**CAPITAL CASE**
EXECUTION SCHEDULED FOR APRIL 27, 2017
No. 16-8921 & 16A1043
In the

Supreme Court of The United States

KENNETH D. WILLIAMS,
Petitioner,
v.
WENDY KELLEY,
Respondent.

OPPOSITION TO APPLICATION FOR STAY OF EXECUTION
AND CERTIORARI
LESLIE RUTLEDGE
Attorney General
LEE RUDOFSKY
Solicitor General
NICHOLAS J. BRONNI*
Deputy Solicitor General
OFFICE OF THE ARKANSAS
ATTORNEY GENERAL
323 Center St., Suite 200
Little Rock, AR 72201
(501) 682-6302
nicholas.bronni@arkansasag.gov
*Counsel of Record for Respondent

 To the Honorable Samuel Alito, Associate Justice of the Supreme Court of the
United States and Circuit Justice for the Eighth Circuit:1
Introduction
Petitioner has a long (and all too often successful) history of using piecemeal
and dilatory litigation to manipulate the judicial process and prevent Arkansas
from carrying out his just and lawful executions. This case—along with another
application that Petitioner filed today and multiple last minute filings in lower state
and federal courts—is simply the latest, textbook example of those tactics.
Petitioner wrongly suggests that this Court should stay his execution to
consider the merits of his claim that Arkansas somehow violated his Eighth and
Fourteenth Amendment rights by failing to provide him additional forums for
arguing that he is intellectually disabled and ineligible for execution under Atkins v.
Virginia, 536 U.S. 304. But Petitioner does not point to any authority establishing
that Arkansas was required to provide him additional forums in which he could
raise a claim that he voluntarily opted not to raise at trial and then asserted and
voluntarily withdrew in his original state post-conviction proceedings. Moreover,
even if the question presented might otherwise warrant review, this case would be a
particularly inappropriate vehicle for resolving that question because the record
clearly establishes that Petitioner is not intellectually disabled, he brought and

Due to time constraints, Respondent submits this document in opposition to
the application for a stay, and if the Court decides to immediately review
Petitioners’ petition for a writ of certiorari, Respondent submits the arguments
contained herein in opposition to certiorari.
1

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 then dropped a claim that he was, and he waited till the eve of his execution to
bring his latest variation on that claim.
Petitioner cannot (and has not) demonstrated a significant possibility that
this Court will reverse the Arkansas Supreme Court’s decision. Both the writ and
the stay application should be denied.
Jurisdiction
The Court has discretionary jurisdiction to review this case pursuant to 28 U.S.C.
1257(a). However, because the state court decision rests on a state law ground that is
independent of the federal question presented and is adequate to support the judgment,
jurisdiction does not lie to review the question presented in this case.
Background
A. Williams’s escape from prison and murder of Cecil Borden.
On September 15, 1999, Williams was sentenced to life without parole for the
December 13, 1998 capital murder of Dominique Herd, the attempted capital
murder of Peter Robertson, kidnapping, aggravated robbery, theft, and arson. He
was sent to the Cummins Unit of the Arkansas Department of Correction (ADC)
that same day.
Less than two weeks later, on September 26, 1999, Williams told Eddie
Gatewood, a friend who visited him at the Cummins Unit, that he could not serve a
life term and solicited Gatewood’s help to escape. During that visit, Williams asked
Gatewood to find him some clothes, a dress, and a wig, and asked Gatewood to leave

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 them out on the highway close to the prison. A week later, on October 3, 1999,
Williams escaped from prison while on a release from his barracks for a morning
“religious call.”
Once outside the prison, on the morning of October 3, Williams reached the
home of Cecil and Genie Boren. Earlier that morning, Genie Boren had gone to
church, leaving her husband Cecil at home working in the yard. When she returned
sometime after noon, she found her home had been ransacked and that Cecil was
missing. She contacted a neighbor and she and the neighbor began frantically
searching for Cecil. During their search, they discovered that all the Boren’s
firearms were gone, except a muzzleloader. The neighbor eventually discovered
Cecil’s lifeless body—lying face down without shoes or socks—near a bayou not far
from the Boren’s home. Cecil had been show seven times and scrape marks on his
body revealed that his body had been dragged to the location where it had been
found. The subsequent investigation established that Williams had shot Cecil
closer to the house, and that Williams had stolen Cecil’s truck, wallet, other
valuables, and the missing firearms.
Around 11:00 that morning, Williams showed up at Eddie Gatewood’s house
asking for a map. Williams was driving Cecil’s truck. Gatewood testified at
Williams’s trial that Williams told him he had killed a person to get the truck.
The next day, on October 4, 1999, Cecil’s truck was spotted in Lebanon,
Missouri, by police officer Dennis Mathis. Officer Mathis attempted to stop the
truck. Initially, Williams pulled over, but drove off before Officer Mathis could

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 approach him. A high-speed chase began involving multiple police units covering
roughly 60 miles. Speeds went as high as 120 miles per hour. Williams was only
stopped when he struck a water truck that was turning left in front of him.
Williams struck the truck in the cab, and the truck’s driver, Michael Greenwood,
was ejected and killed. Although the truck Williams stole was disabled by the
collision, he continued to flee on foot before being apprehended.
More than 114 personal items belonging to Cecil and Genie Boren were
removed from Cecil’s truck, including the firearms stolen from their home. At the
time of his arrest, Williams was wearing Cecil’s coveralls and two of Cecil’s rings.
B. Williams’s trial for the capital murder of Cecil Borden
At trial, Arkansas was unable to link the .22 caliber fragments taken from
Cecil’s body to the firearms found in Williams’s possession at the time of his arrest.
However, there was testimony that the fragments likely came from one of six
manufacturers, including Ruger. Importantly, Cecil owned a Ruger .22 caliber
semi-automatic pistol, it was taken from his house the day of his murder, and,
although the gun was never found, a clip to a Ruger .22 automatic was found in the
truck when Williams was arrested. The jury was free to conclude that Williams
shot and killed Cecil with his stolen Ruger pistol and disposed of the weapon in his
flight from Arkansas but kept the ammunition for use with the remaining stolen
weapons. At trial, Williams did not claim that he was intellectually disabled, and
after hearing this evidence, a jury found Williams guilty of theft of property and
capital murder.

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 At his sentencing, evidence of two prior crime sprees was introduced, and on
August 30, 2000, a jury convicted Williams of the capital-felony murder of Cecil
Boren and theft. Williams was sentenced to death on the capital-murder conviction
and received 40 years’ imprisonment on the theft conviction.
1. Williams’s kidnapping and aggravated robbery of Sharon Hence.
In the sentencing phase of Williams’s trial, the jury heard evidence that on
December 5, 1998, Williams kidnapped and robbed Sharon Hence. According to the
record, Hence was using an ATM machine in Pine Bluff when Williams got into her
car, pulled a gun, and demanded that she get more money out of the machine.
When Hence was unable to do so, Williams ordered her to drive away. As they
drove around Pine Bluff, Williams rifled through Hence’s purse and threatened to
shoot her. Eventually, Hence stopped the car on a dead-end street. Williams
ordered her to give him all of her jewelry, empty her pockets, and, thankfully,
allowed Hence to get out of the car. Hence’s car was later found burning roughly
two and one-half blocks away from Williams’s apartment. At Williams’s subsequent
August 1999 jury trial for arson, kidnapping, theft, and robbery, Hence identified
Williams as the man who had kidnapped, robbed, and terrorized her. He was
convicted of arson, kidnapping, aggravated robbery, and theft of property. He was
sentenced to respective terms of six, ten, five, and five years in prison, to be served
consecutively.2

Williams’s convictions and sentences were affirmed by the Arkansas Court of
Appeals in Williams v. State, No. CACR 00-432, 2000 WL 1745216 (Ark. Ct. App.
Nov. 29, 2000).
2

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 2. Williams’s cold blooded murder of Dominique Herd and attempted
murder of Peter Robertson
The jury also heard evidence that in December 1998, Williams kidnapped
Peter Robertson and Dominique Herd, two students at the University of Arkansas
at Pine Bluff, and murdered Herd. On December 13, 1998, Robertson and Herd had
borrowed a friend’s car to go to church and eat at the Bonanza Steak House. Upon
exiting the restaurant, Williams approached the couple, briefly talked with them,
and then pulled a gun and forced them into their car. Williams sat in the back seat
of the car and directed Robertson where to drive. He first made them go to a bank
ATM to withdraw $70 from Robertson’s account. Williams also attempted to
withdraw money from Herd’s account, but in her terror, Herd could not remember
her P.I.N., so Williams directed Robertson to drive off.
During the drive, Williams continued to tell the terrified couple that they
would be fine and directed them to drive around town. Eventually, Williams
directed them down a dead-end street and made the couple get out of the car.
Williams then lifted Herd’s dress and pulled down her underwear and, horrifically,
forced Robertson to take a picture of her.
Williams then directed the couple to drive to another dead-end street, get out
of the car, climb a fence, go behind a shed, and kneel down. Williams initially got
into the car and departed. But Williams then backed up, asked Herd for her purse,
and asked, “Where did you say you were from again?” Herd answered, “Dallas,” and
Robertson answered, “New Jersey.” Williams responded, “I don’t like the niggers
from Dallas anyway,” and shot the couple, emptying the gun in the process.

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 Williams left them there to die. Miraculously, Robertson survived the shooting and
was able to call the police. Herd died from a gunshot to her head. After fleeing the
murder scene, Williams—as he had with Hence’s car—torched and abandoned the
victims’ car.
Robertson identified Williams both in a photo line-up—and at trial—as the
man who had kidnapped, terrorized, robbed, and shot both him and Herd. On
September 14, 1999, a jury convicted Williams of the capital murder of Herd, the
attempted capital murder of Robertson, kidnapping, aggravated robbery, theft, and
arson. 3 Williams was sentenced to life imprisonment without the possibility of
parole. Just 18 days later, Williams escaped from prison, murdered Cecil Boren,
and led police on a high-speed chase that killed Michael Greenwood.
C. Williams’s direct and collateral review proceedings.
By continuously raising and strategically withdrawing frivolous and
purportedly newly discovered claims, Williams has successfully evaded justice for
more than a decade-and-a-half.
1. Williams’s proceedings on direct review.
Williams appealed his conviction and death sentence to the Arkansas
Supreme Court. He raised twelve different claims, including arguing that: (1) the
state circuit court abused its discretion by ordering that he appear at trial wearing
prison garb, shackles, and handcuffs; (2) two of the jurors seated on his jury, Brenda

Williams’s convictions for those crimes were affirmed by the Arkansas Supreme
Court in Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001).
3

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 Patrick and LaRhonda Washington, should have been removed for cause; (3) the
state circuit court erroneously admitted evidence that Williams was apprehended in
Missouri following a high speed chase that resulted in a traffic fatality; (4) there
was insufficient evidence to prove that Williams committed first-degree escape,
which was one of the two felonies that the State relied on in prosecuting Williams
for capital-felony murder; (5) there was insufficient evidence to support his capitalmurder conviction; (6) the jury ignored mitigation evidence; (7) the state circuit
court erred by denying his motion for funds to hire a corrections expert; (8) the state
circuit court erred by admitting victim-impact evidence during the penalty phase,
and that it was improperly used; (9) it was error to submit Ark. Code Ann. §5-4604(5) (Repl. 1997) as an aggravating factor because there was no evidence that the
appellant committed the murder to avoid arrest, (10) it was error to submit Ark.
Code Ann. §5-4-604(4) (Repl. 1997) as an aggravating factor because there was no
evidence that Williams caused multiple deaths during the same criminal episode;
(11) Ark. Code Ann. § 5-4-604(2) and Ark. Code Ann. § 5-4-604(5) were
unconstitutionally duplicative; and (12) the state circuit court erred by denying
Williams’s motion for mistrial based on the seating of an alternate juror for the
penalty phase of trial.
In a February 21, 2002 opinion, the Arkansas Supreme Court rejected
Williams’ claims and affirmed his conviction and death sentence. Williams v. State,
347 Ark. 728, 67 S.W.3d 548 (2002).
2. Williams’s state collateral proceedings

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 In state collateral proceedings, Williams was appointed counsel and pursued
claims that (1) his trial counsel was ineffective for failing to submit evidence of
intellectual disability under Ark. Code Ann. §5-4-618; (2) he is intellectually
disabled and ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304;
(3) his trial counsel was ineffective for failing to object to improper victim-impact
evidence; (4) his trial counsel was ineffective for failing to object to a biased juror;
(5) his trial counsel was ineffective for failing to properly object to the jury’s failure
to consider mitigating evidence; (6) his trial counsel was ineffective for failing to
introduce the supporting expert mitigation evidence; and (7) his rights were
violated by the requirement that he wear prison clothing and be shackled in front of
the jury, as well as placement of several uniformed officers in his immediate vicinity
and, to the extent that the issue was not adequately preserved, that he received
ineffective assistance as to the claim. (PCR. 7-16, 63).4
Prior to his state postconviction hearing, the state circuit court granted
Williams’s motion for funds to hire an expert on the question of whether Williams
was intellectually disabled and authorized expenditure of $10,000 to hire Dr.
Ricardo Weinstein of Encinitas, California for that purpose. (PCR. 31). The court
also granted Williams’s motion for funds to hire an investigator for that claim and
related issues. (PCR. 36). At the beginning of the September 8, 2005 state
collateral review hearing, Williams’s postconviction counsel informed the court that,

The state trial and postconviction records were submitted per Habeas Rule 5 in
the district court in Williams v. Kelley, No. 5:07CV00234-SWW (E.D. Ark.), ECF No.
8.
4

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 Claims One and Two, we are not going to pursue in this matter. That
deals with the retardation issue. And this was propounded and
investigated in good faith. And there, in fact, was testimony in the
trial record about borderline mental issues. But after—and the Court
did authorize full testing of Mr. Williams. And after that testing was
done, it was—we have decided not to pursue that—those two claims.
So Claims One and Two would not be pursued at this time. And I
wanted just to let the Court—let the Court know.
(PCR. 137). The state circuit court noted the abandonment of those two claims in
its order denying Rule 37 relief. (PCR. 116). The Arkansas Supreme Court
affirmed the denial of relief on March 1, 2007. Williams v. State, 369 Ark. 104, 251
S.W.3d 290 (2007).
3. Williams’s initial federal habeas proceedings
On September 10, 2007, Williams filed a petition for writ of habeas corpus in
the Eastern District of Arkansas. In that petition, he raised seven separate claims
that: (1) his Eighth Amendment rights were violated by the refusal to provide
funds for or permit the presentation of mitigation evidence that the ADC bore some
responsibility for the events causing Boren’s death; (2) the state circuit court
improperly permitted certain victim-impact evidence and, to the extent the
argument was defaulted by trial counsel, counsel was ineffective; (3) trial counsel
was ineffective for failing to properly object to a biased juror; (4) trial counsel was
ineffective for failing to properly object to the jury’s failure to consider mitigating
evidence; (5) trial counsel was ineffective for failing to introduce the supporting
documentation of mitigation evidence; (6) Williams’s due-process rights were
violated by being required to stand trial shackled, in prison attire, and with

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 numerous uniformed guards around him, and, to the extent trial counsel defaulted
the argument, he was ineffective; and (7) his Sixth Amendment rights were violated
by the denial of funds for an investigator to probe issues of juror bias and
misconduct. On November 4, 2008, the district court denied his petition in its
entirety. Williams v. Norris, No. 5:07cv00234, ECF No. 10, 2008 WL 4820559 (E.D.
Ark. Nov. 4, 2008).
Williams appealed, and the Eighth Circuit addressed each of the seven issues
as to which the district court denied relief. On July 15, 2010, it affirmed the district
court’s decision denying relief. Williams v. Norris, 612 F.3d 941 (8th Cir. 2010).
Williams subsequently filed a petition for writ of certiorari, which was denied on
March 28, 2011. Williams v. Norris, 562 U.S. 1290 (2011), E.D. Ark. No.
5:07cv00234, ECF No. 25.
D. Williams’s recent dilatory and piecemeal filings
On February 27, 2017, Arkansas Governor Asa Hutchinson scheduled
Williams’ execution for April 27, 2017. Williams then waited—nearly two months—
until April 21, 2017, to launch his most recent individual claims. His filings are
little more than an obvious and continuing attempt to overwhelm the courts with
last-minute filings containing claims that could have been raised long ago.
1. Arkansas Supreme Court
On April 21, Williams asked the Arkansas Supreme Court to recall its 10year-old postconviction mandate so that he could raise a claim under Atkins v.
Virginia, 536 U.S. 304 (2002), as well as claims of juror and prosecutorial
misconduct. He alternatively attempted to invoke the state remedy of error-coram-

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 nobis relief. On the night of April 24, 2017, he also filed a second motion to recall
the mandates of both his direct and postconviction cases in the Arkansas Supreme
Court so that he could challenge his jury’s consideration of mitigating evidence.
The Arkansas Supreme Court denied his claims on April 26, 2017.
On that same date that he filed his first motions in the Arkansas Supreme
Court, Williams also filed a petition for writ of habeas corpus in state circuit court
and a motion in the Arkansas Supreme Court to stay his execution pending that
state habeas corpus proceedings. In both of those petitions, he argued that his
Atkins claim is a basis for state-habeas-corpus relief. Both those motions have been
denied, and shortly before this filing, Williams appealed the denial to the Arkansas
Supreme Court and asked again for a stay.
2. Federal Habeas proceedings
On April 24, 2017, Williams filed four pleadings in his long-closed federal
habeas case, Williams v. Kelley, (E.D. Ark.) 5:07CV00234SWW. Those pleadings
include: (1) Docket No. 39, a motion for relief under Rule 60(b)(6), (2) Docket No. 40,
a motion for a stay based on the 60(b)(6) motion, (3), Docket No. 45, a petition for
habeas-corpus relief, and (4) Docket 46, a motion for a stay of execution based on
the habeas petition. The district court transferred all of these pleadings to the
Eighth Circuit.
In addition to the transferred proceedings, listed as No. 17-1892 in the
Eighth Circuit, Williams filed: 1) a notice of appeal and request for certificate of
appealability from the order transferring the petition that raised the Atkins claim;

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 2) a related motion for stay of execution in case No. 17-1893; 3) an application for
authorization to file a second or successive petition raising the Atkins claim in case
No. 17-1896; and 4) a motion for stay of execution in the same.

Reasons for Denying a Stay and Writ of Certiorari
A stay of executions is not warranted because Petitioner’s claims do not
warrant this Court’s review and, even if they did, granting an execution eve stay to
review claims that Petitioner intentionally declined to bring earlier would validate
his strategically dilatory and piecemeal litigation tactics. This Court should deny
Petitioners’ petition for a writ of certiorari and their stay application.
A. Petitioner’s dilatory and piecemeal litigation tactics cannot overcome the
strong equitable presumption against granting a stay to consider claims
that could (and should) have been brought earlier.
In an imminent execution case, this Court must “apply ‘a strong equitable
presumption against the grant of a stay where a claim could have been brought at
such a time as to allow consideration of the merits without requiring entry of a
stay.” Hill v. McDonough, 547 U.S. 573, 584 (2006) (quoting Nelson v. Campbell,
541 U.S. 637, 650 (2004)) (emphasis added). Here, there is no dispute that
Petitioner engaged in what amounts to little more than strategic and malicious
claim splitting—bringing and dismissing claims for tactical reasons and holding
back certain arguments so that he could use them as justification for seeking an
execution eve stay. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (one of the

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 realities of capital litigation is that inmates “deliberately engage in dilatory tactics
to prolong their incarceration and avoid execution of the sentence of death”).
Here, there is no dispute that Petitioner has made a strategic decision to wait
to bring his latest claim until the eve of his execution. Indeed, while Petitioner
purports to raise an Atkins claim, it is clear that he could (and actually did) raise
that claim more than a decade-and-a-half ago. In fact, on May 16, 2002, his counsel
filed a petition for post-conviction review under Ark. R. Crim. P. 37.5 and actually
claimed that his trial counsel was ineffective for failing to submit evidence of
intelectual disability for finding under Ark. Code Ann. §5-4-618 and that Williams
was intellectually disabled and ineligible for the death penalty under Atkins v.
Virginia. (R. 37 R. 4, 7-16).5 Additionally, to ensure he had an adequate
opportunity to litigate his Atkins claim, the state circuit court actually granted
Williams’s motion for funds to hire an expert on the question of whether Williams
was mentally retarded and authorized expenditure of $10,000 to hire Dr. Ricardo
Weinstein of Encinitas, California for that purpose. (R. 37 R. 31). The court also
granted Williams’s motion for funds to hire an investigator for his claim. (R. 37 R.
36). Having fully investigated the basis for that claim, Williams then opted to drop
his Atkins claim. Indeed, as Williams explained:
The State will refer to the record in Williams’s direct appeal, Arkansas Supreme
Court No. CR-01-364 as “(T.R.)” and the record in Williams’s Rule 37 appeal as “(R.
37 R.).” Because this all is a part of the public record already filed with the
appellate court in Williams’s earlier appeals, this Court is free to consider all of
these, as well as Williams’s appeals of convictions in other cases, in this recall
case. Johnson v. State, 366 Ark. 286, 291, 234 S.W.3d 858, 862 (2006) (quoting
Drymon v. State, 327 Ark. 375, 378, 938 S.W.2d 825, 827 (1997) (per curiam)). See
also Davis v. State, 2013 Ark. 118, at 3 (per curiam).
5

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 Claims One and Two, we are not going to pursue in this matter. That deals
with the retardation issue. And this was propounded and investigated in
good faith. And there, in fact, was testimony in the trial record about
borderline mental issues. But after—and the Court did authorize full testing
of Mr. Williams. And after that testing was done, it was—we have decided
not to pursue that—those two claims. So Claims One and Two would not be
pursued at this time. And I wanted just to let the Court—let the Court know.
(R. 37 R. 137). That voluntary, strategic decision was based upon I.Q. testing that
demonstrated Williams had an adjusted I.Q. of 78, placing him well outside the
intellectually disabled range.6 In its order denying relief, court noted the
abandonment of those two claims. (R. 37 R. 116). Additionally, even before Atkins,
Williams had the opportunity to raise essentially the same claim at trial under
Arkansas law, and he declined to do so. Those facts alone—at a minimum—
demonstrate that this case is a poor vehicle for reviewing Williams’s claim that he
was denied an adequate avenue for pursuing his Atkins claim.
Further, Williams’s decision to bring and voluntarily dismiss Atkins claims in
the past and then wait till the eve of his execution to reassert those claims
demonstrate that he has been dilatory and engaged in piecemeal litigation. That

Significantly, Williams has filed his Atkins claims in several different courts,
including the Arkansas Supreme Court, attaching the I.Q. testing table at page A145 of his Appendix to his Corrected Petition for Writ of Habeas Corpus filed in the
Lincoln County Circuit Court on April 25, 2017. The State has filed responses in all
cases raising an Atkins issue noting that the majority of his corrected I.Q. scores
contained at page A-145 still are, in large part, above the cutoff for intelectual
disability. In an obvious response to the fact that the scores contained on page A145 do not establish intellectual disability, Williams today has filed an amended
table within his Stay Motion artificially lowering the scores contained on A-145.
(Motion to Stay at 16). Nevertheless, Williams admits that the average I.Q. score of
these newly lowered scores is 71.8, still above the cutoff for intelectual disability.
Up until now, Williams has asserted, based on new tests conducted in conjunction
with this last-minute litigation, that his average Full Scale I.Q. was 75. (A-186).
6

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 fact alone warrants denying his last second request. Indeed, granting a stay in
response to such tactics—particularly where inmates actually brought and then
voluntarily dropped the claim—would only encourage other inmates to do what
Petitioner has done here. Both the application for a stay and the writ should be
denied.
B. Petitioner cannot show a significant possibility of reversal of the lower
court’s decision. Nor has they demonstrated that this Court’s review is
warranted.
A stay should likewise be denied because Petitioner has not shown a
significant possibility that this Court will reverse the Arkansas Supreme Court or
that certiorari is warranted. Moreover, even if this Court believes that review of the
question raised in the petition might warrant review, this case would be a
particularly poor vehicle for addressing that question given, as explained above,
that Petitioners’ dilatory tactics alone warranted denying a stay.
1. Petitioner does not point to any authority requiring that inmates
given an opportunity to raise a claim that they are intellectually
disabled at trial an additional chance to raise that claim on collateral
review.
Petitioner does not point to any authority—under the Eighth Amendment or
the due process clause—requiring a state, like Arkansas which provides an inmate
an opportunity to claim that he is intellectually disabled during his trial proceeding,
to allow additional opportunities to raise that claim. Indeed, he does not cite a
single cause supporting his argument. And he concedes as much. Pet. 15 (While it
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.

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 Williams had no such opportunity.”). Moreover, while Petitioner attempts to
distinguish Atkins from the statutory mechanism that Arkansas provided him, he
does not point to any substantive differences and Petitioner’s voluntary failure to
invoke the Arkansas provision at his trial renders this case a particularly poor
vehicle for reviewing the purported question presented.
Further, Atkins v. Virginia, 536 U.S. 304 (2002), does not require a particular
proceeding, much less one in state post-conviction as the petitioner imagines. In
Schriro v. Smith, 546 U.S. 6, 7 (2005), the Court rejected the Court of Appeals’
judgment compelling Arizona to provide a particular type of proceeding—a jury
trial—to adjudicate an Atkins claim in the first instance. In so doing, the Court
reiterated one of the basic tenants of Atkins: “‘we leave to the State[s] the task of
developing appropriate ways to enforce the constitutional restriction upon [their]
execution of sentences.’” (quoting Atkins, 536 U.S. at 317). At the time Williams
was tried, Arkansas enforced this constitutional restriction through Ark. Code Ann.
§ 5-4-618.
Hall v. Florida, 134 S. Ct. 1986 (2014), and Moore v. Texas, 137 S.Ct. 1039
(2017), did not change the legal landscape regarding Atkins claims, as at least one
circuit has recognized. In Goodwin v. Steele, 814 F.3d 901 (8th Cir. 2014), the
Eighth Circuit rejected Goodwin’s attempt to characterize Hall as a substantive
change in the law that would warrant a last-minute stay of execution. The Court
stated, “[r]ather than announce a substantive rule, Hall created a procedural
requirement that those with IQ test scores within the test’s standard of error would

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 have the opportunity to otherwise show intellectual disability.” Goodwin, 814 F.3d
at 904.
The same is true for Moore, which did nothing more than hold that current
medical standards on intellectual disability contained in the Diagnostic and
Statistical Manual of Mental Disorders—Fifth Edition (“DSM-5”), should be used by
courts when determining whether an individual is intellectually disabled, and not
Texas’s “outlier” approach to such a determination. Moore, 137 S. Ct. at 1052, 1053.
The diagnosis of intellectual disability under the DSM-5, however, continues to
require, just as in the preceding edition of the manual, and just as the Arkansas
statute in effect when Williams was tried, the following three criteria to be met:
deficits in intellectual functioning, deficits in adaptive functioning, and onset of
these deficits during the developmental period. DSM-5 at 33.
To the extent that Williams may be asserting that, like a claim of
incompetency to be executed, his mental retardation issue was not ripe until an
execution date was set, that claim has been flatly rejected. In Panetti v.
Quarterman, 551 U.S. 930, 945 (2007), the Court determined that a claim of
incompetency to be executed under Ford v. Wainwright, 477 U.S. 399 (1986), did not
amount to a prohibited successive habeas corpus petition because the claim was not
ripe until a petitioner’s execution was scheduled. The Court explained,
“[i]nstructing prisoners to file premature claims, particularly when many of these
claims will not be colorable even at a later date, does not conserve judicial
resources, “reduc[e] piecemeal litigation,” or “streamlin[e] federal habeas

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 proceedings.” Panetti, 551 U.S. at 946 (internal quotation marks omitted)); see also
Stewart v. Martinez–Villareal, 523 U.S. 637, 643-44 (1998) (petitioner’s Ford claim
that he is not competent to be executed should not be treated as “second or
successive” petition, despite the fact that it had been raised in a prior petition and
dismissed as unripe). The Court, however, never has held that an Atkins claim is
akin to a Ford claim and ripens only upon the setting of an execution date.
The petitioner’s due-process claim is equally unavailing on this record. He
was afforded the opportunity to be heard at trial through a statutory remedy and in
state post-conviction proceedings. Indeed, he made a direct Atkins claim in that
latter proceeding, which he chose to abandon. He also raised in that proceeding an
ineffective-assistance-of-trial-counsel claim for the alleged failure to invoke the
state statutory remedy at trial, but he abandoned that claim to. There is no more
process due to him now hours before his execution.
Additionally, there is no state consensus for identifying intellectual disability,
and Arkansas’s statutory procedures satisfy the requirements of Atkins. Thus,
there is no need for this Court to create a new and unique procedure to litigate
abandoned Atkins claims. Therefore, states may be justified in concluding that
those who are at the margins of the clinical definitions do not necessarily fit the
category of mentally retarded persons about whom there is national consensus for
Eighth Amendment purposes. See Atkins, 536 U.S. at 317 (noting serious
disagreement about which offenders are retarded and leaving it to the States to
develop appropriate ways to enforce the constitutional restriction). To be entitled to

20

 an exemption from the death penalty on grounds of intellectual disability under the
Arkansas standard, it is Williams’s burden to show by a preponderance of the
evidence that he suffered from intellectual disability at the time of his capital crime.
To establish intellectual disability, he must prove three things: (1) “[s]ignificantly
subaverage general intellectual functioning ... manifest [ing] ... no later than ... age
eighteen (18),” (2) “accompanied by significant deficits or impairments in adaptive
functioning manifest[ing] ... no later than … age eighteen (18)[,]” and (3) “[d]eficits
in adaptive behavior.” See Ark. Code Ann. §5-4-618(a)(1)(A) and (B). Petitioner
does not show how this statutory scheme is inadequate.
2. The Arkansas Supreme Court’s decision rests on an independent and
adequate state law grounds.
To the extent Petitioner’s appeal rests on the claim that the Arkansas
Supreme Court was required to recall the mandate in his prior state cases, this
Court lacks jurisdiction to review his claims. The recall jurisprudence of the
Arkansas Supreme Court is wholly untethered from federal law. See generally, e.g.,
Wertz v. State, 2016 Ark 249, 493 S.W.3d 772. Even while federal constitutional
claims might underlie a motion to recall, the state-law doctrine is divorced from the
merits of the claim and turns on whether there was a so-called defect in the
appellate process of review by the Arkansas Supreme Court in a death-penalty case
as a matter of state law. Id. at 7, 493 S.W.3d at 776.
Indeed, this Court previously denied review of a similar issue in the case of
Engram v. Arkansas, ___ U.S. ___, 125 S.Ct. 2965 (2005), where the petitioner
argued that Atkins obligated the Supreme Court of Arkansas to re-open his direct

21

 appeal or a collateral state remedy to consider his claim that he was retarded and,
therefore, not subject to execution. In Engram, the Supreme Court of Arkansas
concluded that the state statutory procedure found in § 5-4-618, which Engram did
not invoke at his trial, satisfies the Eighth Amendment prohibition announced in
Atkins and concluded there was no state judicial forum in which Engram (whose
direct and collateral review cases were over) could belatedly raise an Atkins-type
claim or challenge the statutory procedure that he altogether failed to invoke.
Engram v. State, No. CR99-928, 2004 Westlaw 2904678 (Ark. Dec. 16, 2004), cert.
denied, 125 S.Ct. 2965 (2004), reh’g denied, ___ S.Ct. ___, 2005 Westlaw 2000750
(Aug. 22, 2005).7
The decision in Engram followed that in Anderson v. State, 357 Ark. 180,
215, 163 S.W.3d 333, 354 (2004), where the Supreme Court of Arkansas first
announced that § 5-4-618 satisfies the Constitutional requirements recognized in
Atkins. The decision in Anderson contains an important corollary to Engram’s
holding that a defendant must raise his claim under § 5-4-618 in order to preserve
his right to further review of the claim in state court under the legal principle
announced in Atkins. Pre-Atkins, Anderson presented the trial court with a claim
under § 5-4-618, and the trial court adjudicated the claim unfavorably to Anderson.
On direct appeal, the appellate court rejected the state’s argument that Anderson
7Section

5-4-618 was enacted in 1993 and applied at the time the Petitioner
was tried in 1994. The Arkansas Supreme Court has not yet answered whether and
what state-court venue might be available to raise an Atkins claim for capital
crimes committed before 1993, although the question is pending in that court in the
case of Roger Lewis Coulter, whose capital crime was committed in 1989. See
Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991).

22

 had defaulted any issue based on Atkins. The court held that because Anderson
had preserved his claim under the statute prior to the decision in Atkins, he was
entitled to argue that Atkins provided Constitutional support for his claim under
the statute.
Consistent with the default principles considered in Anderson and Engram,
in the present case the Supreme Court of Arkansas concluded that the petitioner’s
failure to invoke the statute in a timely manner in the trial court resulted in a
default of the issue. Nance v. State, No. CR99-365, 2005 Westlaw 984778 at *2
(Ark. Apr. 28, 2005) (Pet. Ex. A at 2). As an independent matter, the court held that
the specific remedy the petitioner sought, that of coram nobis, was not available as
a way to circumvent the default because the petitioner’s belated allegations of
mental retardation did not fit within the scope of Arkansas’ limited remedy of
coram nobis, and, in light of the availability of his claim at the time of his trial, the
petitioner had not met the diligence requirement for bringing a coram nobis action.
Id. at *2-*3 (Pet. Ex. A at 2). Consequently, the court denied his petition to reinvest
the trial court with jurisdiction to hear such a claim in a proceeding for a writ of
error coram nobis. Id. at *3 (Pet. Ex. A at 2).
To the extent that the state court’s denial of the petitioner’s application for
leave to pursue a writ of error coram nobis can be considered to have decided the
question presented at all, the decision rests on a state law ground that is
independent of that question and is adequate to support the judgment. “It is a well
established principle of this Court that before [it] will review a decision of a state

23

 court it must affirmatively appear from the record that the federal question was
presented to the highest court of the State having jurisdiction and that its decision
of the federal question was necessary to its determination of the cause.” Williams v.
Kaiser, 323 U.S. 471, 477 (1945). “This Court will not review a question of federal
law decided by a state court if the decision of that court rests on a state law ground
that is independent of the federal question and adequate to support the judgment.”
Coleman v. Thompson, 501 U.S. 722, 729 (1991), reh’g denied, 501 U.S. 1277 (1991).
Specifically, the Supreme Court of Arkansas concluded that the petitioner’s
mental-retardation claim did not fall within the narrow grounds that are cognizable
in state coram nobis proceedings—which are limited to claims of fundamental error
arising from facts, not legal theories, that were unknown at the time of trial. Nance
v. State, 2005 Westlaw 984778 at *1 (Pet. Ex. A at 1-2). The court also concluded,
apparently in the alternative, that even if the petitioner had stated a cognizable
claim, he would have failed to meet the diligence requirement for the remedy, as
evidenced by his failure to bring the claim at the first opportunity under the
statutory procedure available to him at trial. Id. at *2 (Pet. Ex. A at 2). Thus, while
the Supreme Court of Arkansas ultimately rejected the petitioner’s assertion that
Atkins obligated it to grant his petition for permission to seek a writ of error coram
nobis, its decision did not rest on any interpretation of Atkins, of the Eighth
Amendment, or, as apparently was the case in Engram and Anderson, an
assessment of the adequacy of the state statute in light of Atkins. And it did not, as
the petitioner would apparently have it, declare that there is no remedy available

24

 for him and other similarly situated capital petitioners to raise their claims.
Rather, it simply concluded that the petitioner did not state a cognizable claim for
the narrow remedy of coram nobis. The petitioner, therefore, has failed to establish
this Court’s jurisdiction to decide the federal issue that he wishes to press. See
Coleman, 501 U.S. at 729 (stating that in the context of direct review of a state
court judgment, the independent and adequate state ground doctrine is
jurisdictional).
3. This case is a particularly poor vehicle for addressing the question
purportedly presented because Williams cannot show he is intellectually
disabled.
Even at this late date, Williams cannot establish that he meets the criteria
for intellectual disability
To begin with, psychological testing performed on Williams on May 24, 1999,
prior to his trial for the Boren murder, by examiners David Nanak and Dr. William
Cochran revealed that Williams had a Full Scale I.Q. of 74; however, they deemed
the score a “minimum estimate” due to Williams’s lack of effort during the
evaluation. The report included the following:
It is felt that this assessment may be an underestimate of Mr. Williams’
current functioning level and capabilities. Throughout the testing situation,
he spent most of his time slouching in the chair, supporting his head with one
hand while using the other hand to manipulate objects. Quite often he would
give quick “I don’t know” responses without even reflecting on the questions
being posed of him. About a third of the way into the testing situation he
asked if he had to complete the tests, and again it was explained to him that
this was a court ordered assessment and that I had to make a report back to
the court. I explained to him that if he refused to take the testing that would
be reported back to the judge.

25

 TEST RESULTS AND INTERPRETATION: Mr. Williams attained a WAISIII Full Scale IQ of 74, which would suggest Borderline intellectual
functioning. He attained a verbal I.Q. of 76 and a Performance I.Q. of 75
with both scores falling into the same classification range. Again, it is felt
that because of his low motivation, quick “I don’t know” responses, and
scatter throughout the testing that this is considered a minimum estimate
and that at least Low Average intellectual potential may exist for this
individual.
(See Williams’s Appendix to Corrected Habeas Petition at A 49-50). In addition,
Williams’s Rule 37 counsel had Williams’s I.Q. tested in conjunction with that
proceeding, and unequivocally abandoned an intellectual disability claim after the
results of the testing were provided to him. By Williams’s own submissions in his
motion to recall the mandate case, his adjusted I.Q. score at the time of the Rule 37
proceeding was a 78, (see Appendix to Corrected State Habeas Petition at A-145, A179), placing him well above the cut-off for intellectual disability and fully
explaining postconviction counsel’s reason for withdrawing the claim in Rule 37.
Williams’s claim is also belied by his prolific criminal record. For example, on
August 26, 1999, just over a month before escaping the Cummins unit and
murdering Cecil Boren, a Jefferson County jury convicted Williams of arson,
kidnapping, aggravated robbery, and theft of property for his December 5, 1998,
crimes against Sharon Hence. At that trial, Williams testified in his own defense.
He explained that, in December 1998, he was working a full-time job and paying his
own bills. Williams v. State, No. CACR 00-432, at 217-18. He denied committing
the crimes, testified that he was at home when the robbery occurred, and he
recalled in detail his purported alibi during the time period of those crimes.

26

 Williams v. State, No. CACR 00-432, at 219-34. A review of his testimony from that
trial reveals that Williams was coherent, well-spoken, thoughtful, and recalled
specific details evidencing linear thinking and intelligence.
In his trial for the capital murder of Cecil Boren, Williams filed several pro se
pleadings, including a Motion for Recusal and a Motion for Dismissal of Court
Appointed Counsel. T.R. at 118-24. Moreover, two months before trial, Williams’s
experienced criminal-defense attorneys Dale Adams and John Cone filed a “Motion
to Allow Defendant to Participate at Trial As Co-Counsel and Memorandum Brief in
Support Thereof.” T.R. at 312. In that motion, Williams’s attorneys demonstrated
extraordinary confidence, not only in Williams’s ability to assist in his own defense,
but to actually assist them in defending himself in a complex capital-murder trial.
The follow is an excerpt from that motion:
Based on the nature and circumstances of this case, it is expected that this
will be an extended and complex trial. Further, it appears that most, if not
all, of the evidence which will be presented in this matter lies within the
Defendant’s personal knowledge and in many instances, the clarification of
such evidence may lie within his exclusive knowledge.
T.R. at 312. Further, the mitigating-circumstances form submitted to the jury at
sentencing in this case contained a mitigating circumstance that: “Kenneth D.
Williams suffers from borderline intelectual disability.” T.R. at 500(c)-500(g). The
jury did not check the box for that mitigator. T.R. at 500(c)-500(g). Thus, the jury
did not conclude that the evidence presented was sufficient to establish that
Williams suffered from borderline intellectual disability.

27

 A plethora of post-trial and post-rule 37 evidence further confirms that
Williams is not intellectually disabled. Prior to the Rule 37 proceeding, Williams
vigilantly acted to protect his rights in in federal court. See Jackson v. Norris, 2016
WL 1740419 (E.D. Ark. 2016) (utilizing pro se pleadings to find no intellectual
disability under Atkins.) Acting pro se, Williams filed on February 14, 2001, a
petition under 42 U.S.C. 1983, alleging the denial of medical attention. (A copy of
that pro se petition is attached to Respondent’s Response to Motion to Recall as
Exhibit A).8 He was denied relief in the United States District Court. Williams
then filed a timely appeal to the United States Court of Appeals for the Eighth
Circuit, which affirmed the denial of relief. Williams v. Byus, 79 F. App’x 242, 243
(8th Cir. 2003).
In addition, as demonstrated in Williams’s clemency petition filed with the
Arkansas Parole Board on March 14, 2017, he has studied and become a minister
during his time on death row. (A copy of Williams’s clemency petition is attached to
Respondent’s Response to Motion to Recall as Exhibit B). He has written several
articles, which have been published in a variety of publications. (Respondent’s
Exhibit B to Response to Motion to Recall at 4-12). He has obtained numerous
certificates upon the completion of religious training, as well as a “Masters Degree
in Religion” and an honorary “Doctor of Divinity” from the Universal Life Church.

Due to time constraints, Rspondent relies on the Exhibits to Respondent’s
Response to Petitioner’s Motion to Recall the Mandate, Petition to Reinvest
Jurisdiction in the Circuit Court to Consider a Petition for Writ of Error Coram
Nobis, and Motion for Stay of Execution in CR 06-511, which Respondent filed on
April 25, 2017.
8

28

 (Respondent’s Exhibit B to Response to Motion to Recall at 13-21). He also has
created board games called “Gang Proof,” “Bully Proof,” and “Drug Proof,” with the
“hope that young persons who read [his] writing and play these games will be
warned off the path that [he] took in his earlier years.” (Respondent’s Exhibit B to
Response to Motion to Recall at 3).
In Williams’s clemency proceeding, an audio-recording, a copy of which was
conventionally filed as Exhibit C to Respondent’s Response to Motion to Recall the
Mandate, Williams spoke to the Parole Board for more than an hour, giving a
sophisticated and theologically literate presentation. In that presentation, he
quoted scripture from the Old Testament and New Testament, understood and
extracted themes of redemption from those passages, applied them to his own life,
and communicated those tenets into a plea for mercy from the Board.
Williams’s Condensed Health Services Encounter obtained from the Arkansas
Department of Correction, which was filed separately under seal as Respondent’s
Exhibit D to its Response to Motion to Recall the Mandate, demonstrates that
Williams is acclimated to, and functions well in, his current environment and that
he performs extremely complex tasks. For example, on February 12, 2016, when
visited by the mental-health staff, Williams “discussed [with staff] doing his taxes
from the books he sold.” (Respondent’s Exhibit D to Response to Motion to Recall at
29, filed separately under seal). In several other mental-health visits, Williams
relayed that he is “working on his autobiography.” (Respondent’s Exhibit D to
Response to Motion to Recall at 31-33, filed separately under seal).

29

 He also has been pursuing his rights in unrelated state-court actions. On
April 22, 2016, Williams filed a pro se Petition to Establish Paternity in Jefferson
County Circuit Court Case No. 35DR-16-397. (A redacted copy of that petition is
attached to Respondent’s Response to Motion to Recall as Exhibit E). Because he
apparently had difficulty with service of process on the defendant in that case, he
wrote on June 29, 2016, a coherent, well-reasoned letter explaining his struggle and
requesting assistance in locating an address for the defendant. (A redacted copy of
that letter is attached to Respondent’s Response to Motion to Recall as Exhibit F).
Williams subsequently obtained service on the defendant in that case, and on
January 23, 2017, he wrote a letter to the circuit court clerk with the following
request:
Petitioner request that a paternity test be ordered, that Ms. Johnson make
available [D.J.], the son Petitioner believes is his biological son. Petitioner
request this be done soon as possible, consider he is a death row prisoner
without any remaining appeals.
(A redacted copy of Williams’s January 23, 2017, letter is attached to Respondent’s
Response to Motion for Recall as Exhibit G). This letter, written only three months
ago, shows Williams’s persistence in asserting and protecting his rights, as well as
thoughtful planning relating to the exhaustion of his appeals and his recognition
that his execution date is imminent.
In the end, Atkins recognized that, among other things, the intellectually
disabled may “face a special risk of wrongful execution because of the possibility
that they will unwittingly confess to crimes that they did not commit, [and] their

30

 lesser ability to give their counsel meaningful assistance.” Atkins, 536 U.S. at
305. None of this is a concern with Williams. Indeed, when apprehended in
Missouri after Cecil Boren’s murder, he requested an attorney, which led to the
suppression of his pre-trial statements in the Boren murder. (T.R. at 580-81, 587,
735-39). And, as stated by counsel in the “Motion to Allow Defendant to Participate
at Trial As Co-Counsel and Memorandum Brief in Support Thereof,” his trial
attorneys thought Williams capable enough to actively assist in his own defense of
that case.
Atkins also noted it was probable that capital punishment could serve as a
deterrent only when murder is the result of premeditation and deliberation, and
that exempting the intellectually disabled from the death penalty would not affect
“‘the cold calculus that precedes the decision’ of other potential murderers.” Atkins,
536 U.S. at 319, . (quoting Gregg v. Georgia, 428 U.S. 153, 186 (1976)). The Court
added: “Indeed that sort of calculus is at the opposite end of the spectrum from
behavior of [intellectually disabled] offenders.” Id. Williams’s behavior in planning
his escape from prison strongly suggests that he is not a stranger to cold
calculation. He carefully planned and premeditated his escape, made his way to the
Boren household, and after murdering Cecil Boren, deliberately stole his truck in
order to put greater distance between himself and the prison. The evidence
demonstrates that Williams is not a person with intellectual disability.

31

 Conclusion
For the foregoing reasons, the application for a stay and the petition for a
writ of certiorari should be denied.

Respectfully submitted,

/s/Nicholas Bronni
LESLIE RUTLEDGE
Attorney General
LEE RUDOFSKY
Solicitor General
NICHOLAS J. BRONNI*
Deputy Solicitor General
OFFICE OF THE ARKANSAS
ATTORNEY GENERAL
323 Center St., Suite 200
Little Rock, AR 72201
(501) 682-6302
lee.rudofsky@arkansasag.gov
*Counsel of Record for Respondents

April 27, 2017

32

 CERTIFICATE OF SERVICE
I hereby certify that I did on the 27th day of April, 2017, send electronically
from Little Rock, Arkansas, a copy of the foregoing. All parties required to be
served have been served electronically.
KENNETH D. WILLIAMS,

Petitioner,
v.

WENDY KELLY,

Respondent.

/s/ Nicholas J. Bronni