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Williams v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

April 18, 2017

WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT



         Marcel Wayne Williams is on death row in the Arkansas Department of Correction. The Governor of the State of Arkansas has scheduled his execution for April 24, 2017. On April 1, 2017, Williams filed a motion pursuant to Federal Rule of Civil Procedure 60(b) seeking relief from the judgment denying his petition for habeas relief under 28 U.S.C. § 2254. Two issues are before the Court: first, whether Williams's motion is a second or successive habeas petition; second, if not, whether Williams has presented a basis for relief under Rule 60(b).

         In 1997, Williams was convicted of capital murder in the 1994 death of Stacy Errickson and was sentenced to death. The Arkansas Supreme Court affirmed on direct appeal. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999) (Williams I). In a motion filed pursuant to Arkansas Rule of Criminal Procedure 37, Williams argued that his trial lawyers were ineffective at the penalty phase for failing to investigate and present mitigating evidence of his life history. The state trial court denied the Rule 37 motion, and the Arkansas Supreme Court affirmed. Williams v. State, 347 Ark. 371, 64 S.W.3d 709 (2002) (Williams II).

         In December of 2002, Williams filed a timely habeas petition in this Court pursuant to 28 U.S.C. § 2254. He filed an amended petition in April of 2005. His amended petition asserted that his trial lawyers were ineffective during both the guilt and penalty phases. He also contended that deficiencies in the work of state appellate and post-conviction counsel excused “any failure to comply with procedural requirements that this Court might otherwise identify.” Document #17 at 85-88.

         In Claim III of his amended habeas petition, Williams listed his allegations of guilt-phase ineffectiveness: (1) conducting inadequate voir dire, (2) accepting an impartial juror, (3) mishandling a Batson claim, (4) not subjecting the State's guilt-phase evidence to meaningful adversarial testing by not objecting to victim-impact evidence and not requesting funding to retain a DNA expert, (5) not objecting to prosecutorial misconduct, (7) telling jurors during opening that they were better than Williams, and (8) not objecting to the prejudicial courtroom atmosphere.Document #17 at 45-51. Some of these claims were repeated or incorporated by reference into Williams's contention that his lawyers were ineffective at the penalty phase. Id. at 43-44.

         Dismissing these claims, this Court found as follows:

None of these arguments were presented to the state courts. None of them relies on a new rule of constitutional law made retroactive to cases on collateral review or a factual predicate that could not have been discovered through due diligence. 28 U.S.C. § 2254(e)(2)(A). Furthermore, the facts underlying these claims are not sufficient to establish by clear and convincing evidence that but for constitutional error no reasonable factfinder would have found Williams guilty of the underlying offense. 28 U.S.C. § 2254(e)(2)(B). Williams's Claim No. 3 will be dismissed because it is procedurally defaulted and the default is not excused.

Document #35 at 12-13.

         Williams's primary argument, which was presented as Claim II of his habeas petition, was that his lawyers failed to develop and present mitigating social history evidence through expert testimony. Document #17 at 17-43. Analyzing the ineffectiveness claim under the familiar Strickland[1] standard, this Court determined the Arkansas Supreme Court clearly erred in finding that Williams's lawyers' decision not to introduce mitigation evidence was a reasonable trial strategy. This Court ordered an evidentiary hearing to decide whether the evidence sufficed to show prejudice as required by Strickland. Document #35 at 11-12. Evidence presented at that hearing established that “Williams was subject to every category of traumatic experience that is generally used to describe childhood trauma.” Document #94 at 4. He was sexually abused numerous times, was physically abused and “was subjected to gross neglect[.]” Id. Based on evidence presented at the evidentiary hearing, this Court found Strickland prejudice and granted relief on Williams's claim that his lawyers were ineffective at the penalty phase. Document #94. The Eighth Circuit reversed and reinstated the death sentence, holding the record was limited by section 2254(e)(2) to the evidence presented in state court and finding that, on that record, the state court decision was not contrary to or an unreasonable application of Strickland. Williams v. Norris, 576 F.3d 850, 858-63 (8th Cir. 2009). Over a vigorous dissent, the Supreme Court denied Williams's petition for a writ of certiorari. Williams v. Hobbs, 562 U.S. 1097, 131 S.Ct. 558, 178 L.Ed.2d 542 (2010) (Sotomayor, J., and Ginsburg, J., dissenting).

         Some years later, the United States Supreme Court announced a narrow, equitable exception to the procedural default rules, holding that, under some circumstances, ineffective assistance of post-conviction counsel can provide cause to excuse procedural default. Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012); Trevino v. Thaler, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). In 2013, the Eighth Circuit held that Martinez and Trevino apply in Arkansas. Sasser v. Hobbs, 735 F.3d 833, 851-53 (8th Cir. 2013). Application of the Martinez-Trevino equitable exception requires that the ineffective-assistance-of-trial-counsel claim be substantial. Martinez, 566 U.S. at 14. A substantial ineffectiveness claim is one that has some merit. Id.

         Williams argues that Martinez and Trevino, combined with unique circumstances, constitute extraordinary circumstances sufficient to reopen the final judgment in his habeas case. He argues he should have the opportunity to show that the default of his guilt-phase ineffectiveness claims are excused under a Martinez-Trevino analysis. He contends that his post-conviction lawyer was constitutionally ineffective and that these claims are substantial. Williams also seeks to reopen his claim that his lawyers were ineffective at the penalty phase for not presenting mitigation evidence.

         The Eighth Circuit has directed district courts to evaluate whether a purported Rule 60(b) motion is in fact a second or successive habeas petition before addressing it under Rule 60(b). Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002). By statute, a claim presented in a second or successive habeas corpus petition under section 2254 must be dismissed if it was presented in a prior petition. 28 U.S.C. § 2244(b)(1). Under narrow circumstances, a claim presented in a second or successive habeas corpus petition under section 2254 that was not previously presented may be permitted if the appropriate court of appeals authorizes the district court to consider the petition. Id. at §§ 2244(b)(2) and (b)(3)(A). “If the district court determines the Rule 60(b) motion is actually a second or successive habeas petition, the district court should dismiss it for failure to obtain authorization from the Court of Appeals or, in its discretion, may transfer the purported Rule 60(b) motion to the Court of Appeals.” Boyd, 304 F.3d at 814.

         “A Rule 60(b) motion is a second or successive habeas corpus application if it contains a claim.” Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009). A claim is “‘an asserted federal basis for relief from a state court's judgment of conviction'” or “an attack on the ‘federal court's previous resolution of the claim on the merits.'” Id. at 933 (quoting Gonzalez v. Crosby, 545 U.S. 524, 530, 532, 125 S.Ct. 2641, 2647, 162 L.Ed.2d 480 (2005)). In this context, “on the merits” means “a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d).” Gonzalez, 545 U.S. at 532 n.4, 125 S.Ct. at 2648 n.4. A movant is not seeking a determination on the merits if he “merely asserts that a previous ruling which precluded a merits determination was in error-for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.” Id. If the motion does not present a claim, it should not be treated as a successive habeas petition. Id. at 533, 125 S.Ct. at 2648. “If neither the motion itself nor the federal judgment from which it seeks relief substantively addresses federal grounds for setting aside the movant's state conviction, allowing the motion to proceed as denominated creates no inconsistency with the habeas statute or rules.” Id. A motion that challenges only the district court's failure to reach the merits is not a successive habeas petition and therefore can be decided without precertification by the Court of Appeals. Id. at 538, 125 S.Ct. at 2651. Applying Gonzalez, courts have determined that a Rule 60(b) motion that relies on Martinez and Trevino to challenge a district court's previous determination that ineffectiveness claims were procedurally defaulted is not a successive habeas petition. Adams v. Thaler, 679 F.3d 312, 319 (5th Cir. 2012); Scott v. Hobbs, No. 5:04CV00082-KGB, 2014 WL 3700581 at *2 (E.D. Ark. July 25, 2014).

         As to Williams's claim that his lawyers were ineffective at the penalty phase for failing to present mitigation evidence, that claim was decided by this Court and the Eighth Circuit on the merits. That part of Williams's present motion is a second or successive habeas petition and therefore must be dismissed. 28 U.S.C. § 2244(b)(1). Williams attempts to avoid this conclusion by arguing that because no evidence of prejudice was presented at his Rule 37 hearing, the ineffective assistance claim was not really a claim at all. He says that the claim presented here was so different from the claim presented in state court that this Court should have held the claim procedurally defaulted. That argument fails because the claim presented here was the same claim that was presented in state court. In fact, this Court relied on the transcript of the Rule 37 hearing to conclude that Williams met the first element of the Strickland test, i.e., that his lawyers' performance was inadequate. Moreover, the Eighth Circuit did not treat the claim as procedurally defaulted. Rather, the Eighth Circuit addressed the claim as one decided by ...

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