James Dellinger v.State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 25, 2015

JAMES DELLINGER v. STATE OF TENNESSEE

Appeal from the Circuit Court for Blount County

No. C14432 David Reed Duggan, Judge

No. E2013-02094-CCA-R3-ECN – Filed August 18, 2015

The Petitioner, James Dellinger, appeals from the trial court‘s denial of his petition for a

writ of error coram nobis, his petition for a writ of audita querela, his motion for a

declaratory judgment, his claims pursuant to Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), and his claims under the due process,

law of the land, and open courts provisions of the United States and Tennessee

Constitutions. The Petitioner seeks relief from his conviction for first degree murder and

his resulting death sentence, claiming that he is ineligible for the death penalty because

he is intellectually disabled and that his conviction violates principles of double jeopardy.

We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JOHN

EVERETT WILLIAMS and ROBERT L. HOLLOWAY, JR., JJ., joined.

Amy Dawn Harwell and Michael J. Passino, Assistant Federal Public Defenders,

Nashville, Tennessee, for the appellant, James Dellinger.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior

Counsel; Mike Flynn, District Attorney General; and Kenlyn Foster, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

In February 1992, the Petitioner and his codefendant, Gary Wayne Sutton, killed

Tommy Mayford Griffin in Blount County by shooting him with a shotgun. See State v.

Dellinger, 79 S.W.3d 458, 462-65 (Tenn. 2002). Shortly thereafter, the Petitioner and

Sutton killed Connie Branam, Mr. Griffin‘s sister, who had been searching for her

missing brother. Id. at 464-65. Ms. Branam‘s body was discovered in her burned vehicle

in a wooded area in Sevier County. Id.

The Petitioner and Sutton were charged in Blount County with first degree

premeditated murder of Mr. Griffin. They were charged in Sevier County with first

degree premeditated murder of Ms. Branam and the burning of personal property. The

Sevier County case proceeded to trial first, and the Petitioner and Sutton were convicted

of the charges. They each received a life sentence for the first degree murder conviction

and a consecutive two-year sentence for the burning of personal property conviction.

Their convictions and sentences were affirmed on appeal. See State v. Gary Wayne

Sutton and James Anderson Dellinger, No. 03C01-9403-CR-0090, 1995 WL 406953, at

*1 (Tenn. Crim. App. July 11, 1995), perm. app. denied (Tenn. Jan. 22, 1996).

Following their convictions in Sevier County, the Petitioner and Sutton were tried

and convicted in Blount County for first degree murder of Mr. Griffin. The State sought

the death penalty for both the Petitioner and Sutton based upon one aggravating

circumstance: the Petitioner and Sutton were each previously convicted of one or more

violent felonies. See T.C.A. § 39-13-204(i)(2) (1991). The State relied upon the prior

first degree murder conviction relative to Ms. Branam in establishing this aggravating

circumstance.1 See Dellinger, 79 S.W.3d at 465.

During the penalty phase, the Petitioner presented the following evidence in

mitigation:

Dellinger presented proof that he was raised in a large family with

eight children. His parents were loving but were harsh disciplinarians, and

his family was very poor. Dellinger left school when he was ten years old

and never learned to read or write. He became a carpenter, and testimony

showed that he was a good employee until 1990 when he sustained a back

injury that forced him to quit working. Dellinger has four children and two

stepchildren from his two marriages. Two of his children had died

tragically—an eighteen-year-old daughter died in a car accident, and a

fifteen-month-old son died when a stove fell on him. Dellinger presented

evidence that he is a non-violent, religious, helpful, and kind-hearted man.

He had been a well-behaved prisoner and had prevented another prisoner

from committing suicide. Clinical psychologist Dr. Peter Young testified

that Dellinger has an IQ between 72 and 83 and has borderline personality

disorder. He related that due to a lack of family nurturing Dellinger is

distrustful of others. Young testified that although Dellinger is not violent

1

The State also presented evidence that Sutton was convicted of aggravated assault in Cobb County,

Georgia in 1983. See Dellinger, 79 S.W.3d at 465.

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he is capable of ―flaring up‖ when drunk and angry. Young opined that

Dellinger would do well in a structured prison environment.

Id. At the conclusion of the penalty phase, the jury sentenced the Petitioner and Sutton to

death. The Tennessee Supreme Court upheld their convictions and sentences on appeal.

See id. at 462.

Post-Conviction Proceedings

On March 3, 2003, the Petitioner filed a pro se petition for post-conviction relief

challenging his conviction for first degree murder of Mr. Griffin and his death sentence.

Following the appointment of counsel, the Petitioner filed an amended petition on August

11, 2003. The Petitioner raised numerous claims in his amended petition, including that

he was ineligible for the death penalty due to his intellectual disability and that his trial

attorneys were ineffective in failing to develop evidence of his intellectual disability. On

October 27 and 28, 2004, the Petitioner filed amendments to his amended petition. An

evidentiary hearing was held on October 26-29, 2004, and on January 28, 2005.

During the hearing, the Petitioner presented the testimony of Dr. Peggy Joyce

Cantrell, an expert in clinical psychology and the psychology of rural Appalachia. In

evaluating the Petitioner, Dr. Cantrell reviewed Dr. Young‘s report and raw data from

1995, the psychological evaluation by Middle Tennessee Mental Health Institute in 1993,

and Dr. Diana McCoy‘s report from a 1992 evaluation. Dr. Cantrell interviewed the

Petitioner, his wife, and one of his sisters. Dr. Cantrell reviewed the transcript of the

penalty phase of the trial and eleven interview summaries of the Petitioner‘s family

members and friends conducted in 2003.

Dr. Cantrell testified regarding the Petitioner‘s family history of extreme poverty,

his lack of education, his history of alcohol abuse that began at a young age, his

employment history, his marriage and relationship with his wife, and the deaths of two of

his children. Dr. Cantrell stated that the Petitioner had deficits in the cognitive,

emotional, and interpersonal areas. Dr. Cantrell noted that the Petitioner previously had

taken two or three IQ tests. She described the Petitioner‘s scores on the tests as ―very

consistent in the borderline to lower end of the low average range of intelligence, with his

verbal skills being less well developed.‖ Dr. Cantrell noted the Petitioner had significant

verbal reasoning deficits. She said that the Petitioner was essentially illiterate and that

his scores on academic testing fell within the first or second grade level. Dr. Cantrell also

said that the Petitioner lacked full personality development and that he would find

forming and sustaining close relationships difficult. Dr. Cantrell testified that while the

Petitioner had cognitive limitations, the limitations were not ―to the degree where he‘s

[intellectually disabled], by any means.‖

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On June 2, 2005, the post-conviction court entered an order denying the Petitioner

relief. Relative to the Petitioner‘s claims relating to intellectual disability, the court noted

Dr. Cantrell‘s testimony that the Petitioner was not intellectually disabled. On appeal, the

Petitioner did not pursue any claims of intellectual disability. The Tennessee Supreme

Court affirmed the post-conviction court‘s denial of post-conviction relief. See Dellinger

v. State, 279 S.W.3d 282, 285-86 (Tenn. 2009).

Subsequent Proceedings

On April 10, 2012, the Petitioner filed a motion to reopen the post-conviction

proceedings. In the original and amended motions, the Petitioner claimed that he was

―actually innocent of the death penalty‖ because of new scientific evidence establishing

his intellectual disability based upon a new rule of constitutional law provided in

Coleman v. State, 341 S.W.3d 221 (Tenn. 2011). The Petitioner also alleged that he was

―actually innocent of the death penalty‖ because his death sentence violated principles of

double jeopardy because a Sevier County jury declined to impose the death penalty for

the murder of Ms. Branam and the State successfully sought the death penalty in Blount

County using the Sevier County conviction as an aggravating circumstance.

In support of his intellectual disabilty claim, the Petitioner attached to his motion

the February 17, 2012 affidavit of Dr. Dale G. Watson, a clinical psychologist from

California who specialized in neuropsychology and neuropsychological assessments.

The Petitioner also attached Dr. Watson‘s report of his December 13, 2010 evaluation.

According to Dr. Watson‘s 2010 report, he evaluated the Petitioner on September 15, 16,

and 17, 2010. Dr. Watson interviewed the Petitioner, administered multiple tests, and

reviewed prior evaluations. Dr. Watson described the Petitioner‘s family, education,

medical, substance abuse, and employment histories.

Dr. Watson concluded that the Petitioner had significant dysfunction within the

left hemispshere of his brain. Dr. Watson found that the brain dysfunction impacted the

Petitioner‘s overall intellectual capacity, capacity to focus, memory, executive functions,

and ability to problem solve and perform academic tasks. According to Dr. Watson,

―[t]he severity of his impairments is of at least a moderate intensity, which is sufficient to

cause significant problems in his day-to-day life.‖ In reviewing Dr. Young‘s pre-trial

evaluation of the Petitioner, Dr. Watson noted that Dr. Young also found brain

dysfunction within the left hemisphere of the Petitioner‘s brain.

Dr. Watson reviewed the results of multiple IQ tests that had been administered to

the Petitioner. The Petitioner was administered the Weschler Adult Intelligence Scale-

Revised (WAIS-R) in December 1991, December 1992, and September 1993; the

Revised Beta II (Beta-II) in April 1993; and the Woodcock Johnson by Dr. Young in

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March 1995. Dr. Watson administered the Weschler Adult Intelligence Scale, Fourth

Edition (WAIS-IV) to the Petitioner in September 2010. Dr. Watson adjusted the

Petitioner‘s IQ scores based upon the Flynn Effect2 and considered whether the scores

were affected by the practice effect.3 Dr. Watson detailed his results as follows:

Instrument Date Full-Scale IQ Flynn Practice Effect

Administered Score Adjusted IQ Present

WAIS-R 12/30/1991 79 75 No

WAIS-R 12/7/1992 89 85 Yes

Beta-II 4/1/1993 72 66 No

WAIS-R 9/15/1993 83 78 Yes

Woodcock 3/29/1995 72 70 No

Johnson

WAIS-IV 9/15/2010 69 68 No

Dr. Watson stated that the examinations impacted by the practice effect

consistently showed higher results and that he did not consider them reliable measures of

the Petitioner‘s intellectual capacity. Dr. Watson noted that the Beta-II was not a

comprehensive measure of intellectual functioning. He then considered the remaining

―Flynn-Adjusted‖ scores of 68 in 2010, 70 in 1995, and 75 in 1991. He concluded that

the Petitioner‘s true IQ was between 66 and 74 when the standard error of estimate (SEE)

was applied. The Petitioner‘s IQ was between 65 and 73 when the standard error of

measurement (SEM) was applied.4 Dr. Watson concluded that the Petitioner satisfied the

first criteria for intellectual disability in that ―his general intellectual functioning [was]

significantly subaverage.‖

Dr. Watson also concluded that the Petitioner satisfied the second criteria of

intellectual disability in that he had ―significant limitations in adaptive functioning.‖ Dr.

Watson did not complete a formal assessment of adaptive functioning but relied, in part,

upon the assessment of Dr. Stephen Greenspan, who concluded that the Petitioner had

adaptive functional deficits in language, communication, employment, and academic

2

―The Flynn Effect refers to the observed phenomenon that IQ test scores tend to increase over time.

Thus, the most current versions of a test should be used at all times and, when older versions of the test

are used, the scores must be correspondingly adjusted downward.‖ Coleman, 341 S.W.3d at 242 n.55

(citing AAIDD Manual, at 37).

3

―The practice effect refers to increases in IQ test scores that result from a person‘s being retested using

the same or a similar instrument.‖ Coleman, 341 S.W.3d at 242 n.55 (citing AAIDD Manual, at 38).

4

According to Dr. Watson, confidence intervals calculated under the SEM are based upon observed

scores, while confidence intervals calculated under the SEE are based upon ―the estimated true score

corrected for regression toward the mean.‖

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skills. Dr. Watson stated that his neuropsychological evaluation of the Petitioner

confirmed deficits in functional academic skills and language-based communications.

Finally, Dr. Watson concluded that the Petitioner‘s ―deficits [were] life-long and

both developed and manifested during the developmental period, before the age of 18.‖

As a result, Dr. Watson opined that the Petitioner was intellectually disabled.

Dr. Watson did not conduct an additional evaluation of the Petitioner prior to

preparing his February 2012 affidavit. Dr. Watson stated in his affidavit that the

Petitioner‘s counsel requested that he provide additional analysis in light of the

Tennessee Supreme Court‘s decision in Coleman, as well as additional information that

he received regarding the Petitioner‘s psychosocial history. This additional information

included declarations by the Petitioner‘s siblings, the siblings‘ school records, the

Petitioner‘s children‘s school records, his son‘s birth records, and a psychological

evaluation of his son.

In determining the Petitioner‘s functional IQ, Dr. Watson considered the SEM, the

practice effect, the Flynn Effect, his clinical judgment, the exchangeability of IQ scores,

and the correlation among the tests administered. Dr. Watson again determined that the

most reliable IQ scores were 79 on the WAIS-R in 1991, 72 on the Woodcock Johnson

administered by Dr. Young in 1995, and 69 on the WAIS-IV administered by Dr. Watson

in 2010. When adjusted for the Flynn Effect, the IQ scores were 75, 70, and 68,

respectively. Dr. Watson stated that when the correlations among the three tests were

considered, the Petitioner‘s functional IQ was either 68 or 69. Dr. Watson concluded that

the Petitioner‘s actual IQ was below 70 and that he met the first criteria of intellectual

disability.

In accordance with his prior evaluation, Dr. Watson found that the Petitioner

satisfied the second criteria of intellectual disability relative to deficits in adaptive

functioning. He further found that the onset of intellectual and adaptive functioning

deficits occurred during the developmental period and prior to the age of eighteen. Dr.

Watson, therefore, concluded that the Petitioner was intellectually disabled.

The Petitioner also attached to his motion psychologist Stephen Greenspan‘s

February 7, 2012 affidavit. Dr. Greenspan stated that in November 2010, he issued a

report of his evaluation of the Petitioner related to an issue in federal court regarding

equitable tolling of a filing deadline. Dr. Greenspan also stated that while he mentioned

intellectual disability in his report, it was not the central focus of the report. Dr.

Greenspan was asked to revisit the intellectual disability issue and consider additional

materials that were provided to him after he issued his original November 2010 report.

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Dr. Greenspan stated in his earlier report that he believed the Petitioner was ―right

at the cusp of the [intellectual disability] category, and whether or not he qualifies for that

diagnosis depends on how rigidly or flexibly one interprets the IQ cutoff.‖ Dr.

Greenspan noted, ―Currently, Tennessee is one of a small number of states which uses a

bright line IQ ceiling of 70 points.‖ Following the Tennessee Supreme Court‘s opinion

in Coleman, Dr. Greenspan revised his earlier conclusion and determined that the

Petititioner satisfied the criteria for intellectual disability.

Dr. Greenspan concluded that the Petitioner had significantly subaverage

intelligence, as evidenced by a functional IQ of 70 or below. Dr. Greenspan‘s basis for

his conclusion mirrored that of Dr. Watson. Dr. Greenspan stated that the Petitioner‘s

score on the WAIS-IV administered by Dr. Watson appeared to be the most reliable

indicator of the Petitioner‘s functional IQ. In reaching his conclusion, Dr. Greenspan

also considered results of testing indicating that the Petitioner had ―significant language

deficits that [were] quite severe in nature.‖

Dr. Greenspan concluded that the Petitioner had deficits in adaptive behavior. He

based his conclusion upon his November 2010 interviews of the Petitioner‘s first wife

and a former employer and upon a structured interview with the Petitioner. Dr.

Greenspan also concluded that the Petitioner‘s intellectual disability manifested during

the developmental period or by the age of eighteen.

On December 20, 2012, the Tennessee Supreme Court released its opinion in Keen

v. State, 398 S.W.3d 594 (Tenn. 2012), in which the court rejected the intellectual

disability claims upon which the Petitioner sought to reopen his post-conviction

proceedings. On February 6, 2013, the Petitioner amended his motion to include a

petition for a writ of error coram nobis; a common law writ of audita querela; a motion

for a declaratory judgment; claims under the law of the land, due process, and open

courts clauses; and ―Bivens-like‖ claims. The State filed a response seeking summary

dismissal and maintaining that the coram nobis petition was time barred. Following a

hearing, the trial court dismissed the Petitioner‘s pleading.

The Petitioner sought appellate review of the trial court‘s denial of his motion to

reopen his post-conviction proceedings pursuant to Tennessee Supreme Court Rule 28.

On January 16, 2014, this court denied the Petitioner‘s application for permission to

appeal. See James Dellinger v. State, E2013-02079-CCA-R28-PD (Tenn. Crim. App.

Jan. 16, 2014) (order), perm. app. denied (Tenn. May 15, 2014). The Petitioner conceded

that Keen controlled his claim pursuant to Tennessee Code Annotated section 40-30-

117(a)(2) that he had new scientific evidence establishing that he was intellectually

disabled and, therefore, ―actually innocent‖ of first degree murder and entitled to reopen

his post-conviction proceedings. Id. at *2; see T.C.A. § 40-30-117(a)(2) (2014)

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(authorizing the reopening of post-conviction proceedings if the claim ―is based upon

new scientific evidence establishing that the petitioner is actually innocent of the offense

or offenses for which the petitioner was convicted‖). The Petitioner also conceded that

Keen controlled his claim that Coleman established a new constitutional right requiring

retrospective application. James Dellinger, E2013-02079-CCA-R28-PD, at *2. The

Petitioner argued that due process considerations required tolling the timely presentation

of his intellectual disability claim. Id. This court noted that in Whitehead v. State, 402

S.W.3d 615 (Tenn. 2013), the Tennessee Supreme Court held that due process required

tolling the statute of limitations when a petitioner diligently pursued his rights under the

Post-Conviction Procedure Act but failed to file a timely petition due to attorney

misrepresentation or misconduct beyond a petitioner‘s control. Id. at *2-3. This court

noted that unlike the petitioner in Whitehead, the Petitioner was not prevented from filing

a post-conviction petition as a result of attorney misrepresentation or misconduct. Id. at

*3. Rather, the Petitioner raised a claim in his post-conviction petition that intellectual

disability precluded the imposition of the death sentence. Id.

This court also rejected the Petitioner‘s argument that post-conviction counsel‘s

failure to competently pursue and present the claim during the original post-conviction

proceedings warranted due process tolling. Id. This court stated that a petitioner does

not have a right to the effective assistance of counsel in post-conviction proceedings. Id.

Accordingly, this court denied the Petitioner‘s application for permission to appeal the

trial court‘s dismissal of his motion to reopen. Id. The Petitioner also filed a notice of

appeal pursuant to Tennessee Appellate Procedure Rule 3 regarding the trial court‘s

dismissal of his remaining claims.

ANALYSIS

I. WRIT OF ERROR CORAM NOBIS

The Petitioner contends that the trial court erred in denying his petition for a writ of

error coram nobis with regard to his intellectual disablity claim. A writ of error coram

nobis is an ―extraordinary procedural remedy,‖ filling only a ―slight gap into which few

cases fall.‖ State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999) (citation omitted)

(emphasis in original). Tennessee Code Annotated section 40-26-105(b) (2012) provides

that coram nobis relief is available in criminal cases as follows:

The relief obtainable by this proceeding shall be confined to errors dehors

the record and to matters that were not or could not have been litigated on

the trial of the case, on a motion for a new trial, on appeal in the nature of a

writ of error, on writ of error, or in a habeas corpus proceeding. Upon a

showing by the defendant that the defendant was without fault in failing to

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present certain evidence at the proper time, a writ of error coram nobis will

lie for subsequently or newly discovered evidence relating to matters which

were litigated at the trial if the judge determines that such evidence may

have resulted in a different judgment, had it been presented at the trial.

Unlike the grounds for reopening a post-conviction petition, the grounds for

seeking a writ of error coram nobis are not limited to specific categories. Harris v. State,

102 S.W.3d 587, 592 (Tenn. 2003). Coram nobis claims may be based upon any ―newly

discovered evidence relating to matters litigated at trial‖ so long as the petitioner

establishes that he or she was ―without fault in failing to present the evidence at the

proper time.‖ Id. at 592-93. In a coram nobis proceeding, the trial court first must

consider the newly discovered evidence and be ―reasonably well satisfied with its

veracity.‖ State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). If the defendant is

without fault because the exercise of reasonable diligence would not have led to a timely

discovery of the new information, the trial court must examine both the evidence

presented at the trial and during the coram nobis proceedings to determine whether the

new evidence may have led to a different result. Id. The decision to grant or deny coram

nobis relief rests within the sound discretion of the trial court. Id. at 527-28.

A. Intellectual Disability and the Death Penalty

Enacted in 1990, Tennessee Code Annotated section 39-13-203 prohibits the

execution of defendants who were intellectually disabled at the time they committed first

degree murder. See T.C.A. § 39-13-203(b) (2014); Howell v. State, 151 S.W.3d 450, 455

(Tenn. 2004); State v. Van Tran, 66 S.W.3d 790, 796 (Tenn. 2001). Although the statute

does not have retroactive application, the United States Supreme Court and the Tennessee

Supreme Court have held that the execution of intellectually disabled individuals violates

constitutional prohibitions against cruel and unusual punishment. Atkins v. Virginia, 536

U.S. 304, 321 (2002); Van Tran, 66 S.W.3d at 798-99.

In Tennessee, ―intellectual disabilty‖ rendering a defendant ineligible for the death

penalty requires:

(1) Significantly subaverage general intellectual functioning as evidence by

a functional intelligence quotient (I.Q.) of seventy of below;

(2) Deficits in adaptive behavior; and

(3) The intellectual disability must have manifested during the

developmental period, or by eighteen (18) years of age.

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T.C.A. § 39-13-203(a). All three prongs must be satisfied to establish intellectual

disability. The defendant has the burden of establishing intellectual disability by a

preponderance of the evidence. See id. at (c); Howell, 151 S.W.3d at 465.

In 2004, the Tennessee Supreme Court concluded that the demarcation of an IQ of

70 was a ―bright-line‖ rule that must be satisfied. Howell, 151 S.W.3d at 456-59. In

2011, the Tennessee Supreme Court concluded that although an individual‘s IQ is

genenerally obtained through standardized intelligence tests, Code section 39-13-203

does not specify the manner in which an IQ should be determined or the particular test or

testing method that should be utilized. Coleman v. State, 341 S.W.3d 221, 241 (Tenn.

2011). Noting that Code section 39-13-203(a)(1) only requires a ―functional intelligence

quotient‖ of 70 or below and not a ―function intelligence quotient test score‖ of 70 or

below, the court held that ―trial courts may receive and consider any relevant and

admissible evidence regarding whether the defendant‘s functional I.Q. at the time of the

offense was seventy (70) or below.‖ Coleman, 341 S.W.3d at 241 (emphasis in original).

Unlike clinical practice, Code section 39-13-203(a)(1) prohibits the expression of a

defendant‘s IQ within a range. Id. at 242, 247. Rather, the expert‘s opinion ―must be

expressed specifically (i.e., that the defendant‘s IQ is 75 or is ‗seventy (70) or below‘ or

is above 70).‖ Id. at 242.

In formulating an opinion regarding a defendant‘s functional IQ, experts may rely

upon relevant and reliable practices, methods, standards, and data. Id. Moreover,

if the trial court determines that professionals who assess a person‘s I.Q.

customarily consider a particular test‘s standard error of measurement, the

Flynn Effect, the practice effect, or other factors affecting the accuracy,

reliability, or fairness of the instrument or instruments used to assess or

measure the defendant‘s I.Q., an expert should be permitted to base his or

her assessment of the defendant‘s ―functional intelligence quotient‖ on a

consideration of those factors.

Id. at n.55. The emphasis to be placed upon clinical judgment varies depending upon

―the type and amount of information available, the complexity of the issue, and the

presence of one or more challenging conditions or situations.‖ Id. at 246. The trial court

is not required to follow any particular expert‘s opinion but must fully and fairly consider

all evidence presented, including the results of all I.Q. tests administered to the

defendant. Id. at 242.

The Tennessee Supreme Court in Keen v. State addressed whether a petitioner

sentenced to death may allege intellectual disability as a basis for reopening post-

conviction proceedings. The petitioner in Keen sought to reopen post-conviction

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proceedings, claiming new scientific evidence of actual innocence. Keen, 398 S.W.3d at

598. This new evidence was a newly-obtained IQ score of 67, which the petitioner

claimed established that he was intellectually disabled and, therefore, ―actually innocent‖

of first degree murder. Id. The petitioner also argued that Coleman established a new

rule of constitutional law that should be applied retroactively. Id. at 599. Our supreme

court rejected both arguments. The court held that Coleman addressed the interpretation

and application of Tennessee Code Annotated section 39-13-203 and was not a

constitutional ruling. Id. at 609. The court also held that ―a claim alleging ineligibility

for the death penalty does not qualify as an actual innocence claim[.]‖ Id. at 613. While

remaining ―committed to the principle that Tennessee has no business executing persons

who are intellectually disabled,‖ the court held that the petitioner failed to meet the

requirements for reopening his post-conviction proceedings. Id.

In addressing its holdings in Howell and Coleman, our supreme court noted:

Regrettably, several courts misconstrued our holding in Howell that Tenn.

Code Ann. § 39-13-203(a)(1) established a ―bright line rule‖ for

determining intellectual disability. They understood this language to mean

that courts could consider only raw I.Q. scores. Accordingly, these courts

tended to disregard any evidence suggesting that raw scores could paint an

inaccurate picture of a defendant‘s actual intellectual functioning. This was

an inaccurate reading of Howell, in which we took pains to say that the trial

court should ―giv[e] full and fair consideration to all tests administered to

the petitioner‖ and should ―fully analyz[e] and consider[ ] all evidence

presented‖ concerning the petitioner‘s I.Q.

Id. at 603 (citations omitted) (emphais in original). The petitioner requested that the

supreme court remand his case for a new hearing on the issue of intellectual disability,

just as the court had done in Coleman, 341 S.W.3d at 252-53, and in Smith v. State, 357

S.W.3d 322, 354-55 (Tenn. 2011). See Keen, 398 S.W.3d at 613. The court, however,

rejected the petitioner‘s request and noted that unlike the petitioner, the petitioners in

Coleman and Smith took advantage of the one-year window for seeking relief following

the recognition of the constitutional prohibition against executing intellectual disabled

defendants in Van Tran and Atkins. Id. The petitioner failed to avail himself of that

opportunity. Id.

B. Analysis

A writ of error coram nobis lies ―for subsequently or newly discovered evidence

relating to matters which were not litigated at the trial if the judge determines that such

evidence may have resulted in a different judgment, had it been presented at the trial.‖

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T.C.A. § 40–26–105(b) (2012); State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App.

1995); see Cole v. State, 589 S.W.2d 941 (Tenn. Crim. App. 1979). The purpose of a

coram nobis proceeding ―is to bring to the attention of the court some fact unknown to

the court, which if known would have resulted in a different judgment.‖ State ex rel.

Carlson v. State, 407 S.W.2d 165, 167 (Tenn. 1966). The decision to grant or deny such

a writ rests within the sound discretion of the court. Jones v. State, 519 S.W.2d 398, 400

(Tenn. Crim. App. 1974); see Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim. App.

1988). A petition for a writ of coram nobis must be filed within one year of the judgment

becoming final in the trial court. State v. Mixon, 983 S.W.2d 661, 670 (Tenn. 1999). A

judgment becomes final ―thirty days after its entry in the trial court if no post-trial

motions are filed or upon entry of an order disposing of a timely filed, post-trial motion.‖

Harris v. State, 301 S.W.3d 141, 144 (Tenn. 2010). A limited exception to the statute of

limitations exists when due process requires tolling. Workman v. State, 41 S.W.3d 100,

103 (Tenn. 2001).

―When a petitioner seeks a writ of error coram nobis based on newly discovered

evidence of actual innocence, due process considerations may require tolling of the

statute of limitations.‖ Harris, 301 S.W.3d at 145 (citing Workman, 41 S.W.3d at 101).

―[B]efore a state may terminate a claim for failure to comply with procedural

requirements such as statutes of limitations, due process requires that potential litigants

be provided an opportunity for the presentation of claims at a meaningful time and in a

meaningful manner.‖ Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992); see

Workman, 41 S.W.3d at 102. However, a petitioner ―must exercise due diligence in

presenting the claim.‖ Harris, 301 S.W.3d at 144. Whether due process principles

require tolling the statute of limitations is a mixed question of law and fact and is

reviewed de novo with no presumption of correctness. See Vaughn v. State, 202 S.W.3d

106, 115 (Tenn. 2006).

Relative to due process tolling, the Tennessee Supreme Court has prescribed a

three-part analysis whereby the coram nobis court must

(1) determine when the limitations period would normally have begun to

run; (2) determine whether the grounds for relief actually arose after the

limitations period would normally have commenced; and (3) if the grounds

are ―later-arising,‖ determine if, under the facts of the case, a strict

application of the limitations period would effectively deny the petitioner a

reasonable opportunity to present the claim. In making this final

determination, courts should carefully weigh the petitioner‘s liberty interest

in ―collaterally attacking constitutional violations occurring during the

conviction process,‖ Burford, 845 S.W.2d at 207, against the State‘s

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interest in preventing the litigation of ―stale and fraudulent claims.‖ Id. at

208.

Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995) (footnote omitted).

In the present case, the limitations period for seeking coram nobis relief generally

would have begun following the Petitioner‘s trial in 1996. The Petitioner filed his

petition for a writ of error coram nobis on February 6, 2013, more than fifteen years after

the one-year statutue of limitations expired.

The Petitioner contends that he is entitled to due process tolling of the statute of

limitations. We note that the Petitioner raised the issue of intellectual disability in a

limited manner before his trial and during the post-conviction proceedings.

While the execution of intellectually disabled defendants was not constitutionally

prohibited at the time of the Petitioner‘s trial in 1996, it was prohibited by Tennessee

Code Annotated section 39-13-203. See Van Tran, 66 S.W.3d at 798-99. The Petitioner

raised an intellectual disability issue before the trial when he and his codefendant filed a

motion seeking IQ testing while under the influence of alcohol. State v. James

Henderson Dellinger and Gary Wayne Sutton, No. E1997-00196-CCA-R3-DD, 2001 WL

220186, at *16 (Tenn. Crim. App. Mar. 7, 2001) aff’d, 79 S.W.3d 458 (Tenn. 2002).

They argued that their consumption of alcohol before the killing may have lowered their

IQ levels below 70, rendering them statutorily ineligible for the death penalty. Id.

Following an evidentiary hearing, the trial court found no evidence showed alcohol

consumption had any effect on IQ levels and that no recognized test existed for

measuring a person‘s IQ level while intoxicated. Id. The trial court also found that the

Petitioner and his co-defendant failed to establish that they had deficits in adaptive

behavior or that they had an intellectual disability that manifested itself during the

developmental period or by the age of eighteen. Id.

On appeal, the Petitioner and his codefendant abandoned their intellectual

disability claim but maintained that their IQ levels while intoxicated were relevant to the

issues of intent and premeditation. Id. This court rejected the argument and upheld the

trial court‘s findings that alcohol consumption did not effect IQ levels and that no

recognized test existed for determining the IQ level of an intoxicated person. Id.

Because the Petitioner did not raise an intellectual disability issue on appeal, this court

did not address the trial court‘s findings related to deficits in adaptive behavior and its

manifestation during the developmental period.

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In 2001, the Tennessee Supreme Court recognized that the execution of

intellectually disabled defendants is constitutionally prohibited. See Van Tran, 66

S.W.3d at 798-99. The Petitioner raised a claim of intellectual disability in his amended

petition for post-conviction relief. During the evidentiary hearing, he presented the

testimony of Dr. Cantrell, who did not conclude that the Petitioner was intellectually

disabled. The post-conviction court denied the Petitioner‘s intellectual disability claim,

and the Petitioner did not raise an intellectual disability claim on appeal.

The Petitioner maintains that the reports of Drs. Watson and Greenspan were

―newly available‖ evidence that did not become available until after the trial concluded.

The Petitioner acknowledges that his intellectual disability existed prior to the trial. He

argues, however, that circumstances beyond his control prevented him from presenting

such evidence. According to the Petitioner, evidence of his intellectual disability first

became available following our supreme court‘s opinion in Coleman.

Generally, evidence must not have been known to the defendant at the time of trial

to qualify as newly discovered evidence. Wlodarz v. State, 361 S.W.3d 490, 506 (Tenn.

2012). A narrow exception exists where ―‗although not newly discovered evidence, in

the usual sense of the term,‘ the ‗availability‘ of the evidence ‗is newly discovered.‘‖

Harris, 301 S.W.3d at 160-61 (Koch, J., concurring) (quoting Taylor v. State, 171

S.W.2d 403, 405 (Tenn. 1943)); see David G. Housler, Jr. v. State, No. M2010-02183-

CCA-R3-PC, 2013 WL 5232344, at *44 (Tenn. Crim. App. Sept. 17, 2013).

This narrow exception has been applied where previously unavailable evidence

became available following a change in factual circumstances. See, e.g., Taylor, 171

S.W.2d at 405 (applying the exception when at the time of the trial, one witness was

hospitalized and another was working outside the state, and they later became available to

testify); Misty Jane Brunelle v. State, No. E2010-00662-CCA-R3-PC, 2011 WL

2436545, at *10 (Tenn. Crim. App. June 16, 2011), perm. app. denied (Tenn. Oct. 18,

2011) (noting that the petitioner should have sought coram nobis relief when a DCS

report known to the petitioner but sealed at the time of trial later became available).

Other cases applying this exception involved testimony of a codefendant or a witness

who previously refused to testify by asserting the constitutional privilege against self-

incrimination. See, e.g., David G. Housler, Jr., 2013 WL 5232344, at *44; United States

v. Guillette, 404 F. Supp. 1360, 1372-74 (D.C. Conn. 1975); Brantley v. State, 912 So.2d

342, 343 (Fla. App. 2005); State v. Williams, 246 So.2d 4, 6 (La. 1971); Commonwealth

v. Brown, 431 A.2d 343, 344 (Pa. Super. Ct. 1981); State v. Gerdes, 258 N.W.2d 839,

843 (S.D. 1977).

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The Petitioner has not cited to any authority applying this narrow unavailability

exception based upon a change in the law. ―Issues regarding whether a change in the law

should apply post-trial related to retroactivity and are more properly addressed in post-

conviction proceedings or a motion to reopen post-conviction proceedings.‖ Vincent

Sims v. State, No. W2014-00166-CCA-R3-PD, 2014 WL 7334202, at *10 (Tenn. Crim.

App. Dec. 23, 2014), perm. app. denied (Tenn. May 18, 2015); Tyrone Chalmers v. State,

No. W2013-02317-CCA-R3-PD, 2014 WL 2993863, at *9 (Tenn. Crim. App. June 30,

2014), perm. app. denied (Tenn. Nov. 19, 2014); Dennis Wade Suttles v. State, No.

E2013-01016-CCA-R3-PD, 2014 WL 2902271, at *15 (Tenn. Crim. App. June 25,

2014), perm. app. denied (Tenn. Nov. 21, 2014). Even if the unavailability exception

applies to a change in law, the Petitioner is not entitled to relief.

The Petitioner argues that following Howell and prior to Coleman, courts could

consider only raw IQ scores in determining intellectual disability pursuant to Tennessee

Code Annotated section 39-13-203(a)(1). In Keen, however, the Tennessee Supreme

Court stated that Howell did not provide for such a limitation. Keen, 398 S.W.3d at 603.

Rather, the court in Howell instructed trial courts to ―‗giv[e] full and fair consideration to

all tests administered to the petitioner‘‖ and to ―‗fully analyz[e] and consider[ ] all

evidence presented‘ concerning the petitioner‘s IQ.‖ Id. (quoting Howell, 151 S.W.3d at

459).

The Tennessee Supreme Court stated in Coleman that its review of all cases

involving the application of Tennessee Code Annotated section 39-13-203 reflected that

―the parties and the courts have not been limiting their consideration of whether a

criminal defendant has a ‗functional intelligence quotient of seventy (70) or below‘ to the

defendant‘s raw I.Q. test scores.‖ Coleman, 341 S.W.3d at 247. The court explained:

For example, in Cribbs v. State, both the State and Mr. Cribbs

presented evidence that his raw I.Q. test scores did not accurately reflect his

actual I.Q. On behalf of the State, Dr. Wyatt Nichols stated that Mr.

Cribbs‘s intellectual level was actually higher than the I.Q. test score of 73

and was ―[m]ore like the mid to high 80s.‖ Cribbs v. State, 2009 WL

1905454, at *22, *32. Dr. Pamela Auble, appearing for Mr. Cribbs, stated

in her initial report that his I.Q. was between 71 and 84. Cribbs v. State,

2009 WL 1905454, at *17. However, Dr. Auble later revised her opinion

based on information obtained after her first report and concluded that Mr.

Cribbs‘s I.Q. was below seventy. Cribbs v. State, 2009 WL 1905454, at

*17. Based on all the evidence, the trial court concluded that the I.Q. test

that produced the score of 73 was the most reliable. The trial court found

that Dr. Auble‘s explanation for the change in her opinion was not credible

-15-

and that Dr. Nichols‘s testimony was persuasive. Cribbs v. State, 2009 WL

1905454, at *32.

The consideration of I.Q. test scores in Cribbs v. State is but one

example of cases in which the State has argued and presented evidence that

scores on I.Q. tests should not be considered on their face value. See also

State v. Strode, 232 S.W.3d [1, 5 (Tenn. 2007)] (the State presented

evidence challenging the score on the basis that the defendant had been

malingering); [Leonard Edward] Smith v. State, 2010 WL 3638033, at *30

(the State presented evidence that the defendant‘s I.Q. test score should be

discounted because of malingering); Van Tran v. State, 2006 WL 3327828,

at *4-6 (the State argued that the Vietnamese-born defendant‘s low I.Q. test

score reflected cultural and linguistic bias).

Id. The Tennessee Supreme Court concluded that these cases reflected ―the parties‘ and

the courts‘ existing awareness that, as a practical matter, a criminal defendant‘s

‗functional intellegence quotient‘ cannot be ascertained based only on raw I.Q. scores.‖

Id. The court further concluded that the cases also reflected ―the parties‘ conclusion that

Tenn. Code Ann. § 39-13-203(a) does not prevent them from presenting relevant and

competent evidence, either to prove or to disprove that the defendant‘s ‗functional

intelligence quotient‘ when the crime was committed was ‗seventy (70) or below.‘‖ Id. at

247-48.

In Hall v. Florida, 134 S. Ct. 1986 (2014), the United States Supreme Court held

that Florida courts‘ interpretation of the significantly subaverage intellectual functioning

provision in Florida‘s intellectual disability statute was unconstitutional. Florida courts

interpreted the statute as requiring a strict raw I.Q. test score of 70 without consideration

of the standard error of measurement. Hall, 134 S. Ct. at 1995-2000. The Supreme

Court agreed ―with the medical experts that when a defendant‘s IQ test score falls within

the test‘s acknowledged and inherent margin of error, the defendant must be able to

present additional evidence of intellectual disability, including testimony regarding

adaptive deficits.‖ Id. at 2001. Unlike the defendant in Hall, the Petitioner in the present

case was not precluded during his original trial or during the post-conviction proceedings

from presenting evidence in addition to his raw IQ test scores to establish that his

―functional intelligence quotient‖ was 70 or below at the time of the murder.

Contrary to the Petitioner‘s claims, the information in the affidavits of Drs.

Watson and Greenspan was available prior to Coleman. Prior to the release of Coleman

in 2011, Dr. Watson concluded in 2010 that the Petitioner was intellectually disabled.

Dr. Watson‘s 2010 report did not indicate any restrictions in Tennessee law that

precluded such a finding. At the trial and the post-conviction proceedings, the Petitioner

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could have presented relevant and competent evidence, in addition to his raw IQ test

scores, to establish that his ―functional intelligence quotient‖ at the time of the murder

was ―seventy (70) or below.‖

More than seven years after Dr. Cantrell testified during the post-conviction

proceedings, the Petitioner filed a petition seeking to present testimony from mental

health experts whose opinions differed from those of Drs. Young and Cantrell. The

information upon which Drs. Watson and Steinberg relied was available to the Petitioner

at the time of the trial and the post-conviction proceedings. The new IQ testing by Dr.

Watson was cumulative to the evidence that was previously available to the Petitioner.

See Wlodarz, 361 S.W.3d at 499 (stating that newly discovered evidence that is merely

cumulative to the evidence previously available does not warrant the issuance of a writ);

see also Vincent Sims, 2014 WL 7334202, at *11 (holding that new IQ testing relied upon

as evidence of intellectual disability was merely cumulative to the evidence previously

available to the petitioner); Tyrone Chalmers, 2014 WL 2993863, at *11 (same); Dennis

Wade Suttles, 2014 WL 2902271, at *17 (same).

The Petitioner argues that he did not present evidence establishing intellectual

disability during post-conviction proceedings due to post-conviction counsel‘s

ineffectiveness. ―‗[T]here is no constitutional right to effective assitance of counsel in

post-conviction proceedings.‘‖ Stokes v. State, 146 S.W.3d 56, 60 (Tenn. 2004) (quoting

House v. State, 911 S.W.2d 705, 712 (Tenn. 1995)). Even if a constitutional right did

exist, ineffective assistance of counsel is not an appropriate ground for coram nobis

relief. See Mindy Dodd v. State, No. M2013-02385-CCA-R3-ECN, 2014 WL 1605168,

at *3 (Tenn. Crim. App. Apr. 22, 2014), perm. app. denied (Tenn. Aug. 29, 2014)

(holding that the petitioner‘s claims of ineffective assistance of trial counsel is not an

appropriate ground for coram nobis relief). A claim of ineffective assistance of counsel

does not justify tolling the statute of limitations for coram nobis relief. Moreover, ―a

petitioner‘s own fresh understanding of the law is not newly discovered evidence.‖

Philander Butler v. State, No. W2012-01512-CCA-R3-CO, 2013 WL 1282313, at *5

(Tenn. Crim. App. Mar. 28, 2013).

We note that the Tennessee Supreme Court recently granted an application for

permission to appeal in Pervis Tyrone Payne v. State, in which this court upheld the trial

court‘s denial of coram nobis relief by a capital defendant who claimed intellectual

disability. Pervis Tyrone Payne v. State, No. W2013-01248-CCA-R3-PD, 2014 WL

5502365, at *1 (Tenn. Crim. App. Oct. 30, 2014), perm. app. granted (Tenn. Feb. 13,

2015). The circumstances in Pervis Tyrone Payne are distinguishable from the instant

appeal. The petitioner‘s trial in Payne occurred in 1988, but Tennessee Code Annotated

section 39-13-203 was enacted in 1990 and did not apply retroactively. Id. at *13. The

petitioner‘s post-conviction proceedings concluded in 1996, but our supreme court did

-17-

not recognize the unconstitutionalty of executing intellectually disabled defendants until

2001. Id. Unlike the petitioner in Payne, the Petitioner in the present case litigated the

intellectual disability issue before the trial and during the post-conviction proceedings.

The facts and circumstances presented in the case are similar to cases in which this

court has upheld the denial of coram nobis relief and our supreme court has denied

applications for permission to appeal. In Tyrone Chalmers, the trial occurred in 1997,

and the petitioner raised an intellectual disability claim in his amended post-conviction

petition but later abandoned the issue. Tyrone Chalmers, 2014 WL 2993863, at *8. In

Dennis Wade Suttles, the trial occurred in 1997, and the petitioner raised an intellectual

disability claim in the amended post-conviction petition. Dennis Wade Suttles, 2014 WL

2902271, at *14. In Vincent Sims, the trial occurred in 1998, and the petitioner did not

raise an intellectual disability claim during his post-conviction proceedings. Vincent

Sims, 2014 WL 7334202, at *9-10. In each case, this court concluded that the evidence

each petitioner relied upon in their respective coram nobis petition was available for

presentation during each petitioner‘s post-conviction proceedings. Id. at *11; Tyrone

Chalmers, 2014 WL 2993863, at *10-11; Dennis Wade Suttles, 2014 WL 2902271, at

*17. We note that the Tennessee Supreme Court denied the petitioner‘s application for

permission to appeal in Vincent Sims on May 18, 2015, after it had granted permission to

appeal in Pervis Payne.

Even if Coleman provides a new ground for relief, the Petitioner did not file his

petition for a writ of error coram nobis until February 2013, almost twenty-two months

after Coleman was filed. The Petitioner‘s coram nobis petition does not relate to his

motion to reopen his post-conviction petition filed in April 2012. ―No statute in

Tennessee nor tolling rule developed at common law provides that the time for filing a

cause of action is tolled during the period in which a litigant pursues a related but

independent cause of action.‖ Harris, 301 S.W.3d at 146. The Petitioner chose not to

file a petition for a writ of error coram nobis when he filed a motion to reopen his post-

conviction proceedings. It was only after the Tennessee Supreme Court rejected in Keen

the arguments upon which the Petitioner relied in his motion to reopen that he filed a

petition for a writ of error coram nobis. A petitioner may not delay presenting a claim

seeking coram nobis relief until ―every other avenue of relief ha[s] been exhausted.‖

Billy Ray Irick v. State, No. E2010-02385-CCA-R3-PD, 2011 WL 1991671, at *18

(Tenn. Crim. App. May 23, 2011), perm. app. denied (Tenn. Aug. 25, 2011).

We conclude that under the circumstances of this case, the delay in seeking coram

nobis relief was unreasonable. See Vincent Sims, 2014 WL 7334202, at *12 (concluding

that the twenty-month delay in filing a petition for a writ of error coram nobis following

the release of Coleman was unreasonable); Tyrone Chalmers, 2014 WL 2993863, at *11

(holding that the twenty-two-month delay in filing a petition for a writ of error coram

-18-

nobis following the release of Coleman was unreasonable); Dennis Wade Suttles, 2014

WL 2902271, at *18 (concluding that the twenty-one-month delay in filing a petition for

a writ of error coram nobis following the release of Coleman was unreasonable). See

generally Terry Lynn King v. State, No. E2014-01202-CCA-R3-ECN, 2015 WL 3409486

(Tenn. Crim. App. May 28, 2015).

We conclude that the Petitioner‘s petition was barred by the one-year statute of

limitations and that due process does not require tolling of the statute of limitations.

Accordingly, the Petitioner is not entitled to coram nobis relief.

II. AUDITA QUERELA CLAIM

The Petitioner asserts that the trial court erred in denying his petition for a writ of

audita querela. A writ of audita querela is a ―common law writ affording ‗relief to a

judgment debtor against a judgment or execution because of some defense or discharge

arising subsequent to the rendition of the judgment or the issue of the execution.‘‖

Dwight Seaton v. State, No. E1999-01312-CCA-R3-CD, 2000 WL 1177462, at *3 (Tenn.

Crim. App. Aug. 21, 2000) (quoting United States v. Fonseca-Martinez, 36 F.3d 62, 64

(9th Cir. 1994) (citation omitted)). The Tennessee Supreme Court has concluded that the

writ of audita querela ―is absolutely unknown and obsolete in the practice of this State.‖

Marsh v. Haywood, 25 Tenn. 210, 1845 WL 1897, at *1 (Tenn. 1845). Furthermore,

Tennessee Code Annotated section 27-8-102 (2000) reflects that the writ of audita

querela is obsolete by providing that the statutory writ of certiorari lies ―[i]nstead of

audita querela[.]‖ Accordingly, the Petitioner is not entitled to relief on this basis.

III. DECLARATORY JUDGMENT

The Petitioner next contends that the trial court erred in denying his request for a

declaratory judgment with respect to his intellectual disablity and double jeopardy claims.

Tennessee Code Annotated section 29-14-102(a) (2012) provides that ―[c]ourts of record

within their respective jurisdictions have the power to declare rights, status, and other

legal relations whether or not further relief is or could be claimed[.]‖ Section 29-14-103

(2012) provides:

Any person . . . whose rights, status, or other legal relations are affected by

a statute, municipal ordinancy, contract, or franchise, may have determined

any question of construction or validity arising under the instrument,

statute, ordinance, contract, or franschise and obtain a declaration of rights,

status or other legal relations thereunder.

-19-

The State, however, asserts that the Petitioner‘s claims are barred by the doctrine

of sovereign immunity. Article I, section 17 of the Tennessee Constitution provides,

―Suits may be brought against the State in such manner and in such courts as the

Legislature may by law direct. The traditional construction of the clause is that suits

cannot be brought against the State unless explicitly authorized by statute.‖ Colonial

Pipeline Co. v. Morgan, 263 S.W.3d 827, 849 (Tenn. 2008). Tennessee Code Annotated

section 20-13-102 (2009) further provides: ―No court in the state shall have any power,

jurisdiction, or authority to entertain any suit against the state, or against any officer of

the state acting by authority of the state, with a view to reach the state, its treasury, fund,

or property. . . .‖

The Petitioner contends that the State waived the issue of sovereign immunity by

failing to raise it in the trial court. Nevertheless, sovereign immunity may only be

explicitly waived or held inapplicable. See Colonial Pipeline Co., 263 S.W.3d at 853.

Neither exception applies in this case because the declaratory judgment action was not

raised as a facial constitutional challenge to enjoin a state official from enforcing an

unconstitutional statute. See id.; see also Suttles, 2014 WL 2902271, at *19 (concluding

that the doctrine of sovereign immunity barred the petitioner‘s declaratory judgment

action against the State in which he alleged that he was precluded from the death penalty

because of an intellectual disability). Accordingly, the Petitioner is not entitled to relief

on this basis.

IV. “BIVENS-LIKE” CLAIMS

The Petitioner asserts that the trial court erred in denying his claims of intellectual

disability and violation of double jeopardy principles pursuant to Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In the absence

of a federal statute providing for damages against a federal employee for violating the

United States Constitution, the United States Supreme Court in Bivens recognized a

limited, implied cause of action by a private citizen against federal employees for

egregious violations of the Fourth Amendment. See Bivens, 403 U.S. at 390. The

Supreme Court provided for a judicially-created damages remedy, concluding that the

plaintiff would otherwise have no remedy for an unconstitutional invasion of his rights by

federal agents. Id. Thus, ―Bivens established that the victims of a constitutional violation

by a federal agent have a right to recover damages against the official in federal court

despite the absence of any statute conferring such a right.‖ Carlson v. Green, 446 U.S.

14, 18 (1980).

Both the trial court and the Petitioner correctly recognize that Tennessee courts

have not expanded Bivens to include an implied cause of action against the State or a

State official based on a violation of Tennessee law. Furthermore, Bivens provides for an

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implied cause of action for monetary damages. See Bivens, 403 U.S. at 397. The

Petitioner, however, seeks to invalidate his death sentence, a remedy not recognized by

Bivens. Finally, the Petitioner had several opportunities to litigate the issues of

intellectual disability and double jeopardy. He raised the issue of intellectual disability

before the trial in a limited manner and during the post-conviction proceedings. He also

raised the double jeopardy issue in the appeal of his convictions before this court. This

court held that the Petitioner waived the issue by failing to cite to the record or to any

authority to support his claim. See James Henderson Dellinger, 2001 WL 220186, at

*43. Accordingly, the Petitioner is not entitled to relief on this basis.

The Petitioner also asserts that the intellectual disability provisions in Tennessee

Code Annotated section 39-13-203 provide an independent cause of action allowing him

to challenge his eligibility for the death penalty. In construing a statute, this court must

ascertain and give effect to the legislative intent without unduly restricting or expanding

the statute beyond its intended scope. State v. Strode, 232 S.W.3d 1, 9 (Tenn. 2007).

The words in the statute must be given their natural and ordinary meaning in light of their

statutory context. Keen, 398 S.W.3d at 610. ―[A]ny forced or subtle construction that

would limit or extend the meaning of the language‖ must be avoided. Id. (citation

omitted). ―If the statutory language is clear and unambiguous, we apply the statute‘s

plain language in its normal and accepted use.‖ Id.

Tennessee Code Annotated section 39-13-203 provides the elements of intellectual

disability, the burden of proof, and the procedure employed when the issue is raised in

the trial court. The plain language of the statute, however, does not create an independent

cause of action whereby a defendant may challenge his or her eligibility for the death

penalty. Vincent Sims, 2014 WL 7334202, at *12; Tyrone Chalmers, 2014 WL 2993863,

at *12; Dennis Wade Suttles, 2014 WL 2902271, at *20. If the General Assembly had

intended to create a separate and independent cause of action to challenge eligibility for

the death penalty on the basis of intellectual disability, it would have stated so in the

statute. See, e.g., T.C.A. § 40-30-301, et seq. (2012) (providing for a cause of action to

allow certain defendants to request DNA testing of evidence). Accordingly, the

Petitioner is not entitled to relief regarding this issue.

V. OPEN COURTS, DUE PROCESS, AND LAW OF THE LAND CLAIMS

The Petitioner maintains that he is entitled to a hearing on his claims relative to

intellectual disability and double jeopardy violations pursuant to the Open Courts Clause

of Article I, section 17 of the Tennessee Constitution, the due process provisions in the

Fifth and Fourteenth Amendments of the United States Constitution, and the law of the

land provision in Article I, section 8 of the Tennessee Constitution.

-21-

A. Open Courts

Article I, section 17 of the Tennessee Constitution provides: ―That all courts shall

be open; and every man, for an injury done him in his lands, goods, person or reputation,

shall have remedy by due course of law, and right and justice administered without sale,

denial, or delay.‖ In interpreting this provision, our supreme court has stated:

The obvious meaning of this is that there shall be established courts

proceeding according to the course of the common law, or some system of

well established judicature, to which all of the citizens of the state may

resort for the enforcement of rights denied, or redress of wrongs done them.

Staples v. Brown, 85 S.W. 254, 255 (Tenn. 1905); see State ex rel. Herbert S. Moncier v.

Nancy S. Jones, No. M2012-01429-COA-R3-CV, 2013 WL 2492648, at *6 (Tenn. App.

June 6, 2013), perm. app. denied (Tenn. Nov. 13, 2013). This provision ―does not create

a right but, rather, requires a mechanism by which a citizen may redress grievances.‖

State ex rel. Herbert S. Moncier, 2013 WL 2492648, at *6. Accordingly, Article I,

section 17 does not create a substantive cause of action to enforce other constitutional

provisions or laws. Id. The Petitioner may not rely upon the Open Courts Clause as a

means to obtain a hearing on his intellectual disability and double jeopardy claims.

The Petitioner asserts that the procedural bars to a hearing on his intellectual

disability and double jeopardy claims violate the Open Courts Clause. We note that the

Petitioner is barred from filing a second petition for post-convition relief pursuant to

Tennessee Code Annotated section 40-30-102(c). This court previously held that the

Petitioner failed to meet the requirements provided in Code section 40-30-117(a) (2012)

for reopening his post-conviction petition. The Petitioner‘s petition for a writ of error

coram nobis is barred by the one-year statute of limitations provided in section 27-7-103

(Supp. 2012).

These procedural bars were enacted by the legislature. The Open Courts Clause

―has been interpreted . . . as a mandate to the judiciary and not as a limitation upon the

legislature.‖ Harrison v. Schrader, 569 S.W.2d 822, 827 (Tenn. 1978) (citing Scott v.

Nashville Bridge Co., 223 S.W. 844 (Tenn. 1920)). The Petitioner maintains that Scott is

no longer valid and should be overruled. As an intermediate appellate court, however,

we may not overrule law determined by the Tennessee Supreme Court. Rather, we

conclude that the procedural bars to a hearing do not violate the Open Courts Clause of

the Tennessee Constitution. The Petitioner is not entitled to relief on this basis.

-22-

B. Due Process and Law of the Land Claims

The Petitioner contends that the constitutional guarantees of substantive and

procedural due process require that a mechanism by which he may present his intellectual

disability and double jeopardy claims. He also contends that these constitutional

guarantees require any failure to comply with the procedural rules be excused due to his

―substantial limitations‖ and the existence of extraordinary circumstances. The Petitioner

relies upon Whitehead v. State, 402 S.W.3d 615 (Tenn. 2013), to support his claims. We

note that the Petitioner did not raise the issue of whether due process requires a

mechanism to present his claims in his ―Second Amended Motion to Reopen and

Additional Claims for Relief.‖ Nevertheless, the Petitioner is not entitled to relief.

In Whitehead, the supreme court concluded that a petition for post-conviction

relief is entitled to due process tolling of the statute of limitations based upon the conduct

of the petitioner‘s attorney when (1) the petitioner had been deligently pursuing his or her

rights and (2) extraordinary circumstances prevented the timely filing of the petition.

Whitehead, 402 S.W.3d at 631. Counsel in Whitehead erroneously advised the petitioner

of the deadline for filing a pro se post-conviction petition and failed to deliver promptly

to the petitioner the litigation files necessary to prepare the petition. Id. at 632-33. The

court held that the combination of these circumstances prevented the petitioner from

filing a timely post-conviction petition and required due process tolling of the statute of

limitations. Id.

As this court recognized in its order denying the Petitioner‘s application for

permission to appeal the post-conviction court‘s denial of his motion to reopen,

Whitehead is distinguishable from the present case. See James Dellinger v. State, No.

E2013-02079-CCA-R28-PD (Tenn. Crim. App. Jan. 16, 2014) (order), perm. app. denied

(Tenn. May 15, 2014). The Petitioner in the present case was not prevented from filing a

post-conviction petition due to attorney misconduct or misrepresentation. Rather, the

Petitioner raised his intellectual disability claim in his post-conviction petition, but the

testimony of his mental health expert during the hearing did not support his claim. The

Petitioner also unsuccessfully raised the double jeopardy issue in this court in the appeal

of his conviction. The Petitioner argues that, due to extraordinary circumstances in the

form of ineffective assistance of post-conviction counsel, he should be permitted to raise

both claims again. However, as the supreme court recognized in Whitehead, there is no

right to the effective assistance of counsel in post-conviction proceedings. Whitehead,

402 S.W.3d at 625 n.10 (citing Stokes, 146 S.W.3d at 57, 60-61). The Petitioner is not

entitled to relief on this basis.

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CONCLUSION

In consideration of the foregoing and the record as a whole, the judgment of the

trial court is affirmed.

____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE

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