raised both the factual and legal bases for each
ineffectiveness of counsel claim in the state courts in order to preserve the claim
for federal review.” Id. (emphasis added).
So the fact that Mr. Williams may have presented an allegation of trial
counsel ineffectiveness with some supporting instances in post-conviction
proceedings is not sufficient, under Eighth Circuit law, to have presented the
universe of trial counsel ineffective assistance of counsel claims. Some claim may
have been presented, but that did not “fairly present” the specific trial counsel
ineffectiveness claims raised in the habeas proceedings. Dkt. 17 at 13 – 41. The
development of new facts give rise to new claims of trial counsel ineffectiveness -claims never presented before. Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir.
2014) (“We conclude that the new allegations and evidence Dickens presented to
the federal district court fundamentally altered Dickens’s previously exhausted
IAC claim. Indeed, the new evidence creates a mitigation case that bears little
resemblance to the naked Strickland claim raised before the state courts.”). The
Ninth Circuit determined that new claims presented in federal court had not been
presented and were therefore procedurally barred. Id.
Under controlling Eighth Circuit law, because counsel for Mr. Williams in
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post-conviction proceedings failed to present both the law and the specific facts of
ineffective assistance of trial counsel, the habeas ineffective assistance of trial
counsel claims are defaulted. Because they have not been fairly presented to the
state court the District Court should have been barred from reviewing the claims
absent a showing of cause. Duncan v. Henry, 513 U.S. 364, 365 (1995); Dansby v.
Hobbs, 766 F.3d 809, 823 (8th Cir. Ark. 2014) (“A petitioner must present ‘both
the factual and legal premises’ of his claims to the state courts in order to exhaust
the claims properly.”); Flieger v. Delo, 16 F.3d 878 (8th Cir. 1994); Gilliland v.
Kelley, 2015 U.S. Dist. LEXIS 77741 at 6, Case Number 14-6139 (W.D. Ark.
2015) (“This requires that the factual and legal bases for the federal habeas claim
be presented to the state courts before the federal habeas court may consider the
merits of the claim.”); Johnson v. Hobbs, 2013 U.S. Dist. LEXIS 188282 at 5, Case
Number 1:12-cv-1078 (W.D. Ark. 2013) (“A federal habeas petitioner must
present ‘both the factual and legal premises’ of his claims to the state courts in
order to preserve them for federal habeas review.”); Solomon v. Hobbs, 2012 U.S.
Dist. LEXIS 95672 at 6, Case Number 5:12-CV-05011 (W.D. Ark. 2012) (“This
requires that the factual and legal bases for the federal habeas claim be presented to
the state courts before the federal habeas court may consider the merits of the
claim.”); Marlin v. Beebe, 2011 U.S. Dist. LEXIS 74941 at 9, Case Number 5:11CV-05060-JLH (W.D. Ark. 2011) (“A claim is not fairly presented to the state
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courts unless the same factual grounds and legal theories asserted in the prisoner’s
federal habeas corpus application have been properly raised in the prisoner’s state
court proceedings.”). Mr. Williams’s claims remain defaulted.
The ineffectiveness of post-conviction counsel in failing to raise substantial
claims of trial counsel ineffectiveness is now considered cause that will excuse a
procedural default. Martinez v. Ryan, 566 U.S. 1 (2012); Sasser v. Hobbs, 735 F.3d
833, 851 (8th Cir. 2013). Since the changed legal landscape brought about by
Martinez, the Eighth Circuit has paid closer attention to the procedural default of
claims against counsel at capital sentencing as a result of post-conviction counsel’s
performance. See Sasser v. Hobbs, 735 F.3d 833, 853 (8th Cir. 2013).
Prejudice resulting from post-conviction counsel’s ineffectiveness must also
be shown in order for a procedural default to be excused. Williams now seeks an
opportunity to prove this prejudice at an evidentiary hearing in the District Court.
The relief sought in his current motion for relief from judgment must first be
granted, so that the claims at issue can be treated as defaulted, and he can present
evidence showing that the default should be excused.
B.
The Motion Set Forth the “Extraordinary Circumstances”
Necessary to Reopen a Judgment under Rule 60(b)(6).
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The extraordinary circumstances invoked by Mr. Williams’s case are every
bit as compelling as the circumstances accepted as sufficient by the Supreme Court
in Buck v. Davis, 137 S. Ct. 759, 777-78 (2017).
1.
Appellant was Prejudiced by Trial Counsels’ Deficient
Performance; The only court to consider the true merits of
Mr. Williams’s penalty-phase claims found that he was
entitled to habeas relief.
In Buck, the Supreme Court emphasized that the underlying merits of a
claim, including claims of prejudice resulting from counsel’s ineffectiveness, can
constitute extraordinary circumstances justifying relief under Rule 60(b)(6). See
Buck, 137 S. Ct. at 778. Prejudice amounting to extraordinary circumstances is
present in this case, as well, as the only court to ever consider the merits of Mr.
Williams’s habeas claims of ineffectiveness of penalty phase counsel found that he
was entitled to relief.
The Supreme Court in a host of cases has made clear that capital counsel’s
penalty phase duties are substantial, starting with a thorough investigation. In
Wiggins v. Smith, 539 U.S. 510 (2003), the Supreme Court, after observing “[t]he
lawyer also has a substantial and important role to perform in raising mitigating
factors both to the prosecutor initially and to the court at sentencing,” concluded
“[i]nvestigation is essential to fulfillment of these functions.” Id. at 524-25 (citing
1 ABA Standards for Criminal Justice 4–4.1, commentary, p. 4–55 (2d ed.1982));
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see also Sears v. Upton, 561 U.S. 945, (2010); Porter v. McCollum, 558 U.S. 30
(2009); Rompilla v. Beard, 545 U.S. 379 (2005); Williams v. Taylor, 529 U.S. 352
(2000).
Competency of counsel required under Wiggins was not present in Mr.
Williams’s case. Trial counsel was on notice of some factors which demanded
further investigation and the assistance of qualified experts. Had counsel conducted
the requisite investigation they would have readily discerned the necessity for a
thorough exposition of all aspects of Mr. Williams’s psychosocial history by a
trained social historian and an evaluation by an expert in childhood trauma and
post-traumatic stress disorder, including the neurobiological and psychological
sequelae of physical, sexual and psychological abuse and neglect and chronic
exposure to violence and fear as a victim and as a witness.
There are significant parallels between this case and Buck. In reviewing the
claim of extraordinary circumstances in Buck, the Supreme Court focused largely
on counsel’s ineffectiveness for interjecting issues of race into the sentencing
process. Buck, 137 S. Ct 775. Buck was victimized by his own lawyer, who
allowed a defense expert to testify that Buck’s race was a factor that made him
potentially more dangerous. The Court began by reaffirming the core goal of Rule
60(b): “In determining whether extraordinary circumstances are present, a court
may consider a wide range of factors, [including] the risk of injustice . . . and the
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risk of undermining the public’s confidence in the judicial process.” Id. at 777–78
(emphasis supplied; internal citation omitted). Commenting on the role race may
have played, the Court observed:
[O]ur holding on prejudice makes clear that Buck may have been sentenced
to death in part because of his race. As an initial matter, this is a disturbing
departure from a basic premise of our criminal justice system: Our law
punishes people for what they do, not who they are. Dispensing punishment
on the basis of an immutable characteristic flatly contravenes this guiding
principle.
Id. at 778.
The Supreme Court’s resolve to enforce the Sixth Amendment and ensure
adequate representation at capital sentencing is no less present here, where the jury
was not provided with the testimony needed to make a comprehensive
determination of the existence and weight of mitigating circumstances. See
Wiggins, 539 U.S. at ___ (2003) (“[t]he lawyer also has a substantial and important
role to perform in raising mitigating factors both to the prosecutor initially and to
the court at sentencing”) (emphasis supplied). See also Sears v. Upton, 561 U.S.
945 (2010) (same); Porter v. McCollum, 558 U.S. 30 (2009) (same); Rompilla v.
Beard, 545 U.S. 379 (2005) (same); Williams v. Taylor, 529 U.S. 352 (2000)
(same)..
The proposition that childhood trauma and the resulting effects can reduce
culpability recognizes that these factors, while not absolving the actor of criminal
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responsibility, are simply beyond the defendant’s control. That, due to counsel’s
ineffectiveness, the jury was deprived of these likely dispositive factors surely
presents the “risk of injustice” and “the risk of undermining the public’s
confidence in the judicial process” that animated the Court’s reasoning in Buck.
2.
The writ of habeas corpus plays a vital role in protecting
constitutional rights, particularly in capital cases.
It is also significant that this capital case comes before this Court not as an
ordinary civil matter, but on capital habeas review. As Martinez and Trevino make
clear, the Supreme Court has put renewed emphasis on the role of habeas corpus,
assuring federal review even in cases where an otherwise not constitutionally
required lawyer performed deficiently. “The writ of habeas corpus plays a vital
role in protecting constitutional rights,” Slack v. McDaniel, 529 U.S. 473, 483
(2000), and has been “aptly described as the ‘highest safeguard of liberty,’”
Lonchar v. Thomas, 517 U.S. 314, 322 (1996) (quoting Smith v. Bennett, 365 U.S.
708, 712 (1961)); see also Boumediene v. Bush, 553 U.S. 723, 798 (2008) (habeas
corpus is “a right of first importance”); Johnson v. Avery, 393 U.S. 483, 485 (1969)
(Supreme “Court has constantly emphasized the fundamental importance of the
writ of habeas corpus in our constitutional scheme”).
The interest in merits review (and, thus, Rule 60(b)(6) relief) is even
stronger here than in an ordinary habeas case with strong claims, because this is a
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capital habeas case. Burger v. Kemp, 483 U.S. 776, 785 (1987) (“Our duty to
search for constitutional error with painstaking care is never more exacting than it
is in a capital case.”); Ford v. Wainwright, 477 U.S. 399, 411 (1986) (capital case
requires “the high regard for truth that befits a decision affecting the life or death
of a human being”); Cox v. Horn, 757 F.3d 113, 126 (3d Cir. 2014) (“Courts must
treat with particular care claims raised in capital cases.”). Because Mr. Williams’s
execution is scheduled to occur in less than a week, this circumstance should be
given substantial weight.
3.
Martinez and Trevino dramatically altered habeas corpus
procedure.
Finally, the revolution in the law represented by Martinez and Trevino, even
if not dispositive, carries much weight in the “extraordinary circumstance”
calculus.
Under Coleman, a state could provide an inadequate attorney at trial, and an
even worse one in post-conviction, and thus effectively deprive a defendant of the
Sixth Amendment right to effective counsel. Martinez made great strides in
remedying that anomaly. 132 S. Ct. at 1316 (noting, “[w]hen an attorney errs in
initial-review collateral proceedings, it is likely that no state court at any level will
hear the prisoner’s claim”). This jurisprudential leap forward is rightfully
considered as a significant factor in whether a Rule 60(b) motion should be
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entertained. See, e.g., See Buck, 137 S. Ct. at 780; see also id. at 772, 778 (district
court abused its discretion where it rejected reliance on Martinez and Trevino by
reasoning that “a change in decisional law is rarely extraordinary by itself”); Cox v.
Horn, 757 F.3d 113, 122 (3d Cir. 2014) (adopting “multifactor approach to Rule
60(b)(6) motions, including those built upon a post-judgment change in the law,
that takes into account all the particulars of a movant’s case”); Ritter v. Smith, 811
F.2d 1398, 1401 (11th Cir. 1987) (rejecting argument a change in law can never
provide extraordinary circumstances to Rule 60 relief; finding Rule 60(b) relief
warranted in light of impact of change in equities of case).
4.
Mr. Williams’s Claims of Ineffective Counsel at the Guilt
Phase Never Been Heard on their Merits
On June 19, 2006 the District Court found that Mr. Williams’s claims of
ineffectiveness of counsel at the guilt phase were not fairly presented to the state
courts and therefore were defaulted from being heard on federal review. Dkt. 35.
At 13. The Court further found that the default was not excused. Because this
ruling was made before the change in law brought about by Martinez, Mr.
Williams should now have the opportunity to prove that these claims were
defaulted due to the ineffectiveness of post-conviction counsel. These claims have
merit and are substantial, as is explained in Section I. Furthermore, that the merits
of these claims have never been heard and this is a capital case involving the death
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penalty weigh in favor of granting relief under Rule 60(b).
C.
The Rule 60(b)(6) Motion was Timely.
Rule 60(b)(6) by its very language does not impose a strict time limit for
filing and thus the reasonableness of the timing is a question vested in the “wide
discretion” of the court. Buck, 137 S. Ct. at 777.
First, there was considerable conflict in the courts as to whether the 60(b)
was available to raise claim of Martinez default post-judgment. Buck has now
made that clear it is and Appellant filed his motion within weeks of Buck. At the
time of Mr. Williams’s habeas proceedings, post-conviction counsel’s
ineffectiveness provided neither an independent avenue of relief nor cause for any
default. Coleman v. Thompson, 501 U.S. 722, 752-55 (1991). While the
Supreme Court created exceptions to Coleman through its decisions in Martinez v.
Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013),
it was not until the February 2017 decision in Buck v. Davis, 137 S. Ct. 759 (2017),
that the Court made clear that Rule 60(b) was available to reopen judgments in
light of Martinez. In fact, prior to Buck, multiple circuit courts had expressly
rejected this notion. See, e.g., Henness v. Bagley, 766 F.3d 550, 557 (6th Cir. 2014)
(“[N]either Martinez nor Trevino sufficiently changes the balance of the factors for
consideration under Rule 60(b)(6) to warrant relief.”); Diaz v. Stephens, 731 F.3d
370, 376 (5th Cir. 2013) (holding that, even after Trevino, this Court’s decision in
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Martinez was simply a change in decisional law which did not warrant relief under
Rule 60(b)). But in Buck, the Supreme Court ruled for the first time that Martinez
and Trevino are properly considered as, and can support a finding of, extraordinary
circumstances under Rule 60(b)(6). Buck, 137 S. Ct. at 780; see also id. at 772,
778 (district court abused its discretion where it rejected reliance on Martinez and
Trevino by reasoning that “a change in decisional law is rarely extraordinary by
itself”). Mr. Williams filed his motion for relief from judgment on April 1, 2017 –
just over a month after Buck was decided.
To the extent Buck provides some guidance, there the Supreme Court
granted relief to a habeas petitioner who availed himself of Rule 60(b) nearly
twenty years after his capital conviction to raise a claim defaulted by postconviction counsel, and then only after Trevino clarified Martinez (thus coming
fully two years after Martinez). Under the circumstances of this case and the
further clarification provided by Buck, the filing is timely.
II.
Penalty-phase Counsel was Ineffective and Appellant Makes a
Substantial Showing of His Entitlement to Relief.
Post-conviction counsel’s default precluded habeas corpus review of
whether Mr. Williams was afforded the most crucial protection guaranteed capital
defendants: counsel’s duty to take the constitutionally required steps to ensure the
jury considered all relevant factors in mitigation. In this case, no mitigation
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evidence relating to Mr. Williams or his life was presented to his jury. Yet
counsel’s failures went unaddressed in federal habeas proceedings because the
claim was not properly developed in state post-conviction proceedings.
1.
Compelling mitigation evidence went unpresented.
Mr. Williams’s tragic youth was the subject of an evidentiary hearing in the
District Court which spanned three days. Dkt. 95. The compelling evidence
presented during that hearing was the basis for the District Court finding that “his
claim that errors and omissions of his trial lawyers during the penalty phase of the
trial deprived him of his constitutional rights to the effective assistance of counsel
and to a fair trial at the penalty phase. The errors and omissions of his lawyers
at the penalty phase were prejudicial: it is reasonably probable that but for the
errors and omissions of his lawyers the jury would have returned a verdict to
impose a sentence of life imprisonment without parole rather than a sentence of
death.” Dkt. 94 at 33. It is, therefore, indisputable that the full habeas record of
mitigation evidence was compelling and the claim it supported was substantial.
2.
Mr. Williams was denied effective assistance of counsel.
The Sixth Amendment right to effective assistance of counsel is violated
when counsel’s representation is deficient, and the defendant is prejudiced. See
Wiggins, 539 U.S. at 521; Strickland v. Washington, 466 U.S. 668, 694 (1984).
Counsel has “a duty to bring to bear such skill and knowledge as will render the
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[proceeding] a reliable adversarial testing process.” Strickland, 466 U.S. at 688.
This can be done only if counsel prepares and investigates thoroughly. Williams,
529 U.S. at 390; accord Porter, 558 U.S. at 39; Sinesterra v. United States, 600
F.3d 900, 907 (8th Cir. 2010).
The Supreme Court consistently has required courts deciding whether a
petitioner was prejudiced by counsel’s deficient performance to “evaluate the
totality of the available mitigation evidence – both that adduced at trial, and the
evidence adduced in the habeas proceeding – in reweighing it against the evidence
in aggravation.” Williams, 529 U.S. at 397-98; accord, Wiggins, 539 U.S. at 536;
Porter, 558 U.S. at 41 (2009); Sears, 130 S. Ct. at 3266-67. In that “reweighing”
process, the focus must be on whether the “available mitigating evidence, taken as
a whole, ‘might well have influenced the jury’s appraisal’ of [the defendant’s]
moral culpability.” Wiggins, 539 U.S. at 538 (quoting Williams, 529 U.S. at 398);
accord Rompilla v. Beard, 545 U.S. 374, 393 (2005).
III.
Mr. Williams Is Entitled To A Stay Of Execution.
All three Hill factors weigh strongly in Mr. Williams’s favor. As
demonstrated above, Appellant’s case is every bit as compelling as the one
justifying 60(b)(6) relief in Buck. Under Strickland and Wiggins, penalty phase
counsel’s performance was deficient and Mr. Williams was prejudiced because a
wealth of mitigation went unpresented. He amply meets this factor. Lair v. Bullock,
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697 F.3d 1200, 1204 (9th Cir. 2012) (the “likelihood of success on the merits”
standard does not require the petitioners to show that ‘it is more likely than not that
they will win on the merits’”) (citations omitted); United States v. Hamilton, 963
F.2d 322, 323 (11th Cir. 1992) (stay pending appeal will be granted only on a
showing of “a probable likelihood of success on the merits on appeal,” or upon a
lesser showing of a “ ‘substantial case on the merits' when ‘the balance of the
equities weighs heavily in favor of granting the stay’ ”); Washington Metropolitan
Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.
1977) (granting a stay pending appeal where the likelihood of success not high but
the balance of hardships favors the applicant).
Second, the balance of harms weighs in Mr. Williams’s favor. The harm of
being put to death without ever receiving full and fair review of the
constitutionality of his death sentence cannot be overstated. By contrast, the State’s
sole interest in securing Mr. Williams’s imminent execution is that its current batch
of the sedative midazolam will expire before the end of this month. Even setting
aside serious questions as to whether the use of midazolam in executions is
consistent with the Eight Amendment, under no scenario can a State’s interest in
exhausting its secured in violation of his constitutional rights.
Finally, Mr. Williams has not unreasonably delayed the assertion of his
rights. Mr. Williams filed his Rule 60(b) Motion on April 1, 2017 and the District
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Court denied the motion on April 18, 2017. Mr. Williams filed appeal promptly
upon receiving notice of the District Court’s decision.
Under Barefoot and this Circuit’s Local Rules, when the District Court
grants a COA, a stay of execution pending appeal must be granted so the issues
can be given the full appellate briefing, argument, and judicial review that they
deserve. Barefoot, 463 U.S. at 893-94 (“[A] circuit court, where necessary to
prevent the case from becoming moot by the petitioner’s execution, should grant a
stay of execution pending disposition of an appeal when a condemned prisoner
obtains a certificate of probable cause.”); Eighth Circuit Local Rule 47A (“[I]n an
in forma pauperis appeal in which a certificate of appealability has been issued, the
court will afford 14 days’ notice before entering summary disposition if the briefs
have not been filed.”) (emphasis supplied). See also Gore v. Crews, 720 F.3d 811,
815 (11th Cir. 2013) (explaining that, after district court granted COA, the circuit
court granted a “temporary stay of execution in order to prevent Gore’s death
mooting the appeal”); Ferguson v. Secretary, Florida Dept. of Corrections, 716
F.3d 1315, 1330 (11th Cir. 2013) (staying an execution following district court’s
grant of COA, which was issued “less than one hour before Ferguson’s scheduled
execution”); Simon v. Epps, 463 Fed. Appx. 339, 340, 2012 WL 669433, at *1
(5th Cir. 2012) (staying an execution scheduled for four days after the district court
granted a COA, explaining that the stay was necessary “in order to consider
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[Simon’s] appeal”); Michael v. Wetzel, Order, Case No. 3:96-cv-01554 (3d Cir.
Nov. 8, 2012) (citing to Barefoot v. Estelle and determining that, “[b]ecause the
District Court has not granted a stay of execution [to accompany its grant of a
COA], we hereby grant the Appellant’s stay of execution filed with this court”).
Appellant is entitled to a stay.
WHEREFORE, for the foregoing reasons, Mr. Williams respectfully
requests that the Court stay his execution pending its consideration of his Petition.
Respectfully submitted,
/s/ Scott W. Braden_________________
By: Scott W. Braden, ABN 2007123
Jason P. Kearney, ABN 2008208
Federal Public Defender Office
[email protected]
[email protected]
1401 W. Capitol Ave., Ste. 490
Little Rock, AR 72201
(501) 324-6114
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CERTIFICATE OF COMPLIANCE
I certify that:
1.
This document complies with the type volume limit of Fed. R. App. P.
27(d)(2)(A), because, excluding the parts of the document exempted by Fed. R.
App. P. 32(f), this document contains 7,191 words.
2.
It complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of
Appellate Procedure 32(a)(6) because the document has been prepared in a
proportionally spaced typeface using Word 2013, in 14-point Times New Roman
font; AND
3.
It has been scanned for viruses using Symantec Endpoint Protection
and is free from viruses.
/s/Scott W. Braden
Scott W. Braden
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 20th day of April, 2017, a copy
of the foregoing Motion was served via the CM/ECF electronic filing system and
by United States Mail, first class postage prepaid, upon Assistant Attorney General
Kelley Fields and Assistant Attorney General Rachel Kemp, Attorney General’s
Office, 200 Catlett-Prien Tower, 323 Center Street, Little Rock, AR 72201.
/s/ Scott W. Braden
Scott W. Braden
Appellate Case: 17-1825
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Date Filed: 04/20/2017 Entry ID: 4527024