Williams vs. Thaler

Filing 26

MEMORANDUM AND ORDER DENIED 20 MOTION for Summary Judgment Memorandum.Williams will file a memorandum of law on or beforeSeptember 14, 2015. Respondent will file an answer on or before October 15, 2015.Williams will file a reply on or before November 16, 2015. Unless provided leaveof the Court, the parties will limit their pleadings to fifty (50) pages, times new romanfont and twelve-point type. (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ARTHUR LEE WILLIAMS,
Petitioner,
v.
WILLIAM STEPHENS,
Director, Texas Department of
Criminal Justice, Correctional
Institutions Division,
Respondent.

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CIVIL ACTION NO. H-13-1714

MEMORANDUM AND ORDER
Over thirty years ago, a jury convicted Arthur Lee Williams of the capital
murder of a police officer in plain clothes who was trying to serve a warrant on
Williams. The sole issue in dispute at the guilt phase of the trial was whether
Williams knew he was fighting with a law enforcement officer. The State used its
peremptory strikes to eliminate from the jury all six potential African-Americans in
the venire. The defense called no witnesses at the punishment phase. No mitigation
evidence was presented. Before the Court is Williams’ first federal habeas petition.
The three decades since Williams’ conviction in 1983 have brought tremendous
changes to capital-punishment jurisprudence. At the time of Williams’ trial, the law
did not yet hold prosecutors accountable for their use of peremptory strikes. Batson
v. Kentucky, 476 U.S. 79 (1986); Miller-El v. Cockrell, 537 U.S. 322 (2003) (“Miller-

El I”); Miller-El v. Dretke, 545 U.S. 231 (2005) (“Miller-El II”). The now-familiar
standard in Strickland v. Washington, 466 U.S. 668 (1984), had not been articulated
by the Supreme Court. Decades passed between the conviction and the Supreme
Court’s rulings making clear a capital defense attorney’s constitutional obligation to
investigate and present mitigating evidence. Wiggins v. Smith, 539 U.S. 510 (2003);
Williams v. Taylor, 529 U.S. 362 (2000). In cases where attorneys presented some
mitigating evidence to the jury, jurisprudence emerged after Williams’ trial repeatedly
criticizing the State of Texas for not providing jurors in the punishment phase
interrogatories a meaningful vehicle to consider that evidence. Penry v. Lynaugh, 492
U.S. 302 (1989) (“Penry I”); Penry v. Johnson, 532 U.S. 782 (2001) (“Penry II”).
Federal law now provides significant protections to a criminal defendant that were
unclear and unanticipated at time of Williams’ trial.1
Federal habeas review has likewise evolved in the past three decades. Through
the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), Congress has
narrowed the federal courts’ review of state court decision making. The Supreme

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As one judge on the Texas Court of Criminal Appeals observed, Williams’ case “was
tried almost thirty years ago. The law concerning the punishment issues in a death penalty
case was much different then. The law concerning mitigation evidence was much different
then. And the law concerning defense counsel’s constitutional duty to investigate mitigating
evidence was much different then.” Ex parte Williams, 2012 WL 2130951, at *19 (Tex.
Crim. App. 2012) (Cochran, J., concurring) (footnotes omitted).

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Court has limited the scope of federal habeas review to the factual record created, and
the legal arguments raised, in state court. Compare Vasquez v. Hillery, 474 U.S. 254,
260 (1986), with Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1398 (2011).
The Supreme Court over the years, however, has mitigated the harshness of these
limitations on federal habeas review by allowing federal courts to consider
procedurally defective claims under a cause and actual prejudice standard. Coleman
v. Thompson, 501 U.S. 722 (1991). Most recently, the Supreme Court authorized
federal review of claims defaulted by ineffective habeas representation. Martinez v.
Ryan, ___ U.S. ___ 132 S. Ct. 1309 (2012); Trevino v. Thaler, ___ U.S. ___, 133
S. Ct. 1911 (2013). Thus, habeas law differs significantly from that in place when a
state court sentenced Williams to death in 1983 and when his state habeas applications
were filed.
Williams has tried to litigate legal challenges to his trial since the time of his
conviction and sentence. Inexplicably, the state review took three decades to run its
course. For reasons unclear from the record, state habeas review itself plodded on for
twenty years, only concluding in 2012. For the first time, Williams has filed a federal
petition for a writ of habeas corpus. Williams raises several grounds for relief, with
numerous sub-arguments. The parties have submitted lengthy briefing. The parties’
papers to date nevertheless fail to adequately address many important legal
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developments and factual considerations. For the reasons discussed below, the Court
will deny the pending motion for summary judgment without prejudice and will enter
a new briefing schedule.
I.

BACKGROUND
The matters now before the Court do not require an extensive discussion of the

factual basis for Williams’ conviction. In 1982, the State of Texas charged Williams
with capital murder for “intentionally and knowingly caus[ing] the death of Daryl
Wayne Shirley . . ., a peace officer in the lawful discharge of an official duty, by
shooting [him] with a gun, knowing at the time that [he] was a peace officer.” Clerk’s
Record at 6. Williams stood trial in the 208th District Court of Harris County, Texas,
in 1983.
The trial testimony showed that, when plain-clothed Officer Shirley tried to
detain Williams on outstanding warrants from Minnesota, a struggle ensued. Officer
Shirley was shot. There was no dispute at trial that Williams shot Officer Shirley. In
the guilt phase, the jury had only one narrow question to decide. As the Texas Court
of Criminal Appeals majority opinion observed on state habeas review, “[Williams]
had not planned to kill someone that day. He had not even planned a robbery during
which he might have anticipated the death of an individual. [Williams] killed his
victim during a struggle, and while there was certainly enough time for him to have
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formed a ‘deliberate’ mental state, [Williams] at least had room to argue that his
conduct was not deliberate.” Ex Parte Williams, 2012 WL 2130951 at *12 (Tex.
Crim. App. 2012). The question for the jurors was whether Williams knew the victim
was a police officer.
It is undisputed that Officer Shirley was not in uniform when he confronted
Williams, raising the questions of whether he had identified himself as law
enforcement and whether Williams believed that Shirley was in fact in law
enforcement. The jury had before it only limited and conflicting circumstantial
information on these critical issues. Witnesses called by the State and the defense
gave contradictory testimony about whether Williams knew, or suspected, that Officer
Shirley was a police officer. The thrust of Williams’ trial defense was that, because
Williams “had been robbed in the past by someone who falsely identified himself as
a police officer . . ., if Detective Shirley identified himself as a police officer,
[Williams] did not believe him.” Id. Throughout his legal proceedings, Williams has
argued that the trial court put unconstitutional restrictions on his ability to establish
his defense.
Other significant issues are presented by the punishment phase of Williams’
trial. The state court, pursuant to Texas law, required the jury to determine Williams’
sentence by answering three special-issue questions inquiring into his future societal
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threat, the deliberateness of his actions, and whether he responded reasonably to any
provocation. Clerk’s Record, at 210-211. At the time of trial, Texas law did not
include an explicit instruction for jurors to consider mitigating evidence. The
Supreme Court had previously upheld Texas’ capital punishment statute under the
assumption that the special issues would provide the jurors with a vehicle to consider
mitigating circumstances. Jurek v. Texas, 428 U.S. 262 (1976).
The prosecution’s punishment-phase case relied on testimony and evidence of
Williams’ prior criminal activities. Williams previously had been convicted of
committing an armed robbery and carrying weapons. There was evidence that the
police suspected that Williams had committed burglary. Eight people from Williams’
home state of Minnesota testified that he had a bad reputation for peacefulness and
abiding by the law.
Inexplicably, the defense did not call any witnesses or present any testimony
in the punishment phase. The defense relied on evidence from the guilt/innocence
phase, the cross-examination of witnesses, and counsel’s closing argument. Not
unexpectedly, the jury answered Texas’ special issues in a manner requiring the
imposition of a death sentence.
Among other issues, Williams’ direct appeal complained that the prosecution
unconstitutionally used its peremptory strikes to remove all African-Americans from
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the jury venire. The Texas Court of Criminal Appeals affirmed Williams’ conviction
and sentence. Williams v. State, 682 S.W.2d 538 (Tex. Crim. App. 1984).
During Williams’ appeal, the United States Supreme Court decided Batson.2
After the Supreme Court granted his petition for certiorari review and remanded the
case, Williams v. Texas, 479 U.S. 1074 (1987), the Texas Court of Criminal Appeals
ordered the trial court to hold a Batson hearing, Williams v. State, 731 S.W.2d 563
(Tex. Crim. App. 1987). In a 1988 Batson hearing, prosecutor Keno M. Henderson
provided reasons to justify the State’s exercise of peremptory challenges that resulted
in a jury without any African-American jurors. The trial-level court issued factual
findings and the Texas Court of Criminal Appeals denied Williams’ Batson claim.
Williams v. State, 804 S.W.2d 95 (Tex. Crim. App. 1991).
On September 24, 1991, volunteer attorneys from Minnesota filed an
application for a writ of habeas corpus (“1991 habeas application”) on Williams’
behalf raising thirty-nine grounds for relief. State Habeas Record, at 6-155. At some
point, local criminal defense attorney Randy Schaffer began representing Williams.
In 1993, Mr. Schaffer filed an Amended Application for Writ of Habeas Corpus
(“1993 habeas application”). State Habeas Record, at 354-482. The 1993 habeas
application contained some of the issues first raised in the 1991 habeas application,
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Batson v. Kentucky, 476 U.S. 79 (1986).
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but eliminated or narrowed others. On June 5, 2001, Mr. Schaffer sent the trial court
a letter agreeing to abandon several additional claims he had asserted in the 1993
habeas application. Specifically, Mr. Schaffer told the trial court “not to consider the
grounds raised in the initial application filed by volunteer lawyers from Minnesota.”
Supplemental State Habeas Record, at 2. Mr. Schaffer sent the letter the day after, and
apparently without recognition of, the U.S. Supreme Court’s opinion in Penry II
which reversed the momentum of jurisprudence upholding Texas’ former sentencing
scheme.

Starting with Penry II, the Supreme Court has repeatedly held

unconstitutional the capital sentencing statute under which Williams was sentenced
to death. After briefing and argument, the Court of Criminal Appeals denied habeas
relief. Ex Parte Williams, No. AP-76455, 2012 WL 2130951 (Tex. Crim. App. 2012).
Federal review followed. This Court appointed counsel. Williams filed a
federal habeas petition that closely tracks the 1991 habeas application, reurging
several claims that Mr. Schaffer abandoned. Williams’ amended federal petition
raises numerous grounds for relief. Respondent has moved for summary judgment
[Doc. # 20].3

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Respondent’s summary judgment motion renumbers Williams’ claims. For the
purposes of clarity, the Court will refer to the claims by the designation Williams laid out in
his amended federal petition.

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II.

ISSUES NEEDING DEVELOPMENT
Respondent contends that procedural law bars federal consideration of many

claims. Respondent also argues that all Williams’ claims lack merit. The Court has
reviewed the pleadings to date, the state court record, and the relevant law. Given the
significant legal developments in the last three decades, the Court has serious concerns
about the integrity of Williams’ capital conviction and death sentence. The parties
have filed extremely lengthy pleadings, but have still not properly joined the issues
in this case. Because the briefing as it now stands is inadequate on several grounds,
the Court denies the pending summary judgment motion without prejudice.
The parties will adhere to the following briefing schedule. Williams will
initiate the new round of briefing by filing a memorandum of law that develops the
issues raised by his federal petition. This briefing will specifically discuss the
following:
1.

Williams’ petition mentions AEDPA standards, but does not apply
them to each of his claims. See Doc. #7, at 11-24. As the
Supreme Court recently observed in a similarly old case, “[a]ny
retrial here would take place three decades after the crime, posing
the most daunting difficulties for the prosecution. That burden
should not be imposed unless each ground supporting the state
court decision is examined and found to be unreasonable under
AEDPA.” Wetzel v. Lambert, ___ U.S. ___, 132 S. Ct. 1195,
1199 (2012). Williams must address with citations to the record
and applicable case law how the state court’s resolution of each
claim was contrary to, or an unreasonable application of, federal
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law. 28 U.S.C. § 2254(d)(1). Williams’ claims must be addressed
individually. If Williams chooses to also argue cumulative error
or unreasonableness because of the aggregation or errors, he may
do so hereafter.
2.

The 1991 habeas application raised several of the claims in
Williams’ federal habeas petition. Respondent argues that federal
review is unavailable because Williams abandoned those issues
later in the state habeas process. Williams must demonstrate how
federal habeas review and relief is available on those claims.

3.

Jury selection occurred well before the Supreme Court decided
Batson. Six years after trial, one prosecutor provided detailed
reasons justifying each peremptory strike. The Batson inquiry is
not to examine possible reasons why a prosecutor could have
stricken a potential juror, but asks for the real reasons for the
strikes. See Miller-El II, 545 U.S. at 252 (refusing to limit Batson
to “a mere exercise in thinking up any rational basis”); Johnson v.
California, 545 U.S. 162, 172 (2005) (“The Batson framework is
designed to produce actual answers[.]”). Williams provides only
cursory briefing relating to the Batson issue (claim IV), and
importantly fails to identify how the state court’s detailed review
of that claim was an unreasonable application of federal law. The
Court expects, as suggested by the Miller-El cases, a side-by-side
comparison of peremptorily struck jurors and those empaneled, a
review of whether there was disparate questioning by prosecutors,
and whether there is historical discrimination by the prosecutorial
office or the individual prosecutors themselves. Reed v.
Quarterman, 555 F.3d 364, 372-75 (5th Cir. 2009) (reviewing
Miller-El’s broader view of Batson jurisprudence). Importantly,
state habeas counsel’s argument emphasized Rosales v. Dretke, H03-CV-1016, Doc. # 109 (S.D. Tex. Dec. 12, 2008), a case which
found a Batson violation was found and involved the same
attorney who prosecuted Williams. Respondent has extensively
analyzed the jury selection in this case, but neither party has
described the effect, if any, of the Rosales decision. Williams
must explain whether he intends to rest on the pleadings or
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develop this claim.
4.

Williams argues that Texas’ special issues provided an inadequate
vehicle for jurors to consider evidence of his remorse, his young
age at the time of the offense, his attempts at furthering his
education, his early introduction to crime, and the circumstances
of the offense (claims VII, VIII). State habeas counsel, however,
waived judicial consideration of all but the final factor. The state
habeas courts adjudicated only a narrow Penry claim, providing
Respondent with his argument that a procedural bar precludes
review over the remainder of the issues. Williams must address
whether federal review is available for the broad array of issues
initially asserted and now typically considered in Penry claims.
See Martinez v. Ryan, ___ U.S. ___ 132 S. Ct. 1309, 1318 (2012);
Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911 (2013). In
addition, Williams must compare the evidence presented to his
jury with evidence the federal courts have found exceeds the
bounds of Texas’ former special issues.

5.

Williams strenuously complains about limitations the trial court
placed on the defense, such as barring evidence that specifically
addressed the primary issue at the guilt phase – whether he knew
that the person he was fighting with and killed was a police
officer. Williams claims that the State did not disclose
exculpatory information and that the trial court impeded the
presentation of important evidence (claims I, II). Respondent,
however, counters that Williams relies only on state law to prove
error.
Williams must discuss whether these evidentiary
limitations on the defense impaired a right under the federal
constitution to present a defense. In particular, Williams must
discuss the aggregate effect of any evidentiary rulings in light of
the sole issue in dispute, his knowledge of the victim’s status as
a police officer.

6.

Williams claims that the prosecution intimidated witnesses.
Williams, however, does not identify record support for each
allegation of intimidation. Williams must describe more fully
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what pressures the prosecution put on witnesses. Williams must
also provide record citations to support his allegations, such as
that police officers detained his sister Linda Ransome
unreasonably. See Doc. # 7, at 73.
7.

The Supreme Court has found Penry error in several cases since
2001. Abdul-Kabir v. Quarterman, 550 U.S. 233, 259 (2007);
Brewer v. Quarterman, 550 U.S. 286, 296 (2007); Tennard v.
Dretke, 542 U.S. 274, 287 (2004); Penry II, 492 U.S. at 320.
Since the Supreme Court last addressed the Penry jurisprudence
in 2007, the Fifth Circuit has granted relief in every case raising
a Penry claim except one. See McGowen v. Thaler, 675 F.3d 482,
494 (5th Cir. 2012) (citing Smith v. Quarterman, 515 F.3d 392,
414 (5th Cir. 2008)). Much of Respondent’s motion, however,
relies on cases decided before Penry II. See Doc. # 20 at 148-157.
In addition, Respondent argues that “[a]ssuming jury-instruction
error, it was harmless.” Doc. # 20 at 155. The Fifth Circuit has
repeatedly rejected Respondent’s assertion of harmless error in
Penry cases. Jones v. Stephens, 541 F. App’x 399, 408 (5th Cir.
2013); McGowen, 675 F.3d at 496; Rivers v. Thaler, 389 F. App’x
360, 362 (5th Cir. 2010); Nelson v. Quarterman, 472 F.3d 287,
314 (5th Cir. 2006) (en banc). Respondent must provide a
justification for this invitation to contravene circuit authority. The
parties will focus their briefing on the law as it now stands.

In addition, the parties may address any other issues needing development.
Once Williams has filed a memorandum of law, Respondent will file a renewed
answer. Williams will then file a reply. The Court anticipates that renewed briefing
will address the identified issues and cite new law that has developed since Williams
filed his state and federal habeas actions.

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III.

CONCLUSION
For the reasons discussed above, the parties must address serious procedural

and substantive questions before adjudication can proceed. It is therefore
ORDERED that Respondent’s Motion for Summary Judgment [Doc. # 20] is
DENIED WITHOUT PREJUDICE. It is further
ORDERED that Williams will file a memorandum of law on or before
September 14, 2015. Respondent will file an answer on or before October 15, 2015.
Williams will file a reply on or before November 16, 2015. Unless provided leave
of the Court, the parties will limit their pleadings to fifty (50) pages, times new roman
font and twelve-point type.
SIGNED at Houston, Texas on August 11, 2015.

_________________________________
NANCY F. ATLAS
UNITED STATES DISTRICT JUDGE
NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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