**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), affd 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,

1Due 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.
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 last-

minute 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. 17-

1892), 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 Williamss application for a certificate of appealability, (No. 17-

1893) as moot. Id. It also correctly denied Williamss protective application to file a

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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 Courts 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. Williamss 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 Gatewoods 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 Borens

firearms were gone, except a muzzleloader. The neighbor eventually discovered

Cecils lifeless bodylying face down without shoes or socksnear a bayou not far

5
from the Borens 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 Cecils truck, wallet, other

valuables, and the missing firearms.

Around 11:00 that morning, Williams showed up at Eddie Gatewoods house

asking for a map. Williams was driving Cecils truck. Gatewood testified at

Williamss trial that Williams told him he had killed a person to get the truck.

The next day, on October 4, 1999, Cecils 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 trucks 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 Cecils truck, including the firearms stolen from their home. At the

time of his arrest, Williams was wearing Cecils coveralls and two of Cecils rings.

B. Williamss trial for the capital murder of Cecil Borden

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 At trial, Arkansas was unable to link the .22 caliber fragments taken from

Cecils body to the firearms found in Williamss 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. Williamss kidnapping and aggravated robbery of Sharon Hence.

In the sentencing phase of Williamss 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 Hences 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. Hences car was later found burning roughly

two and one-half blocks away from Williamss apartment. At Williamss 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. Williamss 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 friends 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 Robertsons account. Williams also attempted to

2Williamss 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).

8
withdraw money from Herds 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 Herds 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 dont 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, Williamsas he had with Hences cartorched and abandoned the

victims car.

Robertson identified Williams both in a photo line-upand at trialas 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. Williamss 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. Williamss 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 capital-

murder 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

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

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. 5-4-

604(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

Williamss 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. Williamss 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 jurys 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

Williamss 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 Williamss 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, Williamss 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 afterand the Court
did authorize full testing of Mr. Williams. And after that testing was
done, it waswe have decided not to pursue thatthose two claims.
So Claims One and Two would not be pursued at this time. And I
wanted just to let the Courtlet 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

4The 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.

12
affirmed the denial of relief on March 1, 2007. Williams v. State, 369 Ark. 104, 251

S.W.3d 290 (2007).

3. Williamss 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 Borens 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 jurys failure to consider mitigating

evidence; (5) trial counsel was ineffective for failing to introduce the supporting

documentation of mitigation evidence; (6) Williamss 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

courts 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. Williamss recent dilatory and piecemeal filings

On February 27, 2017, Arkansas Governor Asa Hutchinson scheduled

Williams execution for April 27, 2017. Williams then waitednearly 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 10-

year-old postconviction mandate so that he could raise a claim under Atkins v.

Virginia, 536 U.S. 304 (2002), as well as claims of juror and prosecutorial

misconduct. He alternatively attempted to invoke the state remedy of error-coram-

nobis relief. On the night of April 24, 2017, he also filed a second motion to recall

the mandates of both his direct and postconviction cases in the Arkansas Supreme

Court so that he could challenge his jurys 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. 17-

1896 (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 Petitioners claims do not

warrant this Courts 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 Circuits

decision.

The Eighth Circuit denied Petitoners application for authorization in 17-

1892; 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

Circuits 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

Williamss petition, and it should be denied along with his request for a stay of

execution.

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 B. Petitioners 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 splittingbringing 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 Williamss 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 Williamss 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 afterand the Court did authorize full testing
of Mr. Williams. And after that testing was done, it waswe have decided
not to pursue thatthose two claims. So Claims One and Two would not be
pursued at this time. And I wanted just to let the Courtlet 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

5 The State will refer to the record in Williamss direct appeal, Arkansas Supreme
Court No. CR-01-364 as (T.R.) and the record in Williamss Rule 37 appeal as (R.
37 R.). Because this all is a part of the public record already filed with the
appellate court in Williamss earlier appeals, this Court is free to consider all of
these, as well as Williamss 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 A-
145 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
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 aloneat a minimum

demonstrate that this case is a poor vehicle for reviewing Williamss claim that he

was denied an adequate avenue for pursuing his Atkins claim.

Further, Williamss 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 tacticsparticularly where inmates actually brought and then

voluntarily dropped the claimwould 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 A-
145 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 Courts review is warranted to

address his Section 2244(b) argument. Nor has he shown this Court is
likely to overturn the Court of Appeals decision or overturn his
sentence.

1. No cert worthy issue.

Petitioner does not show that this Courts review is warranted to resolve an

unresolved question concerning Section 2244. Nor does he point to any split in

authority that would warrant this Courts review. Indeed, this Courts opinions are

clear and he cannot show that this Court would likely overturn the Eighth Circuits

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 petitioners 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. MartinezVillareal,

523 U.S. 637, 643644 (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 inmates 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 prisoners culpability at the time the crime

was committed. (Slip Op. at 11). See also Ochoa v. Workman, 669 F.3d 1130,

113738 (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 Petitioners 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).

Williamss 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 AEDPAs 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).

Williamss 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.

Williamss 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 petitioners] 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 ineffective-

assistance 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 Engessers car shortly before the accident and would have

testified that it was Engessers passenger, and not he, in the drivers 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 Engessers state habeas proceedingswhich took place before his first

25
federal petitionas 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 Williamss 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, Williamss 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 Williamss

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). Williamss 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 petitioners post-

conviction 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 (OConnor, 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 Williamss 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 petitioners allegations and

proffered evidence at face value and in isolation from other relevant evidence.

When considering a gateway claim of innocence, a habeas courts 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).

Williamss 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 Gatewoods 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 Williamss escape from prison just

before the murder and the fact that Williamss 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 Borens 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 penalty-

phase 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 Lunsfords declaration, SA-64, indicates the jury prayed at both

sentencing and guilt deliberations, his declaration, as well as Cathy Hutchinss

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 Patricks 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 Patricks 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 Williamss

evidencesuch as his evidence of a difficult lifebut she was unmoved by it

apparently because so does everyone, and not everyone commits murder. SA-54.

Finally, that the overwhelming evidence of Williamss guilt was of great

importance to Cathy Hutchinss 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 Hutchinss 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 Lights 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.

Williamss 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 Petitioners arguments with respect to

the Atkins claim was correct.

The lack of merit of Petitioners Atkins claim was previously briefed by

Respondent in connection with Petitioners 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 Williamss 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 dont 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 WAIS-

III 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 dont 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 Williamss Appendix to Corrected Habeas Petition at A 49-50). In addition,

Williamss Rule 37 counsel had Williamss 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 Williamss 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, A-

179), placing him well above the cut-off for intellectual disability and fully

explaining postconviction counsels reason for withdrawing the claim in Rule 37.

Williamss 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, Williamss

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, Williamss attorneys demonstrated

extraordinary confidence, not only in Williamss 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
Defendants 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 Respondents 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. Appx 242, 243

(8th Cir. 2003).

In addition, as demonstrated in Williamss 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 Williamss clemency petition is attached to

Respondents Response to Motion to Recall as Exhibit B). He has written several

articles, which have been published in a variety of publications. (Respondents

Exhibit B to Response to Motion to Recall at 4-12). He has obtained numerous

7 Due to time constraints, Rspondent relies on the Exhibits to Respondents

Response to Petitioners 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.
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.

(Respondents 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. (Respondents Exhibit B to

Response to Motion to Recall at 3).

In Williamss clemency proceeding, an audio-recording, a copy of which was

conventionally filed as Exhibit C to Respondents 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.

Williamss Condensed Health Services Encounter obtained from the Arkansas

Department of Correction, which was filed separately under seal as Respondents

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. (Respondents 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. (Respondents 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 Respondents 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 Respondents 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 Williamss January 23, 2017, letter is attached to Respondents

Response to Motion for Recall as Exhibit G). This letter, written only three months

ago, shows Williamss 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 Borens 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. Williamss 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. Petitioners 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 Williamss 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. Williamss argument to the contrary fails.

H. A stay is not warrantedand this case presents a particularly poor

vehicle for resolving the questions purportedly presentedbecause 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 presentedespecially considering it would require the last-minute stay

of an execution of a multiple murderer (and escapee) on death row for a decade-and-

a-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