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Williams v. Kelley

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

April 26, 2017

WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT



         Kenneth Dewayne Williams, an inmate in custody of the Arkansas Department of Correction (ADC), is under sentence of death for the 1999 murder of Cecil Boren. Williams's execution is scheduled to be carried out on April 27, 2017. Williams commenced this action on September 10, 2007, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For reasons set forth in a order entered November 4, 2008, the Court found that each claim asserted in Williams's petition lacked merit, and the Court entered final judgment denying all relief. Williams appealed, the Eighth Circuit affirmed, Williams v. Norris, 612 F.3d 941 (8th Cir. 2010), and the Supreme Court denied a writ of certiorari. Williams v. Norris, 562 U.S. 1290 (2011).

         On April 25, 2017, two days before his scheduled execution, Williams filed (1) a motion for relief from judgment, pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure [ECF No. 39]; (2) a motion to stay execution [ECF No. 40]; (3) an amended petition for habeas relief [ECF No. 45]; and a second motion to stay execution [ECF No. 45]. The State has filed a motion to dismiss the amended petition [ECF No. 51]; a response in opposition to Williams's Rule 60(b)(6) motion [ECF No. 52]; and a response in opposition to stay execution [ECF No. 53], and Williams has filed a reply in support of his motion under Rule 60(b)(6) [ECF No. 55] and a response in opposition to the State's motion to dismiss [ECF No. 56]. After careful consideration, and for reasons that follow, the Court finds that it lacks jurisdiction to entertain Williams's motion, amended petition, and motions for stay of execution, and the Court immediately transfers these filings to the Eighth Circuit Court of Appeals.

         I. Background

         On September 15, 1999, Williams arrived at the Cummins Unit of the ADC to begin serving a life sentence, without the possibility of parole, for the following crimes he had committed in December 1998: capital murder, attempted capital murder, kidnaping, aggravated robbery, theft, and arson. Eighteen days after entering the prison, Williams escaped by hiding in a hog-slop truck that had entered the prison grounds. When the truck was away from the prison, Williams jumped from the tank and hid in a ditch. He eventually walked to Cecil Boren's house, where he robbed and killed Boren. The next day, Williams fled from police in a highspeed chase that ended when his vehicle collided with another and killed the driver, Michael Greenwood.

         On August 30, 2000, a Lincoln County jury convicted Williams for the capital felony murder of Cecil Boren and theft of property. Williams was sentenced to death. The Arkansas Supreme Court affirmed Williams's convictions and sentence on direct appeal. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002). Subsequently, attorney Jeffrey Rosenzweig filed a post-conviction petition on Williams's behalf, pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. The Rule 37 petition did not assert juror bias or misconduct, but Williams did seek authorization to retain an investigator to probe these issues. In support of his request, Williams noted that the Cummins Unit was located in Lincoln County, Cecil Boren had worked for the prison system, and high percentage of Lincoln County's population was associated with the Cummins Unit.

         After a hearing, the circuit court denied post-conviction relief and Williams's request for funds for an investigator. On appeal, Williams admitted not knowing whether jurors made any misrepresentations during voir dire, but he maintained that an investigation was warranted to determine the same and that the circuit court erred in denying him funds. The Arkansas Supreme Court affirmed the denial of post-conviction relief and held that Williams had failed to demonstrate the need for an investigator. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). The Supreme Court noted: “The obvious question is why Williams's counsel for his Rule 37 petition did not investigate the matter initially himself for purposes of his Rule 37 petition to determine whether any juror seated for the trial was dishonest in his or her voir.” Id., 369 Ark. at 122, 251 S.W.3d at 302.

         On September 10, 2007, Williams, through his attorney Jeffrey Rosenzweig, commenced this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pertinent to Williams's present Rule 60(b) motion is Claim VII of his original petition, asserting that the state court's denial of funds to hire an investigator was an unreasonable application of Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479 (2000). See ECF No. 1, at 26-33. In Taylor, the United States Supreme Court held: “We do not suggest the State has an obligation to pay for investigation of as yet undeveloped claims; but if the prisoner has made a reasonable effort to discover the claims to commence or continue state proceedings, [28 U.S.C. § 2254(e)(2)] will not bar him from developing them in federal court.” Taylor, 529 U.S. at 443, 120 S.Ct. at 1494. Williams also asked this Court for funds to hire an investigator and for an evidentiary hearing on results obtained from the investigation. Id.

         Importantly, Williams did not argue in his petition that the jurors in his case were biased or committed misconduct. The heading of Claim VII of his original petition reads:


         ECF No. 1, at 26. Williams's habeas argument, however, was limited to arguing state-court error based on the denial of funds. He argued that “Williams v. Taylor demonstrates that the investigation of the jurors . . . is a reasonable litigation expense[, ]” Id. at 29, and he acknowledged: “We do not know whether any misrepresentation similar to Williams v. Taylor occurred . . . because the circuit court denied Williams the resources to find out.” Id. at 33.

         Applying the habeas standard of review, this Court determined that the state court's determination was not contrary to, nor an unreasonable application of, Supreme Court precedent, stating as follows:

Williams concedes that he does not have any evidence that a specific juror misrepresented the facts during voir dire so as to cover up any bias[, ] and Williams is unaware of any bias on the part of any juror. He argues, however, that he is entitled to funds to explore whether any such evidence of bias might exist. As the Arkansas Supreme Court noted, Williams v. Taylor does not establish the existence of a constitutional entitlement to post-conviction investigative funds for the purposes of discovering whether a claim of constitutional error exists. Williams sets forth no precedent, and the Court finds none, for the proposition that a state court must provide investigative services in state post-conviction proceedings, much less to provide them merely upon a request that is unsupported by any allegation reflecting the existence of juror misconduct or a hint thereof.

         ECF No. 9, at 28; Williams v. Norris, No. 5:07CV00234 SWW, 2008 WL 4820559, at *16 (E.D. Ark. Nov. 4, 2008). The Eighth Circuit affirmed, finding that Williams v. Taylor was inapposite and that “Williams had no right to funding for an investigation to develop entirely ...

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