Williams v. Norris

Filing 141

OPINION AND ORDER denying Marcel Wayne Williams's 133 motion for relief from judgment. Reasonable jurists could disagree with some or all of the Court's conclusions in this opinion, so the Court hereby issues a certificate of appealability to Williams on the issues presented in his motion for relief from the judgment. Signed by Judge J. Leon Holmes on 4/18/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

THIS IS A CAPITAL CASE
MARCEL WAYNE WILLIAMS

PETITIONER

v.

No. 5:02CV00450 JLH

WENDY KELLEY, Director,
Arkansas Department of Correction

RESPONDENT

OPINION AND ORDER
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
Strickland1 standard, this Court determined the Arkansas Supreme Court clearly erred in finding that

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Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
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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.

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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
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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
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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 the state court on the
merits and reviewed it using the standard for considering the merits of a claim. Williams, 576 F.3d
at 858-59. This Court has no authority to hold that the Eighth Circuit mischaracterized the decision
of the state court or that the Eighth Circuit misdescribed its own decision.
As noted, several of Williams’s claims that he seeks to present here were procedurally
defaulted. Under the Gonzalez analysis, because those claims were not decided on the merits, his
contention that the Court erred in holding them procedurally defaulted does not render the motion
a second or successive petition. As to Williams’s claims that were procedurally defaulted, the issue,
therefore, is whether he presents grounds for relief under Rule 60(b).
The applicable subdivision is Rule 60(b)(6), which is a catch-all provision, providing relief
from final judgment for “any reason that justifies relief.” Relief under Rule 60(b)(6) is only
available in “extraordinary circumstances.” Gonzalez, 545 U.S. at 535, 125 S. Ct. at 2649. “Such
circumstances will rarely occur in the habeas context.” Id. “Generally, a change in the law that
would have governed the dispute, had the dispute not already been decided, is not by itself
extraordinary circumstances.” Kansas Pub. Emps. Ret. Sys. v. Reimer & Koger Assoc., 194 F.3d
922, 925 (8th Cir. 1999); see also Carlson v. Hyundai Motor Co., 222 F.3d 1044, 1045 (8th Cir.
2000). In Gonzalez, the Supreme Court held that a new interpretation of the statute of limitations
in the Antiterrorism and Effective Death Penalty Act did not constitute extraordinary circumstances
warranting relief. 545 U.S. at 536-37, 125 S. Ct. at 2650.

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The Eighth Circuit has not decided whether the change in law announced in Martinez and
Trevino constitutes an extraordinary circumstance that justifies relief under Rule 60(b). Most courts
that have addressed the issue have held that this change in procedural law does not constitute
extraordinary circumstances. See Moses v. Joyner, 815 F.3d 163, 168 (4th Cir. 2016) (“If the change
in habeas decisional law at issue in Gonzalez cannot pass as an extraordinary circumstance, then the
change here should not fare any better.”); Arthur v. Thomas, 739 F.3d 611, 631 (11th Cir. 2014);
Adams, 679 F.3d at 320 (“The Martinez Court’s crafting of a narrow, equitable exception to
Coleman’s holding is ‘hardly extraordinary.’”). This Court previously has followed the majority
position. Hill v. Hobbs, 5:13CV00015-JLH, Document #37 at 3 (E.D. Ark. June 6, 2014) (“In view
of the overwhelming authority holding that the new rule announced in Martinez and Trevino does
not justify relief under Rule 60(b)(6), Hill’s motion must be denied.”); see also Scott, No.
5:04CV00082-KGB, 2014 WL 3700581 at *2.
The recent decision of the Supreme Court in Buck v. Davis, 137 S. Ct. 759 (2017) does not
hold that the change in law announced in Martinez and Trevino by itself constitutes an extraordinary
circumstance that justifies relief under Rule 60(b)(6). There, the Supreme Court found that
extraordinary circumstances existed to justify relief under Rule 60(b)(6) before addressing the issue
of whether Martinez and Trevino applied to the case.

Id. at 777-80.

The extraordinary

circumstances were that Buck “may have been sentenced to death in part because of his race[,]”
which was “a disturbing departure from a basic premise of our criminal justice system” that the “law
punishes people for what they do, not who they are.” Id. at 778. That departure from a fundamental
premise of our criminal justice system was exacerbated because it concerned race, which injured not
only the defendant but the law as an institution and the community at large. Id. The extraordinary
nature of the case was confirmed by the actions of the State of Texas, which had confessed error in
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five cases that presented substantially the same issue while refusing to confess error in Buck’s case.
Id. at 778-79.
Williams concedes that his circumstances are not identical to those found extraordinary in
Buck, but he argues that they are sufficiently similar to warrant relief. According to Williams, the
extraordinary circumstances are: (1) the change in law announced in Martinez and Trevino; (2) he
is facing execution; (3) this Court previously held that his trial lawyers were ineffective for failing
to present mitigating evidence that might have persuaded the jury not to impose the death penalty;
and (4) his post-conviction counsel was ineffective for failing to present that same mitigating
evidence at the Rule 37 proceeding. Those arguments relate primarily to Williams’s claim that his
lawyers were ineffective at the penalty phase, which was not procedurally defaulted and therefore
not within the scope of Martinez and Trevino. Because Williams’s claim that his lawyers were
ineffective at the penalty phase was decided on the merits, his present effort to reopen that claim is
a second or successive habeas petition, not an issue properly brought under Rule 60(b)(6). Williams
presents no convincing argument that the circumstances are extraordinary as they relate to his
procedurally defaulted claims.
A motion under Rule 60(b) also must be made within a reasonable time. Fed. R. Civ. P.
60(c)(1). The Supreme Court decided Martinez in 2012, and Trevino in 2013. The Eighth Circuit
decided Sasser in 2013. Williams filed a Rule 60 motion in 2015 but made no argument based on
these cases.2 Document #120. The Fourth Circuit has held that a movant lacked diligence in filing
a Rule 60(b)(6) motion based on Martinez and Trevino when he waited two years after Martinez and

2

In that motion, Williams argued that the death penalty was unconstitutional and that Rule
60(b) provided him an avenue for relief. This Court denied the motion and denied a motion for a
certificate of appealability. The Eighth Circuit likewise denied a motion for a certificate of
appealability.
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a year after Trevino to file his motion. Moses, 815 F.3d at 166. Williams argues that he was diligent
because he filed his motion shortly after the Supreme Court handed down Buck v. Davis. He says
that, until Buck, there was conflict as to whether Martinez and Trevino applied under Rule 60(b).
A recent opinion from the Western District of Arkansas rejected this argument:
While Buck may have clarified the potential for relief under Rule 60(b)(6), such
relief was being sought by other litigants immediately after the Martinez and Trevino
decisions. The Court also finds it notable that Buck sought immediate review, filing
a Rule 60(b)(6) motion within two months of the Trevino decision. Buck, 137 S. Ct.
at 771. Davis’s delay of almost four (4) years is not reasonable and he has not
provided the court with good reason for his delay.
Davis v. Kelley, 5:01CV05188-SOH (W.D. Ark. April 16, 2017), Document #60 at 5. The Eighth
Circuit affirmed that decision. Appellate Case No. 17-1806 (8th Cir. April 17, 2017). Williams, like
Davis, delayed almost four years after Trevino and, like Davis, has failed to provide a good reason
for his delay. Furthermore, Williams alleged post-conviction counsel’s ineffectiveness as an excuse
for default in the amended petition that he filed in April of 2005, but he did not pursue the issue until
April of 2017. Williams did not file the present motion within a reasonable time as required by Rule
60(c)(1).
Williams’s Rule 60(b)(6) motion is denied.
CONCLUSION
As noted, some of Williams’s claims were procedurally defaulted; others were not.
Williams’s claim that his lawyers were ineffective at the penalty phase because they failed to present
mitigation evidence was presented to the state courts and was decided on the merits, both in state
and federal court. Williams’s present attempt to present that claim is a second or successive habeas
petition that must be dismissed. As to the claims that were procedurally defaulted, Williams’s
argument that the Court erred does not present a second or successive habeas claim. These claims

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can be considered under Rule 60(b)(6). Relief under that rule requires extraordinary circumstances
and diligence. Williams has met neither requirement.
Our legal system has served no one in this case well. Williams has evidence that might have
persuaded a jury not to impose the death penalty, but his lawyers failed to present that evidence at
trial and at his Rule 37 hearing, after which the door to presenting it was closed. Though that door
closed years ago, the case is not closed, nearly twenty-three years after Stacy Errickson was
murdered, which must seem to her family and friends as an instance of justice delayed is justice
denied.
The motion for relief from judgment filed by Marcel Wayne Williams is DENIED.
Document #133. Reasonable jurists could disagree with some or all of the Court’s conclusions in
this opinion, so the Court hereby issues a certificate of appealability to Williams on the issues
presented in his motion for relief from the judgment.
IT IS SO ORDERED this 18th day of April, 2017.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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