Opposition Brief — Pervis Payne, Petitioner v. Tennessee

NO. 17-8543

IN THE

SUPREME COURT OF THE UNITED STATES

PERVIS TYRONE PAYNE,

Petitioner,

v.

TENNESSEE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE TENNESSEE COURT OF CRIMINAL APPEALS

RESPONDENT’S BRIEF IN OPPOSITION

HERBERT H. SLATERY III

Attorney General & Reporter

State of Tennessee

ANDRÉE S. BLUMSTEIN

Solicitor General

NICHOLAS W. SPANGLER

Assistant Attorney General

Counsel of Record

301 6th Avenue North

P.O. Box 20207

Nashville, Tennessee 37202-0207

(615) 741-3486

Counsel for Respondent

CAPITAL CASE

QUESTION PRESENTED

Does this Court have jurisdiction to decide whether its decision in Hall v. Florida mandates

successive collateral review of a criminal judgment by Tennessee courts?

i

TABLE OF CONTENTS

QUESTION PRESENTED ........................................................................................................i

OPINIONS BELOW ................................................................................................................1

JURISDICTIONAL STATEMENT ..........................................................................................1

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED ......................................1

STATEMENT OF THE CASE .................................................................................................2

REASONS FOR DENYING THE WRIT ..................................................................................6

I.

THIS COURT LACKS JURISDICTION TO REVIEW A DECISION

ENFORCING

STATE

STATUTORY

RESTRICTIONS

ON

SUCCESSIVE COLLATERAL REVIEW. .........................................................6

II.

THIS CASE IS NO VEHICLE TO CONSIDER THE IMPORT OF HALL

BECAUSE THE STATE COURT DID NOT RESOLVE ANY EIGHTH

AMENDMENT ISSUE TO WHICH HALL WOULD APPLY........................... 10

III.

THE STATE COURT’S DECISION DOES NOT CONFLICT WITH ANY

OPINION OF THIS COURT............................................................................ 11

IV.

THE STATE COURT’S DECISION DOES NOT CONTRIBUTE TO ANY

CONFLICT AMONG LOWER COURTS. ....................................................... 13

CONCLUSION ...................................................................................................................... 14

CERTIFICATE OF SERVICE ................................................................................................ 15

ii

TABLE OF AUTHORITIES

CASES

Am. Ry. Express Co. v. Kentucky,

273 U.S. 269 (1927)............................................................................................................7

Atkins v. Virginia,

536 U.S. 304 (2002), (2) ............................................................................................ passim

In re Cathey,

857 F.3d 221 (5th Cir. 2017) ............................................................................................. 13

Chalmers v. Tennessee,

No. 17-6689 (U.S. Jan. 8, 2018) ..........................................................................................6

Coleman v. State,

341 S.W.3d 221 (Tenn. 2011) .............................................................................................4

Coleman v. Thompson,

501 U.S. 722 (1991)............................................................................................................8

Hall v. Florida,

134 S. Ct. 1986 (2014) ............................................................................................... passim

Hall v. State,

109 So. 3d 704 (Fla. 2012) ................................................................................................ 10

Henderson v. Davis,

137 S. Ct. 1450 (2017) ................................................................................................ 10, 11

Henderson v. Stephens,

791 F.3d 567 (5th Cir. 2015) ............................................................................................. 11

Herb v. Pitcairn,

324 U.S. 117 (1945)............................................................................................................7

Leathe v. Thomas,

207 U.S. 93 (1907)..............................................................................................................7

Long v. Davis,

138 S. Ct. 72 (2017).......................................................................................................... 10

Long v. Davis,

663 F. App’x 361 (5th Cir. 2016) ...................................................................................... 11

Martinez v. Davis,

137 S. Ct. 1432 (2017) ...................................................................................................... 10

iii

Martinez v. Davis,

653 F. App’x 308 (5th Cir. 2016) ...................................................................................... 11

Montgomery v. Louisiana,

136 S. Ct. 718 (2016) ................................................................................................. passim

Ex parte Moore,

470 S.W.3d 481 (Tex. Crim. App. 2015) ........................................................................... 10

Moore v. Texas,

137 S. Ct. 1039 (2017) .................................................................................................. 3, 10

Mu’Min v. Virginia,

500 U.S. 415 (1991)............................................................................................................7

In re Payne,

No. 17-6390, 2018 U.S. App. LEXIS 2991,

(6th Cir. Feb. 8, 2018).........................................................................................................3

In re Payne,

No. 17-8871 (U.S. Apr. 30, 2018)........................................................................................3

Payne v. Bell,

418 F.3d 644 (6th Cir. 2005) ...............................................................................................3

Payne v. Bell,

548 U.S. 908 (2006)............................................................................................................3

Payne v. State,

493 S.W.3d 478 (Tenn. 2016) .................................................................................... passim

Payne v. State,

No. W2016-02326-SC-R11-PD, 2017 Tenn. LEXIS 829,

(Nov. 21, 2017). (Pet. 1a.)............................................................................................... 1, 8

Payne v. State,

No. W2013-01215-SC-R11-PD, 2013 Tenn. LEXIS 956,

(Nov. 14, 2013) ..................................................................................................................5

Payne v. State,

No. W2013-01248-CCA-R3-PD, 2014 Tenn. Crim. App. LEXIS 1005,

(Oct. 30, 2014) ...................................................................................................................5

Payne v. State,

No. 02C01-9703-CR-00131, 1998 Tenn. Crim. App. LEXIS 68,

(Jan. 15, 1998) ................................................................................................................ 2, 3

iv

Payne v. Tennessee,

137 S. Ct. 1327 (2017) ........................................................................................................5

Payne v. Tennessee,

501 U.S. 808 (1991)............................................................................................................3

Payne v. Tennessee,

No. 17A858 (U.S. Feb. 13, 2018) ........................................................................................1

Pennsylvania v. Finley,

481 U.S. 551 (1987)............................................................................................................7

Sims and Sample v. Tennessee,

No. 16-445 (U.S. Mar. 20, 2017) .........................................................................................6

Smith v. Phillips,

455 U.S. 209, 102 S. Ct. 940 (1982) ....................................................................................7

State v. Payne,

791 S.W.2d 10 (Tenn. 1990) ...............................................................................................2

Teague v. Lane,

489 U.S. 288 (1989)............................................................................................................9

Walls v. State,

213 So.3d 340 (Fla. 2016) ................................................................................................. 13

Welch v. United States,

136 S. Ct. 1257 (2016) ............................................................................................ 6, 11, 12

White v. Commonwealth,

500 S.W.3d 208 (Ky. 2016)............................................................................................... 13

STATUTES

28 U.S.C. § 1257 .................................................................................................................. 1, 6

28 U.S.C. § 1257(a) .............................................................................................................. 1, 6

28 U.S.C. § 2254 ......................................................................................................................3

Tenn. Code Ann. § 39-13-203 ...................................................................................................4

Tenn. Code Ann. § 39-13-203(a)(1)-(3) .....................................................................................4

Tenn. Code Ann. § 40-26-105 ...................................................................................................4

Tenn. Code Ann. § 40-30-101 ...................................................................................................7

v

Tenn. Code Ann. § 40-30-102(c) ...............................................................................................8

Tenn. Code Ann. § 40-30-117(a) ................................................................................... 2, 3, 8, 9

Tenn. Code Ann. § 40-30-117(a)(1) .............................................................................3, 5, 8, 13

Tenn. Code Ann. § 40-30-117(a)(2) ..........................................................................................3

Tenn. Code Ann. § 40-30-122 ...................................................................................................9

OTHER AUTHORITIES

U.S. Const., art. III ............................................................................................................... 1, 7

vi

OPINIONS BELOW

The order of the Tennessee Supreme Court denying petitioner’s application for permission

to appeal is unreported but available at Payne v. State, No. W2016-02326-SC-R11-PD, 2017 Tenn.

LEXIS 829 (Nov. 21, 2017). (Pet. 1a.) The order of the Tennessee Court of Criminal Appeals

denying petitioner’s application for permission to appeal the denial of his motion to reopen state

post-conviction proceedings is also unreported. (Pet. 2a-7a.)

JURISDICTIONAL STATEMENT

The Tennessee Supreme Court denied petitioner’s application for permission to appeal on

November 21, 2017. (Pet. 1a.) Justice Kagan extended the time for filing a petition for writ of

certiorari until April 20, 2018. Payne v. Tennessee, No. 17A858 (U.S. Feb. 13, 2018). Petitioner

filed his petition on April 16, 2018. He invokes this Court’s jurisdiction under 28 U.S.C. § 1257.

(Pet. 1.)

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED

U.S. Const., art. III, § 2 provides in pertinent part:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this

Constitution, the Laws of the United States, and Treaties made, or which shall be

made, under their Authority

. ..

In all the other Cases before mentioned, the supreme Court shall have appellate

Jurisdiction, both as to Law and Fact, with such Exceptions, and under such

Regulations as the Congress shall make.

28 U.S.C. § 1257(a) provides:

Final judgments or decrees rendered by the highest court of a State in which a

decision could be had, may be reviewed by the Supreme Court by writ of certiorari

where the validity of a treaty or statute of the United States is drawn in question or

where the validity of a statute of any State is drawn in question on the ground of its

being repugnant to the Constitution, treaties, or laws of the United States, or where

any title, right, privilege, or immunity is specially set up or claimed under the

1

Constitution or the treaties or statutes of, or any commission held or authority

exercised under, the United States.

Tenn. Code Ann. § 40-30-117(a) authorizes the reopening of state post-conviction

proceedings under the following pertinent circumstance:

(1) The claim in the motion is based upon a final ruling of an appellate court

establishing a constitutional right that was not recognized as existing at the time of

trial, if retrospective application of that right is required. The motion must be filed

within one (1) year of the ruling of the highest state appellate court or the United

States Supreme Court establishing a constitutional right that was not recognized as

existing at the time of trial . . . .

STATEMENT OF THE CASE

In 1988, a Shelby County, Tennessee, jury convicted petitioner, Pervis Tyrone Payne, of

two counts of first-degree murder for killing Charisse Christopher and her two-year-old daughter,

Lacie. State v. Payne, 791 S.W.2d 10, 11 (Tenn. 1990). The jury also convicted petitioner of

assault with intent to commit first-degree murder of Christopher’s three-year-old son, Nicholas.

Id. Petitioner was sentenced to death for each of the murders and to 30 years in prison for the

assault. Id.

During sentencing proceedings, clinical psychologist Dr. John T. Hutson provided

mitigation testimony that petitioner had “a full scale IQ of 78 with a variance of plus or minus

three, with a verbal IQ of 78, plus or minus 3, and a performance IQ of 82, plus or minus 4,” which

placed him “approximately one standard deviation below the norm of average intelligence.” Payne

v. State, No. 02C01-9703-CR-00131, 1998 Tenn. Crim. App. LEXIS 68, at *42 (Jan. 15, 1998),

perm. app. denied (Tenn. June 8, 1998).

The Tennessee Supreme Court affirmed petitioner’s convictions and sentences on direct

appeal. Payne, 791 S.W.2d at 21. This Court granted certiorari on the question of whether the

Eighth Amendment bars admission of victim impact evidence during the penalty phase of a capital

2

trial and affirmed the judgment of the Tennessee Supreme Court. Payne v. Tennessee, 501 U.S.

808, 830 (1991).

In 1992, petitioner filed a petition for post-conviction relief and a petition for a writ of error

coram nobis. Payne, 1998 Tenn. Crim. App. LEXIS 68, at *2-3 n.3. He argued, among other

things, that his trial counsel was ineffective for failing to investigate and present certain mitigation

evidence during sentencing. Id. at *28. At the post-conviction hearing, Dr. George Baroff, another

clinical psychologist, “confirmed Dr. Hutson’s evaluation of [petitioner], i.e., an IQ of 78, which

placed [petitioner] in a category of borderline intelligence.” Id. at *47. The trial court denied the

petition for post-conviction relief and the petition for a writ of error coram nobis. Id. at *2. In a

consolidated appeal, the Tennessee Court of Criminal Appeals affirmed both denials. Id. at *59.

The Tennessee Supreme Court denied further review.

In 1998, petitioner sought a writ of habeas corpus under 28 U.S.C. § 2254, which the

federal district court denied. Payne v. Bell, 418 F.3d 644, 652 (6th Cir. 2005). The United States

Court of Appeals for the Sixth Circuit affirmed the judgement of the district court. Id. at 646. This

Court denied certiorari. Payne v. Bell, 548 U.S. 908 (2006).

In 2017, petitioner filed a motion in the Sixth Circuit seeking permission to file a successive

§ 2254 petition. In re Payne, No. 17-6390, 2018 U.S. App. LEXIS 2991, at *3 (6th Cir. Feb. 8,

2018). He argued that Hall v. Florida, 134 S. Ct. 1986 (2014), and Moore v. Texas, 137 S. Ct.

1039 (2017), should be applied retroactively to his case. The Sixth Circuit disagreed and denied

petitioner’s motion. In re Payne, 2018 U.S. App. LEXIS 2991, at *9. Petitioner then filed a

petition for a writ of mandamus, which is pending with this Court. In re Payne, No. 17-8871 (U.S.

Apr. 30, 2018).

3

In 2012, petitioner moved to reopen post-conviction proceedings under Tenn. Code Ann.

§ 40-30-117(a)(1), (2). Payne v. State, 493 S.W.3d 478, 481 (Tenn. 2016). He argued that, in

Coleman v. State, 341 S.W.3d 221 (Tenn. 2011),1 the Tennessee Supreme Court established a new

and retroactive constitutional right that was not recognized at the time of his trial. Id. at 482. Later

that year, petitioner filed an “Amended Petition For Relief From Death Sentences,” requesting

relief under the coram nobis statute, Tenn. Code Ann. § 40-26-105, and the intellectual disability

statute, Tenn. Code Ann. § 39-13-203. 2 Id. at 483. He argued that a report prepared by Dr. Daniel

Reschly, Ph.D., was new and previously unavailable scientific evidence that he is intellectually

disabled and, thus, actually innocent of capital murder and not eligible for execution. Id.

According to Dr. Reschly’s report, petitioner took the Wechsler Adult Intelligence ScaleRevised (WAIS-R) in 1987 and achieved a full-scale I.Q. score of 78. Id. at 482. He took the test

again in 1996 and achieved another full-scale I.Q. score of 78. Id. In 2010, he took the fourth

edition of the Wechsler Adult Intelligence Scale (WAIS-IV) and achieved a full-scale I.Q. score

of 74. Id. Dr. Reschly applied the Flynn Effect 3 to adjust these I.Q. scores to 75.4, 72.4, and 73.7

respectively. Id. Based on his clinical judgment and consideration of the Flynn Effect, estimation

of error, practice effect, and cultural differences, Dr. Reschly found that petitioner’s “functional

intelligence clearly is at or below 70.” Id. He also found that petitioner has significant deficits in

adaptive behavior due to substantial limitations in the conceptual skills and practical skills

1

Coleman held that “experts [formulating an opinion regarding a defendant’s I.Q.] may bring to bear and utilize

reliable practices, methods, standards, and data that are relevant in their particular fields,” including consideration of

“standard error of measurement, the Flynn Effect, and the practice effect.” Id. at 242 n.55.

2

Tenn. Code Ann. § 39-13-203(a)(1)-(3) defines intellectual disability as: (1) Significantly subaverage general

intellectual functioning as evidenced by a functional intelligence quotient (“I.Q.”) of 70 or below; (2) Deficits in

adaptive behavior; and (3) The intellectual disability must have been manifested during the developmental period, or

by 18 years of age.

3

“The Flynn Effect refers to the observed phenomenon that I.Q. test scores tend to increase over time.” Coleman,

341 S.W.3d at 242 n.55.

4

domains. Id. Finally, he found that petitioner’s functional intelligence and significant deficits in

adaptive behavior were present before the age of 18. Id. Based on these findings, Dr. Reschly

opined that petitioner is intellectually disabled. Id.

The trial court denied the motion to reopen, and the Tennessee Court of Criminal Appeals

denied permission to appeal. Id. at 483-84. The Tennessee Supreme Court denied further review.

Payne v. State, No. W2013-01215-SC-R11-PD, 2013 Tenn. LEXIS 956 (Nov. 14, 2013).

Petitioner did not seek further review from this Court.

The trial court also denied petitioner’s coram nobis claims, finding them barred by the oneyear statute of limitations.

Id. at 484. The Court of Criminal Appeals affirmed, finding that

petitioner’s 23-year delay in seeking relief was unreasonable. Payne v. State, No. W2013-01248CCA-R3-PD, 2014 Tenn. Crim. App. LEXIS 1005, at *32-33, 41, 43 (Oct. 30, 2014). The Court

of Criminal Appeals also acknowledged this Court’s intervening opinion in Hall, noting that unlike

Hall, “petitioner has not been precluded during his original trial or during post-conviction

proceedings from presenting evidence, other than his raw I.Q. test scores, to establish that his

‘functional intelligence quotient’ when he committed the murder was 70 or below.” Payne, 2014

Tenn. Crim. App. LEXIS 1005, at *39.

The Tennessee Supreme Court affirmed the denial of coram nobis relief, bypassing the

statute of limitations question and finding instead that petitioner failed to state a cognizable coram

nobis claim. Payne, 493 S.W.3d at 486. While acknowledging that the post-conviction reopening

proceedings were outside the scope of review, the court also rejected petitioner’s argument that

Hall applies retroactively within the meaning of Tenn. Code Ann. § 40-30-117(a)(1), Tennessee’s

post-conviction reopening statute. Payne, 493 S.W.3d at 491. This Court denied certiorari. Payne

v. Tennessee, 137 S. Ct. 1327 (2017).

5

On May 21, 2015, petitioner filed another motion to reopen, again asserting his intellectual

disability and citing Hall as the source of a new retroactive constitutional rule. (Pet. 19a.) The

post-conviction court summarily denied the motion.

(Pet. 15a-16a.) The Tennessee Court of

Criminal Appeals denied permission to appeal, citing the holding in Payne v. State, 493 S.W.3d

478, 490-91 (Tenn. 2016), that Hall would not allow for reopening of Tennessee post-conviction

cases. (Pet. 5a.) The Court of Criminal Appeals further stated that the holding in Montgomery v.

Louisiana, 136 S. Ct. 718 (2016), “would not, and did not, affect the retroactive application of

Hall by Tennessee courts.” (Pet. 5a.) Similarly, the court stated that Welch v. United States, 136

S. Ct. 1257 (2016), “would have no effect upon the retroactive application of Hall by Tennessee

Courts.” (Pet. 6a.) The Tennessee Supreme Court denied further review. (Pet. 1a.)

REASONS FOR DENYING THE WRIT

This Court has already denied substantially identical petitions from three other Tennessee

prisoners. See Sims and Sample v. Tennessee, No. 16-445 (U.S. Mar. 20, 2017); Chalmers v.

Tennessee, No. 17-6689 (U.S. Jan. 8, 2018). There is no reason to treat the present petition any

differently.

I.

THIS COURT LACKS JURISDICTION TO REVIEW A DECISION ENFORCING

A STATE STATUTORY RESTRICTION ON SUCCESSIVE COLLATERAL

REVIEW.

Article III of the Constitution and 28 U.S.C. § 1257(a) limit this Court’s appellate

jurisdiction over state courts to reviewing federal questions. See Stephen M. Shapiro, Supreme

Court Practice 208 (10th ed. 2013) (“[T]he Court lacks jurisdiction to review matters of state law.

That principle in turn reflects the Article III limitations on federal judicial power, as well as the

jurisdictional restrictions imposed on the Court by 28 U.S.C. § 1257.”). Section 2 of Article III

grants this Court “appellate Jurisdiction” to review state cases “arising under” the Constitution ,

6

federal laws, or treaties “with such Exceptions, and under such Regulations as the Congress shall

make.” U.S. Const., art. III, § 2. Section 1257(a) limits the Court’s jurisdiction over “[f]inal

judgments or decrees rendered by the highest court of a State in which a decision could be had” to

issues governed by binding federal law. See Mu’Min v. Virginia, 500 U.S. 415, 422 (1991)

(holding that the Court’s appellate jurisdiction under § 1257(a) is limited “to enforcing the

commands of the United States Constitution”).

Specifically, “in a case coming from a state court this court can consider only Federal

questions, and … it cannot entertain the case unless the decision was against the plaintiff in error

upon those questions.” Leathe v. Thomas, 207 U.S. 93, 98 (1907). In contrast, this Court “must

accept as controlling” a state court ruling on a state law issue. Am. Ry. Express Co. v. Kentucky,

273 U.S. 269, 272 (1927).

Consequently, this Court’s appellate jurisdiction over state court

decisions is limited to “correct[ing] them to the extent that they incorrectly adjudge federal rights.”

Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945). That is, this Court may intervene on a state court

decision “only to correct wrongs of constitutional dimension.” Smith v. Phillips, 455 U.S. 209,

221, 102 S. Ct. 940, 948 (1982).

Here, the state court’s decision that successive collateral review is not available to

petitioner’s intellectual-disability claim does not involve an issue of constitutional dimension

because the States have no constitutional obligation to provide any procedures for the collateral

review of criminal judgments. See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987).

Though not compelled by the Constitution, Tennessee provides several avenues to

collaterally attack criminal judgments. One avenue is through the “Post-Conviction Procedure

Act.” Tenn. Code Ann. § 40-30-101.

The Act has built-in restrictions on the availability of

collateral review. For example, it “contemplates the filing of only one (1) petition for post-

7

conviction relief . . . [and] [i]n no event may more than one (1) petition for post-conviction relief

be filed attacking a single judgment. Tenn. Code Ann. § 40-30-102(c). But, as pertinent here, “[a]

petitioner may move to reopen a post-conviction proceeding that has been concluded, under the

limited circumstances set out in [Tenn. Code Ann.] § 40-30-117.” Tenn. Code Ann. § 40-30102(c).

Petitioner moved to reopen post-conviction proceedings under Tenn. Code Ann. § 40-30117(a)(1), which permits state post-conviction proceedings to be reopened when the claim in the

motion to reopen is based on a final ruling of an appellate court establishing a constitutional right

that was not recognized as existing at the time of trial, if retrospective application of that right is

required, and if the motion is filed within one year of the ruling of the highest state appellate court

or the United States Supreme Court establishing a constitutional right that was not recognized as

existing at the time of trial. The state court denied that motion.

This Court lacks jurisdiction to review the state court’s decision denying successive

collateral review under Tenn. Code Ann. § 40-30-117(a), because that denial “rests on a state law

ground that is independent of [any] federal question and adequate to support the judgment. See

Coleman v. Thompson, 501 U.S. 722, 729 (1991). To be clear, the state court’s decision includes

no ruling on any Eighth Amendment claim. The court simply applied a Tennessee statute that

restricts successive collateral attacks on criminal judgments. Specifically, the court concluded that

Hall does not meet the state law criteria for successive collateral review under Tenn. Code Ann. §

40-30-117(a). (Pet. 5a.) The court relied primarily on another state court decision from one of

petitioner’s previous appeals, Payne, 493 S.W.3d 478, cert denied, 137 S. Ct. 1327 (2017). In

Payne, petitioner argued, as he does here, that Hall satisfies Tenn. Code Ann. § 40-30-117(a),

because it “established a new constitutional right that must be applied retroactively.” Payne, 493

8

S.W.3d at 489. The Tennessee Supreme Court flatly rejected petitioner’s argument, concluding

(1) that Hall established no new constitutional right to a collateral-review hearing for intellectual

disability claims and (2) that even if Hall established such a right, the decision did not apply

retroactively. Id. at 490-91.

Petitioner might argue under Montgomery that the question of “retrospective application”

or retroactivity embedded within Tenn. Code Ann. § 40-30-117(a) is a federal one over which this

Court has jurisdiction.

Montgomery held that the conclusion in Teague v. Lane, 489 U.S. 288

(1989), “establishing the retroactivity of new substantive rules is best understood as resting upon

constitutional premises.” 136 S. Ct. at 729. But Montgomery says nothing about a state court’s

authority to determine, as a matter of limiting successive collateral review, when a “final ruling of

an appellate court establish[es] a constitutional right that was not recognized as existing at the time

of trial.” Tenn. Code Ann. § 40-30-117(a). The Post-Conviction Procedure Act sets forth the state

law criteria for qualifying appellate rulings. See Tenn. Code Ann. § 40-30-122 (“a new rule of

constitutional criminal law is announced if the result is not dictated by precedent existing at the

time the petitioner’s conviction became final and application of the rule was susceptible to debate

among reasonable minds”). Petitioner cites no authority that those criteria encompass a federal

question.

By way of reference to Payne, 493 S.W.3d at 490, the state court’s reaffirmation that Hall

did not establish any new constitutional right to a hearing on petitioner’s intellectual-disability

claim rests on a state law ground that is independent of any federal retroactivity question and

independent to support the judgement.

This Court lacks jurisdiction to second-guess that

enforcement of a state procedural bar on successive collateral review—review that is not mandated

by the constitution.

9

II.

THIS CASE IS NO VEHICLE TO CONSIDER THE IMPORT OF HALL

BECAUSE THE STATE COURT DID NOT RESOLVE ANY EIGHTH

AMENDMENT ISSUE TO WHICH HALL WOULD APPLY.

This case is not a vehicle for considering Hall’s impact on an Eighth Amendment claim

since the state court refused to reach that claim based on the enforcement of a state procedural bar.

Petitioner contends that Hall must apply to his successive collateral-review bid because

this Court has applied Hall to several other cases in a collateral-review posture. (Pet. 7-10.)

Petitioner cites Moore v. Texas, 137 S. Ct. 1039 (2017), and points out that Martinez v. Davis, 137

S. Ct. 1432 (2017), Henderson v. Davis, 137 S. Ct. 1450 (2017), and Long v. Davis, 138 S. Ct. 72

(2017), were all remanded for consideration of Moore. (Pet. 8-9.) But Hall itself and the other

cases cited by petitioner are procedurally distinct from this case; they all involve claims that were

(1) brought under Atkins v. Virginia, 536 U.S. 304 (2002), (2) properly presented in the pertinent

collateral-review context, and (3) adjudicated on Eighth Amendment grounds.

In all petitioner’s remand examples, there had been an adjudication of an Eighth

Amendment claim to which Hall applied.

Hall received a new intellectual-disability hearing

because, by operation of the Florida courts’ rigid interpretation of that state’s intellectual-disability

statute, he had been denied a “fair opportunity” to present evidence beyond his raw I.Q. scores.

Hall, 134 S. Ct. at 2001. But Hall’s Atkins claim was timely presented under Florida’s collateralreview procedures. Hall v. State, 109 So. 3d 704, 707 (Fla. 2012). Accordingly, the Florida courts

reached the merits of Hall’s Eighth Amendment claim, and this Court’s review focused on that

underlying constitutional question.

Like Hall, Moore properly presented his Atkins claim during an initial collateral-review bid

that followed retrial proceedings. Ex parte Moore, 470 S.W.3d 481, 484 (Tex. Crim. App. 2015).

Martinez and Long also properly presented their fully exhausted Atkins claims during initial federal

10

habeas review. Martinez v. Davis, 653 F. App’x 308, 313-14 (5th Cir. 2016); Long v. Davis, 663

F. App’x 361, 363-65 (5th Cir. 2016). And though this Court’s remand in Henderson arose from

an Atkins claim in a successive federal habeas petition, that claim had been properly presented in

state court and adjudicated on the merits after a hearing. Henderson v. Stephens, 791 F.3d 567,

572-76 (5th Cir. 2015).

Here, on the other hand, there has been no adjudication of petitioner’s Eight Amendment

claim because he never properly presented that claim through the procedures available under

Tennessee law. Instead, the state court’s decision rests on the application of a state procedural bar

to successive collateral review—review for which there is no constitutional mandate. No court

has held that Hall requires a state court to adjudicate an intellectual-disability claim without regard

to whether that claim was properly presented under state law. Since the state court did not reach

petitioner’s Eighth Amendment claim due to its enforcement of a state procedural bar, this case

offers no vehicle for review.

III.

THE STATE COURT’S DECISION DOES NOT CONFLICT WITH ANY

OPINION OF THIS COURT.

Petitioner asserts that the state court’s decision conflicts with this Court’s holdings in

Montgomery, 136 S. Ct. 718 and Welch, 136 S. Ct. 1257. (Pet. 11.) But those decisions are

irrelevant to petitioner’s claim of intellectual disability. Montgomery concerned the retroactive

application of a prior holding that mandatory life sentences for juveniles violate the Eighth

Amendment. 136 S. Ct. at 732. Welch concerned the retroactive application of another prior

holding that the residual clause of the Armed Career Criminal Act of 1984 is void for vagueness.

136 S. Ct. at 1268. These decisions shed no light on petitioner’s claim of intellectual disability or

on the adequacy of Tennessee’s statutory restriction on successive collateral relief.

11

Still, petitioner maintains that a conflict exists because Montgomery and Welch require the

retroactive application of substantive rules of law, and Hall is such a rule. (Pet. 11.) Substantive

rules requiring retroactive application include those “‘prohibiting a certain category of punishment

for a class of defendants because of their status or offense.’” Montgomery, 136 S. Ct. at 728

(quoting Penry v. Lynaugh, 492 U.S. 302, 330 (1989)). But the procedural holding in Hall is not

substantive because it does not protect any new class apart from the class protected by Atkins.

Instead, Hall made clear that the class affected by its holding—those with an intellectual

disability—is identical to the class protected by Atkins. See Hall, 134 S. Ct. at 1990.

Hall did not announce any new rule insofar as the result there was dictated by Atkins. Hall

noted that Atkins “itself acknowledges the inherent error in IQ testing” and that Atkins “twice cited

definitions of intellectual disability which, by their express terms, rejected a strict IQ test score

cutoff at 70.” Id. at 1998 (citing Atkins, 536 U.S. at 308, n.3, 309 n.5.) Hall also recognized that

“[t]he clinical definitions of intellectual disability, which take into account that IQ scores represent

a range, not a fixed number, were a fundamental premise of Atkins.” Id. at 1999 (emphasis added).

Moreover, Montgomery’s discussion of federal retroactivity standards is inapposite under

the circumstances of this case.

Montgomery held that “when a new substantive rule of

constitutional law controls the outcome of a case, the Constitution requires state collateral review

courts to give retroactive effect to that rule.” 136 S. Ct. at 729. But Montgomery concerned the

retroactive application of a new rule to an Eighth Amendment claim that was “properly presented

in the case.” Id. at 732. The Court held that “[i]n adjudicating claims under its collateral review

procedures a State may not deny a controlling right asserted under the Constitution.” Id. (emphasis

added).

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Here, the state court refused to reach petitioner’s Eighth Amendment claim because it did

not meet the criteria of Tenn. Code Ann. § 40-30-117(a)(1).

Montgomery does not preclude

Tennessee’s enforcement of that gate-keeping provision for successive collateral review. Nor does

Hall require Tennessee courts to adjudicate an intellectual-disability claim that was never properly

presented under state law.

IV.

THE STATE COURT’S DECISION DOES NOT CONTRIBUTE TO ANY

CONFLICT AMONG LOWER COURTS.

Petitioner also asserts that certiorari is appropriate because “lower courts are in conflict on

Hall’s retroactivity.” (Pet. 12.) But petitioner cites only two state court decisions holding that

Hall is retroactive and a Fifth Circuit decision that does not address the issue. 4 (Pet. 13-14.) These

decisions neither evince a mature conflict nor do they support the proposition suggested by

petitioner—that Hall requires Tennessee to ignore its own statutory restrictions on successive

collateral review and adjudicate an Eighth Amendment claim that was never properly presented

under state law. There is no conflict arising from that proposition because no court has adopted it.

In Walls, a Florida inmate repeatedly raised an intellectual-disability claim through initial

post-conviction proceedings and two successive post-conviction motions. 213 So.3d at 343-44.

Because the claim had been properly presented at each juncture, Walls received an initial

evidentiary hearing before Hall and a new hearing after Hall. Id. at 344, 347. In White, a Kentucky

inmate filed a successive collateral motion in 2004 that timely asserted an intellectual-disability

claim. 500 S.W.3d at 211. After further proceedings on that motion, the Kentucky Supreme Court

held that any evaluation of White’s intellect must “meet the dictates of Hall.” Id. at 216.

4

Petitioner cites Walls v. State, 213 So.3d 340 (Fla. 2016), White v. Commonwealth, 500 S.W.3d 208 (Ky. 2016), and

In re Cathey, 857 F.3d 221 (5th Cir. 2017).

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Like petitioner’s sentence, Walls’ and White’s sentences were affirmed on direct review

before this Court decided Atkins, and so their intellectual-disability claims necessarily arose for

the first time on collateral review. But Walls and White properly presented Atkins claims under

the collateral review laws of their respective states. And Atkins rather than Hall opened the door

for their underlying Eighth Amendment claims. Petitioner has never properly presented an Atkins

claim under Tennessee’s collateral review procedures. Thus, there is no sound basis to revisit his

final collateral judgment.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

HERBERT H. SLATERY III

Attorney General & Reporter

ANDRÉE S. BLUMSTEIN

Solicitor General

s/ Nicholas W. Spangler

NICHOLAS W. SPANGLER

Assistant Attorney General

Counsel of Record

P.O. Box 20207

Nashville, Tennessee 37202-0207

Phone: (615) 741-3486

Fax: (615) 532-7791

Counsel for Respondent

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CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the foregoing document has been sent by first

class mail, to counsel for petitioner: Paul R. Bottei, at 810 Broadway, Suite 200, Nashville,

Tennessee 37203, on the 18th day of June, 2018. I further certify that all parties required to be

served have been served.

s/ Nicholas W. Spangler

NICHOLAS W. SPANGLER

Assistant Attorney General

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