**CAPITAL CASE** EXECUTION OF KENNETH WILLIAMS SCHEDULED FOR APRIL 27, 2017 Nos. 16-8923 & 16A1045 In the Supreme Court of The United States KENNETH D. WILLIAMS, Petitioner, v. WENDY KELLEY, Respondent. OPPOSITION TO APPLICATION FOR STAY OF EXECUTION AND PETITION FOR WRIT OF 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 lee.rudofsky@arkansasag.gov *Counsel of Record for Respondents To the Honorable Samuel Alito, Associate Justice of the Supreme Court of the United States and Circuit Justice for the Eighth Circuit:1 Introduction As previously explained in responses to various petitions recently filed by condemned Arkansas inmates, this Motion and Petition by Petitioner Kenneth Williams, represents another dilatory and piecemeal-litigation tactic designed to delay his lawful execution. Since February, Williams has been scheduled for execution this evening for the cold-blooded murder of Cecil Boren nearly two decades ago. His conviction and death sentence have been examined in complete rounds of direct and collateral review in state court and federal habeas corpus proceedings. Williams v. Norris, No. 5:07cv00234 SWW, 2008 Westlaw 4820559 (E.D. Ark. Nov. 4, 2008), aff’d by Williams v. Norris, 612 F.3d 941, 959 (8th Cir. 2010), cert. denied sub nom. Williams v. Hobbs, 562 U.S. 1290 (2011). On April 25, 2017, in his federal habeas corpus proceeding, which has been final since 2008, Williams filed a new petition raising a claim for relief under Atkins v. Virginia, 536 U.S. 304 (2002). Williams, 5:07cv00234 SWW, Doc. No. 45. He also filed a motion for relief from the judgment under Federal Rule of Civil Procedure 60(b)(6), seeking to litigate a new claim of juror misconduct, which he faults his previous federal habeas counsel for failing to adequately litigate. Williams, 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’ anticipated petition for a writ of certiorari, Respondent submits the arguments contained herein in opposition to certiorari. 1 2 5:07cv00234 SWW, Doc. No. 39. The district court concluded that both filings constituted unauthorized, second or successive habeas corpus petitions and transferred them to the Court of Appeals for the Eighth Circuit. Id., Doc. No. 57. That court filed the matter as an application for authorization to file a successive habeas corpus petition and docketed it under USCA case number 17-1892. In an obvious and continuing attempt to overwhelm the courts with lastminute filings containing claims that could have been asserted years ago in both state court and in his original habeas-corpus proceedings, Williams then filed in the Court of Appeals, in addition to the transferred proceedings in No. 17-1892: 1) a notice of appeal and request for certificate of appealability from the order transferring the petition that raised the Atkins claim; 2) a related motion for stay of execution in No. 17-1893; 3) an application for authorization to file a second or successive petition raising the Atkins claim in No. 17-1896; and 4) a motion for stay of execution in the same. The Court of Appeals consolidated the three matters, and correctly concluded that in the case transferred from the district court (No. 171892), the motion for relief from the judgment and the petition for writ of habeas corpus constituted second or successive applications for which the court denied authorization under 28 U.S.C. § 2244(b). Williams v. Kelley, Nos. 17-1892, 17-1893, 17-1896, slip op. at 2 (8th Cir. 2017)(per curiam)(unpublished). The court further correctly denied Williams’s application for a certificate of appealability, (No. 171893) as moot. Id. It also correctly denied Williams’s protective application to file a 3 second or successive habeas petition (No. 17-1896), as well as the motions for stays. Id. Williams wrongly suggests that this Court should stay his imminent execution to review each of these cases. Williams has had many years in which to litigate the claims at issue here, and ultimately elected not to do so until just days before his execution. Indeed, even after his execution was scheduled, Petitioner waited two months till the eve of his execution to raise his latest series of challenges. His dilatory and piecemeal litigation tactics alone warrant denying his last second certiorari and the application for a stay. Moreover, even if the questions 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 and that he raised and dismissed a series of claims. In the end, 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 jurisdiction of this Court is invoked under 28 U.S.C. 2101(f), 28 U.S.C. 1257(a), and Supreme Court Rule 23. 4 Background A. Williams’s escape from prison and murder of Cecil Boren. 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 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 5 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 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 6 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. 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 7 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 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 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 8 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. 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 9 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 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 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 10 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 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 11 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, 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 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 12 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 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). 13 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-coramnobis 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 14 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.) 5:07-CV-00234-SWW. Those filings 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 filings to the Court of Appeals for the Eighth Circuit. Williams v. Kelley, No. 17-1892 (8th Cir.) (filed Apr. 26, 2017). In addition to the transferred proceedings discussed in this Response, Williams v. Kelley, No. 17-1892, Williams separately filed: 1) a notice of appeal and request for certificate of appealability from the order transferring the petition that raised an Atkins claim, No. 17-1893; 2) a related motion for stay of execution in Williams v Kelley, No. 17-1893 (8th Cir.); 3) an application for authorization to file a second or successive petition raising the Atkins claim in case Williams v Kelley, No. 17-1896 (8th Cir.); and 4) a motion for stay of execution in Williams v Kelley, No. 171896 (8th Cir.). As noted, this evening the Eighth Circuit denied relief in each of these case. 15 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. ADEPA bars Petitioner from seeking review of the Eighth Circuit’s decision. The Eighth Circuit denied Petitoner’s application for authorization in 171892; it denied his protective application for authorization in 17-1896; and it denied his application for a certificate of appealability as moot. There can be no question that, by his petition for writ of certiorari, Petitioner is seeking review of the Eighth Circuit’s decision denying Williams authorization to file a second or successive habeas corpus petition to raise an Atkins claim and to raise a claim of juror misconduct. Such review is barred by the AEDPA. “The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). This Court acknowledged in Felker v. Turpin, 518 U.S. 651, 661 (1996), that this provision “precludes [it] from reviewing, by appeal or petition for writ of certiorari, a judgment on an application for leave to file a second habeas petition in district court.” Jurisdiction, thus, does not lie for Williams’s petition, and it should be denied along with his request for a stay of execution. 16 B. 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 realities of capital litigation is that inmates “deliberately engage in dilatory tactics to prolong their incarceration and avoid execution of the sentence of death”). 1. Atkins Claim 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 17 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: 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 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). 6 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 5 18 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 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. 2. Juror Misconduct claim Further, as the Eighth Circuit recognized, Petitioner cannot prevail on his attempt to bring a second petition on his juror misconduct claim because he was dilatory and could have interviewed the jurors and raised that claim at any point 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). 19 prior to the eve of his execution. Slip Op. at 9. Thus, the writ and stay request should be denied. C. Petitioner fails to demonstrate this Court’s review is warranted to address his Section 2244(b) argument. Nor has he shown this Court is likely to overturn the Court of Appeal’s decision or overturn his sentence. 1. No cert worthy issue. Petitioner does not show that this Court’s review is warranted to resolve an unresolved question concerning Section 2244. Nor does he point to any split in authority that would warrant this Court’s review. Indeed, this Court’s opinions are clear and he cannot show that this Court would likely overturn the Eighth Circuit’s decision. Citing Panetti v. Quarterman, 551 U.S. 930, 945 (2007), Williams argues certiorari is appropriate to resolve the question of whether claims of intellectual disability are akin to claims of incompetence to be executed and, thus, ripen upon the issuance of an execution warrant. In Panetti, this Court determined that a claim of incompetency to be executed under Ford v. Wainwright, 477 U.S. 399 (1986), did not amount to a successive 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 proceedings.” Panetti, 551 U.S. at 946 (internal quotation marks omitted)); see also Stewart v. Martinez–Villareal, 523 U.S. 637, 643–644 (1998) (petitioner's Ford claim that he is not competent to be 20 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 Eighth Circuit rejected this contention and distinguished Ford from Atkins. The court noted that “Ford and its progeny focus on the inmate’s competency at the time of execution” which the court felt “makes sense because competency can be lost or regained over time.” It contrasted competency with intellectual disability under Atkins which “focused exclusively on the prisoner’s culpability at the time the crime was committed.” (Slip Op. at 11). See also Ochoa v. Workman, 669 F.3d 1130, 1137–38 (10th Cir. 2012); Williams v. Mitchell, 792 F.3d 606,619 (6th Cir. 2015) (noting the “static” nature of intellectual disability). Panetti was discussed by the Court in Magwood v. Patterson, 561 U.S. 320, (2010) : “[I]f the petitioner had no fair opportunity to raise the claim in the prior application, a subsequent application raising that claim is not ‘second or successive,’ and § 2244(b)(2)'s bar does not apply[, such as] where the claim was not yet ripe at the time of the first petition.” Magwood, 561 U.S. at 345 (Kennedy, J., dissenting). Williams does not argue that his intellectual disability is a recently obtained ailment or disorder. Indeed, he concedes that his condition is of long-standing duration and faults his state postconviction counsel for abandoning a claim of intellectual disability in 2004. In short, Williams had a fair opportunity to argue he was intellectually disabled in his prior habeas corpus petition, and that ends the question. 21 In fact, the inmate in Atkins did not obtain review of his claim of intellectual disability only upon the setting of an execution date. And, death sentenced inmates traditionally do not wait until an execution date is set to argue that their executions should not be carried out under Atkins. Rather, it is in their initial district court habeas proceedings that claims of intellectual disability regularly get fleshed out and decided. See Sasser v. Hobbs, 735 F.3d 833 (8th Cir. 2013) (litigating an intellectual disability claim absent a set execution date), Jackson v. Norris, 615 F.3d 959 (8th Cir. 2010) (remanding to district court for an Atkins hearing even though no execution date set), Simpson v. Norris, 490 F.3d 1029 (2007) (same). See also Decay v. Kelley, No. 5:15-CV-00203 KGB (E.D. Ark.), Greene v. Kelley, U.S.D.C. No. 5:04CV373 SWW (E.D. Ark), and Sales v. Kelley, 5:15-cv-00248-BM (E.D. Ark.). Petitioner does not point to any split in lower Court authority on this issue that this Court need resolve. E. The decision below denying Petitioner’s arguments with respect to the jury misconduct claim was correct. 1. Williams has not made a prima facie showing that his claims satisfy the stringent gatekeeping criteria set forth in § 2244(b)(2). Williams’s application to file a second or successive habeas petition is the quintessential “abuse of the writ.” Felker v. Turpin, 518 U.S. 651, 664 (1996)(stating the AEDPA’s “new restrictions on successive habeas petitions constitute a modified res judicata rule, a restraint on what is called in habeas practice ‘abuse of the writ.’). By its gatekeeping provisions in 28 U.S.C. § 2244, “AEDPA greatly restricts the power of federal courts to award relief to state 22 prisoners who file second or successive habeas corpus applications.” Tyler v. Cain, 533 U.S. 656, 661 (2001). Under these provisions, in order to receive authorization to file a second petition, Williams must make a prima facie showing that his new claim satisfies “the requirements of this subsection,” meaning subsection (b) of § 2244. 28 U.S.C. § 2244(b)(3)(C). Williams’s claim does not satisfy the statute, which reads, in pertinent part: (b) (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— *** (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. 28 U.S.C. § 2244 (b)(2)(B). Under this standard, Williams must affirmatively demonstrate that he could not have brought his claim before he filed his previous habeas application. 28 U.S.C. § 2244(b)(2)(B)(i). In addition to that requirement, he must also demonstrate that the facts underlying his claim, if proven, would be sufficient by clear and convincing evidence to demonstrate that no reasonable fact-finder would have found him guilty of the underlying offense. 28 U.S.C. § 2244 (b)(2)(B)(ii). Williams has not satisfied the threshold criteria that would allow him to proceed with another federal habeas action under the AEDPA. That is, his allegations and proffered evidence do not satisfy the mandatory gatekeeping criteria 23 for consideration of his successive petition. Consequently, the application for authorization must be denied. Williams has not shown due diligence, as required by § 2244(b)(2)(B)(i). Subsection (b)(2)(B)(i) requires Williams affirmatively to show that the factual predicate for his claims could not have been discovered previously through the exercise of due diligence. Williams has pleaded nothing that demonstrates he satisfies the diligence requirement found in § 2244(b)(2)(B)(i). Quite to the contrary, Williams has affirmatively pleaded that his current counsel readily investigated and developed his claim of juror bias and misconduct in just a matter of days this month, and he faults his previous federal habeas counsel for not having done so, complaining that he could have done so long ago, but he opted instead only to litigate the issue of funding such an investigation. Williams, 5:07cv00234 SWW, Doc. No. 39 at 33-37. Williams’s assertion that he somehow satisfies the standard because he has finally done the investigation that he contends should have been done long ago is wrong. That his counsel just talked to various jurors and others recently and obtained declarations from them only tells us that he has received the evidence that underlies his claims. It tells us nothing about whether or why, with diligence, the factual predicate of the claims could not have been discovered sooner. “The factual predicate of a claim does not mean ‘every possible scrap of evidence that might . . . support [a petitioner’s] claim.’” Earl v. Fabian, 556 F.3d 717, 726 (8th Cir. 2009)(quoting Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998)(internal 24 quotations omitted)). The inquiry is an objective one, and the burden rests on Williams to satisfy it. Johnson v. Dretke, 442 F.3d 901, 908 (5th Cir. 2006)(citing cases). He has not done so; in fact, he has affirmatively demonstrated the factual predicate was available long before he filed his first federal petition. And, as noted, Williams cannot rely on the alleged merits of his claim of juror bias or misconduct, or a Brady-type theory, see Doc. No. 39 at 29-31, in order to demonstrate due diligence. Johnson, 442 F.3d at 908, 910-11. Nor may he rely on the ineffectiveassistance of his previous federal-habeas counsel. See 28 U.S.C. § 2254(i); Gonzalez v. Crosby, 545 U.S. 524, ___ n.5 (2005). It is not enough that Williams may regard his factual posture to have improved of late because the focus is on whether due diligence would have uncovered the vital facts to support his claim in time to present it in a prior habeas proceeding or else more than a year before his petition was filed. In Engesser v. Dooley, 686 F.3d 928 (8th Cir. 2012), for example, Engesser, who had been convicted of vehicular homicide and vehicular battery after a drunken car accident in which his passenger was killed, sought to file a second petition to pursue a Brady claim. Engesser, 686 F.3d at 930. The claim was based, inter alia, on the testimony of two witnesses who saw Engesser’s car shortly before the accident and would have testified that it was Engesser’s passenger, and not he, in the driver’s seat. Id. at 930-35. The witnesses, Eckholm and Fowler, however, were identified in police records that were turned over to the defense before trial, and were subsequently described in Engesser’s state habeas proceedings—which took place before his first 25 federal petition—“as offering exculpatory information.” Id. at 937 (quotations omitted). This Court subsequently held that because “[t]he existence of Eckholm and Fowler as potential witnesses and the testimony they would have provided was . . . discoverable through the exercise of due diligence at the time Engesser filed his first § 2254 petition[,]” his second federal petition failed to satisfy subsection (b)(2)(B)(i). Id.; cf., e.g., Rues v. Denney, 643 F.3d 618, 622 (8th Cir. 2011) (holding that the existence of a newly-published study “questioning the validity of methods used to analyze bunter marks on ammunition casings[,]” was not “new” evidence in the context of equitable tolling of the AEDPA statute of limitations, because the study was “not the first source to analyze this question[,]” and because “Rues raised the issue of reliability of the bunter marks analysis during his trial.”). Here, as Williams points out, his counsel sought funds to investigate whether juror bias or misconduct existed based, apparently, on his understanding that the community where Boren, a former prison employee, was killed was a small community where many of the residents had worked at the prison. However, Williams alleges that counsel, himself, apparently did not conduct even the minimal investigation necessary to determine whether he could substantiate a claim of juror bias to support his request for funding. The identities of the jurors, of course, would have been readily ascertainable to counsel from the trial record. And presumably, based on the small size of the community, it would not have been difficult to make the necessary inquiries, just as his current counsel purport to have done. Thus, the 26 factual predicate for Williams’s new allegations were discoverable well over a decade ago when this case was on review in state court. Because his application concedes he could have, but did not, make any effort to discover and present his current claim in federal habeas until April 2017, Williams’s application fails to satisfy the authorization requirements for pursuit of a successive petition. Again, although the State has done so here, § 2244(b)(2)(B)(i) does not place the burden on the State to demonstrate that the factual predicate of Williams’s claim could have been discovered with diligence sooner. Rather, the burden is squarely on Williams to affirmatively demonstrate that due diligence would not have uncovered the factual predicate of his claim sooner. He has not carried his burden, and for that reason his application should be denied. See Case v. Hatch, 731 F.3d at 1031 (noting the requirements of § 2244(b)(2)(B) are conjunctive, so a failure at either step warrants dismissal). 2. Williams also has not demonstrated a prima facie case of actual innocence, as required by § 2244(b)(2)(B)(ii).  The demanding actual-innocence standard. As noted above, in order to proceed on the instant petition here, Williams must both satisfy the diligence requirement in § 2244(b)(2)(B)(i) and demonstrate actual innocence – that is, demonstrate that the facts underlying his claims 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 him guilty of the underlying offense. 28 27 U.S.C. § 2244(b)(2)(B)(ii). Williams’s application falls far short of meeting this demanding standard. The Supreme Court recently held that, by enacting 28 U.S.C. § 2244(b)(2)(B) and § 2254(e)(2), Congress modified the “miscarriage of justice” or “actual innocence” exception that is necessary to obtain review of second or successive petitions and necessary to obtain evidentiary hearings in federal habeas corpus proceedings. McQuiggin v. Perkins, ___ U.S. ___, ___, 133 S.Ct. 1924, 1933-34 (2013). Under the AEDPA, a petitioner seeking relief in a second or successive petition or seeking an evidentiary hearing is obligated to demonstrate diligence and to establish that the facts of his claims, if proven and viewed in light of the evidence as a whole, would be sufficient to demonstrate his actual innocence by clear and convincing evidence. Id. The “standard is demanding.” Perkins, 133 S.Ct. at 1936. It “does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty.” See Schlup v. Delo, 513 U.S. 298, 329 (1995)(applying pre-AEDPA standard). Having been convicted following a jury trial, Williams no longer enjoys the presumption of innocence that once required the State to prove his guilt beyond a reasonable doubt. Rather, the circumstances are reversed, and he stands before the Court “with a strong – and in the vast majority of cases conclusive – presumption of guilt.” Schlup, 513 U.S. at 326 n.42. Indeed, “[i]n the eyes of the law, [Williams] does not come before the Court as one who is ‘innocent,’ but on the 28 contrary as one who has been convicted by due process of law of [a] brutal murder[.]” Herrera v. Collins, 506 U.S. 390, 399-400 (1993). The question, therefore, under § 2244(b)(2)(B)(ii), is not whether the new evidence Williams puts forth here would probably produce an acquittal on retrial or whether it had some effect on the outcome, as his application apparently posits. It is not even whether a reasonable juror might find reasonable doubt based on the proffered evidence of juror bias and misconduct. As a corollary to the extraordinary standard for overcoming the presumption of innocence, a habeas petitioner’s postconviction burden for overcoming the near conclusive presumption that he is guilty – and thereby establishing a gateway claim of actual innocence – is equally extraordinary. A petitioner does not meet that standard, “unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 329. A petitioner does not pass through the AEDPA gateway in § 2244(b) if it is apparent, as is the case here, that despite the allegedly new evidence, “there is any juror who, acting reasonably, would have found the petitioner guilty beyond a reasonable doubt.” Id. at 333 (O’Connor, J., concurring). This means that if, upon its appraisal of the evidence, a court believes there is a single juror – in the universe of reasonable jurors – who would have voted to find Williams guilty beyond a reasonable doubt, despite the new evidence, he will not have satisfied the extraordinary standard, and his untimely claims of constitutional error cannot be heard. Thus, the apparent premise of Williams’s petition for relief – that he need 29 only demonstrate a viable claim of constitutional error or some likelihood of a different result – is flawed. Further, a court may not simply consider a petitioner’s allegations and proffered evidence at face value and in isolation from other relevant evidence. When considering a gateway claim of innocence, a habeas court’s ultimate task is to “determin[e] whether actual innocence has been reliably shown.” Perkins, 133 S.Ct. at 1928. This means that where a habeas petitioner has been convicted at a trial, the actual-innocence assessment must include consideration of the evidence presented in the trial, including any evidence tenably claimed to have been wrongly excluded or illegally admitted, with due regard to any unreliability of it, as well as the new evidence that was unavailable at trial. Schlup, 513 U.S. at 328. See also Case v. Hatch, 731 F.3d at 1038 (noting § 2244(b)(2)(B)(ii) “analysis consists only of evidence presented at the time of trial, adjusted for evidence that would have been admitted or excluded ‘but for constitutional error’ during trial proceedings”). Williams’s petition overstates the content of his proffered, new evidence, and fails to accurately account for the trial evidence in a meaningful way, much less discuss it in relation to the new evidence. Considering that Williams altogether failed to account for the requirement that he demonstrate his claims satisfy § 2244(b)(2), his vague contention that a review of his new evidence demonstrates a constitutional claim fails to satisfy the threshold.  The case against Williams was overwhelming; his submissions and allegations related to juror bias or misconduct fail to make a prima facie showing of actual innocence. 30 As noted, supra at __, the case against Williams was damning, and it reached far beyond the brutal murder of Cecil Boren. Williams killed Boren in the course of his escape from prison, where, just weeks before, he had ruthlessly shot Dominique Herd in the head, killing her, and attempting to kill her companion, Peter Robertson, after kidnapping and robbing the pair. Shortly after he arrived in prison, Williams made elaborate plans with a friend outside the prison, Eddie Gatewood, to help him escape. One week later, he escaped and happened upon Boren, working in his yard alone. Williams saw his opportunity to obtain valuables and an escape vehicle and ruthlessly killed Boren, dragging his dead body to a bayou and stealing his truck. Shortly thereafter, he arrived at Gatewood’s house and, when asked how he got the truck he was driving, he confessed he had killed someone to get it. Not long afterward, in an effort to continue his flight, killed motorist Michael Greenwood in a high-speed chase with numerous law-enforcement officers. Williams presented almost no defense, calling only three witnesses to testify about the lack of forensic evidence and about Williams’s escape from prison just before the murder and the fact that Williams’s prison-issued shirt had not been found during the initial search for him. (T.R. 1932-40). In sentencing, Williams attempted to shift the blame for Boren’s murder to the prison based on a theory that it had been negligent in its confinement of Williams, permitting his escape and wreak havoc on society. 31 The declarations Williams submits with his application do not undercut the strength of the overwhelming evidence of his guilt. They simply do not demonstrate, as required by § 2244(b), that no reasonable juror would have voted to find him guilty. Indeed, most of the declarations do not concern the guilt-phase at all. For instance, Henley Tucker, identified only as Juror A by Williams, indicates that the decision as to guilt was made quickly; that the evidence of guilt “was strong against [Williams]; but that sentencing took more time because the jury “knew how serious a decision [it] was.” The declaration implies that it was in the penaltyphase deliberations in which Henley purportedly states that the foreman led the group in prayer and in which Henley told the jurors about the different prison conditions applicable to life sentences and capital sentences. SA-51-52. While Harold Lunsford’s declaration, SA-64, indicates the jury prayed at both sentencing and guilt deliberations, his declaration, as well as Cathy Hutchins’s declaration, SA-53, make clear that prayer was used simply for strength and guidance in making the sentencing decision. Further, the declaration of Lori Echlin-Heiles, SA-60-61, while it indicates that at some point in time that is unspecified in the declaration, she knew Cecil Boren and another juror were patients of her husband, a medical doctor. Importantly, the declaration does not indicate that she knew these facts at the time of the trial. Also notably absent from her declaration is any indication the such knowledge, if she did have it at the time of trial, impacted her decision as to guilt. She made clear, moreover, that she did not complete sentencing deliberations with the jury. 32 Brenda Patrick’s declaration indicates the jury took its responsibilities very seriously, and it indicates no impropriety. While the declaration indicates she questioned the manner in which Williams escaped, she nevertheless indicated, in her view. Williams “was just remorseless about everything.” While Williams portends that Patrick’s declaration indicates she refused to consider mitigating evidence, and allowed the evidence of guilt to influence her sentencing decision, the declaration quite clearly indicates, for example, that she considered Williams’s evidence—such as his evidence of a “difficult life”—but she was unmoved by it apparently because “so does everyone, and not everyone commits murder.” SA-54. Finally, that the overwhelming evidence of Williams’s guilt was of great importance to Cathy Hutchins’s sentencing decision should come as no surprise and is not suggestive of impropriety. It is widely understood that the gravity of the offense – thus, the evidence demonstrating guilt – is perhaps the single most important determinant of a sentence. While Hutchins’s declaration, in retrospect, indicates that following the strong showing of guilt, nothing would have changed her mind about sentencing, she subsequently indicates that she engaged in prayer with the others in an effort to make “the decision between life and death.” SA-53. Finally, while Williams construes Georgina Light’s declaration to say that a sheriff “falsely told one or more jurors that Mr. Williams had made violent threats against them[,]” Doc. No. 39 at 14, that characterization is belied by the declaration itself. SA-62. The declaration simply states that “a threat” had been made against the jury. The declaration does not state the threat came from Williams, and it does 33 not state the threat was false or violent. Thus, there is no indication whatsoever in the declaration that this or any juror linked any threat to Williams, much less that the threat impacted their decision as to his obvious guilt. Williams’s submissions simply do nothing to demonstrate that he is actually innocent. Indeed, at his recent clemency proceeding, he called out the names of each of his past victims, discussed autopsy images as to one of them, and acknowledged having murdered each of them, saying he honored them. The Court of Appeals did not err in denying his claims. F. The decision below denying Petitioner’s arguments with respect to the Atkins claim was correct. The lack of merit of Petitioner’s Atkins claim was previously briefed by Respondent in connection with Petitioner’s other applications for a stay filed today in this Court. Further, 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 34 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. 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 35 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. 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 36 did not conclude that the evidence presented was sufficient to establish that Williams suffered from borderline intellectual disability. 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).7 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 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. 7 37 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. (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 38 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). 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. 39 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 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 40 order to put greater distance between himself and the prison. The evidence demonstrates that Williams is not a person with intellectual disability. G. Petitioner’s suspension argument lacks merit. The successive-petition restrictions “constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice “abuse of the writ.” Felker, 518 U.S. at 664. Contrary to Williams’s argument here, this Court has made clear that “[t]he added restrictions which the [AEDPA] places on second petitions are well within the compass of [the evolutionary process of habeas procedure], and . . . they do not amount to a “suspension” of the writ contrary to Article I, § 9.” Id. Williams’s argument to the contrary fails. H. A stay is not warranted—and this case presents a particularly poor vehicle for resolving the questions purportedly presented—because as a unanimous panel of the Eighth Circuit concluded, Petitioner cannot show a likelihood of success on the merits. This case is a particularly poor vehicle for resolving the questions purportedly presented—especially considering it would require the last-minute stay of an execution of a multiple murderer (and escapee) on death row for a decade-anda-half. Beyond the dilatory and piecemeal nature of the last-minute litigation brought by Petitioner , he is unlikely to prevail on any of his claims. Indeed, below, the panel was unanimous that Prisoner Williams had not shown a likelihood of success on any of his claims. Even the one judge who dissented on an issue of legal doctrine regarding section 2241 agreed that Prisoner Williams did not make the showing necessary on any of his claims for a stay of execution. See Williams v. 41 Kelley, Nos. 17-1892, -1893, and -1896, Slip Op. at 25 (Kelly, J., dissenting and concurring). Prisoner Williams cannot has not shown that he could possibly succeed on an Atkins claim or his jury misconduct claim. Conclusion For the foregoing reasons, the application for a stay and the petition for a writ of certiorari should be denied. Respectfully submitted, /s/ Lee Rudofsky 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 Respondent April 27, 2017 42 Nos. 16-8921 & 16A1043 KENNETH D. WILLIAMS, Petitioner, v. WENDY KELLEY, Respondent. 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. /s/ Lee Rudofsky