No. ________ CAPITAL CASE – EXECUTION SCHEDULED FOR APRIL 27, 2017 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 United States Court of Appeals for the Eighth Circuit ________________________________________ PETITION FOR WRIT OF CERTIORARI ________________________________________ LEIGH SKIPPER Federal Defender SHAWN NOLAN* JAMES MORENO Federal Community Defender Office for the Eastern District of Pennsylvania Curtis Center – Suite 545-West 601 Walnut Street Philadelphia, PA 19106 (215) 928-0520 Shawn_Nolan@fd.org James_Moreno@fd.org *Counsel of record Dated: April 27, 2017 CAPITAL CASE – EXECUTION SCHEDULED FOR APRIL 27, 2017 QUESTIONS 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 petition raises the state court’s failure to provide a postconviction forum to prove his innocence of the death penalty. The second, the instant petition, 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 questions presented in this petition are: 1. Because intellectual disability under Atkins v. Virginia, 536 U.S. 304 (2002), like incompetence under Ford v. Wainwright, 477 U.S. 399 (1986), categorically excludes certain individuals from execution, may a prisoner file a second-in-time Atkins claim without being subject to the bar on “second or successive” petitions contained in 28 U.S.C. § 2244(b)? 2. Can a person who is categorically excluded from execution because of his intellectual disability seek relief under 28 U.S.C. § 2241 where the federal courts have found that his unadjudicated Atkins claim cannot be heard under 28 U.S.C. § 2254? 3. If neither 28 U.S.C. § 2254 nor 28 U.S.C. § 2241 provides an avenue by which to raise an unadjudicated claim of categorical exclusion from the death penalty due to intellectual disability, does the Antiterrorism and Effective Death Penalty Act’s statutory framework violate the Suspension Clause of Article I, Section 9, of the United States Constitution? i TABLE OF CONTENTS QUESTIONS PRESENTED............................................................................................................ i PETITION FOR A WRIT OF CERTIORARI................................................................................ 1 OPINIONS BELOW ....................................................................................................................... 1 JURISDICTION ............................................................................................................................. 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..................................... 1 INTRODUCTION .......................................................................................................................... 3 STATEMENT OF THE CASE....................................................................................................... 6 A. Procedural History............................................................................................................ 6 B. Summary of Facts Supporting the Atkins Claim ............................................................ 10 REASONS FOR GRANTING THE PETITION .......................................................................... 14 I. This Court Should Grant Certiorari to Determine Whether 28 U.S.C. § 2244(b) Can Serve to Bar an Unadjudicated Claim of Categorical Exclusion from Being Executed. ............................ 14 A. Claims of Intellectual Disability, Like Claims of Incompetence to Be Executed, Are Not Subject to § 2244(b). ................................................................................................................. 14 B. Circuit Court Judges Disagree on Whether 28 U.S.C. § 2244 Can Be Used to Bar Second-In-Time Habeas Petitions Raising Claims of Categorical Exclusion from Execution; the Question Is Thus “Debatable Among Jurists of Reason.” .................................................. 18 C. The Particular Circumstances of This Case Provide Further Reasons Why § 2244 Should Not Bar Mr. Williams’s Claim. .................................................................................... 22 II. A State Prisoner Should Be Able to Invoke 28 U.S.C. § 2241 When 28 U.S.C. § 2254 No Longer Provides a Remedy and the Denial of Relief Results in a Miscarriage of Justice. .......... 24 A. Nothing in the Text of § 2241 or § 2254 Precludes the Availability of § 2241 to State Prisoners.................................................................................................................................... 25 B. Section 2241 Is Available to Federal Prisoners; It Should Likewise Be Available to State Prisoners........................................................................................................................... 25 C. Courts of Appeals Are Split on Whether § 2241 is Available to State Court Prisoners. 27 III. Without Review of His Atkins Claim, Mr. Williams’s Privilege of the Writ of Habeas Corpus Will Be Suspended. .......................................................................................................... 28 ii PETITION FOR A WRIT OF CERTIORARI Petitioner Kenneth Williams respectfully prays that a writ of certiorari issue to review the April 27, 2017 judgment of the United States Court of Appeals for the Eighth Circuit denying a certificate of appealability regarding his petition for writ of habeas corpus. OPINIONS BELOW On April 26, 2017, the United States District Court for the Eastern District of Arkansas issued an order finding that it lacked jurisdiction to consider Mr. Williams’s petition for writ of habeas corpus alleging his categorical ineligibility for execution pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), and transferring the petition to the United States Court of Appeals for the Eighth Circuit. A-1. 1 On April 27, 2017, the United States Court of Appeals for the Eighth Circuit denied a certificate of appealability from the transfer order and affirmed the district court’s order over a lengthy dissent. A-14. JURISDICTION This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). The final judgment of the United States Court of Appeals for the Eighth Circuit was entered on April 27, 2017. This petition is timely filed. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Article I, Section 9, Clause 2, of the United States Constitution provides: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” 1 Citations to A-___ refer to the appendix submitted with this petition. 1 The Eighth Amendment to the United States Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Fourteenth Amendment to the United States Constitution provides, in pertinent part: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” 28 U.S.C. § 2241(c) provides, in pertinent part: (c) The writ of habeas corpus shall not extend to a prisoner unless— * * * (3) He is in custody in violation of the Constitution or laws or treaties of the United States . . . . 28 U.S.C. § 2244(b) provides, in pertinent part: (b) (1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless— (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 2 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 compelling 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 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 course of these six tests is 71.8, 2 well within the intellectual disability range as defined by current medical standards and as accepted by this Court. 3 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 2 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. 3 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 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 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 14 years old and his peers were in the ninth grade, he tested between the first and third grade levels with scores spanning from the fourth percentile to beneath the first percentile. None of these facts have been, or could be, challenged by the State. Neuropsychological testing has shown that Mr. Williams has the brain functioning of an intellectually disabled person and, consistent with his impaired brain, showed deficits in both receptive and expressive communication, functional academics, self-direction, social functioning, and practical living skills throughout the developmental period. The state courts have not been willing to provide Mr. Williams a forum to litigate his claim, so he has turned to the federal courts. Although his federal pleading is a second-in-time petition, it is not a “second or successive” petition as defined in 28 U.S.C. § 2244(b). Mr. Williams’s Atkins claim has only now become ripe, both because Atkins represents a substantive categorical restriction on the state’s ability to execute intellectually disabled individuals and because Mr. Williams was represented by conflicted counsel throughout his federal habeas proceedings up until the moment that the district court appointed current counsel two weeks ago. As such, the petition should have been considered by the district court without the need for preapproval by the Eighth Circuit under § 2244. At the very least, the question of whether Mr. Williams is intellectually disabled and the question of whether his second-in-time petition should have been considered on its merits by the district court are debatable among jurists of reason, and the Court should stay Mr. Williams’s execution in order to resolve those questions. See Miller- 4 El v. Cockrell, 537 U.S. 322, 336 (2003) (setting forth standard for granting a certificate of appealability (COA)); Barefoot v. Estelle, 463 U.S. 880 (1983) (setting forth standard for granting stay of execution). Whether via 28 U.S.C. § 2254 or 28 U.S.C. § 2241, federal courts must have some mechanism for considering Mr. Williams’s categorical exemption from being executed. Were it otherwise, the inability of an intellectually disabled capital defendant to vindicate his categorical exclusion from being executed in federal court would constitute an unconstitutional suspension of the writ of habeas corpus in violation of Article I, Section 9, of the United States Constitution. Each of Mr. Williams’s arguments as to why he should receive federal review of his claim of categorical exclusion from execution due to his intellectual disability is laid out powerfully in the dissenting opinion of Judge Kelly in the Eighth Circuit below. As Judge Kelly explains, Mr. Williams “presents a prima facie Atkins claim that has never been addressed on the merits.” A-35. As a result, “any conflicts between evidence supporting his position and evidence supporting the state’s position should be resolved by a court on the merits after a full evidentiary hearing.” A-36. As to any procedural barrier under 28 U.S.C. § 2244(b), “under the reasoning of Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) and Panetti v. Quarterman, 551 U.S. 930 (2007), AEDPA’s bar on successive habeas petitions does not apply to Atkins claims filed after the state has obtained an execution warrant.” A-34-35. Even if the successive-petition bar was applicable to Atkins claims, “such a bar should not apply to petitions filed under 28 U.S.C. § 2241.” A-36. Application of such a bar would be “particularly troublesome because ‘the Supreme Court had not yet decided Atkins’ at the time Congress adopted AEDPA and thus it could not have accounted for the ‘narrow set of cases presenting issues of constitutional ineligibility for execution.’” A-37 (quoting Webster v. Daniels, 784 F.3d 1123, 1139 (7th Cir. 5 2015) (en banc)). In sum, Judge Kelly’s powerful rationale makes it all the more clear that this case cries out for this Court’s review. STATEMENT OF THE CASE A. Procedural History Kenneth Williams was charged with the capital murder of Cecil Boren in the course of a felony and other crimes, including aggravated robbery and escape in the first degree. The crimes occurred on October 3, 1999, when Mr. Williams escaped from the Cummins Unit of the Arkansas Department of Correction, where he was serving a life sentence for a prior murder. Trial began on August 28, 2000, in the Circuit Court of Lincoln County, Arkansas. The jury returned a verdict of guilty on the charges of capital murder, aggravated robbery, and escape in the first degree on August 29, 2000. The penalty phase began the same day. The defense presented several witnesses who testified to Mr. Williams’s troubled upbringing, which included an abusive father, absent mother, and frequent hospital visits, as well as his learning difficulties and tendency to be a follower. The defense also called Dr. Mark Cunningham, a clinical and forensic psychologist who conducted an evaluation based on interviews of Mr. Williams and others, records review, and neuropsychological testing. Dr. Cunningham testified, inter alia, that Mr. Williams scored a 70 on a full-scale IQ test, which meant his “true” IQ score was between 67 and 75, putting him “right on that borderline between mental retardation and what we call borderline intellectual functioning.” Tr. Record at 2151. 4 4 Dr. Cunningham’s testimony was given before Atkins was decided, and based on an Arkansas statute that presumed a defendant to be mentally retarded only if his IQ was under 65. Ark. Code Ann. § 5-4-618. 6 The jury sentenced Mr. Williams to death on August 30, 2000. On the verdict form, the jury indicated that “[t]here was some evidence presented to support” the fact that Mr. Williams “experienced family dysfunction which extended from generation to generation,” but the evidence was “insufficient to establish that the mitigating circumstance[] probably existed.” ECF No. 8-9 at 46-47. The jury did not acknowledge the existence of evidence of any other mitigating circumstance, including Mr. Williams’s “borderline mental retardation.” Id. at 44-48. The Arkansas Supreme Court affirmed the convictions and sentences on direct appeal. Williams v. State, 67 S.W.3d 548 (Ark. 2002). On August 9, 2002, Mr. Williams, through his court-appointed attorney, Jeffrey Rosenzweig, filed a ten-page post-conviction petition pursuant to Arkansas Rule of Criminal Procedure 37, asserting seven claims for relief. 5 ECF No. 8-45 at 10. Among the claims was 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, which categorically exempts persons qualifying as mentally retarded from the death penalty under state law, and a claim that Mr. Williams was categorically ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). 6 The Rule 37 court granted Mr. Williams’s motions for funds to hire an expert and an investigator for purposes of his Atkins claim. Mr. Rosenzweig retained psychologist Dr. Ricardo 5 Arkansas law restricts post-conviction petitions to ten pages in length, even in capital cases, and any exhibits attached to the petition count against the page limit. Sanders v. State, 98 S.W. 3d 35, 39-40 (Ark. 2003) (finding, in a capital case, that the state post-conviction court abused its discretion when it summarily dismissed an eleven-page petition where the only content on the eleventh page was a certificate of service, although the state post-conviction court did not abuse its discretion in denying the petitioner’s motion to file an “enlarged” sixteen-page petition). 6 Mr. Rosenzweig subsequently filed two supplemental Rule 37 petitions that were similar to each another, adding two claims not relevant here. 7 Weinstein as the expert and Mary Paal as a mitigation specialist. However, at an evidentiary hearing held on September 8, 2005, Mr. Rosenzweig informed the court that he would not be pursuing either of the two claims based on Mr. Williams’s intellectual disability. The Rule 37 court denied each of Mr. Williams’s remaining claims on November 21, 2005. ECF No. 8-46 at 16-22 (Findings of Fact and Conclusions of Law). The Arkansas Supreme Court affirmed on March 1, 2007. Williams v. State, 251 S.W.3d 290 (Ark. 2007). Mr. Rosenzweig continued to represent Mr. Williams in federal habeas proceedings. On September 10, 2007, he filed a petition for habeas corpus relief on behalf of Mr. Williams in the United States District Court for the Eastern District of Arkansas, raising no claims related to Mr. Williams’s intellectual disability. The district court denied the petition on November 4, 2008. The Eighth Circuit affirmed the denial of relief on July 15, 2010. Williams v. Norris, 612 F.3d 941 (8th Cir. 2010). This Court denied certiorari on March 21, 2011. Williams v. Hobbs, 562 U.S. 1290 (2011). 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. He is scheduled to be executed on April 27, 2017, at 7:00 p.m. Prior to the setting of Mr. Williams’s execution date, Mr. Rosenzweig had not visited his client for approximately seven years. On April 11, 2017, Mr. Rosenzweig moved for the appointment of co-counsel from the Federal Community Defender Office for the Eastern District of Pennsylvania (FCDO), noting his competing responsibilities in other capital cases with pending execution dates and Mr. Williams’s concurrence with the motion. The district court appointed counsel from the FCDO that same day. 8 Counsel from the FCDO began to investigate the case, including whether Mr. Williams had a meritorious claim of intellectual disability. On April 21, 2017, Mr. Rosenzweig filed an ex parte motion to withdraw as counsel. On that same date, the district court granted the motion. Also on April 21, 2017, counsel from the FCDO filed in the Arkansas Supreme Court a motion to recall the mandate and a petition to authorize a coram nobis proceeding, along with a petition for writ of habeas corpus in the Circuit Court of Lincoln County. These pleadings each raised a claim that Mr. Williams is intellectually disabled, and thus ineligible to be executed, and each included an extensive appendix of materials supporting his claim. The supporting materials included reports from three specialists finding Mr. Williams to be intellectually disabled, explaining the significance of Mr. Williams’s many IQ tests over the years, and documenting his several deficits in adaptive behavior. Each of these pleadings was denied on procedural grounds in the state courts. On April 25, 2017, Mr. Williams filed a second-in-time habeas petition in the district court, along with the same extensive appendix of materials supporting his claim of intellectual disability that he had submitted in the state courts. 7 Mr. Williams argued that his Atkins petition did not constitute a “second or successive” petition within the meaning of 28 U.S.C. § 2244(b), and thus he was not obliged to seek authorization from the Eighth Circuit prior to filing his petition. On April 26, 2017, the district court issued an order finding that Mr. Williams’s petition did constitute a second or successive petition subject to § 2244(b). The district court thus transferred the petition to the Eighth Circuit. A-1. 7 Mr. Williams also filed a motion pursuant to Federal Rule of Civil Procedure 60(b), not at issue here, detailing extensive evidence that the jury committed pervasive misconduct and was biased by exposure to highly prejudicial extra-record evidence. That motion was denied. 9 Also on April 26, Mr. Williams filed a notice of appeal from the district court’s transfer order. He then filed a motion in the Eighth Circuit seeking a COA on his claim that he is categorically ineligible to be executed due to his intellectual disability. 8 On April 27, the Eighth Circuit in a sharply divided opinion denied a certificate of appealability, denied Mr. Williams’s request for authorization to file a second or successive petition, denied a stay of execution, and dismissed the appeal. A-14. 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 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-39, A-80, A-93, A-108. 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 all found that Mr. Williams satisfies prong one of the intellectual disability diagnosis. In his lifetime, Mr. Williams 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 8 Although he did not believe it necessary, Mr. Williams also filed a motion for authorization to file a second or successive petition in the Eighth Circuit out of an abundance of caution. The Eighth Circuit’s subsequent denial of that motion underlies Mr. Williams’s petition for this Court to exercise its original habeas jurisdiction. That petition is being filed concurrently with this certiorari petition. 10 that Mr. Williams 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. Mr. Williams 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 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. Mr. Williams was re-tested in February 1989 (9 years, 11 months), when his age-mates were in the fourth grade; he tested at the first and second grade levels. This trend continued throughout his school career. Mr. Williams’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 ninth 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 ninth grade) Subtest Standard Score Mean = 100; SD = 15 Percentile Rank Grade Equivalent Mathematics Below 65 Below 1st 1.8 Reading Recognition Reading Comprehension Spelling 65 74 1st 4st 2.2 3.3 69 2nd 3.4 11 General Information Below 65 Below 1st 2.6 Consistent with the level of delay shown while Mr. Williams was in school, he had academic impairments as an adult. Given his neuropsychological impairments, see infra, 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. Mr. Williams 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, Mr. Williams has been subjected to two full batteries of neuropsychological testing in 2000 by neuropsychologist Mary Wetherby, Ph.D., and again, in 2004 by Dr. Weinstein. The DSM-5 recognizes that neuropsychological testing is more comprehensive than a single IQ score. See Diagnostic and Statistical Manual of Mental Disorders (DSM-5) at 37 (“[i]ndividual cognitive profiles based on neuropsychological testing are more useful for understanding intellectual abilities 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, A-101-02. Accordingly, Mr. Williams’s neuropsychological profile, tested over two separate batteries with two separate mental health professionals, reflects the brain impairments of an intellectually disabled person. 12 Drs. Cunningham, Weinstein, and Martell also analyzed Mr. Williams’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 scientific consensus through the American Psychiatric Association and the American Association on Intellectual and Developmental Disabilities. See DSM-5, supra, at 33-37; Intellectual Disability: Definition, Classification, and Systems of Supports, American Association on Intellectual and Developmental Disabilities 5, 43-44, 47, 73 (11th ed. 2010); see also Hall, 134 S. Ct. at 1995, 2001 (recognizing DSM and AAIDD as authoritative). Drs. Cunningham and Weinstein 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, A-57-72; Dec. Ricardo Weinstein, Ph.D., at ¶¶ 25-31, A-102-05. Dr. Martell 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 26-37, A-133-44. Mr. Williams’s deficits originated in the developmental period. He received two fullscale 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 this case. 13 REASONS FOR GRANTING THE PETITION I. This Court Should Grant Certiorari to Determine Whether 28 U.S.C. § 2244(b) Can Serve to Bar an Unadjudicated Claim of Categorical Exclusion from Being Executed. A. Claims of Intellectual Disability, Like Claims of Incompetence to Be Executed, Are Not Subject to § 2244(b). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), habeas petitioners are limited in their ability to file a “second or successive” petition. See 28 U.S.C. § 2244(b)(1)(4). A petitioner seeking to file a second or successive petition must first obtain an order authorizing such filing from the court of appeals before he may proceed in the district court. 28 U.S.C. § 2244(b)(3). And he may obtain such authorization only in certain circumstances. 28 U.S.C. § 2244(b)(1)-(2). Not all second-in-time habeas petitions are “second or successive” within the meaning of § 2244(b), however. This Court “has declined to interpret ‘second or successive’ as referring to all § 2254 applications filed second or successively in time, even when the later filings address a state-court judgment already challenged in a prior § 2254 application.” Panetti v. Quarterman, 551 U.S. 930, 944 (2007); see also Stewart v. Martinez-Villareal, 523 U.S. 637, 643-44 (1998) (holding that habeas petitioner was not required to obtain authorization to file a “second or successive” petition raising a claim of incompetency to be executed pursuant to Ford v. Wainwright, 477 U.S. 399 (1986), made ripe by the issuance of an execution warrant). The Court should grant certiorari to decide whether unadjudicated Atkins-based claims of intellectual disability should be treated similarly to Ford-based claims of incompetency for purposes of the second or successive bar in § 2244(b). The Court has identified three classes of people who are exempt from execution as a result of their status. First, it has excluded individuals who, by reason of mental illness, are 14 incapable of comprehending the reasons for or implications of their punishment. Ford, 477 U.S. at 401 (“For centuries no jurisdiction has countenanced the execution of the insane, yet this Court has never decided whether the Constitution forbids the practice. Today we keep faith with our common-law heritage in holding that it does.”). Second, it has excluded individuals who suffer from intellectual disabilities. Atkins, 536 U.S. at 306 (“Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.”). And, third, it has excluded individuals who committed their crimes as juveniles. Roper v. Simmons, 543 U.S. 551, 578 (2005) (“The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.”). Of the three classes of categorically excludable individuals, only the intellectually disabled are in danger of being executed without a court considering their claim of exclusion. As noted above, this Court has determined that legally incompetent individuals may raise their claims in second-in-time habeas petitions without fear of being barred by § 2244(b). Panetti, 551 U.S. at 947; Martinez-Villareal, 523 U.S. at 643-44. And while the Court has never had occasion to consider the question, it is plain that, if a death-sentenced inmate’s birthdate were not definitively established until after his first federal habeas petition was denied, no state would be permitted to carry out the execution where evidence demonstrated that the inmate was a juvenile at the time of the crime. Yet individuals who raise colorable claims that they are exempt from execution by virtue of their intellectual disability may very well be executed without any court 15 hearing their claim, typically due to onerous state rules that preclude such a claim, a procedural bar resulting from ineffective counsel’s failure to timely raise the claim, or both. Because the Eighth Amendment bars an intellectually disabled individual’s execution, habeas petitioners must be able to raise an unadjudicated Atkins claim once an execution warrant has been issued. Atkins held that “the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.” Atkins, 536 U.S. at 321 (quoting Ford, 477 U.S. at 405) (emphasis added). Atkins, like Roper and Ford, serves as a restriction on the execution of sentence for a class of people. Roper, 543 U.S. at 559 (noting that Atkins bars “the execution of a mentally retarded person”) (emphasis added); see also Brumfield v. Cain, 135 S. Ct. 2269, 2283 (2015) (“The question here is whether Brumfield cleared AEDPA’s procedural hurdles, and was thus entitled to a hearing to show that he so lacked the capacity for selfdetermination that it would violate the Eighth Amendment to permit the State to impose the law’s most severe sentence, [] and take his life as well. That question, and that question alone, we answer in the affirmative.”) (citation and quotation marks omitted) (emphasis added). Under these circumstances, the Court has “resisted an interpretation of [AEDPA] that would ‘produce troublesome results,’ ‘create procedural anomalies,’ and ‘close [its] doors to a class of habeas petitioners seeking review without any clear indication that such was Congress’ intent.’” Panetti, 551 U.S. at 946 (quoting Castro v. United States, 540 U.S. 375, 380, 381 (2003)). There is no principled reason to treat intellectually disabled individuals differently from juveniles and the mentally incompetent. The Court’s Ford jurisprudence makes this clear. In Panetti, the Court ruled that § 2244’s “bar on ‘second or successive’ applications does not apply to a Ford claim brought in an application filed when the claim is first ripe.” Panetti, 551 U.S. at 947. But the only thing that made the petitioner’s claim “ripe” in Panetti was the setting of an 16 execution warrant. Panetti was permitted to raise his Ford claim in a second-in-time habeas petition shortly before his scheduled execution even though his mental illness was of longstanding origin. At the time of his trial, Panetti was given a psychiatric evaluation, “which indicated that [he] suffered from a fragmented personality, delusions, and hallucinations.” Id. at 936. Panetti’s wife “described one psychotic episode in a petition she filed in 1986,” nine years prior to trial, in which she “explained that [Panetti] had become convinced the devil had possessed their home and that, in an effort to cleanse their surroundings, [Panetti] had buried a number of valuables next to the house and engaged in other rituals.” Id. At trial itself, Panetti “engaged in behavior later described by his standby counsel as ‘bizarre,’ ‘scary,’ and ‘trancelike,’” making it “evident that [Panetti] was suffering from ‘mental incompetence,’” according to counsel. Id. And it was “uncontested that, less than two months after petitioner was sentenced to death, the state trial court found him incompetent to waive the appointment of state habeas counsel.” Id. at 937. In sum, Panetti’s severe mental illness was present and well-documented long before he filed his second-in-time federal habeas petition. His Ford claim nonetheless became ripe when his execution warrant was issued because Ford, like Atkins, precludes the execution of a class of persons. The reasoning of Panetti applies with no less force to Atkins claims. As with executing an incompetent person who does not understand the nature of his punishment, “[n]o legitimate penological purpose is served by executing a person with intellectual disability. To do so contravenes the Eighth Amendment, for to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being.” Hall, 134 S. Ct. at 1992. And persons “facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution.” Id. at 2001. 17 Panetti also makes clear that “last-minute filings that are frivolous and designed to delay executions can be dismissed in the regular course.” Panetti, 551 U.S. at 946. The “requirement of a threshold preliminary showing, for instance, will, as a general matter, be imposed before a stay is granted or the action is allowed to proceed.” Id. at 946-47. No reasonable lawyer would delay the filing of a meritorious claim of intellectual disability until the eleventh hour on the chance it might delay an execution. Mr. Williams meets the Panetti threshold showing. He has been diagnosed as intellectually disabled by three mental health experts. He has made a substantial prima facie showing of intellectual disability. The claim has not been adjudicated previously only because of the Arkansas courts’ lack of a forum for post-trial Atkins claims, and because, having withdrawn the claim in state court, prior federal habeas counsel had a conflict of interest that precluded him from raising it in the first federal habeas proceedings. Mr. Williams’s claim is not the result of intentional delay. B. Circuit Court Judges Disagree on Whether 28 U.S.C. § 2244 Can Be Used to Bar Second-In-Time Habeas Petitions Raising Claims of Categorical Exclusion from Execution; the Question Is Thus “Debatable Among Jurists of Reason.” The district court transferred this case to the court of appeals on the ground that a secondin-time petition raising an Atkins claim is distinct from one raising a Ford claim, and can only be filed subject to the restrictive provisions of 28 U.S.C. § 2244(b), regarding second or successive petitions. A-10-13. The court of appeals affirmed in a sharply divided opinion. A-14. This is an important issue which this Court should resolve. This petition comes to the Court upon the Eighth Circuit’s denial of a COA. Under 28 U.S.C. § 2253 and Federal Rule of Appellate Procedure 22(b), a habeas petitioner who wishes to appeal from a final order of a district court must obtain a COA for each claim he wishes to 18 present to the court of appeals. 9 In Slack v. McDaniel, 529 U.S. 473, 483 (2000), this Court concluded that, “[e]xcept for substituting the word ‘constitutional’ for the word ‘federal,’” this COA requirement is merely “a codification of” the earlier standard for granting a certificate of probable cause, as “announced in Barefoot v. Estelle,” 463 U.S. 880, 894 (1983). COA must be granted if the issue is “debatable among jurists of reason”; “a court could resolve the issue[] [in a different manner]”; or “the question[] [is] adequate to deserve encouragement to proceed further.” Barefoot, 463 U.S. at 893 n.4 (emphasis in original) (citation omitted). In Miller-El v. Cockrell, 537 U.S. 322 (2003), the Court held that the standard for the issuance of a COA in an AEDPA case is as follows: “Under the controlling standard, a petitioner must ‘sho[w] that reasonable jurists could debate whether (or for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.’” Id. at 336 (quoting Slack, 529 U.S. at 483 (2000)). The COA inquiry “is not coextensive with a merits analysis.” Buck v. Davis, 137 S. Ct. 759, 773 (2017). Where COA is sought with respect to a district court’s procedural rulings, the court of appeals must consider both whether the procedural rulings are “debatable amongst jurists of reason,” and also whether the underlying claims raise a constitutional issue that is similarly debatable. Slack, 529 U.S. at 484-85. 9 There is disagreement among the courts of appeals as to whether an order dismissing or transferring a pleading on the ground that it amounts to an attempt to file a successive petition is a final, appealable order subject to the COA requirement. Compare Jones v. Braxton, 392 F.3d 683, 685-88 (4th Cir. 2004) (dismissal order was final, appealable, and subject to COA), with Marmolejos v. United States, 789 F.3d 66, 69 (2d Cir. 2015) (correctness of order transferring petition to court of appeals reviewable without COA); In re Bradford, 660 F.3d 226, 229 (5th Cir. 2011) (transfer order was appealable collateral order; no COA required); Spitznas v. Boone, 464 F.3d 1213, 1218-19 (10th Cir. 2006) (no COA required for court of appeals to determine whether filing was properly treated as successive). 19 The underlying merits of Mr. Williams’s Atkins claim are plainly debatable among jurists of reason. Mr. Williams has numerous IQ scores that fall within the intellectual disability range and three independent mental health professionals diagnose him as suffering from the disorder. The only real question is whether the district court’s procedural ruling is likewise debatable among jurists of reason. Slack, 529 U.S. at 484-85. In light of various jurists’ opinions on the topic, the procedural ruling is necessarily debatable. The Eighth Circuit’s law on this issue has been shifting and inconsistent. In Nooner v. Norris, the court assumed without deciding that an Atkins claim should be treated similarly to a Ford claim for purposes of § 2244(b). Nooner v. Norris, 499 F.3d 831, 833 n.2 (8th Cir. 2007) (“Because the parties have assumed an Atkins-based mental retardation claim should be treated the same as a Ford-based incompetency claim, for purposes of this case, we assume, without deciding, the two claims should be treated similarly.”); id. at 834 (“In both Martinez-Villareal and Panetti, the Supreme Court held the statutory bar on second or successive applications does not apply to Ford-based incompetency claims filed after the state has obtained an execution warrant. For the limited purpose of the statutory bar on second or successive applications found in § 2244(b)(2), we cannot think of any statutory reason why this holding cannot be extended to Ford-based incompetency and Atkins-based mental retardation claims filed before the state has obtained an execution warrant.”) (emphasis in original); see also Clayton v. Luebbers, 780 F.3d 903, 904 (8th Cir. 2015) (referring to the petitioner’s “second-in-time” habeas petition raising a Ford-based claim and an Atkins-based claim). But the Eighth Circuit has also issued opinions suggesting that Atkins claims are indeed subject to the limitations of § 2244(b). See Goodwin v. Steele, 814 F.3d 901, 903 n.1 (8th Cir. 2014) (finding that claim raised under Hall v. Florida was barred by the relitigation prohibition 20 in § 2244(b)(1) where a claim of intellectual disability pursuant to Atkins had been raised and denied in the petitioner’s initial habeas petition); Davis v. Norris, 423 F.3d 868, 878-79 (8th Cir. 2005) (attempt to raise an Atkins claim for the first time on habeas appeal the functional equivalent of a second or successive habeas petition). Just ten days ago, a divided panel of the Eighth Circuit rejected an argument regarding the ripeness of Atkins claims at the time of execution that is similar to the one being raised here by Mr. Williams. Davis v. Kelley, No. 04-2192, 2017 U.S. App. LEXIS (8th Cir. April 17, 2017). In dissent, Judge Kelly adopted precisely the argument Mr. Williams raises here. Davis, 2017 U.S. App. LEXIS at *17 (Kelly, J., dissenting) (“[A]lthough Martinez-Villareal and Panetti were decided in the context of Ford claims, their reasoning applies to Atkins claims as well: Under either type of claim, the question of whether the inmate is constitutionally eligible for execution is ripe for resolution only when the execution is imminent.”) (emphasis in original). She is not the first jurist to do so. See, e.g., In re Hill, 715 F.3d 284, 304-05 (11th Cir. 2013) (Barkett, J., dissenting) (“I cannot see how any procedural hurdle, even AEDPA’s bars to filing a second or successive habeas application, can be constitutionally enforced when doing so will eviscerate the constitutionally-protected right that a juvenile, mentally retarded, or insane offender has not to be executed.”); cf. In re Webster, 605 F.3d 256, 260 (5th Cir. 2010) (Weiner, J., concurring) (“I continue to harbor a deep and unsettling conviction that, albeit under Congress’s instruction which ties our judicial hands so illogically, we today have no choice but to condone just such an unconstitutional punishment.”). It is thus an empirical fact that the procedural question as to whether an Atkins claim raised in a second-in-time habeas petition may properly be barred by § 2244(b) is debatable by reasonable jurists. As set forth above, judges from the Eighth and Eleventh Circuits have each 21 issued dissenting opinions on this very question. This Court should take up the question, not only to bring clarity to the lower courts on the question whether § 2244(b) applies to Atkins claims, but also to reinforce the proper application of the COA standard. When multiple judges of the court of appeals come to opposite conclusions on a question, that question is of necessity debatable among jurists of reason. C. The Particular Circumstances of This Case Provide Further Reasons Why § 2244 Should Not Bar Mr. Williams’s Claim. Barring a second-in-time habeas petition that raises an Atkins claim under § 2244(b) makes even less sense in light of the particularities of this case. The Arkansas statute governing intellectual disability, Ark. Code Ann. § 5-4-618, as interpreted by the Arkansas Supreme Court, precludes “the execution of an individual who can prove mental retardation either (a) at the time of committing the crime, or (b) at the presumptive time of execution.” Sasser v. Hobbs, 735 F.3d 833, 846 (8th Cir. 2013) (citing Miller v. State, 362 S.W. 3d 264, 276 (Ark. 2010)) (emphasis in original). Thus, “[u]nder Atkins and Ark. Code Ann. § 5-4-618(b), Arkansas may not execute an individual who sufficiently proves he met all four prongs of the Arkansas mental retardation standard at either relevant time, even if the individual lacks proof he satisfied the standard at both relevant times.” Id. (emphasis in original). Because, as a matter of Arkansas law, the question whether a person is intellectually disabled at the time of execution is relevant, that question must necessarily be answered once an execution date actually becomes imminent. This issue of timing may be significant, as “intellectual disability is by no means static in every case.” Lee v. Kelley, No. 17-1840, 2017 U.S. App. LEXIS 7315, at * 6 (8th Cir. April 20, 2017) (Kelly, J., concurring); see also id. at *8 (“[O]ur case law has recognized that a diagnosis of intellectual disability is not always stable. For instance, in Sasser v. Hobbs (Sasser II), we explained that ‘timing of proof’ matters for an Atkins claim because an individual’s intellectual 22 disability can improve over time, and because an individual ‘may have better evidence of his condition at one point in life than another.’ 735 F.3d 833, 846 (8th Cir. 2013).”). And Mr. Williams’s case provides an additional important reason why his Atkins claim is now ripe for the first time: his trial preceded Atkins, and since trial he was at all times prior to this month represented by the same attorney during both state and federal post-conviction proceedings. As noted above, attorney Rosenzweig alone represented Mr. Williams in both state and federal court until the appointment of undersigned counsel on April 11, 2017. On August 8, 2002, a few months after the Court decided Atkins, Mr. Rosenzweig filed a timely Rule 37 petition on Mr. Williams’s behalf. Among other claims, Mr. Rosenzweig raised an Atkins claim. He moved for, and the trial court granted, funds to retain an expert in assessing intellectual disability. The expert, Dr. Weinstein, conducted an evaluation of Mr. Williams, which included IQ tests. Dr. Weinstein has no record of discussing his evaluation with Mr. Rosenzweig, and his IQ test results remained unscored until he was asked to score them in 2017. See Dec. Ricardo Weinstein at ¶¶ 2-3, A-93-94. 10 He never told Mr. Rosenzweig that he had ruled out a diagnosis of intellectual disability. He never completed his work on the case. Id. Without further exploration of the Atkins issue, Mr. Rosenzweig abandoned the claim. While Arkansas law does not provide a forum for a post-trial Atkins claim, see separately filed petition for writ of certiorari to the Arkansas Supreme Court, counsel could have advocated it and exhausted the Atkins claim, but failed to do so. 10 The only IQ test Dr. Weinstein had scored at the time was a test of non-verbal intelligence, on which Mr. Williams received a score below 70, within the intellectually disabled range. 23 Mr. Rosenzweig then could not raise Mr. Williams’s Atkins claim in federal court, given that he had abandoned that claim in state court, without alleging his own ineffectiveness. But “[a]dvancing such a claim would have required [counsel] to denigrate [his] own performance. Counsel cannot reasonably be expected to make such an argument, which threatens [his] professional reputation and livelihood.” Christeson v. Roper, 135 S. Ct. 891, 894 (2015) (citing Restatement (Third) of Law Governing Lawyers § 125 (1998)); see also id. (“[A] ‘significant conflict of interest’ arises when an attorney’s ‘interest in avoiding damage to [his] own reputation’ is at odds with his client’s ‘strongest argument—i.e., that his attorneys had abandoned him.’”) (quoting Maples v. Thomas, 132 S. Ct. 912, 925 n.8 (2012)) (alteration in original). Because Mr. Rosenzweig’s conflict of interest spanned the entirety of Mr. Williams’s federal habeas proceedings up until two weeks ago, Mr. Williams’s claim of intellectual disability has only recently become ripe. II. A State Prisoner Should Be Able to Invoke 28 U.S.C. § 2241 When 28 U.S.C. § 2254 No Longer Provides a Remedy and the Denial of Relief Results in a Miscarriage of Justice. In the above argument, addressing Question 1, Mr. Williams asks this Court to review whether there is some mechanism under 28 U.S.C. § 2254 that would allow a person with intellectual disability to litigate his never before adjudicated claim that he is ineligible for the death penalty under Atkins and its progeny. Should there be no such mechanism, Mr. Williams asks the Court, through Question 2, to review whether 28 U.S.C. § 2241 provides an alternative means of challenging his imminent execution. Because this Court has never addressed the interrelationship between §§ 2254 and 2241, because there is no legitimate reason to allow federal prisoners the benefit of § 2241 but deny state prisoners the same remedy, and because the circuits are split on the availability of § 2241 to state prisoners, the Court should grant review. 24 A. Nothing in the Text of § 2241 or § 2254 Precludes the Availability of § 2241 to State Prisoners. Under 28 U.S.C. § 2241(c)(3), the writ of habeas corpus shall extend to any prisoner who “is in custody in violation of the Constitution or laws or treaties of the United States.” Section 2241 provides clear statutory authorization for courts to entertain petitions for writ of habeas corpus by prisoners in state custody, so long as their claim is a constitutional one. Although § 2254 is the primary mechanism by which state prisoners seek relief through habeas corpus, § 2254 does not preclude courts from considering writs of habeas corpus raised under § 2241 where § 2254 relief is otherwise unavailable. Section 2254 unquestionably limits the availability of habeas relief that may be provided to state prisoners, including under § 2241. Felker v. Turpin, 518 U.S. 651, 662 (1996) (“Our authority to grant habeas relief to state prisoners is limited by § 2254, which specifies the conditions under which such relief may be granted to ‘a person in custody pursuant to the judgment of State court.’”). Section 2254, however, did not repeal § 2241, as this Court recognized in Felker. Id. at 662. The reasoning in Felker dates back to this Court’s ruling in Ex parte Yerger, 75 U.S. 85 (1868), which found that, when two habeas statutes provide for the writ of habeas corpus to a class of prisoners, the earlier statute is not repealed by implication and each statute provides an independent vehicle through which relief can be sought. Id. at 106. B. Section 2241 Is Available to Federal Prisoners; It Should Likewise Be Available to State Prisoners. Much as state prisoners who file for a writ of habeas corpus generally do so under § 2254, federal prisoners who file for a writ of habeas corpus generally do so under § 2255. Section 2255 permits a writ of habeas corpus by federal prisoners “claiming . . . that the sentence was imposed in violation of the Constitution or laws of the United States . . . .” 28 U.S.C. § 2255(a). Section 2255, unlike § 2254, makes clear that absent denial of process, § 2255 is a 25 federal prisoner’s only vehicle for writ of habeas corpus. Section 2255(e) explicitly states that “[a]n application for writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief pursuant to [§ 2255], shall not be entertained if it appears that the applicant has failed to apply for relief by motion [under § 2255.]” Section 2255’s bar against filing a writ of habeas corpus under any other provision, including § 2241, does not apply to federal prisoners only if § 2255 “is inadequate or ineffective to test the legality of [the federal prisoner’s] detention.” Id. Courts of appeals have held that federal prisoners can meet the “inadequate or ineffective” test where those prisoners are barred from filing a successive petition under § 2255 and are innocent of their sentence. Hill v. Masters, 836 F.3d 591, 600 (6th Cir. 2016) (allowing petitioner to proceed under § 2241 where he was sentenced under the then-mandatory Guidelines, and was no longer subject to a career offender enhancement); Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) (permitting a death-sentenced prisoner to bring an Atkins claim under § 2241 because he was barred from doing so under § 2255’s successive provisions); Brown v. Caraway, 719 F.3d 583, 588-89 (7th Cir. 2013) (granting petitioner relief under § 2241 where change in law created misapplication of the then-mandatory sentencing Guidelines). The Seventh Circuit’s reasoning in Webster is especially relevant. The Court reasoned that if Webster was not permitted to file under § 2241, it could lead to a “Kafkaesque” result: the execution of an intellectually disabled person. Webster, 784 F.3d at 1139. Whether the petitioner is a state prisoner or a federal prisoner, the Kafkaesque result remains the same. Since § 2255(e)’s limitation on a federal prisoner’s ability to file writs of habeas corpus must be given legal effect, the absence of a similar provision in § 2254 also must have significance. See INS v. Cardoza-Fonseca, 480 U.S. 421, 437 (1987) (Where “Congress includes particular language in one section of a statute but omits it in another section of the same 26 Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion.”) (citation and internal quotations omitted). Whereas a federal prisoner is constrained to a single vehicle for relief (except as discussed above), no statutory text limits a state prisoner from filing a petition under § 2241. Section 2241 should be at least as available to state prisoners as it is to federal prisoners. See Thomas v. Crosby, 371 F.3d 782, 806 (11th Cir. 2004) (Tjoflat, J., concurring) (“[T]he absence of such an exclusivity provision in § 2254 indicates that § 2241 relief is available to prisoners who also qualify for § 2254 relief.”). C. Courts of Appeals Are Split on Whether § 2241 is Available to State Court Prisoners. Between 1948, when § 2254 was adopted, and the present, this Court has never analyzed the relationship between § 2254 and § 2241. As a general matter, the circuits are split over whether § 2241 is available to state court prisoners to challenge the execution of their sentences. Some circuits hold that state prisoners can do so via § 2241. McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997) (§ 2241 is available to state prisoners); Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998) (same). Other circuits hold that § 2254 is the only mechanism under which a state court prisoner can file for a writ of habeas corpus. Coady v. Vaughn, 251 F.3d 480, 484-85 (3d Cir. 2001) (§ 2241 is unavailable to state prisoners); Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001) (same); Walker v. Obrien, 216 F.3d 626, 633 (7th Cir. 2000) (same); James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002) (same); Greenwalt v. Stewart, 105 F.3d 1287 (9th Cir. 1997) (same). The Court should grant the writ to resolve this circuit split. This case is an appropriate vehicle for resolving this split because the Eighth Circuit has ruled that state prisoners are totally precluded from filing habeas petitions under § 2241 and in light of the persuasive reasoning of Judge Kelly’s dissent. 27 III. Without Review of His Atkins Claim, Mr. Williams’s Privilege of the Writ of Habeas Corpus Will Be Suspended. AEDPA’s restrictions on filing second and successive habeas petitions do not limit this Court’s authority to entertain original habeas petitions, Felker, 518 U.S. at 660, nor do they prevent this Court from “transferring the application for hearing and determination” to the district court pursuant to 28 U.S.C. § 2241(b). However, if this Court declines to conduct or authorize substantive review of Mr. Williams’s Atkins claim, then every courthouse door in the country will have closed to him, and his privilege under the Suspension Clause will be violated. This Court has long recognized that habeas corpus: is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. . . . The scope and flexibility of the writ – its capacity to reach all manner of illegal detention – its ability to cut through barriers of form and procedural mazes – have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected. Harris v. Nelson, 394 U.S. 286, 290-91 (1969). It would be the height of “arbitrary and lawless state action” for a state to execute a citizen who is categorically ineligible for the death penalty under the Eighth Amendment. And lacking an avenue to prove his categorical ineligibility in state court, Mr. Williams’s federal privilege of habeas corpus mandates meaningful review in federal court. Indeed, this Court’s rules and precedent establish that, when substantive review is not elsewhere provided, the writ of habeas corpus must act as a last resort to prevent injustice. See INS v. St. Cyr, 533 U.S. 289, 300 n.13 (2001) (“The fact that this Court would be required to answer the difficult question of what the Suspension Clause protects is in and of itself a reason to avoid answering the constitutional questions that would be raised by concluding that review was barred entirely.”); see also S. Ct. R. 20 (authorizing this Court’s resort to the writ of habeas 28 corpus where “adequate relief cannot be obtained in any other form or in any other court”). This Court should intervene to conduct or authorize merits review of Mr. Williams’s well-supported claim that he is intellectually disabled and therefore ineligible for the death penalty. CONCLUSION For all the reasons set forth above, Mr. Williams respectfully requests that the Court issue a writ of certiorari to the United States Court of Appeals for the Eighth Circuit. Respectfully submitted, LEIGH SKIPPER Federal Defender SHAWN NOLAN JAMES MORENO Federal Community Defender Office for the Eastern District of Pennsylvania Curtis Center – Suite 545-West 601 Walnut Street Philadelphia, PA 19106 (215) 928-0520 Shawn_Nolan@fd.org James_Moreno@fd.org Counsel for Petitioner April 27, 2017 29 No. ________ CAPITAL CASE – EXECUTION SCHEDULED FOR APRIL 27, 2017 IN THE SUPREME COURT OF THE UNITED STATES ____________________ KENNETH DEWAYNE WILLIAMS, Petitioner, v. WENDY KELLEY, Director, Arkansas Department of Correction, Respondent. ____________________ PROOF OF SERVICE ____________________ I, Shawn Nolan, hereby certify that on April 27, 2017, I caused a copy of the foregoing Petition for Writ of Certiorari and Motion for Leave to File In Forma Pauperis to be served by First-Class Mail, postage prepaid, and e-mail, upon all parties required to be served under Sup. Ct. R. 29, listed below: 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