OCTOBER TERM 2016
No. _______
_________________________
IN THE SUPREME COURT OF THE UNITED STATES
_________________________
KENNETH DEWAYNE WILLIAMS
Petitioner,
v.
WENDY KELLEY, Director
Arkansas Department of Correction
Respondent.
_________________________
On Petition for Writ of Certiorari to the
Arkansas Supreme Court
_________________________
PETITION FOR WRIT OF CERTIORARI
_________________________
CAPITAL CASE – EXECUTION SCHEDULED FOR APRIL 27, 2017
LEIGH SKIPPER
Federal Defender
JAMES MORENO
SHAWN NOLAN*
Federal Community Defender Office
for the Eastern District of Pennsylvania
Curtis Center – Suite 545-West
601 Walnut Street
Philadelphia, PA 19106
(215) 928-0520
James_Moreno@fd.org
Shawn_Nolan@fd.org
Dated: April 27, 2017
*Counsel of Record (member of the Bar of the
United States Supreme Court)

 CAPITAL CASE
QUESTION PRESENTED

Kenneth Williams is innocent of the death penalty; he is intellectually
disabled and thus categorically ineligible to be put to death. He comes before this
Court with three petitions, not because a lower tribunal disagreed that he is
innocent of death, but because no court has agreed to hear the merits of his claim.
The first, the instant petition, raises the state court’s failure to provide a postconviction forum to prove his innocence. The second raises his inability to
persuade the federal courts to hear his claim on habeas corpus. The third invokes
the extraordinary jurisdiction of this Court because the first two traditional avenues
for relief have been foreclosed. The question presented in this petition is:
When a state defendant was tried prior to this Court’s decision in
Atkins, does it violate the Eighth Amendment and due process for a
state to deny any post-conviction-relief forum in which to show that
the defendant is categorically ineligible for the death sentence under
Atkins and its progeny?

i

 TABLE OF CONTENTS

QUESTION PRESENTED ........................................................................................ i
INDEX TO APPENDIX .......................................................................................... iii
TABLE OF AUTHORITIES .................................. Error! Bookmark not defined.
PETITION FOR WRIT OF CERTIORARI ............................................................ iv
OPINIONS BELOW ..................................................................................................1
JURISDICTION.........................................................................................................1
STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED ................1
INTRODUCTION .....................................................................................................2
STATEMENT OF THE CASE ..................................................................................4
A. Procedural History .........................................................................................4
B.

Summary of Facts Supporting the Atkins Claim ...........................................8

REASONS FOR GRANTING THE WRIT.............................................................13
I. The Arkansas Courts’ Denial of a Forum for Mr. Williams To Prove His
Categorical Ineligibility For Execution Deprived Him of His Due Process and
Eighth Amendment Rights. ...............................................................................13
A. The State Of Arkansas, In Denying Mr. Williams Any Forum In Which To
Prove That He Is Exempt From The Death Penalty On Account of His
Intellectual Disability, Violated His Due Process and Eighth Amendment
Rights. ...................................................................................................................14
B. The State Courts’ Refusal to Recognize That a Valid Atkins Claim Must
Trump Any State Procedural ObstaclesViolated Petitioner’s Due Process
Rights. ...................................................................................................................21
CONCLUSION ........................................................................................................25

ii

 INDEX TO APPENDIX

1.

Formal Order, No. CR-06-511, Arkansas Supreme Court, 04/26/2017 .... A-1

2.

Order Dismissing Corrected Petition for Writ of Habeas Corpus, No. 40CV17-46, Lincoln Cty. Cir. Ct., 04/26/2017 ................................................... A-2

3.

Report of Mark Cunningham, Ph.D., 04/19/2017 ...................................... A-6

4.

Supplemental Declaration on Intellectual Disability (i.e. Mental
Retardation)of Mark Cunningham, Ph.D., 04/24/2017 ........................... A-47

5.

Declaration of Ricardo Weinstein, Ph.D., 04/18/2017 ............................. A-60

6.

Report of Daniel Martell, Ph.D., 04/20/2017 ........................................... A-75

iii

 TABLE OF AUTHORITIES
Federal Cases
Atkins v. Virginia, 536 U.S. 304 (2002)
2, 5, 13
Brinkerhoff-Faris Tr. & Sav. Co. v. Hill , 281 U.S. 673 (1930) 20
Brumfield v. Cain, 135 S. Ct. 2269 (2015) 15
Calderon v. Thompson, 523 U.S. 538 (1998)
22
Danforth v. Minnesota, 552 U.S. 264 (2008)
21, 23
Fuentes v. Shevin, 407 U.S. 67 (1972)
20
Hall v. Florida, 134 S. Ct. 1986 (2014)
3, 16, 21
Hinton v. Alabama, 134 S. Ct. 1081 (2014) 14
Jefferson v. Upton, 130 S. Ct. 2217 (2010) 14
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
4
Martinez v. Ryan, 566 U.S. 1 (2012) 14
McQuiggin v. Perkins, 133 S. Ct. 1924 (2013)
22
Montgomery v. Louisiana, 136 S. Ct. 718 (2016) 14, 20, 22, 23
Moore v. Texas, 137 S. Ct. 1039 (2017)
2, 3, 14, 15
Roper v. Simmons, 543 U.S. 551 (2005)
23
Sawyer v. Whitley, 505 U.S. 333 (1992)
22
Schlup v. Delo, 513 U.S. 298 (1995) 22
Sears v. Upton, 130 S. Ct. 3259 (2010)
14
Simpson v. Norris, 490 F.3d 1029 (8th Cir. 2007) 16
Strickland v. Washington, 466 U.S. 668 (1984)
17
Teague v. Lane, 489 U.S. 288 (1989) 22
Wearry v. Cain, 136 S. Ct. 1002 (2016)
14
Williams v. Norris, 612 F.3d 941 (8th Cir. 2010) 7
Williams v. Norris, No. 5:07-cv-00234 SWW, 2008 WL 4820559 (E.D. Ark. Nov.
4, 2008)
7
Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) 14, 20
Federal Statutes
28 U.S.C. § 1
1
28 U.S.C. § 1257(a) (2012)
1
State Cases
Anderson v. State, 163 S.W.3d 333 (Ark. 2004)
18
Anderson v. State, 385 S.W.3d 783 (Ark. 2011)
17, 18
Antle v. Haas, 251 S.W.2d 290 (Ark. 1952) 7
Burnett v. State, 737 S.W.2d 631 (Ark. 1987)
17
Coulter v. State, 227 S.W.3d 904 (Ark. 2006)
18
Davis v. State, 44 S.W.3d 726 (Ark. 2001) 18
Engram v. State, 200 S.W.3d 367 (Ark. 2004)
18
iv

 Howard v. State, 238 S.W.3d 24 (Ark. 2006)
17
Jones v. State, 10 S.W.3d 449 (Ark. 2000) 5, 16, 20
Rankin v. State, 948 S.W.2d 397 (Ark. 1997)
16, 20
Sanford v. State, 25 S.W.3d 414 (Ark. 2000)
5
State v. Hughes, 200 S.W.2d 360 (Ark. 1947)
8
Williams v. State, 67 S.W.3d 548 (Ark. 2002)
5
State Statutes
Ark. Code Ann. § 5-4-618
4, 5
Other
Ark. R. Crim. P. 37
16
Hall, 134 S. Ct. at 1999-2001 15
U.S. Const. amend. VIII 2

v

 PETITION FOR WRIT OF CERTIORARI
OPINIONS BELOW
Petitioner Kenneth Williams is scheduled to be executed on Thursday, April
27, 2017. Petitioner seeks review of the April 26, 2017, orders of the Arkansas
Supreme Court that denied his Motion to Recall the Mandate and Motion for Stay
of Execution. 1 A-1. 2
JURISDICTION
This Court’s jurisdiction is invoked pursuant to 28 U.S.C. § 1257(a). The
Arkansas Supreme Court issued its orders on April 26, 2017. This petition is
timely filed under Rule 13.1.
STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED
The Eighth Amendment provides as follows:
Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
The Fourteenth Amendment, Section 1, provides as follows:
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state
wherein they reside. No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life, liberty, or

1

An appeal from the state circuit court’s order denying state habeas corpus review
remains pending in the Arkansas Supreme Court. Due to the exigent
circumstances, and because that court has already denied a stay of execution in
connection with the same habeas petition, Petitioner files this certiorari petition
without waiting for that decision.
2
“A-“ refers to the appendix to this petition.
1

 property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.
INTRODUCTION
In Atkins v. Virginia, 536 U.S. 304 (2002), this Court held that it violates the
Eighth Amendment to the United States Constitution to execute a prisoner with
intellectual disability. Mr. Williams is intellectually disabled and thus
categorically excluded from execution. Yet, despite the proffer of substantial
evidence that he is intellectually disabled, no court, state or federal, has provided a
forum or conducted a hearing to allow Mr. Williams to establish his exclusion.
This Court’s intervention and review is necessary to avoid the unconstitutional
execution of an intellectually disabled person.
Mr. Williams has been examined by three different qualified mental health
experts – before trial, during state post-conviction proceedings, and after the
February 27, 2017, warrant for his execution was issued. Each of these three
experts, separately and independently, has opined that Mr. Williams suffers from
intellectual disability as defined by “current medical standards.” Moore v. Texas,
137 S. Ct. 1039, 1049 (2017). And although the State disagrees with these
opinions, it has not produced any expert opinion that attempts to refute the three
reporting experts.
Throughout his lifetime, Mr. Williams has taken six individually
administered tests of global intelligence, and his composite full scale IQ over the
2

 course of these six tests is 71.8,3 well within the intellectual disability range as
defined by current medical standards and as accepted by this Court.4 Mr.
Williams’s impairments were apparent early in his life and continued throughout
the developmental period. He failed the first and third grades, and was in special
education for most of his educational career until he ultimately dropped out in the
ninth grade. Despite years of special education support and assistance from the
more functional members of his family, he failed to progress academically and
tested well below age-appropriate levels on achievement tests until he left school.
Indeed, on the last achievement test he took, when he was fourteen years old and
his peers were in the 9th grade, he tested between the 1st and 3rd grade levels with
scores spanning from the 4th percentile to below the 1st percentile. None of these
facts have been, or could be, challenged by the State. Mr. Williams has the brain
functioning of an intellectually disabled person and, consistent with his
dysfunctional brain, showed deficits in both receptive and expressive
communication, functional academics, self-direction, social functioning, and
practical living skills throughout his developmental period.
3

Mr. Williams was also administered a test of non-verbal intelligence in 2004 and
received a score of 65, which is also within the range for intellectual disability.
4
This Court has ruled that a state’s discretion to fashion procedures for the review
of Atkins claims is restrained by “the medical community’s current standards.”
Moore, 137 S. Ct. at 1053; see also Hall v. Florida, 134 S. Ct. 1986, 1999 (2014)
(states do not “have complete autonomy to define intellectual disability as they
may wish[]”).
3

 The state courts below refused to provide Mr. Williams a hearing. Indeed,
there is no mechanism under Arkansas law that allows a petitioner who did not
have his Atkins claim adjudicated at trial to challenge his execution on the basis
that he is a person with intellectual disability.
It is a fundamental maxim of American jurisprudence that where there is a
right, there must be a remedy. See Marbury v. Madison, 5 U.S. (1 Cranch) 137,
163 (1803) (“[I]t is a general and indisputable rule, that where there is a legal right,
there is also a legal remedy, by suit or action at law, whenever that right is
invaded.") (quoting 3 William Blackstone, Commentaries *23). Although decided
after his trial, Atkins provided Mr. Williams with the right to be ineligible for
execution due to his intellectual disability. But Arkansas provides no remedy to
effectuate that right. This Court should grant review.

A.

STATEMENT OF THE CASE
Procedural History

Kenneth Dewayne Williams was convicted of the October 3, 1999, capital
murder of Cecil Boren in the course of a felony and other crimes. During the
penalty phase proceedings, trial counsel called Dr. Mark Cunningham, a clinical
and forensic psychologist who evaluated Mr. Williams and found extensive
evidence of low IQ and brain dysfunction. However, counsel did not claim that
Mr. Williams was categorically ineligible for the death penalty under § 5-4-618 of
the Arkansas Code, which bars the execution of the mentally retarded. At the time
4

 of trial, Dr. Cunnningham’s testing showed that Mr. Williams had an IQ of 70. A15. While this would clearly support significantly subaverage intellectual
functioning for purposes of a claim under Atkins, under Arkansas law, an IQ of 65
or below was required to establish mental retardation under § 5-4-618. See
Sanford v. State, 25 S.W.3d 414, 419 (Ark. 2000) (rejecting argument that
definition of intellectual disability under Diagnostic and Statistical Manual IV was
controlling, and noting that “Arkansas law fixes a rebuttable standard for mental
retardation at a quotient of 65”); Jones v. State, 10 S.W.3d 449, 456-57 (Ark.
2000) (success on statutory intellectual disability claim precluded by IQ of 71).
The jury sentenced Mr. Williams to death on August 30, 2000. The Arkansas
Supreme Court affirmed the convictions and sentences on direct appeal. Williams
v. State, 67 S.W.3d 548 (Ark. 2002) (Williams-1).
On August 9, 2002, Mr. Williams, through his court-appointed attorney,
Jeffrey Rosenzweig, filed a Rule 37 (state post-conviction) petition. Among the
claims were an ineffectiveness-of-counsel claim based on trial counsel’s failure to
submit evidence of mental retardation under § 5-4-618 of the Arkansas Code, and a
claim that Mr. Williams was categorically ineligible for the death penalty under
this Court’s June 20, 2002, decision in Atkins v. Virginia, 536 U.S. 304 (2002).
The circuit court granted Mr. Williams’s motions for funds to hire an expert and an
investigator for purposes of his Atkins claim. Mr. Rosenzweig retained
5

 psychologist Dr. Ricardo Weinstein as an expert and Mary Paal as a mitigation
specialist. The State opposed the Rule 37 petition, arguing that Mr. Williams was
not mentally retarded, based on Dr. Cunningham’s trial testing showing an IQ of
70.
Dr. Weinstein met with Mr. Williams and administered tests on May 20 and
21, 2004. He has no recollection and no record of discussing his evaluation with
Mr. Rosenzweig, and his formal IQ test results remained unscored until he was
asked to score them in 2017. On a non-verbal screening test of intelligence that Dr.
Weinstein did score in 2004, Mr. Williams received a score of 68. Dr. Weinstein
never told Mr. Rosenzweig that he had ruled out a diagnosis of intellectual
disability. He never completed his work on the case. (Report of Ricardo
Weinstein, Ph.D., April 18, 2017, A-60).
Without further exploration of the Atkins issue, and aware of Arkansas
precedent that required an IQ of 65 or below to establish intellectual disability, Mr.
Rosenzweig informed the court on September 8, 2005, that he would not be
pursuing either of the two claims based on intellectual disability. The Rule 37
court determined that the Atkins claims had been abandoned. 5

5

In any event, as discussed below, the Arkansas Supreme Court has held that a
defendant who was tried before Atkins was decided cannot bring a substantive
Atkins claim under Rule 37.
6

 The circuit court denied each of Mr. Williams’s remaining Rule 37 claims
on November 21, 2005. See State v. Williams, Findings of Fact and Conclusions of
Law, Nov. 21, 2005. The Arkansas Supreme Court affirmed on March 1, 2007.
Williams v. State, 251 S.W.2d 290 (Ark. 2007) (Williams-2).
Mr. Rosenzweig continued to represent Mr. Williams in federal habeas
proceedings. On September 10, 2007, he filed a petition for writ of habeas corpus
on behalf of Mr. Williams in the United States District Court for the Eastern
District of Arkansas, in which he raised no claim under Atkins. The district court
denied relief on all claims on November 4, 2008. Williams v. Norris, No. 5:07-cv00234 SWW, 2008 WL 4820559 (E.D. Ark. Nov. 4, 2008). The Eighth Circuit
affirmed the district court’s denial of relief on July 15, 2010. Williams v. Norris,
612 F.3d 941 (8th Cir. 2010) (Williams-3). A petition for rehearing and rehearing
en banc were denied two months later.
On February 27, 2017, Governor Asa Hutchinson scheduled eight execution
dates, including that of Mr. Williams, for an eleven-day period in April. Mr.
Williams filed a clemency application, which was denied on April 5, 2017.
Governor Hutchinson has scheduled Mr. Williams’s execution for April 27, 2017.
On April 11, 2017, Mr. Rosenzweig moved in the United States District
Court for the Eastern District of Arkansas for the appointment of co-counsel from
the Federal Community Defender Office for the Eastern District of Pennsylvania
7

 (“FCDO”) in this matter, noting his competing responsibilities in other capital
cases with pending execution dates and Mr. Williams’s concurrence with the
motion. See Williams v. Norris, No. 5:07-cv-00234-SWW, ECF No. 26 (E.D. Ark.
April 11, 2017). The court appointed counsel from the FCDO that same day.
On April 21, 2017, Petitioner filed a Petition for Habeas Corpus in Lincoln
County Circuit Court, and a Motion to Recall the Mandate with the Arkansas
Supreme Court, proffering substantial evidence, including reports from the three
different experts who had evaluated him before trial, during state post-conviction
proceedings, and after his warrant for execution was signed, all supporting a claim
that he is ineligible for execution under Atkins. Petitioner also sought a stay of
execution from the Arkansas Supreme Court. On April 26, 2017, the Arkansas
Supreme Court denied the motions to recall the mandate and for a stay. A-1. On
the same day, the Lincoln County Circuit Court, in accordance with Engram v.
State, 200 S.W.2d 360, 375 (Ark. 2004), held that an Atkins claim is not available
in state habeas corpus. A-3 to A-4.
B.

Summary of Facts Supporting the Atkins Claim

Mr. Williams is a person with intellectual disability. Neuropsychologist
Daniel A. Martell, Ph.D. (who evaluated Mr. Williams last week), psychologist
Mark D. Cunningham, Ph.D. (who evaluated Mr. Williams at trial), and
neuropsychologist Ricardo Weinstein, Ph.D. (who tested Mr. Williams, but was

8

 never asked to complete his evaluation for Rule 37 proceedings), have all
evaluated Mr. Williams and concluded that he is intellectually disabled and that he
met the definition of intellectual disability at the time of the crime. See A-6, A-47,
A-60, A-75.
In the courts below, Mr. Williams submitted reports from each of these three
mental health professionals as well as numerous additional items of evidence
supporting their diagnoses. Drs. Cunningham, Weinstein, and Martell have
evaluated Petitioner and found that he satisfies prong one of the intellectual
disability diagnosis. In his lifetime, Petitioner has been administered a total of
seven intelligence tests. Mr. Williams received a composite IQ score of 71.8 on
the six comprehensive tests of global intelligence that he was administered. All
three experts concluded that Petitioner fell within the range of sub-standard
intelligence consistent with a diagnosis of intellectual disability.
Additionally, Mr. Williams was administered a number of tests during his
academic career which contain IQ approximations. These tests scores are all in the
intellectual disability range.
Petitioner was consistently behind in his academic development. When
Petitioner initially received achievement testing in October 1987 (8 years, 7
months old), he was in the second grade, but should have been in the third grade
based on his age. Nevertheless, he received scores ranging from kindergarten to
9

 second grade levels, which ranged one to three years behind his age-mates. As
time passed, he failed to develop intellectually and academically while his
classmates left him behind. Petitioner was re-tested in February 1989 (9 years, 11
months), when his age-mates were in the 4th grade; he tested at the 1st and 2nd grade
levels. This trend continued throughout his school career.
Petitioner’s last school-age achievement test was a Peabody Individual
Achievement Test (“PIAT-R”), which was administered when he was fourteen
years and eight months old, and his age-mates would have been in the 9th grade.
His scores are listed in the table below.
PIAT-R STANDARD SCORES, PERCENTILE RANKS,
AND GRADE EQUIVALENTS
(Age 14 years, 8 months; age-mates in the 9th grade)
Subtest

Mathematics
Reading
Recognition
Reading
Comprehension
Spelling

Standard Score
Percentile
Mean = 100; SD =
Rank
15
Below 65
Below 1st

Grade
Equivalent
1.8

65

1st

2.2

74

4th

3.3

69

2nd

3.4

Below 1st

2.6

General Information Below 65

Consistent with the level of delay shown while Mr. Williams was in school,
he had academic impairments as an adult. Given his neuropsychological
10

 impairments, the stunted academic functioning described above is to be expected.
His cognitive deficits in executive functioning, memory, and attention impaired his
ability to understand and learn.
Petitioner also had a number of risk factors in his history which heightened
the likelihood that he would be both intellectually disabled and that his IQ would
drop during his lifetime. Those risk factors included, inter alia, a head injury
during the developmental period, hospitalization for viral meningitis, poverty,
childhood physical abuse, childhood exposure to trauma, impaired parenting, and
childhood instability.
Furthermore, Petitioner has been subjected to two full batteries of
neuropsychological testing in 2000 by Dr. Wetherby, and again, in 2004 by Dr.
Weinstein. As noted above, the DSM-5 recognizes that neuropsychological testing
is more comprehensive than a single IQ score. Both batteries reflected the
presence of brain impairments, i.e., brain dysfunction, including significant
impairments in his executive functioning, abstract thinking, attention, and memory.
These impairments are in the higher levels of cognitive functioning and provide a
neuropsychological profile that is typical of the intellectually disabled. See Dec.
Ricardo Weinstein at ¶ 23. Accordingly, Petitioner’s neuropsychological profile,
tested over two separate batteries with two separate mental health professionals,
reflects the brain impairments of an intellectually disabled person.
11

 Drs. Cunningham, Weinstein, and Martell also analyzed Petitioner’s
adaptive functioning. Drs. Cunningham and Weinstein have found that he had
significant pre-18 adaptive deficits in the conceptual and social domains as defined
by the AAIDD and the DSM-5. They have further found the presence of
significant limitations in the skill areas of functional academics, self-direction,
communication, and social/interpersonal skills. See Report, Mark Cunningham,
Ph.D., at 19-34; Dec. Ricardo Weinstein, Ph.D., at ¶¶ 25-31. Dr. Martell, who has
had the opportunity to review the most recent results of the defense investigation,
has found that Mr. Williams had significant pre-18 deficits in all three adaptive
domains: conceptual, social, and practical. Report of Daniel Martell, Ph.D., at 2637.
Mr. Williams’s deficits originated in the developmental period. He received
two full-scale IQ scores in the intellectually disabled range before the age of 18.
He also has a documented history of adaptive impairments that spans multiple
areas of functioning and includes two formal measures of adaptive functioning
(administered at ages eight and nine). This history began in early childhood and
continued up until his incarceration for the instant case.

12

 REASONS FOR GRANTING THE WRIT
I.

THE ARKANSAS COURTS’ DENIAL OF A FORUM FOR MR. WILLIAMS TO
PROVE HIS CATEGORICAL INELIGIBILITY FOR EXECUTION DEPRIVED
HIM OF HIS DUE PROCESS AND EIGHTH AMENDMENT RIGHTS.

For a state to execute a person who is intellectually disabled violates the
Eighth Amendment. Atkins v. Virginia, 536 U.S. 304 (2002). Mr. Williams has
made detailed allegations, supported by three expert reports, that he is
intellectually disabled. He has sought a remedy for the impending violation in the
state courts of Arkansas. The state courts of Arkansas – consistent with their prior
decisions – have held that there is no post-conviction mechanism by which he can
prove whether he is in fact intellectually disabled, and therefore whether the State
of Arkansas will violate the Eighth Amendment when it puts him to death at 7:00
p.m. on Thursday, April 27.
The State’s refusal to provide a forum to test whether Mr. Williams is
intellectually disabled itself violates his due process right to be heard, and the
Eighth Amendment requirement of reliability in the enforcement of the death
penalty. This Court should grant certiorari to make clear that the states must
provide a remedy to enforce his right not to be executed.

13

 A.

The State Of Arkansas, In Denying Mr. Williams Any Forum In
Which To Prove That He Is Exempt From The Death Penalty On
Account of His Intellectual Disability, Violated His Due Process
and Eighth Amendment Rights.

In recent years, this Court has recognized the central importance of state
post-conviction review mechanisms in ensuring the fairness and reliability of
criminal convictions and death sentences. For example, this Court recently
allowed ineffective assistance of state post-conviction counsel to constitute cause
for a procedural default in some circumstances, Martinez v. Ryan, 566 U.S. 1
(2012); required states to consider the claims of juveniles sentenced to life without
parole, Montgomery v. Louisiana, 136 S. Ct. 718 (2016); held that it violates due
process for a biased judge to participate in review of a state post-conviction ruling,
Williams v. Pennsylvania, 136 S. Ct. 1899 (2016); and reviewed the application of
constitutional principles in state post-conviction proceedings. Moore v. Texas, 137
S. Ct. 1039 (2017) (review of Atkins claim following denial of state habeas
corpus); Wearry v. Cain, 136 S. Ct. 1002 (2016) (review of Brady claim following
denial of state post-conviction relief); Hinton v. Alabama, 134 S. Ct. 1081 (2014)
(review of ineffective assistance claim following denial of state postconviction
relief); Sears v. Upton, 130 S. Ct. 3259 (2010) (same); Jefferson v. Upton, 130 S.
Ct. 2217 (2010) (same).
In recent years, this Court has also intervened to prevent states from
nullifying the central holding of Atkins. This Court has struck down state court
14

 actions that watered down the holding of Atkins by adopting rules that disregarded
current medical standards with respect to the intellectual functioning and adaptive
functioning prongs of Atkins, Moore, 137 S. Ct. at 1049-52; and a hard cutoff with
respect to IQ score, Hall, 134 S. Ct. at 1999-2001. The Court has also found
unreasonable a state court’s refusal to fairly consider evidence of intellectual
disability. Brumfield v. Cain, 135 S. Ct. 2269. 2276-83 (2015).
This case presents a new and gravely troubling situation at the intersection
of these two lines of authority. Arkansas has simply held that there is no postconviction mechanism for review of a prisoner’s claim that his execution would
violate Atkins. While that might be permissible in a case where the prisoner had
had the opportunity to present at trial his claim that the Eighth Amendment
prohibited his execution, Mr. Williams had no such opportunity. Rather, he only
had the opportunity to show that he was mentally retarded under a state statute
precluding the death penalty for people with an IQ under 65. Even though Mr.
Williams had an IQ of 70 based on testing performed at the time of trial, his
counsel could not show that he met the state standard and made no attempt to do
so. This Court should grant certiorari to decide whether a state may deprive a
prisoner of all access to a forum that could hear and determine whether he is in fact
ineligible for the death penalty.

15

 “Persons facing th[e] most severe sanction must have a fair opportunity to
show that the Constitution prohibits their execution.” Hall, 134 S. Ct. at 2001. The
Arkansas courts have never provided such an opportunity to Mr. Williams. The
trial in Mr. Williams’s case took place in 2000, and the Arkansas Supreme Court
affirmed his conviction and sentence on February 21, 2002 – or four months before
this Court overruled its own precedent and issued Atkins.
Neither the trial nor the appeal provided a forum for an Eighth Amendment
claim, as distinguished from the statutory claim offering far less protection for the
mentally disabled than Atkins later would. See Simpson v. Norris, 490 F.3d 1029,
1035 (8th Cir. 2007) (holding that Atkins claim is distinct from claim under Ark.
Code § 5-4-618); see also, e.g., Rankin v. State, 948 S.W.2d 397, 404 (Ark. 1997)
(rejecting claim of mental retardation because trial court accepted IQ score of 72
over IQ score of 66); Jones v. State, 10 S.W.3d 449, 456–57 (Ark. 2000) (rejecting
claim because defendant’s IQ was “at least 71”).
Neither did the state courts allow such a claim after Mr. Williams’s
conviction became final. Arkansas’s standard post-conviction remedy – Ark. R
Crim. P. 37 – does not lie for freestanding claims of constitutional violations, as
opposed to extra-record claims that trial counsel provided ineffective assistance. A
freestanding constitutional claim is permissible only when the error is “so
fundamental as to render the judgment void” or a “complete nullity,” such as when
16

 the trial court lacks jurisdiction. Howard v. State, 238 S.W.3d 24, 32 (Ark. 2006);
Burnett v. State, 737 S.W.2d 631, 634 (Ark. 1987). No Arkansas authority
authorizes an Atkins claim on Rule 37 review. Respondents therefore argued below
that Rule 37 review provided a forum for only an ineffective-assistance claim
concerning his intellectual disability. See “Response to Motion for Stay of
Execution Pending Petition for Writ of Habeas Corpus in the Circuit Court of
Lincoln County,” (Apr. 25, 2017), at 18 (“There was another opportunity for
Williams to pursue that remedy in postconviction proceedings through a claim
under Strickland v. Washington, 466 U.S. 668 (1984).”); “Memorandum in
Response to Corrected Petition for Writ of Habeas Corpus,” (Apr. 25, 2017), at 18
(same).
It is true that Mr. Williams’s counsel initially asserted an Atkins claim on
Rule 37 review, only to abandon it after his retained expert reported an IQ score of
68 on a test of non-verbal intelligence – a score well within the Atkins range, but
outside of that recognized under the Arkansas statute. A score above 65, however,
ruled out an Atkins claim s defined by the Arkansas statute and also a claim that
trial counsel was ineffective for failing to pursue a mental retardation claim under
the Arkansas statute. See Anderson v. State, 385 S.W.3d 783, 789 (Ark. 2011)
(trial counsel not ineffective for failing to raise statutory claim, where Petitioner
received IQ score of 65).
17

 The effect of the Arkansas statute was to eliminate any state court forum
with the authority to adjudicate the Atkins claim. Rule 37 counsel asserted the
claim only two months after Atkins’ issuance. Subsequent Arkansas law equated
the state’s statutory protection with that of Atkins. See Anderson, 163 S.W.3d at
354-55 (“We believe that the court in Atkins merely reaffirmed this State’s
preexisting prohibition against executing the mentally retarded.”); Coulter v. State,
227 S.W.3d 904, 908 (Ark. 2006) (same). By equating Atkins with the law that
preceded it, the court effectively prohibited a defendant from asserting intellectual
disability on post-conviction review if he had failed to do so at trial. See, e.g.,
Davis v. State, 44 S.W.3d 726, 730 (Ark. 2001) (prisoner cannot relitigate a claim
from trial or direct appeal, or bring a claim that could have been brought earlier,
absent a “fundamental error” that voids the judgment).
Neither does Arkansas law permit an Atkins claim through more
extraordinary remedies. Even for defendants who were tried before 2002, the
Arkansas Supreme Court has consistently refused to recognize Atkins claims on
motions to recall the mandate, on habeas corpus, in coram nobis, or through a
successive Rule 37 petition. See Anderson, 385 S.W.3d at 789-90; Engram v. State,
200 S.W.3d 367, 370-75 (Ark. 2004) (denying numerous remedies, and noting
“fundamental problem” that Engram did not raise a statutory mental retardation
claim at trial); Coulter, 227 S.W.3d at 908-10.
18

 The state courts’ refusal to provide a forum continued in Mr. Williams’s
case. The Arkansas Supreme Court summarily denied Mr. Williams’s motion to
recall the mandate, denied his petition to allow coram nobis proceedings in the trial
court, and denied his motion to stay his execution to permit habeas review in the
lower court – all on the State’s suggestion that no court had jurisdiction to consider
Mr. Williams’s claim. The Circuit Court of Lincoln County made that clear in its
ruling on habeas corpus, stating that the remedy is unavailable for an Atkins claim
under Engram. See A-3 to 4.
In summary, (a) there was no forum to raise the Atkins claim at trial or on
direct appeal because Atkins had not been decided; (b) there was no forum to raise
the Atkins claim in the normal course of post-conviction proceedings under Rule
37; and (c) there is still no state forum to which Petitioner can make his showing
that he is categorically ineligible for the death penalty. And yet – assuming the
facts pled by Petitioner to be true – he is intellectually disabled, and his execution
later today will violate the Eighth Amendment.
The issue is not whether the Eighth and Fourteenth Amendments per se
require the State of Arkansas to entertain an Atkins claim on post-conviction
review. It is whether the State, having created a less protective statute before
Atkins’ issuance, may foreclose an Atkins claim brought by a prisoner who did not
invoke the lesser statutory protection at trial, and then justify that foreclosure on
19

 the ground that the statute provided the same protection as Atkins all along. See
Rankin, 948 S.W.2d at 404 (IQ score of 72 too high for mental retardation claim);
Jones, 10 S.W.3d at 456–57 (IQ of 71 too high). Barring this Court’s intervention,
the state courts’ procedural whip-saw will result in the execution of a man who is
ineligible for that sentence.
The State’s refusal to provide a forum to test whether Mr. Williams is
intellectually disabled itself violates his due process right to be heard, and the
Eighth Amendment requirement of reliability in enforcement of the death penalty.
While states may not be required to adopt specific procedures for postconviction relief, there is no doubt that having established post-conviction relief
procedures, in administering those procedures states must comply with the dictates
of due process. E.g., Williams, 136 S. Ct. at 1905-09 (finding due process
violation where biased judge participated in state post-conviction review);
Montgomery, 136 S. Ct. at 729 (state post-conviction court must give retroactive
effect to substantive rule of criminal procedure). Of paramount importance to due
process is the right to be heard. E.g., Fuentes v. Shevin, 407 U.S. 67, 80 (1972)
(the “central meaning of procedural due process” is the right “to be heard”);
Brinkeroff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 682 (1930) (“Whether
acting through its judiciary or through its Legislature, a state may not deprive a
person of all existing remedies for the enforcement of a right, which the state has
20

 no power to destroy, unless there is, or was, afforded to him some real opportunity
to protect it.”).
This Court should grant certiorari to decide whether – consistent with due
process and the Eighth Amendment – a state can shirk its constitutional duty to
consider whether a prisoner is even eligible for the death penalty before executing
him. Petitioner submits that if the State of Arkansas may do this, then “the Court’s
decision in Atkins [w]ould become a nullity, and the Eighth Amendment’s
protection of human dignity would not become a reality.” Hall, 134 S. Ct. at 1999.
B.

The State Courts’ Refusal to Recognize That a Valid Atkins Claim
Must Trump Any State Procedural ObstaclesViolated Petitioner’s
Due Process Rights.

The state court’s summary denial provided no reasons for its refusal to
provide Petitioner with a forum in which to litigate his Atkins claim. Nevertheless,
it would violate due process to have a state procedural ruling bar Petitioner from
litigating this claim. Thus, this case also implicates the question left open in
Danforth v. Minnesota, 552 U.S. 264 (2008): whether the due process requires a
state court to recognize that a defendant’s categorical ineligibility for punishment
trumps any procedural bars to a claim for relief, to the same extent that it trumps
them in federal habeas review. The opportunity to address this question provides
another reason for this Court to grant review

21

 In its oversight of federal habeas courts, this Court has recognized that a
petitioner’s innocence or categorical ineligibility for punishment must overcome
various procedural defenses. In a capital case, a claim of innocence – that is, of
ineligibility for death – can excuse a procedural default if a habeas petitioner
shows “by clear and convincing evidence that but for a constitutional error, no
reasonable juror would have found the petitioner eligible for the death penalty.”
Sawyer v. Whitley, 505 U.S. 333, 340-41 (1992) (emphasis omitted). A petitioner’s
claim of actual innocence can also serve as a “gateway” that excuses procedural
default of a claim implicating her guilt or innocence. See Schlup v. Delo, 513 U.S.
298, 323 (1995). The general rule of non-retroactivity includes an exception for
innocence claims. See Teague v. Lane, 489 U.S. 288, 311 (1989) (recognizing
exceptions to non-retroactivity for “watershed rules of criminal procedure” and
rules that place “‘certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe’”); see also Montgomery,
136 S. Ct. at 729 (“The Court now holds that when a new substantive rule of
constitutional law controls the outcome of a case, the Constitution requires state
collateral review courts to give retroactive effect to that rule.”). And innocence can
also provide an equitable exception to the statute of limitations, see McQuiggin v.
Perkins, 133 S.Ct. 1924 (2013), or justification for a Court of Appeals recall of its
mandate. See Calderon v. Thompson, 523 U.S. 538, 558 (1998).
22

 The Court has not yet decided the extent to which these principles bind the
states. In Danforth, in the Teague context, it held that the states are free to apply
new constitutional rules of criminal procedure retroactively in their own courts
regardless of whether the corresponding claims would be cognizable in federal
habeas review under Teague. But the Court noted that its opinion did not involve
the Teague exceptions. See Danforth, 552 U.S. at 277. Thus, the Court has not
fully delineated the extent to which the Constitution limits the States’ ability to
ignore the innocence exception in their own courts. See Montgomery, 136 S. Ct. at
728-29 (Danforth left open question whether “Teague’s two exceptions are binding
on the states as a matter of constitutional law.”).
The question left open in Danforth is important, and this case is an
appropriate vehicle to decide it. No state can constitutionally execute a person who
is by definition ineligible for execution. As in the habeas context, default,
timeliness, or non-retroactivity cannot prevent one who is innocent of the death
penalty from securing at least one adjudication of his claim. Just as a state could
not allow a sixteen-year-old, or the sixteen-year-old’s counsel, to default or waive
her Roper v. Simmons 6 rights, a state may not allow an intellectually disabled
prisoner to default or waive his Atkins rights. The states must recognize an
exception to their own procedural rules to protect those whose execution would be
6

543 U.S. 551 (2005).
23

 unconstitutional because of their intellectual disability, age, or other categorical
status.
Mr. Williams is prepared to prove and has attempted to prove his Atkins
claim. By shutting the courthouse doors to him, the State of Arkansas has deprived
him of due process of law. This Court should grant certiorari to address the
question left open in Danforth and allow Mr. Williams a chance to prove that he is
innocent of the death penalty.

24

 CONCLUSION
For all the reasons set forth above, Mr. Williams respectfully requests that
the Court grant his petition for a writ of certiorari.
Respectfully submitted,

/s/ Shawn Nolan
LEIGH SKIPPER
Federal Defender
JAMES MORENO
SHAWN NOLAN*
Federal Community Defender Office
for the Eastern District of Pennsylvania
Curtis Center – Suite 545-West
601 Walnut Street
Philadelphia, PA 19106
(215) 928-0520
James_Moreno@fd.org
Shawn_Nolan@fd.org
Dated: April 27, 2017
*Counsel of Record (member of the Bar of
the United States Supreme Court)

25

 CERTIFICATE OF SERVICE
I hereby certify that on April 27, 2017, the foregoing was filed by email and
First Class Mail upon the following:

KATHRYN HENRY
Assistant Attorney General
323 Center Street, Suite 200
Little Rock, AR 72201
(501) 682-5486
kathryn.henry@arkansasag.gov

/s/Shawn Nolan
SHAWN NOLAN