Submitted: April 24, 2017
from United States District Court for the Eastern District of
Arkansas - Pine Bluff
WOLLMAN, LOKEN, and SHEPHERD, Circuit Judges.
inmate Marcel Williams moves for a stay of his execution
scheduled to be carried out on April 24, 2017. Williams was
convicted of capital murder, kidnaping, rape, and aggravated
robbery and sentenced to death on January 14, 1997 in the
Circuit Court of Pulaski County. The Arkansas Supreme Court
affirmed his conviction and sentence on direct appeal.
Williams v. State, 991 S.W.2d 565 (Ark. 1999).
Williams sought and was denied state post-conviction relief.
Williams v. State, 64 S.W.3d 709 (Ark. 2002). He
petitioned for a federal writ of habeas corpus, which the
district court granted in part, but on appeal we denied in
its entirety, Williams v. Norris, 576 F.3d 850 (8th
Cir. 2009), cert. denied, Williams v.
Hobbs, 562 U.S. 1097 (2010). His first Rule 60(b) motion
for relief from judgment was denied in 2015. Williams v.
Norris, No. 15-2665 (Sept. 14, 2015). Williams
challenged the State's lethal injection method of
execution with other Arkansas inmates in Kelley v.
Johnson, 496 S.W.3d 346, 357-60 (Ark. 2016), cert.
denied, 137 S.Ct. 1067 (2017). Six days after the
Supreme Court denied certiorari in Kelley, Arkansas
Governor Asa Hutchinson set Williams's execution date for
April 24, 2017. In consolidated federal cases, Williams has
unsuccessfully challenged the three-drug lethal injection
method, see McGehee v. Hutchinson, No. 17-1804 (8th
Cir. Apr. 17, 2017) (per curiam), cert. denied, 580
U.S. (2017) (No. 16-8770), and the "frantic pace"
of the execution schedule as a due process violation, Lee
v. Asa Hutchinson, No. 17-1822 (8th Cir. April 20, 2017)
(per curiam). The Arkansas Parole Board denied Williams's
clemency petitions in June 2011 and April 2017.
eve of the scheduled execution, Williams filed this new Rule
60(b)(6) motion seeking to re-open the denial of federal
habeas relief in 2009. Renewing his claims of ineffective
assistance of counsel at the guilt and penalty phases of his
trial, Williams argues that post-conviction counsel's
failure to properly raise these claims in the state
collateral proceedings was an extraordinary circumstance
resulting in procedural defaults that are now excused under
recent United States Supreme Court decisions. The district
court denied Rule 60(b) relief but granted a
certificate of appealability. Williams appealed and now moves
for a stay of execution pending full briefing of his appeal.
We deny the motion for a stay.
abducted, robbed, raped, and murdered Stacy Erickson in
November 1994. At trial, Williams was defended by Herbert
Wright, who had five years criminal defense experience,
including involvement in three other capital cases; Phillip
Hendry, who had four years experience, including training in
representing capital murder defendants, and took the lead
during the penalty phase; and William James, an attorney
licensed for less than one year. Given the State's
overwhelming evidence, the defense conceded guilt in its
opening statement at trial but challenged the State's
evidence. At the penalty phase, the defense argued six
mitigating circumstances, but introduced only the testimony
of a former death row inmate as mitigation evidence. The
State introduced "compelling" evidence of three
aggravating circumstances. The jury found the State
"proved three aggravating circumstances beyond a
reasonable doubt, that Williams proved one mitigating
circumstance -- acceptance of responsibility -- by a
preponderance of the evidence, and that the aggravating
circumstances outweighed the mitigating circumstance beyond a
reasonable doubt." Williams, 576 F.3d at 855.
The jury unanimously recommended death, the trial court
accepted the jury's recommendation, and the Supreme Court
of Arkansas affirmed. Williams v. State, 991 S.W.2d
then sought post-conviction relief under Arkansas Rule of
Civil Procedure 37, arguing that trial counsel were
ineffective because they did not properly develop and present
mitigation evidence regarding his troubled past during the
penalty phase. Williams was represented by William McLean, an
attorney who had "practiced criminal law for over ten
years, served as lead counsel in other capital murder cases,
handled other post-conviction matters, and tried at least 100
jury cases." Williams, 576 F.3d at 854-55. At
the Rule 37 hearing, "all three [members of
Williams's trial team] testified that their trial
strategy was to concede guilt, in the face of the State's
overwhelming evidence, and to seek mercy at the penalty
phase." Id. at 855. To obtain mitigation
evidence, they ordered a mental evaluation of Williams and
reviewed his school, medical, and prison records but made the
decision not to present the evidence obtained through these
[T]hey decided not to have Williams testify at the penalty
phase because they feared damaging cross-examination about
his drug use and criminal history and the gruesome details of
the crime. . . . [They] considered Williams not to be a
credible witness because of the numerous fabrications in his
custodial statement. Williams told counsel he did not wish to
testify. Counsel twice tried to interview Williams's
mother, Sara Riggs . . . [but] elected not to call Riggs
during the penalty phase because she was 'not very
Williams, 576 F.3d at 856. The state trial court
found that Williams failed to show prejudice under
Strickland v. Washington, 466 U.S. 668 (1984). The
Arkansas Supreme Court affirmed, concluding Williams failed
to show either deficient performance or prejudice.
Williams, 64 S.W.3d 709 (2002). The Court determined
that trial counsel's decision not to present mitigation
evidence was "a reasonable trial strategy" and that
Williams "failed to show what the omitted testimony was
and how it could have changed the outcome." Id.
amended petition for a federal writ of habeas corpus raised
20 grounds for relief. As relevant here, Claim II argued
ineffective assistance of trial counsel for failure to
present mitigation evidence at the penalty phase. Claim III
argued ineffective assistance during the guilt phase. The
district court dismissed Claim III as procedurally defaulted
because Williams had not raised guilt phase ineffective
assistance in state court. Williams v. Norris, No.
5:02-cv-450, 2006 WL 1699835, at *6 (E.D. Ark. June 19,
the penalty phase issues raised in Claim II, the district
court concluded that the Supreme Court of Arkansas
unreasonably determined that trial counsel's performance
was not deficient, based primarily on the assumption that
counsel were unaware they could present mitigation evidence
through a social history expert. Williams, 2006 WL
1699835 at *8. The court concluded the state court record was
inadequate on the prejudice issue and held an evidentiary
hearing at which Williams introduced mitigation evidence.
Trial counsel Wright and James testified they were unaware
mitigation evidence could include testimony by a social
history expert. A psychologist "recounted Williams's
social history based on interviews with Williams, his mother,
half-sister Peggy O'Neil and a cousin, and reviews of
Williams's medical, training school, and prison records.
O'Neal, four cousins, and a training school counselor
also testified." Williams, 576 F.3d at 856. The
district court concluded it was reasonably likely Williams
would not have been sentenced to death had this mitigation
evidence that was not before the state court been presented.
Williams v. Norris, 2007 WL 1100417 at *3 (E.D. Ark.
Apr. 11, 2007). The court granted federal habeas relief and
set aside the death sentence.
appeal, we reversed the grant of penalty phase habeas relief
and denied Williams's petition for a writ of habeas
corpus. We concluded the evidentiary hearing the district
court held was barred by 28 U.S.C. § 2254(e)(2) because
there was no evidence that Williams had not been able to
develop his claim in state court. We also questioned whether
the social history testimony would have been admissible in
state court without corroborating testimony (Williams refused
to testify and his mother was uncooperative and not
credible), and whether its admission would have changed the
outcome, because it was based on a record damaging to
Williams. We concluded the state court did not unreasonably
apply Strickland in finding that Williams failed to
show prejudice from allegedly ineffective assistance at the
penalty phase. Although we ruled based on the prejudice prong
of Strickland, we noted that the district court, in
concluding counsel were guilty of deficient performance,
assumed that Hendry, lead trial counsel at the
penalty phase, was ignorant of the ability to present social
history mitigation ...