**CAPITAL CASE**

EXECUTION FOR APRIL 23, 2017

No. _______________

In the
Supreme Court of The United States

MARCEL WILLIAMS, Petitioner,

v.

WENDY KELLY, DIRECTOR, ARKANSAS

DEPARTMENT OF CORRECTION, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

EIGHTH CIRCUIT COURT OF APPEAL

OPPOSITION TO APPLICATION FOR STAY OF EXCUTION

AND CERTIORARI

LESLIE RUTLEDGE
Attorney General

LEE RUDOFSKY*
Solicitor General

NICHOLAS J. BRONNI
Deputy Solicitor General

CHRISTIAN HARRIS
RACHEL KEMP
Assistant Attorneys General

OFFICE OF THE ARKANSAS

ATTORNEY GENERAL
323 Center St., Suite 200
Little Rock, AR 72201
(501) 682-6302
[email protected]
Counsel for Respondents *Counsel of Record

To the Honorable Samuel Alito, Associate Justice of the Supreme Court of the

United States and Circuit Justice for the Eighth Circuit:1

Introduction

There is no likelihood that this Court will grant certiorari in the underlying

case to consider the issue and so Petitioner has failed to establish entitlement to a

stay.

Jurisdiction

The jurisdiction of this Court is invoked under 28 U.S.C. 2101(f), 28 U.S.C.

1257(a), and Supreme Court Rule 23.

Background

A. State Proceedings

On November 20, 1994, Williams kidnapped, robbed, raped, and brutally

murdered Stacy Errickson. At the time of her murder, Stacy was 22 years old.

Trial Record (TR) at 574-75.2 She lived on the grounds of the Little Rock Air Force

Base with her husband, who was on overseas military duty stationed in Iceland. Id.

Due to time constraints, Respondent submits this document in opposition to

1

the application for a stay, and if the Court decides to immediately review
Petitioners petition for a writ of certiorari, Respondent submits the arguments
contained herein in opposition to certiorari.

The state trial and postconviction records were submitted per Habeas Rule 5
2

as Respondents Exhibits D and E in the district court, Williams v. Kelly, No.

5:02CV00450-JLH (E.D. Ark.), ECF No. 9.
2
She went to college at night in nearby Beebe, Arkansas, and she worked at a

pediatric clinic for intellectually-disabled children on the weekends. TR 575-76,

603. She was the mother of four-year-old girl, Brittany, and a seven-month-old boy,

Bryan. TR 575.

Stacy was on her way to work at the clinic when she had the misfortune of

encountering Williams. Stacys best friend, Jennifer Johnson, was also her co-

worker and called her on November 20, 1994, which was a Sunday, at about 6:10

a.m. to make sure Stacy was awake and getting ready for work. TR 605. Jennifer

and Stacy regularly shared a ride, but on this day, Stacy had to get gas for her truck

and they decided to take separate vehicles. TR 606. Stacy left her children with a

babysitter around 6:40 a.m. TR 612. At 6:45 a.m., she stopped to get gasoline at

the Jacksonville Shellstop service station. Williams v. State, 991 S.W. 565, 568

(Ark. 1999).

Williamss morning to that point had consisted of terrorizing two women by

chasing them in his car. Id.; see also TR 592-98. He approached [Stacys] vehicle,

drew a firearm, and forced her to move from the drivers seat to the passenger side.

Id. Williams took Errickson to several automated teller machines and coerced her

to attempt withdrawals[,] which yielded the sum of $350. Id. Williams then then

drove Stacy to a storage-unit facility where he raped and beat her and ultimately

strangled her to death. Id. at 570.

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 The physical evidence established a violent physical assault by [Williams]

against [Stacy]. Id. at 571. Injuries to her head indicated deep bruising to her

head and to her face. Id. Among the numerous bruises to Stacys head and face

including one that measured four inches across her jaw and was two-and-a-half

inches in width. TR 920. Stacy had bite marks on her lips and tongue, consistent

with a struggle during a violent attack. TR 922. And her eyes and larynx had

hemorrhaged, indicating her death was caused by asphyxiation due to

strangulation. Williams, 991 S.W.2d at 571; TR 930.

Williams also raped Stacey. Williams v. Norris, 576 F.3d 850, 854 (8th Cir.

2009) (noting that Williams semen was found in [Stacys] vagina.). The police

found Stacys lunch cooler at the storage facility along with an article of clothing

white pantyhosethat proved to contain evidence of Williamss assault upon [her].

Williams, 991 S.W.2d at 570; TR 644, 966. Williams took Stacys to body at a

remote location in North Little Rock and dumped it in a shallow grave covered with

plant debris. Id. at 568-69.

Nine days later, North Little Rock police arrested Williams on an

outstanding warrant, suspecting he was involved in Erricksons disappearance and

in sexual assaults of two other women. Williams, 576 F.3d at 854. Williams

admitted participation in the abduction and robbery of Stacy, but denied that he

had sexually assaulted her. Id. Williams made contradictory statements over the

course of a thirteen-hour interrogation[,] confessing to abducting Errickson and

forcing her to make ATM withdrawals but leading the police to believe that she was

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still alive. Id. The police ultimately found Stacys decomposing body where

Williams buried here, a week after his interview and 16 days after he murdered her.

Id. He was subsequently convicted of capital murder, kidnapping, rape, and

aggravated robbery. Williams, 991 S.W.2d at 568.

Williamss state judgment became final on direct review 17 years ago. See id.

In state collateral review proceedings, Williams pursued a claim that his trial

lawyers were allegedly ineffective during the penalty phase of his trial for failing to

investigate and present mitigating evidence of his life history. The state trial court

denied relief following an evidentiary hearing, and the Arkansas Supreme Court

affirmed. Williams v. State, 64 S.W.3d 709 (Ark. 2002).

B. Federal habeas-corpus proceedings under 28 U.S.C. 2254

Thereafter, Williams filed a petition for federal habeas relief pursuant to 28

U.S.C. 2254. In an amended petition filed in 2005, he asserted that his trial

lawyers were ineffective during both the guilt and penalty phases of his trial. He

also contended that error and omissions by state appellate and post-conviction

counsel excused any failure to comply with procedural requirements that this

Court might otherwise identify. Williams v. Kelly, No. 5:02CV00450-JLH (E.D.

Ark.), ECF No. 17 at 85-88 (hereafter ECF No. __ at __). The district court

initially dismissed several claims as inexcusably procedurally defaulted, including

those of ineffective assistance of counsel during the guilt phase of the trial, some of

which were repeated or incorporated by reference into Williamss claim of ineffective

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assistance of counsel during the penalty phase of the trial. See id., ECF No. 17 at

43-44; ECF 35. After an evidentiary hearing on the issue of whether trial counsel

was ineffective during the penalty phase for failing to develop and present

mitigation evidence, the district court granted habeas relief solely on that ground

and denied relief on the remaining grounds for relief. Id., ECF No. 94.

On appeal and cross-appeal, this Court reversed the district courts grant of

relief on the claim of penalty-phase ineffective assistance of counsel with respect to

mitigation and affirmed the denial of relief on the remaining grounds for relief.

Williams, 576 F.3d 850, cert. denied, 562 U.S 1097 (2010). In that cross-appeal,

Williams did not seek review of the dismissal of his claims of guilt-phase ineffective

assistance of counsel as procedurally defaulted. Nor did he seek review of the

district courts characterization of his claim of penalty-phase ineffective assistance

of counsel with respect to the investigation and presentation of mitigation evidence

as having been decided on the merits by the state courts. See id. at 858 (setting out

Williamss claims on cross-appeal). And, until nowover seven years after this

Courts decisionhe has not challenged this Courts characterization of that claim

as having been decided on the merits by the state courts.

In 2015, Williams filed a motion in the district court for relief from the

judgment pursuant to Rule 60(b)(6). See In that motion, Williams claimed that

Nebraskas legislative abrogation of the death penaltyan abrogation that proved

to be short-livedrendered the death penalty unconstitutional under the Eighth

Amendment. See Williams v. Norris, E.D. Ark. No. 5:02-cv-450-JLH, ECF # 120

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(Jun. 17, 2015). The Eighth Circuit subsequently denied Williamss request for a

certificate of appealability from the district courts denial of that motion. Williams

v. Norris, No. 15-2665, ECF # 4316103 (judgment), 4322833 (mandate) (8th Cir.

2015). Williams did not raise in that 2015 motion the arguments regarding

Martinez and Trevino that he raises in the instant motion and petition.

C. The last twenty-three days.

On February 27, 2017, Arkansas Governor Asa Hutchinson scheduled

Williamss execution for April 24, 2017. Williams nevertheless waitedmore than a

monthuntil April 1, 2017, to bring his current Rule 60(b) claim. In his Rule

60(b)(6) motion, he sought to reopen his long-final habeas case and reconsider

claims that his trial lawyers rendered ineffective assistance during the guilt and

penalty phases of his trial based on the post-judgment change in habeas corpus

jurisprudence that was wrought five years ago by Martinez v. Ryan, 566 U.S. 1

(2012), and four years ago by Trevino v. Thaler, ___ U.S. ___, 133 S.Ct. 1911 (2013).

Following argument on the motion, the district court concluded that, specifically as

to Williamss claim that his lawyers were ineffective at the penalty phase for failing

to present mitigation evidencea claim that was decided by the district court and

this Court on the meritsthat part of the motion was subject to dismissal as a

second or successive habeas petition under 28 U.S.C. 2244(b)(1). Williams v.

Kelley, No. 5:02CV00450-JLH, 2017 WL 1395613, *3, ECF No. 141 at 4-6 (E.D. Ark.

Apr. 18, 2017).

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 With respect to the rest of the motion, regarding procedurally-defaulted

claims, the district court concluded that the motion was untimely and that it did not

demonstrate the extraordinary circumstances to justify relief from the judgment

and consideration of the defaulted claims. Id., 2017 WL 1395613, at *4-5, ECF No.

141 at 6-9. (Those claims have been abandoned in this stay application and

certiorari petition.)

Although it determined that Williamss motion sought reconsideration of a

claim that the court had previously considered on the merits, and therefore was a

successive petition under 28 U.S.C. 2244(b), the district court did not dismiss the

motion for lack of jurisdiction or transfer the motion to the Court of Appeals for

consideration in the first instance. Instead, it instead denied relief and issued a

certificate of appealability on the issues presented in his motion for relief from the

judgment. Id., ECF No. 141 at 10.

Williams filed a notice of appeal and also moved for a stay of execution in the

Eighth Circuit. The Eighth Circuit denied relief. Williams v. Kelley, No. 17-1825

(8th Cir. Apr. 24, 2017). The Court first held, contra to Williamss argument, that a

stay of execution is not mandatory when a district court grants a COA, but instead

held that the requirements for a stay of execution enunciated in Hill v. McDonough,

547 U.S. 573 (2006), governs. Slip op. 6. It first held that, as the district court

correctly found, his claim as to penalty-phase ineffective assistance was in

substance a successive petition barred by 28 U.S.C. 2244(b)(1), and so the test for

relief from judgment under Rule 60(b)(6) did not apply. Slip. op. 7-8. Alternatively,

8
it held that Williams did not satisfy the requirements of Rule 60(b)(6), because

under the circumstances of his case and delay in bringing his claim, Martinez and

Trevino did not constituted extraordinary circumstances justifying relief from

judgment. The instant petition and stay application followed.

REASONS TO DENY THE STAY

A. The stay should be denied because of Williams unreasonable delay alone.

A stay of execution is an equitable remedy that must take into account the

movants delay in seeking a stay, and also whether he or she has demonstrated a

strong likelihood of success on the merits. See Hill v. McDonough, 547 U.S. 573

(2006). Applicants seeking a stay must meet all the elements of a stay, including

showing a significant possibility of success on the merits. In Hill, this Court held

that a pending lawsuit does not entitle a condemned murderer to a stay of execution

as a matter of course, and that the State and crime victims have a profound interest

in the timely implementation of a valid and final death sentence. Id. at 583-84.

Instead, courts must apply a strong equitable presumption against the grant of a

stay where a claim could have been brought at such a time as to allow consideration

of the merits without requiring entry of a stay. Id. (quoting Nelson v. Campbell,

541 U.S. 637, 650 (2004)); see also, e.g., Gomez v. United States Dist. Ct. for the

Northern Dist. of Calif., 503 U.S. 653, 654 (A court may consider the last-minute

nature of an application to stay execution in deciding whether to grant equitable

relief. ). Because this case involves both unreasonable delay on Williamss part

as the Eighth Circuit correctly found, Williams could have brought the motion below

9
years ago, soon after Martinez and Trevino were decidedand because he fails to

demonstrate a substantial likelihood of success on the merits, the instant motion for

a stay should be denied.

This Court does not in the least condone, but instead condemn[s], any efforts

on the part of habeas petitioners to delay their filings until the last minute with a

view to obtaining a stay because the district court will lack time to give them the

necessary consideration before the scheduled execution. A court may resolve against

such a petitioner doubts and uncertainties as to the sufficiency of his submission.

Sawyer v. Whitley, 505 U.S 333, 341 n.7 (1992). Williamss motion should be denied

for this reason alone.

B. The Eighth Circuits ruling that Williamss penalty phase IAC

claim was, in substance, a second or successive petition, was correct, and

Williams fails to demonstrate otherwise.

The Eighth Circuit right in affirming the district courts dismissal as a second

or successive habeas petition because Williamss claim that counsel was ineffective

at the penalty phase for allegedly failing to develop and present mitigation evidence

requires authorization 28 U.S.C. 2244(b). A motion for relief under Rule 60(b) will

be treated as a second or successive habeas petition if it conflicts with the

requirements of the AEDPA. See Gonzalez, 545 U.S. at 531-32. Such a motion will

be in conflict with 28 U.S.C. 2244(b) if it contains one or more claims. A motion

contains a claim, and thus constitutes a second or successive habeas petition, if it

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asserts a federal basis for relief from the state courts judgment of conviction by,

among other things, attack[ing] the federal courts previous resolution of a claim on

the merits[.] Id. at 532 (emphasis in original). A habeas petitioners 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 would be inconsistent with the statute. Id. at 531 (citing 28 U.S.C.

2254 Rule 11).

A petitioner, however, is not seeking a determination on the merits if he

merely asserts that a previous ruling which precluded a merits determination was

in errorfor example, a denial for such reasons as failure to exhaust, procedural

default, or statute-of-limitations bar. Id. at 532 n.4. Applying Gonzalez, courts

have determined that a Rule 60(b) motion relying on Martinez and Trevino to

challenge a 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), stay of execution denied, ___ U.S. ___, 132 S.Ct. 1995 (2012).

Williamss penalty-phase ineffective-assistance-of-counsel claim was decided

by the district court and the Eighth Circuit on the merits in Williamss first round

of federal habeas proceedings. His claim in the motion below regarding penalty-

phase ineffective assistance was, without question then, a claim that subjected the

motion to the requirements of 2244(b). While Williams urged below that the

federal courts should never have reviewed the merits of that claim, the Eighth

Circuit was exactly right to point out that it had, in its previous opinion,

11
unambiguously stated that the state trial courts ruled on the merits of this claim of

ineffective assistance of trial counsel during the penalty phase. It was

unquestionably a claim that had been presented in Williamss state postconviction

petition, and upon which an evidentiary hearing was held in his state

postconviction proceeding. See Williams, 64 S.W.3d at 713 (Williams argues that

his counsel was ineffective in the sentencing phase of his trial for failing to

introduce mitigation evidence concerning his troubled youth.);Williams, No.

5:02CV00450-JLH, 2017 WL 1395613, at *3, ECF No. 141 at 5-6.

Moreover, 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, 28 U.S.C. 2254(d). Williams, 576 F.3d at 858-59. The claim was never

procedurally defaulted, as Williams now would like to case it and, therefore, the

claim would not be within the scope of Martinez and Trevino in any event. Because

the claim was decided on the merits, the district court correctly determined that

Williamss effort to grant relief from the judgment and reopen proceedings to

consider that claim was prohibited by AEDPA under Gonzalez.

Williams, in his petition and stay application, does not contest this holding of

the Eighth Circuit. See Motion for Stay at 1-13. For that reason alone, the stay

application and writ should be denied.

B. Williams has not demonstrated a significant possibility of success

on the merits.

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 1. Williamss automatic COA argument does not demonstrate a likelihood of

success on the merits.

Williams argues that a stay of execution should have automatically issued in

the Eighth Circuit because the district court granted a certificate of appealiability

on the issues argued in his motion. His argument below was primarily based on

Eighth Circuit Rule 47A, which, as the Eighth Circuit explained, is contrary to its

own practice and, more importantly, this Courts cases:

[Williams] first argues that, because the district court issued a

certificate of appealability (COA), a stay is required by Eighth Circuit
Rule 47A, which provides that in an in forma pauperis appeal in
which a [COA] has been issued, the court will afford 14 days notice
before entering summary disposition if the briefs have not been filed.

This contention is without merit. Rule 47A says nothing about a

stay pending appeal, which is not a summary disposition. More
importantly, the argument is contrary to controlling Supreme Court
decisions. [A] stay of execution is an equitable remedy. It is not
available as a matter of right . . . . Thus, like other stay applicants,
inmates seeking time to challenge the manner in which the State plans
to execute them must satisfy all of the requirements for a stay,
including a showing of a significant possibility of success of the merits.
Hill v. McDonough, 547 U.S. 573, 584 (2006).

Williams, No. 17-1825, slip op. at 6. Williams cases from other jurisdictions are not

to the contrary and do not demonstrate a circuit split. In those cases, the

applications were filed on the same day as the stay, or within an insufficient time to

rule on them without the appeal becoming mooted by the prisoners execution.

Here, Williams filed directly for a stay of execution and his application below was

adjudicated under the stay standards of Hill. There is no nationwide loophole

hidden in the COA statute, or any of the Court of Appeals local rules, enabling a

13
prisoner to avoid satisfying this Courts requirements for a stay in Hill and other

cases.

2. Because no likelihood of success on the merits of his argument that Rule

60(b)(6) relief is justified.

Rule 60(c)(1) requires that motions under Rule 60(b) be made within a

reasonable time, Fed. R. Civ. P. 60(c)(1), and the movant bears the burden of

showing timeliness. See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)( a movant

seeking relief under Rule 60(b)(6) [must] show extraordinary circumstances

justifying the reopening of a final judgment[ ]). What constitutes a reasonable time

is dependent on the particular facts of the case and, like the merits issue, is

reviewed for an abuse of discretion. Watkins, 169 F.3d at 544.

a. Timeliness

The district, thus, was altogether without jurisdiction to litigate Williamss

Rule 60(b) motion. Even assuming it had possessed jurisdiction, it did not abuse its

discretion in finding Williamss Rule 60(b)(6) motion untimely, and that decision,

moreover, cuts against Williamss timeliness for purposes of a stay of execution.

The Eighth Circuit was correct to hold that Williams failed to file in a reasonable

amount of time:

Williams previously filed a Rule 60(b) motion for relief in 2015,

well after the alleged jurisdictional leap in Martinez, and did not

14
 raise a Martinez-based claim. Instead, he sought Rule 60(b) relief
based on Martinez on the eve of his scheduled execution. [U]se of
piecemeal litigation or dilatory tactics is sufficient reason by itself to
deny a stay. McGehee, No. 17-1804, Slip. Op. at 2, quoting Hill, 547
U.S. at 584-85. Buck recently clarified that, in extraordinary
circumstances, Rule 60(b) may be the basis for a claim of procedural
default caused by post-conviction counsels ineffective assistance, but
Williams cites Martinez as the decision that dramatically altered
habeas corpus procedure and carries much weight in [his]
extraordinary circumstances analysis. His Martinez claim is
years untimely.

Slip op. at 9. The Court of Appeals was spot on. Having presented the district court

with a claim in 2005 that his post-conviction counsels performance was deficient

and served as a basis for excusing his default, Williams not only could have

appealed the denial of that point, as had Martinez, but even failing that, he

certainly would have had sufficient information to have filed his 60(b) motion fresh

on the heels of the decision in Martinez, just as scores of others began doing in this

jurisdiction. See Davis v. Kelley, No. 5:01CV05188-SOH, 2017 WL 1386022, *2 n.2

(W.D. Ark. April 16, 2017), ECF No. 60 at 4 n.2 (collecting just some of the cases).

AEDPAs acknowledged purpose is to reduc[e] delays in the execution of

state and federal criminal sentences. Schriro v. Landrigan, 550 U.S. 465, 475

(2007)(quoting Woodford v. Garceau, 538 U.S. 202, 206 (2003)). When discussing

delays occasioned by stay-and-abeyance procedures, the Supreme Court has

observed that, In particular, capital petitioners might deliberately engage in

dilatory tactics to prolong their incarceration and avoid execution of the sentence of

death. Rhines v. Weber, 544 U.S. 269, 277-78 (2005). The Court aptly noted that

[w]ithout time limits[,] . . . petitioners could frustrate AEDPAs goal of finality by

15
dragging out indefinitely their federal habeas review. Id. at 278. The same

principle obtains here, in the context of an eleventh-hour Rule 60 motion. More

delay appears to be Williamss goal. Williamss obvious disinterest in pursuing a

claim of post-conviction ineffectiveness as cause for default, until over a month after

his sentence was scheduled for execution, is telling. His timing is relevant, and it

cuts against his request for relief. The longer the delay the more intrusive is the

effort to upset the finality of the judgment. Ritter v. Smith, 811 F.2d 1398, 1402

(11th Cir. 1987). The capital nature of Williamss sentence, moreover, does not

logically make it more compelling that a long-final case should be stayed on the

pretense of a motion to reopen it when the asserted grounds for reopening are

baseless, as argued herein. Williamss use of piecemeal litigation and dilatory

tactics is sufficient reason by itself to deny a stay. Hill, 547 U.S. at 584-85. At

some point, the State must be allowed to defend its judgment of conviction. Ryan

v. Gonzales, ___ U.S. ___, 133 S.Ct. 696, 709 (2013).

Respondent is mindful that Williams received the ultimate sentence for

abducting, raping, and brutally murdering Stacy Errickson over twenty years ago,

which bears some consideration in the equitable endeavor of evaluating

extraordinary circumstances. See Cox v. Horn, 757 F.3d 113, 126 (3d Cir. 2014).

Williamss sentence, however, does not tip the balance in his favor. Unsettling

expectations in the finality of a state courts judgment inflict[s] a profound injury to

the powerful and legitimate interest in punishing the guilty, an interest shared by

the State and the victims of crime alike. Calderon v. Thompson, 523 U.S. 538, 556

16
(1998) (citations omitted) (emphasis added). This is particularly true here,

considering the non-retroactive nature of the Martinez decision, as well as how

Williamss timing and utter lack of diligence fits within the larger context and

purpose of Rule 60 and habeas corpus and issues unique to capital litigation.

Williams has not be diligent in bringing this action and he makes no demonstration

of a likelihood of success on the merits, and his motion for a stay of execution should

be denied.

Yet Williams made no effort in his Rule 60(b) motion to justify his delay in

filing it. In fact, he only mentioned the issue in his reply in the district court after

Respondent raised the issue. Williams asserts that his timing was based upon a

sound reason because, until the February 2017 decision in Buck v. Davis, 137 U.S.

759 (2017), there had existed considerable conflict about whether Martinez and

Trevino applied under Rule 60(b). Williams, No. 5:02CV00450-JLH (E.D. Ark.),

ECF No. 138 at 8-9.

Even before the decision in Martinez, the potential for an exception to the

rule of Coleman v. Thompson, 501 U.S. 722 (1991) was not unknown to the law by

any stretch, as the Coleman Court itself considered the issue and left it unresolved.

Law reporters are replete with decisions in which diligent habeas petitioners raised

the issue time and again after Coleman as did Martinez himself, and, more

significantly, as did Williams himself in 2005.

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 In Gonzalez, it was significant to the Court that he, like Williams here, did

not seek earlier review of the procedural issue on which the decisional law later

changed. Noting that the issue was available to be argued despite adverse

authority, the Court faulted Gonzalez for his lack of diligence because he did not

pursue the issue in his application for a COA, did not file a petition for rehearing, or

seek certiorari review. Gonzalez, 545 U.S. at 537. And, unlike Williams here,

Gonzalez had waited only nine months after the change in decisional law to bring

his Rule 60(b) motion, not five years. Id. at 527.

Williamss motion filed more than seven years after his habeas judgment

achieved finality, four years after Trevino was decided, five years after Martinez

was decided, and after scores of similar motions have been filed and resolved within

this jurisdiction and across the country was not filed within a reasonable time of

the change in decisional law on which he relies. Nor was it filed within a

reasonable time in advance of his long-scheduled execution. And, while he bore the

burden below of demonstrating circumstances that justify the extraordinary

measure of reopening a final judgment, his motion offered no reasonable

justification or explanation for his inordinate delay in bringing the Martinez-based

motion. The motion for a stay of execution he filed below was premised on a claim

that was available to him years before, and the Eighth Circuit was right to so hold.

His argument now continues his improper piecemeal litigation and dilatory tactics.

Williams demonstrates no likelihood of success on the merits in arguing against the

Eighth Circuits conclusion that his motion was untimely, if not successive.

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 b. Extraordinary Circumstances

The Eighth Circuit properly found that Williams failed to demonstrate

extraordinary circumstances sufficient to warrant Rule 60(b) relief, and Williams

does not demonstrate a strong likelihood of success in his arguments to the

contrary. It is well settled that relief from a final judgment is not warranted for a

post-judgment change in law that, while perhaps relevant to an issue in the case, is

not itself retroactively applicable to it. See Gonzalez, 545 U.S. at 536-37 (citing

established non-retroactivity principles to support conclusion that change in

controlling decisional law is hardly extraordinary for purposes of reopening a final

judgment).

Conclusion

Unsettling expectations in the finality of a state courts judgment inflict[s] a

profound injury to the powerful and legitimate interest in punishing the guilty, an

interest shared by the State and the victims of crime alike. Calderon v. Thompson,

523 U.S. 538, 556 (1998) (citations omitted) (emphasis added). For the foregoing

reasons, the application for a stay and the petition for a writ of certiorari should be

denied.

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 Respectfully submitted,

/s/ Lee Rudofsky

LESLIE RUTLEDGE
Attorney General

LEE RUDOFSKY*
Solicitor General

NICHOLAS J. BRONNI
Deputy Solicitor General

OFFICE OF THE ARKANSAS

ATTORNEY GENERAL
323 Center St., Suite 200
Little Rock, AR 72201
(501) 682-6302
[email protected]

*Counsel of Record for

Respondents
April 24, 2017

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 CERTIFICATE OF SERVICE

I hereby certify that I did on the 24th day of April, 2017, send electronically
from Little Rock, Arkansas, a copy of the foregoing. All parties required to be
served have been served electronically.

MARCEL WILLIAMS,
Petitioner,

v.

STATE OF ARKANSAS, Respondent.

/s/ Lee Rudofsky