Opposition Brief — In Re Billy Ray Irick, Petitioner

Nos. 18-5495 & 18A145

DEATH PENALTY CASE

Execution Scheduled: August 9, 2018

___________________

IN THE

SUPREME COURT OF THE UNITED STATES

___________________

BILLY RAY IRICK,

Petitioner,

v.

TONY MAYS, Warden,

Respondent

__________________

RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS

AND APPLICATION FOR A STAY OF EXECUTION

_________________

HERBERT H. SLATERY III

Attorney General and Reporter

State of Tennessee

ANDRÉE S. BLUMSTEIN

Solicitor General

JENNIFER L. SMITH

Associate Solicitor General

Counsel of Record

JOHN H. BLEDSOE

Deputy Attorney General

P. O. Box 20207

Nashville, Tennessee 37202

Phone: (615) 741-3487

Fax: (615) 741-2009

CAPITAL CASE

QUESTION PRESENTED

Is petitioner entitled to a writ of habeas corpus from this Court when all of the claims in

the petition are procedurally barred from habeas review by any federal court and there are no

exceptional circumstances warranting the exercise of this Court’s original jurisdiction?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................................. ii

TABLE OF AUTHORITIES ......................................................................................................... iv

STATEMENT OF JURISDICTION............................................................................................... 1

STATUTORY PROVISIONS AND RULE INVOLVED ............................................................. 1

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

ARGUMENT .................................................................................................................................. 4

I. Petitioner’s Eighth Amendment Claim Is Time Barred.. ............................................................ 4

II. Petitioner’s Eighth Amendment Claim Is Procedurally Defaulted. ........................................ 6

III.

This Case Presents No Exceptional Circumstances Warranting the Court’s Exercise

of Discretionary Authority to Grant Habeas Corpus Relief............................................................ 7

IV.

A Stay of Execution is Not Warranted. ............................................................................. 10

CONCLUSION ............................................................................................................................. 11

CERTIFICATE OF SERVICE ..................................................................................................... 11

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Atkins v. Virginia,

536 U.S. 304 (2002) ...........................................................................................................2, 8, 9

Baldwin v. Reese,

541 U.S. 27 (2004) .....................................................................................................................6

Cornwell v. Warden,

No. 2:06-cv-00705, 2018 WL 934542 (E.D. Cal. Feb. 15, 2018) .............................................8

Duncan v. Henry,

513 U.S. 365 (2004) ...................................................................................................................6

Faulkner v. State,

No. W2012-00612-CCA-R3-PD, 2014 WL 4267460 (Tenn. Crim. App. Aug.

29, 2014), no perm. app. filed ....................................................................................................8

Felker v. Turpin,

518 U.S. 651 (1996) ...........................................................................................................4, 6, 7

Ford v. Wainwright,

477 U.S. 399 (1986) ...............................................................................................................2, 7

Franklin v. Bradshaw,

695 F.3d 439 (6th Cir. 2012) .....................................................................................................8

Ex parte Grossman,

267 U.S. 87 (1925) .....................................................................................................................9

Irick v. Bell,

3:98-cv-00666, 2010 WL 4238768 (E.D. Tenn. Oct. 21, 2010) ................................................3

Irick v. Bell,

565 F.3d 315 (6th Cir. 2009), cert. denied, 565 U.S. 315 (2010), rehearing

denied, 559 U.S. 1088 (2010) ....................................................................................................2

Irick v. Bell,

No. 3:98-cv-666, 2001 WL 37115951 (E.D. Tenn. Mar. 30, 2001) (Collier, J.).......................2

Irick v. State,

973 S.W.2d 643 (Tenn. Crim. App. Jan. 14, 1998), perm. app. denied (Tenn.

June 15, 1998), cert. denied, 525 U.S. 895 (1998) ....................................................................2

iv

Irick v. State,

No. E2010-01740-CCA-R28-PD (Tenn. Crim. App. Sept. 16, 2010), perm.

app. denied (Tenn. Nov. 17, 2010) ...........................................................................................3

Irick v. State,

No. E2010-02385-CCA-R3-PD, 2011 WL 1991671 (Tenn. Crim. App. May

23, 2011), perm. app. denied (Tenn. Aug. 25, 2011).................................................................3

Mays v. Stephens,

757 F.3d 211 (5th Cir. 2014) .....................................................................................................8

O’Sullivan v. Boerckel,

536 U.S. 838 (1999) ...................................................................................................................6

Panetti v. Quarterman,

551 U.S. 930 (2007) ...............................................................................................................2, 7

Roper v. Simmons,

543 U.S. 551 (2005) ...........................................................................................................2, 8, 9

Spenkellink v. Wainwright,

442 U.S. 901 (1979) (Rehnquist, J., dissenting) ......................................................................10

State v. Irick,

320 S.W.3d 284 (Tenn. 2010), cert. denied, 562 U.S. 1145 (2010) ......................................3, 7

State v. Irick,

762 S.W.2d 121 (Tenn. 1988), cert. denied, 489 U.S. 1072 (1989) ..........................................2

Underwood v. Duckworth,

No. CIV-12-111-D, 2016 WL 4059162 (W.D. Ok. July 28, 2016) ...........................................9

United States v. Sampson,

No. 01-10384, 2015 WL 7962394 (D. Mass. Dec. 12, 2015)....................................................9

Statutes

28 U.S.C. § 2241 ..............................................................................................................................1

28 U.S.C. § 2241(a) .....................................................................................................................1, 4

28 U.S.C. § 2244(b) .....................................................................................................................7, 8

28 U.S.C. § 2244(b)(3) ....................................................................................................................5

28 U.S.C. § 2244(d)(1) ................................................................................................................5, 6

28 U.S.C. § 2251(a) .......................................................................................................................10

v

28 U.S.C. § 2254 ..................................................................................................................1, 2, 4, 6

28 U.S.C. § 2254(a) .................................................................................................................1, 4, 5

28 U.S.C. § 2254(b) .....................................................................................................................4, 6

Other Authorities

Fed. R. Civ. P 60(b) .........................................................................................................................3

Sup. Ct. R. 20.4(A) ......................................................................................................................6, 7

vi

STATEMENT OF JURISDICTION

Petitioner invokes this Court’s original jurisdiction to entertain applications for a writ of

habeas corpus under 28 U.S.C. § 2241(a) and 28 U.S.C. § 2254(a).

STATUTORY PROVISIONS AND RULE INVOLVED

28 U.S.C. § 2241 provides in pertinent part:

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice

thereof, the district courts and any circuit within their respective jurisdictions.

The order of a circuit judge shall be entered in the records of the district court of

the district wherein the restraint complained of is had.

28 U.S.C. § 2254 provides in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall

entertain an application for a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court only on the ground that he is in

the custody in violation of the Constitution or laws or treaties of the United States.

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears

that —

(A) the applicant has exhausted the remedies available in the courts of the State .

...

Rule 20.4(a), Rules of the Supreme Court of the United States, provides:

A petition seeking the issuance of a writ of habeas corpus shall comply with the

requirements 28 U.S.C. §§ 2241 and 2242, and in particular with the provision in

the last paragraph of § 2242 requiring a statement of the “reasons for not making

application to the district court of the district in which the applicant is held.” If

the relief sought is from the judgment of a state court, the petition shall set forth

specifically how and wherein the petitioner has exhausted available remedies in

the state courts or otherwise comes within the provisions of 28 U.S.C. § 2254(b).

To justify the granting of a writ of habeas corpus, the petitioner must show

exceptional circumstances warranting the exercise of the Court’s discretionary

powers and must show that adequate relief cannot be obtained in any other form

or from any other court. These writs are rarely granted.

1

STATEMENT OF THE CASE

Billy Ray Irick was convicted by a Tennessee jury in 1986 of the first-degree murder and

aggravated rape of seven-year-old Paula Dyer while she had been entrusted to his care. The jury

sentenced Irick to death on the strength of four aggravating circumstances, and the Tennessee

Supreme Court affirmed. State v. Irick, 762 S.W.2d 121 (Tenn. 1988), cert. denied, 489 U.S.

1072 (1989). Irick raised no claim on direct appeal that severe mental illness bars his death

sentence.

He next sought state post-conviction relief, which was denied by the trial court. The

Tennessee Court of Criminal Appeals affirmed, and the Tennessee Supreme Court denied his

application for permission to appeal. Irick v. State, 973 S.W.2d 643 (Tenn. Crim. App. Jan. 14,

1998), perm. app. denied, (Tenn. June 15, 1998), cert. denied, 525 U.S. 895 (1998). In that

appeal, Petitioner did not claim that severe mental illness bars his death sentence.

Irick challenged his State court judgment in federal habeas proceedings under 28 U.S.C.

§ 2254, but the district court denied relief. Irick v. Bell, No. 3:98-cv-666, 2001 WL 37115951

(E.D. Tenn. Mar. 30, 2001) (Collier, J.). The Sixth Circuit affirmed, and this Court denied

certiorari. Irick v. Bell, 565 F.3d 315 (6th Cir. 2009), cert. denied, 565 U.S. 315 (2010),

rehearing denied, 559 U.S. 1088 (2010). Petitioner again made no claim that severe mental

illness bars his death sentence.

In 2010, when Petitioner’s execution was first set, the Tennessee courts addressed

Petitioner’s claim that he was incompetent for execution under Ford v. Wainwright, 477 U.S.

399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007). On appeal, Petitioner argued that

the Tennessee Supreme Court should apply Atkins v. Virginia, 536 U.S. 304 (2002), and Roper v.

Simmons, 543 U.S. 551 (2005), to prohibit the execution of “death-sentenced inmates who suffer

2

from severe mental illnesses.” State v. Irick, 320 S.W.3d 284, 297 (Tenn. 2010), cert. denied,

562 U.S. 1145 (2010). That court declined the invitation:

Notwithstanding the issues of timeliness and procedural propriety, we note that,

while Mr. Irick has cited dissenting and concurring opinions in support of his

argument, he has not cited, and research has not revealed, any majority court

decision adopting a per se ban on the execution of severely mentally ill prisoners

who are nonetheless competent to be executed. Furthermore, Connecticut appears

to be the only state that has adopted a statute barring the execution of offenders

who, at the time of the offense, had a “significantly impaired . . . ability to

conform [their] conduct to the requirements of law.” Conn. Gen. Stat. Ann. 53a46a(h). One commentator who advocates for a rule barring the execution of the

mentally ill has stated that “the categorical approach invoked by the Court in both

Atkins and Roper would not be appropriate in the context of severe mental illness.

Because mental illness varies considerably in its effects on those who experience

it, a categorical exemption is not warranted.”

Id. at 298 (footnotes omitted).

Having failed in state court, Petitioner returned to the federal district court with a motion

for relief from the judgment in his federal habeas action under Fed. R. Civ. P 60(b). But there,

Petitioner claimed that, due to newly-presented evidence establishing incompetency, he is

actually innocent and, thus, excused from his procedural default of other claims. The district

court rejected that argument, concluding that Petitioner is neither actually innocent of the crime

nor actually innocent of the death penalty. 1 Irick v. Bell, 3:98-cv-00666, 2010 WL 4238768, at

*2-*5 (E.D. Tenn. Oct. 21, 2010).

Now, two days before his scheduled execution, Petitioner has filed an original petition for

writ of habeas corpus and a motion for a stay of execution in this Court.

1

Petitioner also unsuccessfully moved to re-open his state-court post-conviction proceedings

based upon this same newly-presented evidence. Irick v. State, No. E2010-01740-CCA-R28-PD

(Tenn. Crim. App. Sept. 16, 2010), perm. app. denied (Tenn. Nov. 17, 2010) (orders attached).

The State courts also denied a writ of error coram nobis based on that evidence. Irick v. State,

No. E2010-02385-CCA-R3-PD, 2011 WL 1991671 (Tenn. Crim. App. May 23, 2011), perm.

app. denied (Tenn. Aug. 25, 2011).

3

ARGUMENT

I.

Petitioner’s Eighth Amendment Claim Is Time Barred.

Section 2241(a) of Title 28 provides that “[w]rits of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts and any circuit judge within their

respective jurisdictions.” Section 2254(a), which specifically governs applications by persons in

custody pursuant to a judgment of a state court, likewise provides:

The Supreme Court, a justice thereof, a circuit judge, or a district court shall

entertain an application for a writ of habeas corpus in behalf of a person in

custody pursuant to a judgment of a State court only on the ground that he is in

custody in violation of the Constitution or the laws or treaties of the United States.

28 U.S. C. § 2254(a).

While both provisions provide statutory authorization for this Court to entertain

“original” petitions for habeas corpus relief by prisoners in state custody, that authority is not

unlimited, particularly given the procedural limitations imposed by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA). See Felker v. Turpin, 518 U.S. 651, 662 (1996)

(“Our authority to grant habeas relief to state prisoners is limited by § 2254, which specifies the

conditions under which such relief may be granted to ‘a person in custody pursuant to a

judgment of a state court.’”). Indeed, this Court’s own Rule 20.4, which sets forth the standards

under which the Court will grant an original writ of habeas corpus, makes clear that even original

petitions must satisfy the exhaustion requirement of § 2254(b).

4

A petition seeking the issuance of a writ of habeas corpus shall comply with the

requirements of 28 U.S.C. §§ 2241 and 2242, and in particular with the provision

in the last paragraph of § 2242 requiring a statement of the “reasons for not

making application to the district court of the district in which the applicant is

held.” If the relief sought is from the judgment of a state court, the petition shall

set forth specifically how and wherein the petitioner has exhausted available

remedies in the state courts or otherwise comes within the provisions of 28 U.S.C.

§ 2254(b). To justify the granting of a writ of habeas corpus, the petitioner must

show exceptional circumstances warranting the exercise of the Court’s

discretionary powers and must show that adequate relief cannot be obtained in

any other form or from any other court. These writs are rarely granted.

The procedural and substantive limitations imposed by AEDPA are applicable even to

original actions in this Court. Specifically, 28 U.S.C. § 2244(d)(1) provides that “[a] 1-year

statute of limitation shall apply to an application for a writ of habeas corpus by a person in

custody pursuant to a judgment of a State court.” Because § 2244(d) is applicable generally to

petitions by state prisoners, it applies equally to habeas actions filed in the district court and in

this Court. Compare with 28 U.S.C. § 2244(b)(3) (gatekeeping provision for successive habeas

applications is specific to petitions “filed in the district court”).

Because Petitioner unquestionably challenges the legality of his confinement “pursuant to

the judgment of a State court,” see § 2254(a), he must meet the one-year limitation requirement

of § 2244(d)(1). Petitioner’s state-court conviction became final on March 6, 1989, when this

Court denied certiorari on direct appeal from his convictions and sentence. Because Petitioner’s

conviction became final before AEDPA’s enactment, his one-year limitation period ran for one

year from the enactment of the limitations statute, or until April 24, 1997. Even considering

tolling during the pendency of Petitioner’s state post-conviction action, which concluded in June

1998, the current petition is plainly far out of time.

Moreover, even if this case presented the rare circumstance where this Court might

permit an “original” writ to proceed, the due process and Sixth Amendment claims he raises are

necessarily fact-bound and would require a transfer to the appropriate district court under §

2241(b). Were it so easy to avoid to statute of limitations as to file a petition invoking this

Court’s “original” jurisdiction to obtain such a transfer, § 2244(d)(1) would be rendered a virtual

nullity. This Court should not countenance such a manipulation.

II.

Petitioner’s Eighth Amendment Claim Is Procedurally Defaulted.

Petitioner claims for the first time in a federal habeas corpus action that his 1986 death

sentence violates the Eighth Amendment due to his alleged severe mental illness. But he did not

properly raise this constitutional claim in state court. Because he failed to exhaust state-court

remedies on it, the claim is procedurally defaulted.

A habeas petition filed in this Court by a prisoner in state custody must satisfy the

exhaustion requirement in 28 U.S.C. § 2254(b). Sup. Ct. R. 20.4(A); see also Felker v. Turpin,

518 U.S. 651, 662 (1996) (“Our authority to grant habeas relief to state prisoners is limited by §

2254.”). This Court has held that the exhaustion requirement is satisfied only when the highest

state court has been “given a full and fair opportunity to rule on the claim.” O’Sullivan v.

Boerckel, 536 U.S. 838, 846-47 (1999). To ensure that the State has the necessary “opportunity”

to correct alleged violations of a prisoner’s federal rights, a habeas petitioner must “fairly

present” his claims to the appropriate state courts for consideration before seeking federal relief.

Duncan v. Henry, 513 U.S. 365, 365 (2004). See also Baldwin v. Reese, 541 U.S. 27 (2004)

(state prisoner must “fairly present” his claim to each appropriate state court so as to alert that

court to the existence and nature of the claim).

Petitioner never properly or fairly raised his current claim in the Tennessee courts, a fact

he does not genuinely dispute. Indeed, Petitioner’s only half-hearted attempt to assert the claim

6

came while the Tennessee Supreme Court was reviewing Petitioner’s separate claim of alleged

incompetency for execution under Ford and Panetti. But the State court appropriately concluded

that the issue was not properly before it in that proceeding. Irick, 320 S.W.3d at 298. The claim

was not “fairly presented” at a time when the court had a “full and fair opportunity to rule on the

claim.” Because Petitioner failed to exhaustion state-court remedies when they were available to

him, his claim is now barred by procedural default.

III.

This Case Presents No Exceptional Circumstances Warranting the Court’s

Exercise of Discretionary Authority to Grant Habeas Corpus Relief.

Even beyond the procedural hurdles noted above, the instant petition does not establish

“exceptional circumstances” warranting the exercise of this Court’s discretionary authority. Rule

20.4(a) of the Rules of this Court states that “[t]o justify the granting of a writ of habeas corpus,

the petitioner must show that exceptional circumstances warrant the exercise of this Court’s

discretionary powers, and that adequate relief cannot be obtained in any other form or from any

other court.”

Petitioner suggests in his petition that he was forced to bypass the federal district court

and make original application here because of the limitations on second or successive petitions

within 28 U.S.C. § 2244(b). Petition, at 1-2. But those same limitations inform this Court’s

consideration of an original habeas corpus petition that is successive. Felker, 518 U.S. at 66263. And Petitioner’s own procedural default of the claim likewise bears on his need for relief.

Indeed, even if Petitioner could overcome the requirements of 28 U.S.C. § 2244(b) to file a

second or successive petition in the district court, relief would be foreclosed by binding

precedent from the Sixth Circuit, on procedural-default grounds. See Franklin v. Bradshaw, 695

F.3d 439, 454-55 (6th Cir. 2012) (concluding that Eighth Amendment claim that death penalty is

7

barred due to mental illness was procedurally defaulted for failure to exhaust state-court

remedies).

At to the merits of the claim, even if they could now be considered, Petitioner cannot

show “exceptional circumstances” for relief on his defaulted claim. Petitioner argues that Atkins

v. Virginia, 536 U.S. 304, 311-12 (2002), and Roper v. Simmons, 543 U.S. 551 (2005), support

his claim that the Eighth Amendment, as extended to the states through the Fourteenth

Amendment, prohibits the execution of a criminal defendant with severe mental illness.

However, he has cited to no authority—and the State finds none—extending Atkins and Roper in

this way.

See Mays v. Stephens, 757 F.3d 211, 219 (5th Cir. 2014) (discussing how neither

Atkins nor Roper “created a rule of constitutional law making the execution of mentally ill

persons unconstitutional”); Franklin, 695 F.3d at 455 (noting lack of authority that Atkins and

Roper have been extended to prohibit execution of those with mental illness); Cornwell v.

Warden, No. 2:06-cv-00705, 2018 WL 934542, at *129 (E.D. Cal. Feb. 15, 2018) (stating that

neither this Court nor the Ninth Circuit have extended Atkins/Roper protections to mentally ill);

Faulkner v. State, No. W2012-00612-CCA-R3-PD, 2014 WL 4267460, at *84 (Tenn. Crim.

App. Aug. 29, 2014), no perm. app. filed (citing cases that have declined to extend Atkins to

those criminal defendants with mental illness).

Indeed, there is no general trend in banning executions for those with severe mental

illness. Underwood v. Duckworth, No. CIV-12-111-D, 2016 WL 4059162, at *32 (W.D. Ok. July

28, 2016) (noting that it located one state barring execution of mentally ill, which later repealed

capital punishment) (citing The Supreme Court’s Evolving Death Penalty Jurisprudence: Severe

Mental Illness as the Next Frontier, 50 B.C. L. Rev. 785, 798 & n.88 (2009); Conn. Gen. Stat. §

8

53a-35a.); see also United States v. Sampson, No. 01-10384, 2015 WL 7962394, at *13 (D.

Mass. Dec. 12, 2015) (stating that “the defendant has not identified objective indicia sufficient to

prove that current standards of decency are incompatible with imposing a death sentence on a

person suffering from a severe mental illness”).

In Atkins and Roper, this Court relied heavily on the number of jurisdictions that had

legislation precluding the imposition of a death sentence on intellectually disabled and juvenile

offenders. See Atkins, 506 U.S. at 313-16; Roper, 543 U.S. at 564-67. There is no such showing

here. And none of the reasons now offered for this Court to entertain Petitioner’s defaulted

claim in the first instance outweigh these considerations and support relief. There are simply no

“exceptional circumstances” for this Court to grant an original petition for writ of habeas corpus.

The Court’s own rule confirms that an “original” writ of habeas corpus is extraordinary

and “rarely granted.” In fact, this Court last granted an original writ of habeas corpus over 90

years ago in Ex parte Grossman, 267 U.S. 87 (1925) (writ granted when district court ordered

defendant committed to United States custody despite issuance of Presidential pardon).

Especially at the eleventh hour, capital cases present an “obvious” incentive to forum shop.

Spenkellink v. Wainwright, 442 U.S. 901, 906 (1979) (Rehnquist, J., dissenting). Tolerating the

use of original habeas petitions in this Court to present procedurally defaulted claims would

encourage just such forum shopping. When, as in this case, a petitioner has made no attempt to

present his constitutional claims in the appropriate forum and provides no legitimate justification

for failing to do so during decades of appellate and collateral review, this Court should reject a

last-minute attempt to obtain a stay of execution under the guise of this Court’s “original”

jurisdiction on an unfounded claim.

9

IV.

A Stay of Execution is Not Warranted.

Under 28 U.S.C. § 2251(a), a judge or justice of the United States “before whom a habeas

corpus proceeding is pending” may, before or after judgment or pending appeal, “stay any

proceeding against the person detained in any State court or by or under the authority of any

State for any matter involved in the habeas corpus proceeding.” Here, however, as demonstrated

above, because the exercise of original jurisdiction is not warranted, neither is a stay of the state

court judgment under § 2251(a)(1). Petitioner’s application for a stay of execution should be

denied.

10

CONCLUSION

The petition for writ of habeas corpus and the application for a stay of execution should

be denied.

Respectfully submitted,

HERBERT H. SLATERY III

Attorney General and Reporter

State of Tennessee

Andree

S. Blumstein

__________________________

ANDRÉE S. BLUMSTEIN

Solicitor General

Jennifer L. Smith

JENNIFER L. SMITH

Associate Solicitor General

Counsel of Record

John H. Bledsoe

____________________________

JOHN H. BLEDSOE

Deputy Attorney General

P. O. Box 20207

Nashville, Tennessee 37202

Phone: (615) 741-3487

Fax: (615) 741-2009

11

CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the foregoing Response was forwarded by

United States mail, first-class postage prepaid, and by email on the 8th day of August, 2018, to

the following:

C. Eugene Shiles, Jr., Attorney at Law

William J. Rieder

SPEARS, MOORE, REBMAN & WILLIAMS

P.O. Box 1749

Chattanooga, TN 37401

Kelley J. Henry

Office of the Federal Public Defender

810 Broadway, Suite 200

Nashville, TN 37202

Jennifer L. Smith

______________________________

JENNIFER L. SMITH

Associate Solicitor General

12