***DEATH PENALTY CASE***

Execution Scheduled for April 27, 2017

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

LEDELL LEE; JASON MCGEHEE;

STACY JOHNSON; BRUCE WARD;
MARCEL WILLIAMS; and KENNETH
WILLIAMS PLAINTIFFS

v. CASE NO. 17-194-DPM

ASA HUTCHINSON, in his official

capacity as Governor of Arkansas;
WENDY KELLEY, in her official
capacity as Director of the Arkansas
Department of Correction; JOHN
FELTS, JOHN BELKEN, ANDY SHOCK,
DAWNE BENAFIELD VANDIVER,
JERRY RILEY, ABRAHAM
CARPENTER, JR., AND LONA H.
MCCASTLAIN, all in their official
capacities as Members of the Arkansas
Parole Board DEFENDANTS

JACK HAROLD JONES, JR. INTERVENOR

DEFENDANTS RESPONSE TO PLAINTIFF KENNETH

WILLIAMSS AMENDED MOTION FOR PRELIMINARY
INJUNCTION
LESLIE RUTLEDGE
Arkansas Attorney General

BY: NICHOLAS J. BRONNI

OFFICE OF THE ARKANSAS Deputy Solicitor General
ATTORNEY GENERAL
323 Center St., Suite 200 GARY L. SULLIVAN
Little Rock, AR 72201 Assistant Attorney General

(501) 682-6302
nicholas.bronni@arkansasag.gov

INTRODUCTION

Kenneth Williams was convicted and sentenced to death for a

heinous capital murder. He is responsible for the deaths of four people,

including a former State employee who he murdered during an escape

attempt in 1999; that murder gave rise to his death sentence.

Petitioners execution is scheduled for 7 p.m. tonight, a date that

Governor Asa Hutchinson set two months ago. He has had multiple

opportunities to challenge his conviction, sentence, and the method by

which his lawful sentence of execution will be carried out. He has

exhausted his right to direct and collateral review in both state and

federal court. He sought and was denied clemency. His guilt is beyond

dispute, and Arkansas is entitled to carry out Williamss lawful

sentence without further, unwarranted delay.

Nevertheless, Williams, for a second time herein, asks this Court

to grant a preliminary injunction that would effectively veto his lawful

death sentence sinceas Williams is well awareArkansass supply of

midazolam (the critical component of Arkansass lethal injection

protocol) expires at the end of this month. This Court should reject

Williamss thinly veiled attempt to make it impossible for Arkansas to

carry out his lawful death sentence.

BACKGROUND

A. Legal Framework

Arkansas Clemency Procedures, the Parole Boards policy manual,

and Department of Correction policies
Arkansass clemency procedures, as well as the Parole Boards

policy manual and the Department of Corrections policies regarding

lethal injection, are now well-known to this Court after extensive

testimony presented herein on April 4 and 5, 2017. Defendants adopt

the background set out in their Response to Plaintiffs original Motion

for Preliminary Injunction as if restated word for word here.1

B. Factual Background

1. Plaintiff Kenneth Williams

Williams is a convicted capital murderer who has enjoyed multiple

opportunities to challenge his lawful conviction and sentence. His guilt

is beyond dispute, and he is not entitled to challenge the validity of his

conviction or sentence.

1See Defendants Response to Plaintiffs Motion for Preliminary Injunction- Doc.

No. 22.
3

 On October 3, 1999, three weeks after being convicted of capital

murder and receiving a sentence of life imprisonment without parole,

Kenneth Williams escaped from the Cummins Unit of the Arkansas

Department of Correction (ADC). He escaped by hiding in a slop tank,

and shot and killed Cecil Boren a few miles outside the prison while

stealing his truck, guns, and numerous other items. Williams

eventually was apprehended in Missouri after crashing the truck

following a high-speed chase in which another motorist was killed.

Following a Lincoln County jury trial, Williams was convicted of

the capital murder of Cecil Boren and sentenced to death by lethal

injection. Williamss case has been thoroughly reviewed in both state

and federal court.

On September 15, 1999, Williams arrived at the Cummins Unit of

the ADC. Earlier this same day, he was sentenced to life without parole

for the December 13, 1998, capital murder of Dominique Herd, the

attempted capital murder of Peter Robertson, kidnapping, aggravated

robbery, theft, and arson in Jefferson County.

Less than two weeks later, on September 26, 1999, Williams told

Eddie Gatewood, a friend who visited him at the Cummins Unit, that he

could not serve a life term and solicited Gatewoods help to escape.

Williams asked Gatewood during that visit to get him some clothes, a

dress, and a wig, and leave them out on the highway close to the prison.

One week after that, on October 3, 1999, Williams escaped from the

Cummins Unit. Cumminss Warden Warren Dale Reed received a call

about 7:15 p.m. on October 3rd from his chief of security, Captain

Donald Tate, telling him that Williams was missing. Major Wendell

Taylor, the units tracker, began a drag around the compound using

dogs to try to pick up Williamss scent. This attempt was unsuccessful

because too much time had passed since Williamss escape that

morning. Emergency notifications were commenced.

The ADC determined that Williams was released from his

barracks that morning at 7:27 on a religious call. This allowed

Williams to get into the area where the slop tanks for the kitchen were

kept. These are devices that are used to hold, cook, and transport slop

to hogs outside the prison. The slop tanks are 500 gallon tanks that are

large enough for a man to fit into. The primary tank had a grating

welded over the top opening. However, the alternate slop tank was in

use due to a flat tire on the primary tank trailer. The secondary tank

had no grate over the opening. Williams got down inside this tank and

was carried outside the prison confines when the tank was taken from

the prison by the ADC.

Once outside the prison confines, Williams jumped from the tank

in transit and hid in a ditch. He hid there for some time because a local

farmer testified that that morning at about 9:42 he saw a man running

across Highway 65 away from the prison. From the tracks that the

ADC found, it appeared that Williams headed toward Highway 65,

which took him in the direction of Cecil and Genie Borens home.

Williamss prison shirt showing his name and prison number was found

a few months later hanging on a tree limb about a mile from the Boren

home, substantiating his path.

Williams made it to the Boren home sometime in the morning.

Earlier that morning, Genie Boren had gone to church, leaving her

husband Cecil at home working in the yard. When she returned

sometime after noon, she found he was no longer there. She called Kay

McLemore, who lived about a mile from the Borens. Genie was frantic

because her husband was not home and their house had been

ransacked. Kay drove over. They determined all the firearms were

gone, except a muzzleloader. Kay went outside and began to look for

Cecil and call for him. She found Cecil near a bayou not far from the

house. He was lying face down without shoes or socks. He was dead.

He had been shot seven times. Scrape marks on his body were later

determined to show that his body had been dragged to that location,

and that he had been shot closer to the home. A pool of blood was found

closer to the home. The investigation at the Boren home revealed that

Cecils truck, wallet, and other valuables from the home were missing,

that some clothing had been taken, and that a number of firearms were

missing.

Around 11:00 that morning, Williams showed up at Eddie

Gatewoods house asking for a map. Williams was driving Cecils truck.

Gatewood testified at Williamss trial that Williams told him he had

killed a person to get the truck.

The next day, on October 4, 1999, Cecils truck was spotted in

Lebanon, Missouri, by police officer Dennis Mathis. Officer Mathis

attempted to pull over the truck being driven by Williams. Initially,

Williams pulled over, but he then drove off. A high-speed chase

commenced involving multiple police units covering approximately 60

miles. Speeds ranged as high as 120 miles per hour. Williams was only

stopped when he struck a water truck that was turning left in front of

him. Williams struck the truck in the cab. The driver, Michael

Greenwood, was ejected and killed. Williamss truck was disabled by

the collision. He then fled on foot before he was apprehended.

More than 114 personal items belonging to Cecil and Genie Boren were

removed from Cecils truck, including the firearms stolen from their

home. At the time of his arrest, Williams was wearing Cecils coveralls

and two rings belonging to Cecil. He was also wearing clothing

belonging to Genie Boren.

At trial, the State was unable to link the firearms found to the .22

caliber fragments taken from Cecils body. There was testimony that

the fragments likely came from one of six manufacturers, including

Ruger, and there was testimony that Cecil had a Ruger .22 caliber semi-

automatic pistol that was not found. A clip to a Ruger .22 automatic

was found in the truck when Williams was apprehended. After hearing

this evidence, a Lincoln County jury found Williams guilty of theft of

property and the capital murder of Cecil Boren.

 As noted above, however, these crimes were far from Williamss

first. Importantly, two prior crime sprees bear mentioning, as evidence

of those crimes was introduced at sentencing following his conviction for

Cecil Borens murder. First, on December 5, 1998, Sharon Hence was

using an ATM machine in Pine Bluff when Williams got into her car,

pulled a gun, and demanded that she get more money out of the

machine. When Hence was unable to do so, Williams ordered her to

drive away. As they drove around Pine Bluff, Williams rifled through

Hences purse and threatened to shoot her if she had a wreck.

Eventually, Hence stopped the car on a dead-end street. Williams

ordered her to give him all of her jewelry, empty her pockets, and get

out of the car. Williams then drove away in Hences car, which was

later found burning approximately two and one-half blocks away from

Williamss apartment. Hence later identified Williams as the

perpetrator of the crimes against her. After an August 26, 1999, jury

trial in Jefferson County, Williams was convicted of arson, kidnapping,

aggravated robbery, and theft of property. He was sentenced to

respective terms of six, ten, five, and five years in prison, to be served

consecutively.2

The second crime spree that was introduced at Williamss

sentencing for the capital murder of Cecil Boren occurred on December

13, 1998. That day, Peter Robertson and Dominique Herd, both

students at the University of Arkansas at Pine Bluff, borrowed a

friends car and went to church and then to eat at the Bonanza Steak

House. Upon exiting the restaurant, Kenneth Williams approached the

couple, briefly conversed with them, and then pulled a gun and forced

them into their car. Williams sat in the back seat of the car and directed

Robertson where to drive. He first made them go to a bank ATM to

withdraw approximately $70 from Robertsons account, and they then

attempted to withdraw money from Herds account. When Herd could

not remember the password, Williams directed Robertson to drive off.

During the drive, Williams continued to tell the couple that they would

be fine. He made the couple drive around town, and he directed them

down several dead-end streets. At one dead-end, he made the couple get

2
Williamss convictions and sentences were affirmed by the Arkansas Court of
Appeals in Williams v. State, No. CACR 00-432, 2000 WL 1745216 (Ark. Ct.
App. Nov. 29, 2000).

10

out of the car, and he made Robertson take a picture of Herd with

Robertsons camera, after Williams lifted Herds dress and pulled down

her underwear.

After this episode, Williams directed the couple to drive to another

dead-end street, exit the car, climb a fence, go behind a shed, and kneel

down. Williams then got into the car and pulled off; however, he backed

up, asked Herd for her pocketbook, and then asked, Where did you say

you were from again? Herd answered, Dallas, and Robertson

answered, New Jersey. Williams then said, I dont like the niggers

from Dallas anyway, and started shooting the couple, emptying the

gun. Williams then drove off. Robertson was able to make it to the road

where a passing car picked him up and took him to a house where he

called the police. Robertson survived the shooting, but Herd died from a

gunshot to her head. The police ultimately found the car at the end of a

dead-end street where it had been burned.

Robertson later identified Williams in a photo line-up and at trial

as the man who shot him and who killed Herd. On September 14, 1999,

a Jefferson County jury convicted Williams of the capital murder of

Herd, the attempted capital murder of Robertson, kidnapping,

11

aggravated robbery, theft, and arson. 3 Williams was sentenced to life

imprisonment without the possibility of parole. 4 The next day, he

arrived at the Cummins Unit of the ADC. And 18 days after that, he

escaped, murdering Cecil Boren and leading police on a high-speed

chase during which Michael Greenwood was killed.

The foregoing facts were before the Parole Board when it

considered Williamss clemency application on March 31, 2017.5

2. Williamss clemency hearing

Arkansas Governor Asa Hutchinson has scheduled Williamss

execution on Thursday, April 27, 2017.6 The setting of the date

triggered the Parole Boards forty-day clemency application deadline as

well as the scheduling of the clemency hearing.7 On March 9, 2017,

Parole Board Chairman John Felts contacted the Parole Board

3 His convictions for those crimes were affirmed by the Arkansas Supreme Court in
Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001).
4
Five years later, in a September 2005 letter to the Pine Bluff Commercial
newspaper, Williams confessed to killing yet another person. In the letter, Williams
admitted that he killed 36-year-old Jerrell Jenkins of Pine Bluff on December 13,
1998, the same day he killed Dominique Herd. He subsequently pleaded guilty to
capital murder, aggravated robbery, and theft of property, and was given two life
sentences for the capital-murder and aggravated-robberyconvictionsandtenyears
for the theft conviction.
5 Exhibit 1- Response to Application for Executive Clemency.
6 Exhibit 2- April 3, 2017 Affidavit of John Felts at 3.
7 Id. at 4.

12

members to tell them that, assuming Williams submitted a clemency

application, his clemency hearing would be held on March 31, 2017.8

The Parole Board functions by consensus in scheduling matters,

and the purpose of Chairman Feltss March 9 contact for the clemency

hearing date was to seek any objections to the settings since the

hearings for Williams was three days short of the thirty-day hearing

schedule.9 In response to Feltss March 9 communication, none of the

Parole Board members expressed an objection to the scheduling of the

thirty-day clemency hearing date, and all members responded that they

would be in attendance.10 Moreover, the addition of time provided

Williams and his counsel with expanded time in which to prepare for

the hearing.11

During Chairman Feltss approximately twenty years of service on

the Parole Board, clemency petition presentations in capital cases have

rarely exceeded the one-hour mark.12

Clemency hearings for Williams and four other inmates were held

between March 24 and 31, 2017.13 Williamss hearing was the only one

8 Id. at 5.
9 Id. at 8.
10 Id.
11 Id. at 9.
12 Id. at 13.

13

of the presentations exceeded an hour.14 At the conclusion of each

applicants testimony, Chairman Felts asks if there is anything else

that the applicant desires to present and whether the Parole Board

members have any questions.15

Following Parole Board clemency hearings, the Board convenes in

Chairman Feltss office to discuss each of the applicants cases.16

Following this deliberation, the Parole Board Commissioners vote on

the outcome of the proceeding.17 Because of the investigational and

preparation work by Parole Board staff, the Parole Board is able to

review a clemency application, participate in the clemency hearing, and

meaningfully discharge its duties swiftly.

Williams submitted his clemency application (with attachments)

on March 13, 2017.18 He submitted the following:

1. Articles written by Williams19;

2. Various certificates of achievement20;

13 Id. at 14.
14 Id.; Exhibit 3- Trial transcript at 111:24-25.
15 Exhibit 2 at 14.
16 Id. at 15.
17 Id.
18 Exhibit 4- 2017 Application for Executive Clemency.
19 Id. at p. 5-13.
20 Id. at p. 14-22.

14

 3. Photocopy of Gang Proof and Bully Proof brochures21;

4. Photograph22; and

5. Drawing of Williams23;

The Board considered all of these items before voting on

Williamss application.

LEGAL STANDARDS

In an imminent execution case, a court considering a stay 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. Hill, 547

U.S. at 584 (quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004))

(emphasis added). Here, there can be no dispute that Petitioner

engaged in what amounts to little more than strategic and malicious

claim splittingbringing and dismissing claims for tactical reasons and

holding back certain arguments so that they could use them as

justification for seeking an execution-day stay. That fact alone, as the

Eighth Circuit recently held in another inmates as-applied midazolam

21 Id. at pp. 23-25.

22 Id. at p. 26 .
23 Id. at p. 27.

15

claim brought under federal law, is sufficient reason by itself to deny a

stay. See Jones v. Kelley, No. 17-1849, slip op. (8th Cir. Apr. 24, 2017);

see also McGehee v. Hutchinson, No. 17-1804, slip op. at 4 (8th Cir. Apr.

17, 2017) (holding that Petitioners use of piecemeal litigation and

dilatory tactics is sufficient reason by itself to deny a stay in his facial

midazolam challenge); see also Hill v. McDonough, 547 U.S. 573, 584

(2006) (same).

Williams seeks to preliminarily enjoinand effectively stayhis

execution for at least forty days. Williams notes that preliminary

injunctions are normally governed by the standard articulated in

Dataphase Sys., Inc. v. CL Sys., Inc., which requires a court to consider

(1) the threat of irreparable harm to the movant; (2) the state of

balance between this harm and the injury that granting the injunction

will inflict on the other litigant; (3) the probability that the movant will

succeed on the merits; and (4) the public interest.24 But where, as

here, a preliminary injunction would effectively enjoin the operation of

state law, a movant must first make a more rigorous showing of

24 640 F.2d 109, 114 (8th Cir. 1981) (en banc).

16

likelihood of success on the merits.25 Indeed, the Supreme Court has

emphasized that, when an inmate seeks to challenge an execution

through a Section 1983 action, 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 on the merits.26 And in

cases involving imminent executions, equity must be sensitive to the

States strong interest in enforcing its criminal judgments without

undue interference from the federal courts.27 Williams does not meet

that standard. Even if Williams is only required to demonstrate a

likelihood of success on the merits, he is not entitled to a preliminary

injunction for the same reasons explained below.

25 See, Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 530
F.3d 724, 732-33 (8th Cir. 2008) (en banc); see also Mazurek v. Armstrong, 520 U.S.
968, 972 (1997) (per curiam) (injunctions should not be granted unless the movant,
by a clear showing, carries a burden greater than that required on summary
judgment (internal quotation marks omitted) (emphasis in original)).
26 Hill v. McDonough, 547 U.S. 573, 584 (2006) (citing, among other cases,

Mazureks clear showing requirement to emphasize standard); see also Nooner v.

Norris, 491 F.3d 804, 8078-08 (8th Cir. 2007).
27 Hill, 547 U.S. at 584; see also id. (Both the State and the victims of crime have

an important interest in the timely enforcement of a sentence.); Nooner v. Norris,

491 F.3d at 807-808.
17

 ARGUMENT

I. Williams still has not demonstrated a substantial

likelihood of success on the merits.

Defendants moved to dismiss the Plaintiffs Complaint for failure

to state a claim upon which relief may be granted.28 For the reasons

explained in the brief accompanying that motion29 and repeated below,

Williams still has not demonstrated anylet alone a substantial

likelihood of prevailing on the merits.

Williamss due process claims against the members of the

Arkansas Parole Board and the Governor fail as a matter of
law and are contradicted by undisputed evidence.

Williamss latest attempt at yet another bite at the proverbial

apple is based on his assertion that the Parole Board violated his

Fourteenth Amendment right to due process. Williams cannot establish

a substantial likelihood of success on the merits because, as

demonstrated in Defendants Brief in Support of Motion to Dismiss,

that claim fails as a matter of law and it should be dismissed.30

28 Doc. No. 20.

29 Doc. No. 21.
30 Id.

18

 1. Williams was only entitled to minimal due process

protection in connection with his clemency proceedings.

There is no constitutional right to executive clemency or a

clemency proceeding. To the contrary, under Arkansas law, the

Governor is vested with the discretionary power to grant reprieves,

commutations of sentence, and pardons.31 And, as in most states, his

decision to grant clemency is an act of grace that is not reviewable.32

Indeed, pardon and commutation decisions have not traditionally been

the business of courts and as such, they are rarely, if ever, appropriate

subjects for judicial review.33 And consequently, an inmates unilateral

hope that he will receive clemency does not create a cognizable interest

under the Due Process Clause.34 Thus, to the extent that Williams

attempts to claim that he is entitled to particular kinds of proceedings,

his claim fails as a matter of law.

31 Ark. Const. Art. VI, sec. 18.

32 Herrera v. Collins, 506 U.S. 390, 413 (1993); accord, Noel v. Norris, 336 F.3d 648,
649 (8th Cir. 2003) (per curiam) ([C]lemency is extended mainly as a matter of
grace.); Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000) (Certainly the discretion
of a governor to grant or deny clemency is unlimited in any ordinary
circumstances.).
33 Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981); accord Baze v.

Thompson, 302 S.W.3d 57, 59 (Ky. 2010) (similar).

34 See, Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 282 (1998) (opinion of

Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas); see also, id. at
289 (plurality opinion of Justice OConnor).
19

 Instead, to the extent that Williams has any liberty interest, it is

strictly as a result of Arkansass decision to create a limited statutory

right to certain proceedings.35 And, as Justices OConnors controlling

plurality opinion in Woodard holds, that entitlement is limited to some

minimal procedural safeguards [that] apply to clemency proceedings.36

That entitlement, however, is extremely limited because, as the

plurality opinion concluded, whatever limitations the Due Process

Clause may impose on clemency proceedings, they were not violated by

the inmate being given only a few days notice of hearing, being

interviewed without counsel, and being precluded from testifying or

submitting documentary evidence at the hearing.37 But that limitation

is far from surprising given the Supreme Courts repeated

admonishment that due process is a flexible concept and necessarily

depends on the nature of the asserted interest and the likelihood of an

erroneous conclusion.38 Consequently, it is a rare case that presents a

35 See, Woodard, 523 U.S. at 289; Young, 218 F.3d at 853; Duvall v. Keating, 162
F.3d 1058, 1061 (10th Cir. 1998).
36 523 U.S. at 289 (emphasis in the original).
37 Id. at 289-90 (emphasis added).
38 See, Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (Prison disciplinary

proceedings are not part of a criminal prosecution, and the full panoply of rights due
a defendant in such proceedings does not apply.); Baker v. Carr, 369 U.S. 186, 225
20

successful due process challenge to clemency procedures themselves.39

Indeed, far from being a right that will regularly be invoked, under the

pluralitys standard, at most, judicial intervention might, for example,

be warranted in the face of a scheme whereby a state official flipped a

coin to determine whether to grant clemency, or in a case where the

State arbitrarily denied a prisoner any access to its clemency process.40

Applying that standard, only the very rarest of caseslike where

the state actively interferes with a prisoners access to the very system

that it has itself established for considering clemency petitionshave

been found to meet that standard.41 For example, Young v. Hayes

allowed a due process claim to proceed where a prosecutor had arguably

violated a state witness tampering statute by successfully preventing a

lawyer from providing testimony in support of clemency that, at the

time of the inmates conviction, the prosecutors office uniformly and

without exception exercised preemptory challenges to remove black

(1962) (flexible); Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442
U.S. 1, 12-13 (1979) (likelihood of error).
39 Noel, 336 F.3d at 649; see also, Gissendaner v. Commissioner, 794 F.3d 1327, 1331

(11th Cir. 2015) (emphasizing that [t]he key word in the plurality opinion is
minimal).
40 Woodard, 523 U.S. at 290; see also Duvall, 162 F.3d at 1060.
41 Noel, 336 F.3d at 649.

21

jurors.42 Given that the testimony concerned core constitutional issues

and that state law allowed the submission of such clemency evidence,

Young concluded that the prosecutors conduct was fundamentally

unfair and that it unconscionably interfere[d] with the process that

the States itself has created in a way that violated due process.43

Thus, in other words, Young concluded that the conduct in the

case was so extreme that it was tantamount to flipping a coin to decide

clemency.44

By contrast, courts routinely reject due process challenges to

clemency procedures that are not so fundamentally unfair that they

deny an inmate access to the statutorily provided clemency process.45

Indeed, due process challenges to clemency proceedings fail as a matter

42 218 F.3d at 852.

43 Id. at 853; see also Batson v. Kentucky, 476 U.S. 79, 87-88 (1986).
44 Cf. Winfield v. Steele, 755 F.3d 629, 632 (8th Cir. 2014) (en banc) (Gruender, J.,

concurring) (noting that even Young is an outlier when compared to the narrower
approaches adopted by our sister circuits, which have taken to heart Justice
OConnors emphasis on the word minimal); Link v. Nixon, 2011 WL 529577, *3
(W.D. Mo. Feb. 7, 2011) ([T]he Eighth Circuit has found on one occasion that a
death row inmates challenge to Missouri Board of Probation procedures stated a
valid Section 1983 claim and that case involved extraordinary facts indicating that
the State deliberately interfered with his efforts to present evidence to the
Governor (emphasis added)).
45 E.g., Roll v. Carnahan, 225 F.3d 1016, 1018 (8th Cir. 2000); Gardner v. Garner,

383 Fed. Appx 722 (10th Cir. 2010); Duvall, 162 F.3d 1058; Allen v. Hickman, 407
F.Supp.2d 1098 (N.D. Cal. 2005); Middleton v. Steele, 2014 WL 3420818 (E.D. Mo.
July 14, 2014); Link, 2011 WL 529577.
22

of law whenever the State follows the procedures set out in State law,

the State does not arbitrarily deny the prisoner all access to the

clemency process, and the clemency decision is not wholly arbitrary or

capricious.46 And the Eighth Circuit has made clear that even where

[t]he procedures employed by the state actors in [a] case may not have

been ideal, the lack of an ideal process will not give rise to a due

process claim unless it approach[es] the arbitrariness contemplated by

Justice OConnor in Woodard: a coin flip or an arbitrary denial of access

to any clemency process.47

2. Williams now claims that someone who would have

spoken in his favor at his clemency hearing was not
notified of his clemency application.

Ark. Code Ann. 16-93-204(2)(A) provides:

Before considering an application for a pardon or

recommending a commutation of sentence of a person who
was convicted of capital murder, 5-10-101, or a Class Y,
Class A, or Class B felony, the board shall notify the
victim of the crime or the victim's next of kin, if he or she
files a request for notice with the prosecuting attorney.
(emphasis added).

46 Allen, 407 F.Supp.2d at 1103-1104.

47 Winfield ,755 F.3d at 631.
23

 As delineated above, Williams was convicted of the capital murder

of Cecil Boren in Lincoln County, Arkansas. Borens next of kin were

notified of Williamss clemency hearing.48 At least 12 of Borens

surviving relatives appeared at the hearing. His daughter, Jodi Effird

spoke to the Board. Also, Borens brother, Buddy, spoke.

The statute requires the Board to solicit responses from the next-

of-kin of the victim of the crime, not the next-of-kin of victims of other

crimes Williams committed. Thus, the Board was not required to notify

the daughter of the man who died in the auto collision in Missouri that

Williams caused. If Williams thought Kayla Greenwood might speak in

his favor, it was his responsibility to procure her presence at the

clemency hearing. No doubt, Ms. Greenwood has been following this

case and could have made her opinion known before the day of the

scheduled execution.

The minimal due process requirements of Woodard have not been

violated. The Emergency Amended Motion should be denied.

48 Exhibit 5- Affidavit of Darnisa Johnson.

24

II. The balance of harm and the public interest weigh strongly
against a preliminary injunction.

Both the State and the victims of crime have an important

interest in the timely enforcement of a sentence, and that interest

weighs heavily against issuing a preliminary injunction in a case that

does not concern guilt or innocence or even how an inmate is to be

executed.49 Indeed, as discussed above, Williams has had multiple

opportunities to challenge his conviction, sentence, and the method by

which his lawful sentences of execution will be carried out. He has long

since exhausted both direct and collateral appeals. His guilt is utterly

beyond dispute, and both his victims families and the people of

Arkansas are entitled to see justice done decades after his horrific

crimes.

Further, as Williams is well aware, granting his requested

preliminary injunction and requiring Arkansas to delay his scheduled

execution will make it impossible for Arkansas to lawfully execute him

because Arkansass supply of midazolam (the critical component of

Arkansass lethal injection protocol) expires at the end of this month.50

49 Hill, 547 U.S. at 584; See also Baze v. Rees, 553 U.S. 35, 61 (2008); Nooner, 491
F.3d at 807-808.
50 See Exhibit 19- Drug Labels.

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Williams is also well aware that Arkansaslike other Statesfaces

significant difficulties in obtaining new drugs and that Arkansas has no

source of midazolam.51 Therefore, Williamss request to move his

execution date is tantamount to asking this Court to veto his lawful

sentence and that is decisively not in the public interest.

CONCLUSION

As this Court has found, there is no argument that the Board

members were anything less than impartial, careful, and fair.52 For the

foregoing reasons, Williamss amended request for a preliminary

injunction should be denied.

Respectfully submitted,
LESLIE RUTLEDGE
Attorney General

NICHOLAS J. BRONNI
Deputy Solicitor General

51 E.g., Glossip v. Gross, 135 S.Ct. 2726, 2733-35 (2015) (discussing difficulties in
obtaining drugs for lethal injection); Kelley v. Johnson, 496 S.W.3d 346, 362 (Ark.
2016), rehg denied (July 21, 2016), cert. denied, No. 16-6496, 2017 WL 670646
(2017) (undisputed evidence demonstrates that ADC faces substantial obstacles in
acquiring drugs); Exhibit 20, Pfizer Position Paper (Pfizer recently blocked its drugs
from use in lethal injection); Exhibit 21 - Amicus Brief of Fresenius Kabi USA, LLC,
and West-Ward Pharmaceuticals Corp. filed in McGehee, et al. v. Hutchinson, et al.,
Eastern District of Arkansas Case No. 4:17-cv-179-KGB.
52 Doc. No. 44.

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 GARY L. SULLIVAN
Assistant Attorney General

/s/ Nicholas J. Bronni

OFFICE OF THE ARKANSAS
ATTORNEY GENERAL
323 Center St., Suite 200
Little Rock, AR 72201
(501) 682-6302
nicholas.bronni@arkansasag.gov

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 CERTIFICATE OF SERVICE

I, Gary L. Sullivan, hereby certify that on April 27, 2017, I

electronically filed the foregoing with the Clerk of the Court using the
CM/ECF system, which shall provide service upon the following
CM/ECF participants:

James Moreno
James_Moreno@fd.org

Scott Braden
scott_braden@fg.org

Julie Vandiver
julie_vandiver@fd.org

Jeff Rosenzweig
jrosenzweig@att.net

Lee Short
leedshort@gmail.com

Attorneys for Plaintiffs

/s/ Gary L. Sullivan

Gary L. Sullivan

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