David Ivy v. State of Tennessee

01/30/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

July 11, 2017 Session

DAVID IVY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 01-12388 James C. Beasley, Jr., Judge

No. W2016-02454-CCA-R3-ECN

The Petitioner, David Ivy, appeals the Shelby County Criminal Court’s denial of his

petition for a writ of error coram nobis, seeking relief from his conviction of first degree

premeditated murder and resulting sentence of death. On appeal, the Petitioner contends

that the coram nobis court erred by dismissing his petition, by denying his Rule 36.1

motion to correct an illegal sentence, and by denying his writ of error audita querela. In

addition, he asks that this court advise him as to the correct pleading to file in order to

challenge his death sentence. Based upon the oral arguments, the record, and the parties’

briefs, we conclude that the coram nobis court did not err by denying relief, and we

decline to provide an advisory opinion regarding future requests for relief.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY

THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Kelley J. Henry, Supervisory Assistant Federal Public Defender, and Amy D. Harwell,

Assistant Federal Public Defender, Nashville, Tennessee, for the appellant, David Ivy.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Stephen P. Jones,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In June 2000, the Petitioner was released from prison and placed on parole. David

Ivy v. State, No. W2010-01844-CCA-R3-PD, 2012 WL 6681905, at *1 (Tenn. Crim.

App. at Jackson, Dec. 21, 2012). Subsequently, he began dating the victim, LaKisha

Thomas. Id. Their relationship was “marked by Ivy’s violence against Thomas,” and the

victim obtained an order of protection against the Petitioner on June 6, 2001. Id. at *2.

Two days later, the Petitioner ran up to the victim while she was sitting in her car and

shot her five times, killing her. Id. In 2003, a Shelby County Criminal Court Jury

convicted the Petitioner of first degree premeditated murder and sentenced him to death.

State v. Ivy, 188 S.W.3d 132, 138-39 (Tenn. 2006).

In 2012, the Petitioner filed a petition for post-conviction relief claiming, in

pertinent part, that trial counsel were ineffective during the penalty phase of his trial by

failing to have him evaluated by a mental health professional. David Ivy, No. W2010-

01844-CCA-R3-PD, 2012 WL 6681905, at *26. This court found that while counsel

were deficient, the Petitioner failed to demonstrate prejudice. Id. at 44-46. On May 28,

2015, the Petitioner filed a petition for a writ of error coram nobis “and/or other relief,”

which is the basis for this appeal, asserting that he was intellectually disabled and,

therefore, ineligible for the death penalty pursuant to Atkins v. Virginia, 536 U.S. 304

(2002). In support of his claim, the Petitioner attached a 1984 mental health report from

the Memphis School System. According to the report, the then twelve-year-old

Petitioner’s I.Q. score on the WISC-R was 73, “placing him in the borderline range of

intelligence.” The report stated that additional testing showed the Petitioner, who was in

the sixth grade, exhibited “deficits” in reading, math, and written language and was

reading on just the third-grade level. The report concluded that the Petitioner’s

“[i]ntellectual functioning is more than two standard deviations below the mean,

academic achievement is at or below the fourth percentile in Reading Comprehension,

Reading Mechanics and Written Language and adaptive behavior is not significantly

impaired.”

The State responded to the petition, arguing that it was barred by the one-year

statute of limitations. On May 11, 2016, the Petitioner filed additional argument in

support of his petition, also seeking relief pursuant to Tennessee Rule of Criminal

Procedure 36.1 and a petition for writ of audita querela.

The coram nobis court denied relief without a hearing. First, the court concluded

that relief was not available to the Petitioner for his intellectual disability issue due to our

supreme court’s ruling in Payne v. State, 493 S.W.3d 478, 480 (Tenn. 2016). As to the

motion for relief pursuant to Tennessee Rule of Criminal Procedure 36.1, the court

determined that the Petitioner was not entitled to relief because his death sentence was

authorized by statute. The court noted that “changes in constitutional law render a

sentence voidable, not illegal and void.” As to the audita querela claim, the court

concluded that the writ was obsolete and, thus, could not provide relief. The Petitioner

challenges the rulings of the coram nobis court.

II. Analysis

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A. Writ of Error Coram Nobis

The Petitioner “acknowledges that our supreme court’s decision in Payne holds

that coram nobis does not provide a procedural adjudication of an Atkins claim.” He

contends, though, that Payne was wrongly decided. In the alternative, he contends that

this case is distinguishable from Payne. The State maintains on appeal that the petition

was barred by the statute of limitations. The State also argues that Payne held that a

defendant cannot raise an intellectual disability claim via a petition for a writ of error

coram nobis and that this court is bound by that decision.

The writ of error coram nobis is codified in Tennessee Code Annotated section 40-

26-105 and provides as follows:

There is hereby made available to convicted defendants in

criminal cases a proceeding in the nature of a writ of error

coram nobis, to be governed by the same rules and procedure

applicable to the writ of error coram nobis in civil cases,

except insofar as inconsistent herewith . . . . Upon a showing

by the defendant that the defendant was without fault in

failing to 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.

Tenn. Code Ann. § 40-26-105(a), (b). Generally, a decision whether to grant a writ of

error coram nobis rests within the sound discretion of the trial court. See State v. Hart,

911 S.W.2d 371, 375 (Tenn. Crim. App. 1995).

The writ of error coram nobis is a post-conviction mechanism that has a long

history in the common law and the State of Tennessee. See, e.g., State v. Vasques, 221

S.W.3d 514, 524-26 (Tenn. 2007). The writ “is an extraordinary procedural remedy . . .

[that] fills only a slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661,

672 (Tenn. 1999).

A writ of error coram nobis must be filed within one year after the judgment

becomes final in the trial court. Tenn. Code Ann. § 27-7-103. Nevertheless, the statute

of limitations may be tolled on due process grounds if a petition seeks relief based upon

newly discovered evidence of actual innocence. Wilson v. State, 367 S.W.3d 229, 234

(Tenn. 2012). Our supreme court has stated that “[i]n determining whether tolling of the

statute is proper, the court is required to balance the petitioner’s interest in having a

hearing with the interest of the State in preventing a claim that is stale and groundless.”

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Id. In general, “‘before a state may terminate a claim for failure to comply with . . .

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.’” Id. (quoting Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992)). Our

supreme court described the three steps of the “Burford rule” as follows:

“(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.”

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

In Payne, the petitioner was sentenced to death in 1988 for two murders he

committed in 1987. 493 S.W.3d at 480-81. In 1990, the Tennessee General Assembly

passed legislation prohibiting a death sentence for a defendant with an intellecual

disability at the time of the offense. On December 4, 2001, our supreme court held in

Van Tran v. State, 66 S.W.3d 790, 812 (Tenn. 2001), that the federal and state

constitutions prohibited the execution of individuals who were intellectually disabled. Id.

at 480, 481. In 2002, the United States Supreme Court held in Atkins, 536 U.S. at 321,

that the federal constitution prohibited the execution of intellectually disabled defendants.

Id. at 481.

Ten years later, Payne sought coram nobis relief on the basis that his intellectual

disability prohibited his death sentence. Id. at 483. In support of his claim, he submitted

a psychologist’s 2012 affidavit, opining that the petitioner’s “‘functional intelligence

clearly is at or below 70.’” Id. at 482. The petitioner claimed that the opinion “was new

scientific evidence establishing that ‘he is actually innocent of capital murder and the

death penalty.’’’ Id. at 483. In denying relief, our supreme court explained as follows:

The evil that the coram nobis statute is aimed at

remedying is a conviction based on materially incomplete or

inaccurate information. It is not intended to provide

convicted felons a second trial due to subsequent changes in

the law. Here, the Petitioner is attempting to challenge his

sentence of death based on changes in the law that occurred

many years after his trial. A petition for writ of error coram

nobis pursuant to Tennessee Code Annotated section 40-26-

105(b) is not the appropriate procedural mechanism for

pursuing the Petitioner’s claim of intellectual disability. We

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hold that the Petitioner has failed to state a claim that is

cognizable under the coram nobis statute.

Id. at 486.

Turning to the instant case, both the Petitioner and the State contend that Payne

held that a defendant cannot raise an intellectual disability claim via a petition for a writ

of error coram nobis. However, our supreme court actually found in Payne that a writ of

error coram nobis was not the proper avenue for relief in that particular case because the

petitioner was “attempting to challenge his sentence of death based on changes in the law

that occurred many years after his trial.” Id.; see David Keen v. State, No. W2016-

02463-CCA-R3-ECN, 2017 WL 3475438 (Tenn. Crim. App. at Jackson, Aug. 11, 2017),

perm. to app. filed, (Tenn. Oct. 9, 2017). Such is not the case here. The statutory and

case law prohibiting the execution of the intellectually disabled was established before

the Petitioner went to trial. Therefore, we do not think Payne is dispositive of this case.

That said, though, the Petitioner has failed to satisfy a crucial prerequisite to a

proper petition for a writ of error coram nobis in that, unlike the petitioner in Payne, he

did not allege in his petition and does not allege on appeal that he is presenting newly

discovered evidence. In fact, he notes in his brief that his mental deficiencies were first

recognized when he was a child, and he attached only a 1984 mental health report from

the Memphis School System to his petition. Furthermore, the Petitioner’s judgment

became final in 2003, but he did not file his petition for a writ of error coram nobis until

2015. The Petitioner offered no explanation in his petition and has offered no

explanation on appeal as to why the statute of limitations should be tolled. His petition

was untimely by well over a decade, and, therefore, was barred by the statute of

limitations. Accordingly, the coram nobis court properly dismissed the petition.

B. Rule 36.1 Relief from an Illegal Sentence

The Petitioner argues that he is entitled to relief pursuant to Tennessee Rule of

Criminal Procedure 36.1 because he is intellectually disabled and, thus, not eligible to be

executed. In support of this argument, he cites Tennessee Code Annotated section 39-13-

203(b), which prohibits capital punishment for defendants who are intellectually disabled,

stating that “no defendant with intellectual disability at the time of committing first

degree murder shall be sentenced to death.”

Rule 36.1 permits a defendant to seek correction of an unexpired illegal sentence

at any time. See State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). “[A]n illegal

sentence is one that is not authorized by the applicable statutes or that directly

contravenes an applicable statute.” Tenn. R. Crim. P. 36.1(a).

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As the State correctly notes, the flaw in the Petitioner’s argument is that his

punishment was authorized by statute when it was imposed upon him and, thus, was not

illegal. Moreover, neither at the time of the Petitioner’s sentencing, nor when this present

petition was filed, had he been found to be “intellectually disabled” as contemplated by

the applicable statute.1 Thus, at the time of sentencing, the Petitioner’s sentence did not

contravene any statute, and he is not eligible for relief under Rule 36.1.

C. Writ of Audita Querela

Finally, the Petitioner argues that he is entitled to a writ of audita querela, which 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. at Knoxville, Aug. 21, 2000)

(quoting United States v. Fonseca-Martinez, 36 F.3d 62, 64 (9th Cir. 1994) (citation

omitted)). However, the writ is no longer available in Tennessee. As this court explained

in James Dellinger v. State:

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[.]”

No. E2013-02094-CCA-R3-ECN, 2015 WL 4931576, at *13 (Tenn. Crim. App. at

Knoxville, Aug. 18, 2015). Accordingly, we conclude that this claim is without merit.

We note that the Petitioner requests that we “identify an appropriate procedural

vehicle” in which he can present his claim that he is ineligible for the death penalty due

to his intellectual disability. However, this court cannot provide such an advisory

opinion. See Nichols v. State, 90 S.W.3d 576, 607 (Tenn. 2002) (stating that this court

erred by providing an advisory opinion).

III. Conclusion

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Tennessee Code Annotated section 39-13-203(a) defines “intellectual disability” as “(1)

Significantly subaverage general intellectual functioning as evidenced by a functional intelligence

quotient (I.Q.) of seventy (70) or below; (2) Deficits in adaptive behavior; and (3) The intellectual

disability must have been manifested during the developmental period, or by eighteen (18) years of age.”

We note that the Memphis School System report stated that the Petitioner’s I.Q. was 73 and that his

adaptive behavior was not significantly impaired.

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Based upon the oral arguments, the record, and the parties’ briefs, we affirm the

judgment of the coram nobis court.

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NORMA MCGEE OGLE, JUDGE

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