On August 2, 2012, Federal District Court Judge Phillip M. Pro of the District of Nevada had issued an order denying the habeas petition of death row inmate Cary Wallace Williams. Williams v. Baker, 2:98-cv-00056-PMP-VCF (D. Nev. Aug. 2, 2012). Judge Pro did issue a COA on the following claims:
Claim 1(G) - ineffective assistance of counsel for failing to obtain a defense expert to rebut the alleged aggravating circumstance of torture; and
Claim 16 - the murder to avoid lawful arrest was unconstitutionally because it is impermissibly vague and overbroad as applied and insufficient evidence supported it.
Regarding Williams’ argument that he could establish cause and prejudice under Martinez v. Ryan, 132 S.Ct. 1309 (2012), to overcome the default of certain trial counsel ineffectiveness claims, Judge Pro found: "Because all of the claims to which the Martinez holding could potentially apply are timebarred, the court will not delve into whether the procedural default of the claims may be excused due to ineffective assistance of post-conviction counsel."
On February 11, 2013, Judge Pro issued an order denying Williams’ Rule 59(e) motion that sought relief from the August 2, 2012 order. Among the arguments in Williams’ Rule 59(e) motion was that the district erred in refusing to consider certain evidence offered in support of subclaims of ineffective assistance by trial counsel. The district court had excluded the evidence from consideration after finding that Williams had not been diligent in presenting the evidence in state court. The district court rejected Williams’ reliance on cases where federal courts either considered evidence that had been presented in successor state proceedings or where the evidence was presented for the first time in federal habeas proceedings after the state court denied the petitioner’s request to develop the evidence in a subsequent proceeding and there was no adequate and independent state rule barring a state hearing at the relevant time. Here, in contrast to those cases, Williams had presented the evidence at issue to the state court in subsequent proceedings but the state court denied relief based on an adequate and independent state procedural bar.
Williams next argued that denial of relief on the ineffective assistance of trial counsel subclaims and the denial of the related evidentiary hearing motion had to be reconsidered in light of Martinez v. Ryan. According to Williams, under Martinez, ineffective assistance of post-conviction counsel can serve as "cause" for the failure of a habeas petitioner to fully develop the factual basis for his claims in state court. Although Williams cited no case law in support of this proposition, the district court did agree that the argument "has at least some merit." It proved no assistance to Williams, however, because Martinez is limited to failures by counsel at initial-review collateral proceedings. Here, Williams had several opportunities after his initial post-conviction proceedings to properly raise his ineffective assistance of trial counsel subclaims but failed to do so until much later.
Judge Pro did grant Williams’ 59(e) motion to the extent that it moved to expand the COA. A COA was granted on:
Whether the district court erred in applying 28 U.S.C. § 2254(e)(2) to deny petitioner's request for an evidentiary hearing.
Whether the district court erred by not granting equitable tolling for the period between August 29, 1998, and September 19, 1999.
The equitable tolling COA is related to Williams’ reliance on scheduling orders by the District Court as well as the State’s acquiescence in Williams’ late filing of his amended petition.