Shelby County Health Care Corp v. Southern Farm Bureau Casualty

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-1892
No. 17-1893
No. 17-1896
___________________________
Kenneth Dewayne Williams
lllllllllllllllllllllPetitioner
v.
Wendy Kelley, Director, Arkansas Department of Correction
lllllllllllllllllllllRespondent
____________
Appeals from United States District Court
for the Eastern District of Arkansas - Pine Bluff
____________
Submitted: April 26, 2017
Filed: April 27, 2017
[Published]
____________
Before WOLLMAN, RILEY, and KELLY, Circuit Judges.
____________
PER CURIAM.
Kenneth Dewayne Williams is scheduled to be executed on April 27, 2017. On
April 25, 2017, Williams filed in federal district court a motion for relief from
judgment under Federal Rule of Civil Procedure 60(b)(6), an amended petition for
writ of habeas corpus, and related motions to stay the execution. Williams argued

-- 1 of 25 --

that extraordinary circumstances of juror misconduct and bias justified the reopening
of his federal habeas proceedings under Rule 60(b)(6) and that his Eighth
Amendment claim that he is categorically ineligible to be executed based on his
intellectual disability should not be subject to the strictures of 28 U.S.C. § 2244(b).
The district court determined that the motion for relief and the petition for writ
constituted second or successive habeas corpus applications that were not previously
authorized by this court. The district court thus determined that it was without
jurisdiction to entertain the matters and exercised its discretion to transfer them to this
court. See 28 U.S.C. § 2244(b)(3); Boyd v. United States, 304 F.3d 813, 814 (8th Cir.
2002) (per curiam).
On April 26, 2017, Williams filed an application for a certificate of
appealability, reiterating his argument that he is ineligible to be executed based on his
intellectual disability. He also filed a protective application under 28 U.S.C. § 2244,
seeking leave to file a second or successive habeas petition in light of the Supreme
Court’s March 28, 2017, holding in Moore v. Texas, 137 S. Ct. 1039 (2017), and
because no reasonable factfinder could have sentenced Williams to death, had it
known about his intellectual disability. In both matters, Williams filed related
motions for stay of execution.
We consolidate the three matters now pending before us. With respect to the
case transferred from the district court (No. 17-1892), we conclude that the motion
for relief and the petition for writ constitute second or successive habeas applications,
and we deny authorization for the district court to consider them. We deny
Williams’s application for a certificate of appealability (No. 17-1893) as moot. We
deny Williams’s protective application to file a second or successive habeas petition
(No. 17-1896). We also deny the motions for stay of execution that are currently
pending in each of the three cases.
-2-

-- 2 of 25 --

I. Background
Williams began serving a life sentence on September 15, 1999, for capital
murder, attempted capital murder, kidnapping, aggravated robbery, theft, and arson.
He was imprisoned at the Cummins Unit of the Arkansas Department of Corrections.
On October 3, 1999, Williams escaped from prison and proceeded to the nearby
residence of Cecil Boren, where he killed Boren and stole Boren’s firearms and
vehicle. Williams was captured the next day, after a high-speed car chase that ended
when the vehicle he was driving collided with a water truck, killing its driver.
In 2000, Williams was convicted of the capital murder of Boren. During trial,
Dr. Mark Cunningham, a clinical and forensic psychologist, testified that Williams
suffered from a number of psychological problems and that he had an IQ score
between 67 and 75, which Cunningham described as being on the “borderline
between mental retardation and . . . borderline intellectual functioning.” The verdict
form included a mitigating circumstance of “borderline mental retardation,” and the
jury did not indicate that it found evidence of this mitigating circumstance. Williams
was sentenced to death. The Arkansas Supreme Court affirmed his conviction and
sentence. Williams v. State, 67 S.W.3d 548 (Ark. 2002).
Williams, through attorney Jeffrey Rosenzweig, thereafter petitioned for state
post-conviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure.
During the Rule 37 litigation, Williams requested authorization “to retain an
investigator to probe into issues of jury bias and misconduct.” Williams v. State, 251
S.W.3d 290, 301 (Ark. 2007). Williams pointed out that his case was tried in the
county where the Cummins Unit is located, that many residents of that county were
thus associated with the prison system, and that Boren had been an official of the
prison system. Accordingly, Williams argued that if any of the jurors had falsely
represented “that neither they nor their families had association with the prison
system or the Boren family, such false representations would entitle Williams to relief
-3-

-- 3 of 25 --

and would give him grounds to amend or supplement the Rule 37 petition to include
a juror misconduct claim.” Id. The circuit court denied funds for an investigation
into juror misconduct. The Arkansas Supreme Court held that the circuit court did
not abuse its discretion in doing so, concluding that Williams had failed to
demonstrate the need for an investigator. Id. at 302 (citing Williams v. Taylor, 529
U.S. 420, 443 (2000)).
Williams’s Rule 37 petition also included a claim that trial counsel was
ineffective in failing to submit evidence of mental retardation, which exempts a1
person from the death penalty under Arkansas law, and a claim that Atkins v.
Virginia, 536 U.S. 304 (2002), precluded the imposition of the death penalty against
him because he was mentally retarded. The circuit court granted Williams’s motion
for funds to hire an expert and an investigator on his Atkins claim, whereupon
Rosenzweig retained Dr. Ricardo Weinstein, a psychologist, as an expert, and Mary
Paal, as a mitigation specialist. At a later evidentiary hearing, however, Rosenzweig
informed the circuit court that Williams would not pursue either of the claims that
were based on Williams’s alleged mental retardation. The circuit court denied
Williams’s remaining claims, and the Arkansas Supreme Court affirmed the denial
of post-conviction relief. See Williams, 251 S.W.3d at 303.2
The United States Supreme Court now uses the term “intellectually disabled,”1
see Hall v. Florida, 134 S. Ct. 1986, 1992 (2014), and not “mentally retarded.” We
use the term “mentally retarded” only when discussing a claim that originally used
that language.
Rosenzweig’s decision not to pursue the Atkins claim may have been2
influenced in part by the fact that two months before trial Williams’s two experienced
criminal-defense trial attorneys filed a motion to allow Williams to participate as co-
counsel at trial. Such a clear expression of their confidence in Williams’s mental
capacity does much to allay any concern that “[m]entally retarded defendants may be
less able to give meaningful assistance to their counsel.” Atkins, 536 U.S. at 320.
-4-

-- 4 of 25 --

Williams thereafter filed a petition for writ of habeas corpus in federal district
court under 28 U.S.C. § 2254, arguing, among other things, that the denial of funds
for an investigation into juror bias and misconduct was an unreasonable application
of Williams v. Taylor. This petition did not include an Atkins claim. Williams
argued that Taylor established that the investigation of jurors constitutes a reasonable
litigation expense, and he urged the district court to authorize funds for an
investigation into juror misconduct. The district court rejected Williams’s argument
that the Arkansas Supreme Court misapplied Taylor and concluded that state courts
were not required to provide funds for investigation of jurors “merely upon a request
that is unsupported by any allegation reflecting the existence of juror misconduct or
a hint thereof.” Williams v. Norris, No. 5:07cv00234, 2008 WL 4820559, at *16
(E.D. Ark. Nov. 4, 2008).
The district court denied Williams’s habeas petition and granted a certificate
of appealability on several grounds, including whether the circuit court had erred in
denying Williams funding to investigate claims of juror bias and misconduct. We
concluded that “Williams had no right to funding for an investigation to develop
entirely speculative claims” and affirmed the denial of habeas relief. Williams v.
Norris, 612 F.3d 941, 959 (8th Cir. 2010) (“[T]he Court specifically precluded this
type of claim when it wrote, ‘[w]e do not suggest the State has an obligation to pay
for investigation of as yet undeveloped claims.’” (quoting Taylor, 529 U.S. at 443)),
cert. denied, 562 U.S. 1290 (2011).
On February 27, 2017, Arkansas Governor Asa Hutchinson scheduled
Williams’s execution for April 27, 2017. On April 11, Rosenzweig, who had
represented Williams throughout Williams’s state post-conviction proceedings and
federal habeas proceedings, moved in federal district court for the appointment of co-
counsel, which the court granted. Thereafter, James Moreno, an Assistant Federal
Defender from the Capital Habeas Unit in the Eastern District of Pennsylvania,
entered his appearance, and on April 21, the district court granted Rosenzweig’s
-5-

-- 5 of 25 --

motion to withdraw from Williams’s habeas matter. As set forth above, Williams
thereafter filed in district court the motion for relief and the petition for writ that have
been transferred here and also filed in this court an application for a certificate of
appealability and a protective application to file a second or successive habeas
petition.3
II. Motion for Relief from Judgment
We first consider William’s argument that he is entitled to relief from judgment
and that his federal habeas proceedings should be reopened because his right to an
impartial jury was violated. He claims that “[t]he appointment of the [Federal
Defender’s Office] represented the first time during post-conviction litigation that Mr.
Williams had attorneys with the funds to conduct a juror investigation.” That
investigation revealed, according to Williams, “significant evidence of jury
misconduct, bias[,] and exposure to improper evidence,” including the following:
unbeknownst to defense counsel or the court, a juror worked at the Cummins Unit and
told other jurors that prison conditions for inmates serving life sentences were better
than the conditions for inmates sentenced to death; the jury foreman stated during
voir dire that his religious beliefs would not interfere with his jury service, but he
nevertheless consulted a Bible during deliberations, referred to verses in the Old
Williams filed two motions to recall the mandate and two motions for stay in3
the Arkansas Supreme Court on April 21, 2017. The state court claims are similar to
those Williams raised in the federal district court, including claims of jury bias and
misconduct and of ineligibility for the death penalty based on his alleged intellectual
disability. Additionally, Williams argued to the Arkansas Supreme Court that he
should not be executed because he was sentenced to death on a non-unanimous
verdict and because the jury failed to consider his mitigating evidence. As an
alternative claim for relief, Williams argued that jurisdiction should be reinvested in
the circuit court to consider a petition for writ of error coram nobis on the basis of
suppressed evidence of a juror’s employment at the Cummins Unit. The Arkansas
Supreme Court denied Williams’s four motions on April 26, 2017.
-6-

-- 6 of 25 --

Testament, and led the other jurors in prayer; a sheriff falsely told one or more of the
jurors that Williams had threatened them and that precautionary measures had been
taken; one juror refused to consider mitigating evidence because “[o]nce she had
decided Mr. Williams’s guilt, [she] felt that he should be sentenced to death”; and two
jurors did not disclose that they knew the victim or the victim’s family members.
Federal Rule of Civil Procedure 60(b) allows a habeas petitioner to seek relief
from final judgment and to request the reopening of his case in certain circumstances.
When a Rule 60(b) motion presents a claim, however, it is treated as a second or
successive habeas petition under the Antiterrorism and Effective Death Penalty Act
and must meet the exacting standards of 28 U.S.C. § 2244(b). “For the purpose of
determining whether the [Rule 60(b)] motion is a habeas corpus application, claim is
defined as an ‘asserted federal basis for relief from a state court’s judgment of
conviction’ or as an attack on the ‘federal court’s previous resolution of the claim on
the merits.’” Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009) (quoting Gonzalez
v. Crosby, 545 U.S. 524, 530, 532 (2005)). No claim is presented if the motion
attacks “some defect in the integrity of the federal habeas proceedings” or if the
motion “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.” Gonzalez, 545 U.S. at 532 & n.4.
Williams argues that his Rule 60(b) motion does not present any claim but
instead attacks a defect in the integrity of the federal habeas proceedings—namely,
the district court’s denial of funds to investigate the jury. He compares the district
court’s denial of funds to a procedural ruling that precludes consideration of the
merits of a claim. Williams’s arguments are misplaced.
-7-

-- 7 of 25 --

As an initial matter, Williams did not assert a claim of juror bias or misconduct
in the federal habeas proceeding. Instead, he argued that the Arkansas Supreme4
Court unreasonably applied United States Supreme Court precedent when it affirmed
the state trial court’s denial of funds for an investigation. The district court’s denial
of Williams’s requested investigatory funds did not constitute a defect in the integrity
of the federal habeas proceedings, given that Williams’s potential claim was “entirely
speculative.” See Williams, 612 F.3d at 959. Moreover, the denial of funds was not
“a previous ruling which precluded a merits determination.” Gonzalez, 545 U.S. at
532 n.4. The district court fully considered the claim that Williams actually
presented, and its denial of the requested funds in this case was not equivalent to a
“denial [of habeas relief] for such reasons as failure to exhaust, procedural default,
or statute-of-limitations bar.” Id. We agree with the district court’s succinct
characterization of Williams’s argument as “conflating a procedural ruling with a
non-existent ruling on a never-asserted claim.” D. Ct. Order of April 26, 2017, at 8.
Williams also argues that attorney Rosenzweig was ineffective for failing to
undertake an investigation into juror bias or misconduct. To the extent that this
argument is not foreclosed by Ward, we conclude that this claim is sufficiently similar
to a habeas corpus application that failing to subject it to the requirements of a second
or successive habeas petition would be inconsistent with 28 U.S.C. § 2254. See
Ward, 577 F.3d at 932 (“Although an assertion of ineffective assistance of [federal]
habeas counsel may be characterized as a defect in the integrity of the habeas
proceeding, it ultimately seeks to assert or reassert substantive claims with the
assistance of new counsel.”); Gonzalez, 545 U.S. at 531 (“A habeas petitioner’s filing
that seeks vindication of such a claim is, if not in substance a habeas corpus
application, at least similar enough that failing to subject it to the same requirements
We note that Williams raised a claim of ineffective assistance of counsel for4
failure to strike a certain juror for cause, as impermissibly biased. See Williams, 612
F.3d at 953-55. Williams does not now rely on evidence of bias related to that juror.
-8-

-- 8 of 25 --

would be inconsistent with the statute.” (internal quotation marks and citations
omitted)). Because Williams’s Rule 60(b) motion constitutes a second or successive
habeas petition and because Williams has not shown that his juror misconduct claim
can meet the requirements set forth in 28 U.S.C. § 2244(b), we do not authorize the
district court to consider the juror misconduct claim that Williams has raised. See
§ 2244(b)(3)(C) (“The court of appeals may authorize the filing of a second or
successive application only if it determines that the application satisfies the
requirements of this subsection.”).
Finally, even if we were to conclude that Williams’s motion was not a second
or successive habeas petition, Williams has not shown “extraordinary circumstances”
that would justify relief from judgment under Rule 60(b)(6). See Gonzalez, 545 U.S.
at 535. Williams was convicted and sentenced to death in 2000. The jurors could
have been interviewed any time thereafter. In its 2007 decision, the Arkansas
Supreme Court remarked, “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 dire responses.” Williams, 251 S.W.3d at 302. Williams has not been
diligent in pursuing evidence of juror misconduct. That counsel finally presented
such evidence, mere days before Williams’s scheduled execution, does not justify the
reopening of Williams’s habeas proceedings, for his claim does not approach that
raised in Buck v. Davis, 137 S. Ct. 759, 778 (2017), in which it was found that the
petitioner “may have been sentenced to death in part because of his race.”
III. Amended Petition for Writ of Habeas Corpus
Williams contends that since their appointment, the Federal Defenders have
discovered evidence of Williams’s intellectual disability that had not previously been
presented. As is most relevant here, Williams offers evidence that Dr. Weinstein did
not reach a diagnosis of Williams, did not complete scoring on some of the tests he
-9-

-- 9 of 25 --

had performed on Williams, and was never asked to do so by Rosenzweig. Dr.
Weinstein states that after Williams’s current counsel contacted him, requested that
he score the tests he had performed on Williams, and provided him with additional
materials that he was unable to evaluate during the Rule 37 proceedings, he
concluded that Williams qualifies as intellectually disabled and that he so qualified
at the time of Williams’s offense. Similarly, Dr. Cunningham stated that, although
he had testified at Williams’s trial that Williams was not mentally retarded, he
concluded that Williams was intellectually disabled after current counsel requested
that he review the data previously available to him during his evaluation in 2000, new
data available from subsequent testing, and advances in psychometric analysis. Dr.
Cunningham stated that he could have provided this analysis had he been asked to do
so during Williams’s post-conviction proceeding. Dr. Daniel Martell also stated that,
after evaluating Williams at current counsel’s request, he diagnosed Williams with
an intellectual disability.
Williams argues that his current application is not a “second or successive
habeas corpus application” subject to the requirements of 28 U.S.C. § 2244. Section
§ 2244(b) provides:
(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior application
shall be dismissed.
(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—
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or
-10-

-- 10 of 25 --

(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.
“[B]efore the district court may accept a successive petition for filing, the court of
appeals must determine that it presents a claim not previously raised that is sufficient
to meet § 2244(b)(2)’s new-rule or actual-innocence provisions. [28 U.S.C.]
§ 2244(b)(3).” Davis v. Kelley, No. 04-2192, slip op. at 5 (8th Cir. Apr. 17, 2017)
(per curiam) (quoting Ward, 577 F.3d at 932).
Williams contends that § 2244(b) does not bar his Atkins claim because
intellectual disability, like incompetency to be executed, not only prohibits the
imposition of a death sentence but also prohibits his actual execution, and that this
latter claim did not ripen until the issuance of an execution warrant. See Panetti v.
Quarterman, 551 U.S. 930, 945 (2007); Stewart v. Martinez-Villareal, 523 U.S. 637,
644-45 (1998); Ford v. Wainwright, 477 U.S. 399, 410 (1986). Our court recently
rejected Williams’s theory, holding that, unlike a Ford claim, an Atkins claim ripens
before an execution is imminent and thus is governed by the requirements of
§ 2244(b) if raised in a second or successive habeas petition. Davis, slip. op. at 6-10.
We reasoned that “Ford and its progeny focus on the inmate’s competency at the time
of execution,” which “makes sense because competency can be lost or regained over
time,” and that in contrast, “Atkins focused exclusively on the prisoner’s culpability
or reliability at the time that the crime was committed.” Id. at 7 (emphasis omitted).
We noted that “the Supreme Court took great care to expressly limit the reach of
Panetti to the unique circumstances of a Ford claim.” Id. at 8 (citing Panetti, 551 U.S.
at 945). We declined to follow dicta in Sasser v. Hobbs, 735 F.3d 833, 846 (8th Cir.
2013), regarding proof of intellectual disability at the time of presumptive execution.
-11-

-- 11 of 25 --

We also concluded that because in Nooner v. Niles, 499 F.3d 831, 833 n.2 (8th Cir.
2007), the court had “expressly assumed, without deciding, that Atkins claims could
be treated the same as Ford claims,” that case bore no precedential value. Davis, slip
op. at 9. Accordingly, we held that “whether Davis is now, in 2017, intellectually
disabled has no bearing on whether he had the requisite moral culpability for the
murder that he committed in 1990,” and we denied his motion for, among other
claims for relief, leave to file a successive habeas petition. Id. at 10.
Williams concedes that his Atkins claim is similar to that in Davis, but he
argues that Davis is distinguishable because the petitioner there, as the court noted,
“failed to provide a single attachment, document, or factual allegation about his
current mental abilities.” Id. at 8. But, as mentioned above, we explicitly stated that
“whether Davis is now, in 2017, intellectually disabled has no bearing on whether he
had the requisite moral culpability for the murder that he committed in 1990.” Id. at
10. Likewise, in this case, whatever the strength of Williams’s evidence of
intellectual disability, it does not affect our conclusion that his claim is subject to the
strictures of § 2244(b).
Williams next argues that “[t]o the extent that Davis is nonetheless controlling,
it was wrongly decided for the reasons set forth herein and explained in the dissenting
opinion.” We reject this argument because we are bound by the opinion of the Davis
court. See United States v. Jackson, 554 F.3d 716, 717 (8th Cir. 2009); United States
v. Williams, 537 F.3d 969, 975 (8th Cir. 2008).
Williams contends that his claim of intellectual disability did not ripen until
attorney Rosenzweig’s recent withdrawal from Williams’s current proceedings,
because, until his withdrawal, Rosenzweig’s conflict of interest prevented him from
alleging his own now-alleged ineffectiveness in abandoning Williams’s intellectual-
disability claim in the state Rule 37 proceeding. At the outset, we note that this
argument likely runs afoul of 28 U.S.C. § 2254(i), which provides that “[t]he
-12-

-- 12 of 25 --

ineffectiveness or incompetence of counsel during Federal or State collateral
post-conviction proceedings shall not be a ground for relief in a proceeding arising
under section 2254.” Williams cites Christeson v. Roper, 135 S. Ct. 891, 893-96
(2015) (per curiam), but we are unconvinced that the Supreme Court’s holding in that
case—that substitute counsel under 18 U.S.C. § 3599(e) was required on the basis of
a conflict of interest—would support Williams’s theory that Rosenzweig’s conflict
of interest renders Williams’s claim immune from the requirements of § 2244(b). In
any event, Williams’s argument is based on the assumption that Rosenzweig rendered
ineffective assistance in failing to pursue the Atkins claim, an assumption we are
unwilling to adopt.
Williams argues that if he is not allowed to seek relief under 28 U.S.C. § 2254,
he should be allowed to do so under § 2241, under which his claim would not be
subject to the requirements of § 2244(b). Our court has held, however, that “§ 2254
is the only means by which ‘a person in custody pursuant to the judgment of a State
court’ may raise challenges to the validity of his conviction or sentence or to the
execution of his sentence.” Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir. 2003)
(en banc). Williams’s arguments to the contrary are thus foreclosed.
Lastly, we reject Williams’s argument that denying him the opportunity to seek
relief under § 2254 or § 2241 would constitute a suspension of the writ of habeas
corpus in violation of Article 1, Section 9, Clause 2 of the United States Constitution.
See Felker v. Turpin, 518 U.S. 651, 664 (1996) (holding that § 2244(b)’s restrictions
on second or successive habeas petitions “constitute a modified res judicata rule” and
do not constitute a suspension of the writ of habeas corpus).
Accordingly, we hold that Williams’s amended petition for writ of habeas
corpus is a “second or successive” habeas corpus application subject to the
requirements of 28 U.S.C. § 2244(b).
-13-

-- 13 of 25 --

IV. Protective Application to File a Second or Successive Petition
Williams argues that he has satisfied § 2244(b)(2)(A)—that his claim “relies
on a new rule of constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable.” He argues that Moore v. Texas,
provides such a previously unavailable, retroactive rule. In Moore, the Court held
that a state’s authority under Atkins to determine who is intellectually disabled is
limited in that the state cannot rely on outdated medical guidelines. 137 S. Ct. at
1048-53.
Our precedent forecloses Williams’s argument. In Davis, our court stated:
Nor do we find that the more recent Supreme Court cases cited by Davis
have any bearing on his Atkins claim because they discuss purely
procedural issues unrelated to Davis. See Goodwin v. Steele, 814 F.3d
901, 904 (8th Cir. 2014) (per curiam). Hall concerned the state’s use of
a strict IQ test score cutoff of 70 before allowing further evidence of
intellectual disability to be considered. 134 S. Ct. at 1990. Davis does
not allege that Arkansas applied an IQ test score cutoff to him. The
recently decided Moore v. Texas concerned the state court’s use of
out-of-date medical guides, rather than contemporary guides reflecting
the medical community’s consensus, to determine whether the defendant
was intellectually disabled. 137 S. Ct. 1039, 1044 (2017). But Davis
does not allege that Arkansas uses out-of-date medical guides or
otherwise fails to follow contemporary medical standards. Davis, in
fact, fails to cite any case supporting his view that the procedural default
rules of AEDPA must cede to his Atkins claim.
Davis, No. 04-2192, slip op. at 5. Williams attempts to distinguish this case from
Davis on the basis that he has “allege[d] that Arkansas uses out-of-date medical
guides or otherwise fails to follow contemporary medical standards.” The prejudice
that Williams asserts, however, is that his counsel failed to obtain available evidence
that would have shown Williams to be intellectually disabled, not that evidence of his
-14-

-- 14 of 25 --

intellectual disability was rendered ineffectual by out-of-date medical standards. In
any event, to the extent that Williams argues that Arkansas impermissibly used fixed
cutoffs for IQ scores, this claim is closely analogous to Hall v. Florida, 134 S. Ct.
1986, 1993-2001 (2014), and thus his claim is barred by our holding in Goodwin v.
Steele, 814 F.3d 901, 904 (8th Cir. 2014) (per curiam) (“Goodwin has not made a
prima facie showing that the Supreme Court has held that Hall is retroactive.”); see
also id. (“Rather than announce a substantive rule, Hall ‘created a procedural
requirement that those with IQ test scores within the test’s standard of error would
have the opportunity to otherwise show intellectual disability.’” (emphasis omitted)
(quoting In re Henry, 757 F.3d 1151, 1161 (11th Cir. 2014))).
Williams contends that the Davis court erred in holding that Moore discussed
purely procedural issues. He argues that Moore is akin to the Supreme Court’s ruling
in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and thus should be held to have
retroactive effect in his case. Putting aside Williams’s criticism of Davis, we do not
agree that Moore announced a new rule of constitutional procedure that must be
applied in this case. The observation by Chief Justice Roberts that the Court had
crafted “a constitutional holding,” Moore, 137 S. Ct. at 1054, may presage an
eventual ruling by the Court that Moore will be given a Montgomery-like effect, but
that is a matter for the Court to decide in due course and not by us in the posture in
which this case has been presented to us.5
Williams also argues that he has satisfied § 2244(b)(2)(B), but he has not
shown that “the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence.” He contends that he was unable
to discover the evidence regarding his medical disability because Rosenzweig would
We decline Williams’s request that we certify to the United States Supreme5
Court pursuant to 28 U.S.C. § 1254(2) the question whether Moore is to be given
retroactive effect.
-15-

-- 15 of 25 --

have had to argue that his own assistance had been ineffective, which posed an
insurmountable conflict of interest. Williams’s argument that Rosenzweig was
ineffective may be foreclosed by the prohibition on alleging the ineffectiveness or
incompetence of counsel during federal or state post-conviction proceedings.
28 U.S.C. § 2254(i). Moreover, the single case that Williams cites to show that he
could not have discovered the evidence with the exercise of due diligence is
inapposite. Similar to our discussion above regarding the § 2244 bar, we are not
convinced that Christeson v. Roper, provides Williams the relief he seeks on account
of Rosenzweig’s conflict of interest, and as mentioned above, we are unwilling to
conclude that Rosenzweig rendered ineffective assistance.
V. Conclusion
We deny authorization for the district court to consider Williams’s second or
successive habeas petitions. We deny Williams’s application for a certificate of
appealability. We deny Williams’s protective application to file a second or
successive habeas petition. We deny the motions for stay of execution that are
pending in case Nos. 17-1892, 17-1893, and 17-1896. The mandate shall issue
forthwith.
KELLY, Circuit Judge, concurring in part, dissenting in part.
I. Motion for Relief from Judgment (17-1892)
The Sixth Amendment’s guarantees of an impartial jury and the right of an
accused to confront the witnesses against him extend to capital sentencing
proceedings. See Morgan v. Illinois, 504 U.S. 719, 727–28 (1992); see also Parker
v. Gladden, 385 U.S. 363, 364 (1966) (noting that the Sixth Amendment applies to
state court proceedings through the Fourteenth Amendment’s Due Process clause).
Compliance with these guarantees requires that a jury’s verdict be based on the
-16-

-- 16 of 25 --

evidence presented “from the witness stand in a public courtroom where there is full
judicial protection of the defendant’s right of confrontation, of cross examination, and
of counsel.” Parker, 385 U.S. at 364; see also Turner v. Louisiana, 379 U.S. 466, 472
(1965). As the Supreme Court has stated, “[t]his is true, regardless of the heinousness
of the crime charged, the apparent guilt of the offender or the station of life which he
occupies.” Turner, 379 U.S. at 472 (internal citation omitted).
A defendant may challenge the validity of the jury’s verdict through evidence
that “extraneous prejudicial information was improperly brought to the jury’s
attention” or that “an outside influence was improperly brought to bear on any juror.”
Fed. R. Evid. 606(b)(2); accord Ark. R. Evid. 606(b). Here, Williams has provided
evidence that the jury was exposed to multiple types of prejudicial extraneous
evidence directly relevant to the penalty phase of his trial. First, one of the jurors6
(Juror A) was a teacher at the prison where Williams was then incarcerated. It was7
also the prison where Williams would likely continue to serve his sentence if
convicted. According to her sworn declaration submitted just this month, Juror A
knew who Williams was and had seen him in the prison prior to the trial, but noted
that she had never spoken with him. Juror A also said that she was familiar with how
men were housed in the Cummins and Varner units at the prison—the units where
Williams could be housed if convicted—and the differences between the conditions
for inmates serving life without parole and those on death row. Juror A said that she
shared this knowledge with her “fellow jurors.” Williams also provided the
declarations of two other jurors, who corroborated the fact that during deliberations,
the jury heard this external evidence of the conditions inside the prison.
According to the pleadings, the information recently gathered from the jurors6
was previously unknown to either party.
At the time of trial, Williams was serving time at the nearby prison on a7
previous murder conviction for which he received a sentence of life without the
possibility of parole.
-17-

-- 17 of 25 --

This is just the type of extraneous information that may undermine the validity
of a jury verdict. A juror’s general life experience is ordinarily considered “internal”
information. See Warger v. Shauers, 135 S. Ct. 521, 529 (2014) (“‘[I]nternal’ matters
include the general body of experiences that jurors are understood to bring with them
to the jury room.”). In this case, however, Juror A’s daily life experiences allowed
her to present “information related specifically to the case the jurors” were meant to
decide. Id. Namely, Juror A’s knowledge about differences between the prison
conditions for inmates serving life in prison and inmates awaiting execution on death
row, in the very prison where Williams was incarcerated, was directly relevant to the
question the jury had to decide at the penalty phase: Should Kenneth Williams receive
a sentence of life without parole or a sentence of death? The particular information
Juror A provided to the jury about this specific prison where this specific defendant
was currently housed goes beyond general professional knowledge, see Houchins v.
Home Care Prof’ls of Ark., 423 S.W.3d 655, 662 (Ark. 2012), or “general views”
about the issues in the case, see Warger, 135 S. Ct. at 529. Instead, Juror A’s
descriptions to the jury were more akin to “a juror’s foray outside the courthouse to
gather extrinsic information” about this specific case. Milner v. Luttrell, 384 S.W.3d
1, 7 (Ark. 2011). In essence, Juror A became a fact witness in the penalty phase that
Williams was denied the right to confront and cross-examine. See U.S. Const. amend.
VI.
Second, Williams attached the declaration of Juror F. Juror F described how
a number of Williams’ family members attended the second or third day of Williams’
trial. Shortly thereafter, “the Sheriff” told the jurors that a threat had been made
against them. Juror F explained that from that point forward, the jury was dismissed
each day before the rest of the people in the courtroom were allowed to leave. Yet
another juror, Juror E, submitted a declaration in which she said that “everyone” on
the jury “knew” that Williams had contacted and threatened a juror on his previous
trial. Juror E said “[t]hat was scary,” and that “knowing that Williams contacted a
juror before spooks” her “to this day.” The prejudicial nature of the threat-related
-18-

-- 18 of 25 --

external information is especially troublesome because at least some of it came from
a law enforcement officer—a person of authority who bears a closer relationship to
the court than a layperson. See Lewis v. Pearson, 556 S.W.2d 661, 664 (Ark. 1977)
(“Because of the close relationship between the bailiff and the court itself any action
on the part of the bailiff concerning the jury should be subject to close scrutiny by the
court.”). Information from an outside source that someone has threatened the
jury—and that the defendant himself had previously threatened a juror—amounts to
both extraneous prejudicial information and an improper outside influence that calls
into question whether Williams was afforded his constitutional right to an impartial
jury. See Owen v. Duckworth, 727 F.2d 643, 647–48 (7th Cir. 1984) (per curiam)
(discussing the prejudice that may result from jurors believing a juror was threatened
by the defendant); Stimack v. Texas, 548 F.2d 588, 588–89 (5th Cir. 1977) (two
jurors’ testimony that they received phone calls threatening that if they did not find
the defendant “not guilty” they would be killed by the mafia was sufficient in habeas
context to find impermissible “extraneous influence” on the jury); Lewis, 556 S.W.2d
at 663–64 (bailiff’s racist remark to juror on all-white jury created probability of
prejudice warranting new trial).
Finally, Williams has presented a declaration from the jury foreperson, Juror
B, who led the jury in prayer prior to deliberating on Williams’ sentence. Juror B
explained that there “is a higher power above the judge” and that the jury was
“looking for guidance from a higher power to help us in our decision about
[Williams’] sentence.” Juror B was “sure there was a bible in the deliberation room,
to help us and guide us in our decision.” Other jurors submitted declarations
corroborating that the foreman led the jury in prayer. The jury’s group reliance on the
Bible further indicates that the jury relied on extraneous information in sentencing
Williams to death. See Oliver v. Quarterman, 541 F.3d 329, 336–39 (5th Cir. 2008)
(collecting cases addressing juries’ use of a Bible during deliberations and holding
that jurors’ collective use of Bible in sentencing deliberations constituted an external
influence on deliberations).
-19-

-- 19 of 25 --

Kenneth Williams deserves an evidentiary hearing to determine whether juror
misconduct deprived him of his constitutional right to an impartial jury. The district
court determined that Williams’ claim constitutes a successive petition, and that
Williams is precluded from pursuing this claim because he cannot overcome the
procedural bar of § 2244(b). But Williams did attempt to pursue this issue during his
state post-conviction proceedings; and he requested funds again when he filed his
original § 2254 petition. He asked for funds to investigate potential juror bias in both
state and federal court, and the requests were denied. True, the state court denied
Williams’ request for funds to hire an investigator because it concluded that Williams
could offer no preliminary showing that an investigation would reveal evidence of
jury bias or misconduct. And the federal court determined that the state court’s ruling
was not contrary to or an unreasonable application of Supreme Court precedent. But
I struggle to blame Williams for these shortcomings: He lacked evidence of jury bias
or misconduct because he was denied the resources to conduct the investigation in
the first instance. And, he was denied the resources to conduct the investigation in
the first instance because he lacked sufficient evidence of jury bias. If Williams had
the financial resources at the time of trial or post-conviction proceedings, he would
have pursued this claim. Indeed, within two weeks of the appointment of the Federal
Defender’s office Capital Habeas Unit, the juror declarations were obtained and the
potential juror misconduct was unearthed. The only difference now, as far as I can
tell, is access to adequate resources to conduct a thorough investigation in this capital
case. Justice cannot depend on whether a criminal defendant has the money to defend
himself to the fullest extent.
The district court concluded that Williams’ motion is not a true Rule 60(b)
motion because it raises a new claim for relief instead of attacking the integrity of the
prior habeas proceedings. See Gonzalez, 545 U.S. at 532 n.4. Williams argues the
district court’s denial of funds to investigate juror misconduct was a “defect in the
integrity of the federal habeas proceedings,” see id. at 532, and that the ruling
“precluded a merits determination.” Williams’ motion does not readily fall into the
-20-

-- 20 of 25 --

“procedural defect” category in which he seeks to place it. See Ward, 577 at 932.
The bigger defect, however, is in a criminal justice system that allows a potentially
viable constitutional claim to evade review because the defendant lacked the
resources to timely pursue the claim.
“There is a heightened need for fairness in the administration of death.”
Callins v. Collins, 510 U.S. 1141, 1149 (1994) (Blackmun, J., dissenting from denial
of the writ of certiorari). As we strive to enforce “a system of capital punishment at
once consistent and principled but also humane and sensible to the uniqueness of the
individual,” we must not let procedural rules overpower constitutional questions.
Eddings v. Oklahoma, 455 U.S. 104, 110 (1982). “Serious review of these claims
helps to ensure that the government does not secure the penalty of death by depriving
a defendant of his or her constitutional rights.” Callins, 510 U.S. at 1157–58
(Blackmun, J., dissenting from denial of the writ of certiorari). In my view, this case
presents an example of the “unprecedented and unwarranted barriers to the Federal
Judiciary’s review of the constitutional claims of capital defendants.” Id. at 1158
(Blackmun, J., dissenting from denial of the writ of certiorari) (internal quotation
omitted). As a result of these barriers, Kenneth Williams is scheduled to be executed
without any court having considered whether his capital trial and penalty phase
conformed to the fundamental guarantees of the Sixth Amendment. Because the
rules against successive petitions prevent the court from reviewing Williams’
constitutional claim, however, I must concur that this claim is barred as a second or
successive petition.
II. Amended Petition for Writ of Habeas Corpus (17-1892)
For the reasons I explained in Davis v. Kelley, No. 04-2192 (8th Cir. Apr. 17,
2017) and Lee v. Kelley, No. 17-1840, 2017 WL 1416385 (8th Cir. Apr. 20, 2017),
I believe that under the reasoning of Stewart v. Martinez-Villareal, 523 U.S. 637
(1998) and Panetti v. Quarterman, 551 U.S. 930 (2007), AEDPA’s bar on successive
-21-

-- 21 of 25 --

habeas petitions does not apply to Atkins claims filed after the state has obtained an
execution warrant. Because Williams’ execution is now imminent, AEDPA should
not prevent the court from determining whether he is intellectually disabled, and
therefore constitutionally ineligible to be executed.
Williams presents a prima facie Atkins claim that has never been addressed on
the merits. Under Arkansas law, a person has an intellectual disability if he exhibits
“(A) Significantly subaverage general functioning accompanied by a significant
deficit or impairment in adaptive functioning manifest in the developmental period,
but no later than age eighteen (18) years of age; and (B) a deficit in adaptive
behavior.” Ark. Code Ann. § 5-4-618(a)(1). Three psychologists who evaluated
Williams have concluded that he has an intellectual disability under Arkansas’
statutory definition, as well as prevailing clinical definitions. Those conclusions are
supported by other evidence Williams has presented to establish his prima facie
Atkins claim.
First, Williams has presented evidence of significantly subaverage general
functioning. Williams has participated in seven intelligence evaluations over the
course of his life. When corrected for the Flynn effect and sampling errors, his full-
scale IQ scores were 79.5 (age 8), 75 (age 10), 76 (age 12), 70 (age 20), 66 (age 21),
76 (age 25), and 65 (age 25). Williams has also undergone full-battery
neuropsychological testing with two different psychologists, once in 2000, and once
in 2004. Both psychologists noted that Williams had intellectual impairments in
several areas, including memory, language, attention, and abstract thinking.
Williams has also presented evidence that he has deficits in adaptive
functioning that manifested before age 18. He repeated the first and third grades,
attended special education classes, and left school in the ninth grade. His teachers
reported that he had significant academic difficulties, and his test scores put him
several grade levels behind his peers, particularly in the area of language skills.
-22-

-- 22 of 25 --

Outside of school, family members and neighbors report, he was unable to perform
even rudimentary tasks, like completing simple chores, dressing himself, grooming
himself, or using money. His teachers, family members, and neighbors further report
that Williams was socially withdrawn and susceptible to peer pressure, that he had
difficulties forming sentences and having conversations, and that he was prone to
sudden mood swings and outbursts.
The state counters with evidence that, it contends, demonstrates Williams does
not have an intellectual disability. But because Williams has established a prima
facie Atkins claim, any conflicts between evidence supporting his position and
evidence supporting the state’s position should be resolved by a court on the merits
after a full evidentiary hearing. “The basic concept underlying the Eighth
Amendment is nothing less than the dignity of man.” Trop v. Dulles, 356 U.S. 86,
100 (1958). That purpose is not served by executing someone who has presented a
prima facie claim of intellectual disability that has never before been considered by
any court. See Atkins, 536 U.S. at 321 (“Construing and applying the Eighth
Amendment in the light of our ‘evolving standards of decency,’ we therefore
conclude that [the death penalty] is excessive [punishment] and that the Constitution
‘places a substantive restriction on the State’s power to take the life’ of a[n
intellectually disabled] offender.”) (citing Ford, 477 U.S. at 405).
Even if, as the court has now held, AEDPA’s bar on successive petitions
applies to Atkins claims filed on the eve of execution in a petition under 28 U.S.C.
§ 2254, such a bar should not apply to petitions filed under 28 U.S.C. § 2241. See
Thomas v. Crosby, 371 F.3d 782, 808 (7th Cir. 2004) (Tjoflat, J., specially
concurring) (“[W]e should not interpret the elaborate restrictions Congress
established for § 2254 . . . as curtailing or eliminating a convicted state prisoner’s
right to seek relief under § 2241.”). To the extent that the procedural rules applicable
to § 2254 frustrate our ability to reach Williams’ Atkins claim, we should not extend
those procedural rules to § 2241 where doing so would leave us “powerless” “to
-23-

-- 23 of 25 --

prevent a custodian from inflicting an unconstitutional sentence.” Webster v.
Daniels, 784 F.3d 1123, 1139 (7th Cir. 2015) (en banc). Extending AEDPA’s
successive petition bar to Atkins claims brought under § 2241 is particularly
troublesome because “the Supreme Court had not yet decided Atkins” at the time
Congress adopted AEDPA and thus it could not have accounted for the “narrow set
of cases presenting issues of constitutional ineligibility for execution.” Id. at 1138.
“But Atkins . . . [was] decided by the Supreme Court, and [it] must guide our
understanding of the law.” Id. at 1139. If we interpret 28 U.S.C. § 2244(b)’s bar on
successive petitions to prohibit any consideration of the merits of Williams’ Atkins
claim, it could lead “to the intolerable result of condoning an execution that violates
the Eighth Amendment.” Id. We can avoid this constitutional infirmity by permitting
Williams to pursue his claim under § 2241. Cf. id. at 1139 (“[T]here is no categorical
bar against resort to section 2241 in cases where new evidence would reveal that the
Constitution categorically prohibits a certain penalty.”).
Although we have previously rejected prisoners’ attempts to evade AEDPA’s
restrictions by challenging the execution of their sentence under § 2241, we have not
allowed those restrictions to prevent us from reaching the merits of a petition. See
Singleton v. Norris, 319 F.3d 1018 (8th Cir. 2003) (en banc); Crouch v. Norris, 251
F.3d 720 (8th Cir. 2001). In Singleton and Crouch, we said that the petitions,
whether brought under § 2254 or § 2241, were subject to § 2244(b)’s limitations. See
Singleton, 319 F.3d at 1022–23; Crouch, 251 F.3d at 722–23. But, in both cases, we
concluded that the petitions were not successive because their current claims “could
not have been raised” in their earlier habeas petitions. Singleton, 319 F.3d at 1023;
see Crouch, 251 F.3d at 724. We therefore reached the merits of whether “the State
may execute a prisoner who has been involuntarily medicated” in Singleton, 319 F.3d
at 1023, and denied as unnecessary Crouch’s application for permission to file a
successive habeas petition, returning the case to the district court for a merits review,
251 F.3d at 725. The present case is the first time that the court has permitted the
successive petition bar to prevent the substantive review of a claim brought under
-24-

-- 24 of 25 --

§ 2241 challenging the constitutionality of the execution of a capital sentence.
Because I cannot endorse this unwarranted and potentially constitutionally infirm
extension of AEDPA’s successive petition bar, I would not apply it to Williams’
§ 2241 claim and would instead address the merits. I therefore respectfully dissent
from the court’s conclusion that Williams’ Atkins claim is a second or successive
petition subject to the requirements of 28 U.S.C. § 2244(b).
III. Protective Application to File a Second or Successive Petition (17-1896)
As stated above, I believe that Williams’ Atkins claim is not barred as a second
or successive petition. On this claim, therefore, I respectfully dissent.
IV. Certificate of Appealability (17-1893)
Because I believe the issues are debatable among reasonable jurists, I would
grant the application for a certificate of appealability on (1) whether Williams’ Atkins
claim is properly considered a second or successive petition under 28 U.S.C. § 2254,
and (2) whether his Atkins claim is excepted from the bar on successive petitions
because it was also brought under 28 U.S.C. § 2241.
Unfortunately, because Williams has not shown a likelihood of success on his
claims, I reluctantly must concur in the denial of the motions for stay.
______________________________
-25-

-- 25 of 25 --