Reply Brief — In Re Billy Ray Irick, Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

Nos. 18-5495 & 18A145

_________________________________

BILLY RAY IRICK,

Petitioner,

v.

TONY MAYS, WARDEN

Riverbend Maximum Security Institution

Respondent.

_________________________________

REPLY TO STATE’S RESPONSE TO PETITION FOR WRIT OF

HABEAS CORPUS AND APPLICATION FOR A STAY OF

EXECUTION

THIS IS A CAPITAL CASE

EXECUTION SET FOR AUGUST 9, 2018 AT 7 PM

KELLEY J. HENRY*

Supervisory Asst. Federal Public Defender

810 Broadway, Suite 200

Nashville, TN

37203

Phone: (615) 736-5047

Fax: (615) 736-5265

*Counsel of Record

CARL GENE SHILES, JR.

SPEARS, MOORE, REBMAN

& WILLIAMS

P.O. Box 1749

Chattanooga, TN 37401

Phone: (423) 756-7000

Fax: (423) 756-4801

CAPITAL CASE

QUESTION PRESENTED

Does the imposition of the death penalty on a person who was severely

mentally ill at the time of the offense constitute cruel and unusual punishment in

violation of the Eighth and Fourteenth Amendments of the United States

Constitution?

i

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ......................................................................................... iii

ARGUMENT .................................................................................................................. 1

I.

Mr. Irick’s Eighth And Fourteenth Amendment Claims Are Not Time-Barred

Because The Nature Of The Claim Is Such That It Ripens As Standards

Evolve .................................................................................................................. 1

II.

It Is Unconstitutional To Impose The Death Penalty On The Severely

Mentally Ill Because Of Their Diminished Personal Culpability And Mr.

Irick’s Eighth And Fourteenth Amendment Claims Are Not Procedurally

Defaulted ............................................................................................................. 2

III.

Mr. Irick Should Be Exempt From Execution Due To His Severe Mental

Illness At The Time Of The Offense And The Circumstances Call For This

Court To Exercise Discretionary Authority To Reach The Merits Of Mr.

Irick’s Eighth And Fourteenth Amendment Claims ......................................... 3

IV.

A Stay Of Execution Is Warranted For The Court To Review This Important

Constitutional Question And To Avoid Irreparable Harm to Mr. Irick............ 5

CONCLUSION AND PRAYER FOR RELIEF ............................................................. 6

CERTIFICATE OF SERVICE ....................................................................................... 6

ii

TABLE OF AUTHORITIES

Cases

Atkins v. Virginia,

536 U.S. 304 (2002) ................................................................................................. 2, 3

Felker v. Turpin,

518 U.S. 651 (1996) ..................................................................................................... 4

In re Davis,

557 U.S. 952 (2009) ..................................................................................................... 4

Kennedy v. Louisiana,

554 U.S. 407 (2008) ..................................................................................................... 4

Penry v. Lynaugh,

492 U.S. 302 (1989) ..................................................................................................... 2

Roper v. Simmons,

543 U.S. 551 (2005) ..................................................................................................... 2

State v. Irick,

320 S.W.3d 284 (Tenn. 2010) ...................................................................................... 3

Triestman v. United States,

124 F.3d 361 (C.A.2 1997) ........................................................................................... 4

Trop v. Dulles,

356 U.S. 86 (1958) ....................................................................................................... 5

Van Tran v. State,

66 S.W.3d 790 (Tenn. 2001) ........................................................................................ 3

Statutes

28 U.S.C. § 2244(d)(1) .................................................................................................... 2

28 U.S.C. § 2254(d)(1) .................................................................................................... 4

iii

ARGUMENT

The State of Tennessee asserts in its Response to Mr. Irick’s Petition for Writ

of Habeas Corpus and Application for a Stay of Execution that his claim that the

imposition of the death penalty on a person who was severely mentally ill at the

time of the offense constitutes cruel and unusual punishment in violation of the

Eighth and Fourteenth Amendments of the United States Constitution is timebarred and procedurally defaulted. Further, the State urges this Court not to

exercise its authority to reach the merits of the claim and to deny the application for

a stay of execution so that Mr. Irick will be killed tomorrow without any

adjudication of the important questions raised in this case. Mr. Irick responds as

follows:

I.

Mr. Irick’s Eighth And Fourteenth Amendment Claims Are Not Time-Barred

Because The Nature Of The Claims Is Such That It Ripens As Standards

Evolve

The State of Tennessee asserts that pursuant to 28 U.S.C. § 2244(d)(1), Mr.

Irick’s claims were defaulted by April 24, 1997 or, at the latest, June 1998. State’s

Response, p. 5. Thus, in the State’s view, Mr. Irick was obligated to raise the claim

that, due to his severe mental illness, evolving standards of decency precluded his

execution twenty years ago. Notably, this was several years before this Court issued

its opinions in Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543

U.S. 551 (2005), in which this Court recognized exemptions to the death penalty for

the intellectually disabled and for juveniles. Atkins and Simmons thus post-date

Mr. Irick’s exhaustion of state court remedies, as do the very recent developments

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underlying the evolving standards of decency argument in Mr. Irick’s Original

Petition for Writ of Habeas Corpus.

Mr. Irick asks this Court—the only court with the authority to do so—to

announce a new constitutional rule interpretating the Eighth and Fourteenth

Amendments. This necessarily requires the Court to either reject previous holdings,

as it did in Atkins, overruling Penry v. Lynaugh (Penry I), 492 U.S. 302 (1989) or

craft a new principle out of other longstanding principles (such as the goals of

deterrence and retribution) based on evolving standards of decency. At the heart of

this matter: Mr. Irick’s claims cannot be time-barred because they are dependent

upon developments as various jurisdictions address the unconscionability of

executing persons, who like Mr. Irick, possess “diminished capacities to understand

and process information, to communicate, to abstract from mistakes and learn from

experience, to engage in logical reasoning, to control impulses, and to understand

the reactions of others,” see Atkins, 536 U.S. at 318, and therefore lack the requisite

degree of moral culpability to justify a state taking their life.

II.

It Is Unconstitutional To Impose The Death Penalty Upon The Severely

Mentally Ill Because Of Their Diminished Personal Culpability And Mr.

Irick’s Eighth And Fourteenth Amendment Claims Are Not Procedurally

Defaulted

The State asserts that “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.” State’s Response, p. 6. The State does

acknowledge that Mr. Irick presented this claim to the Tennessee Supreme Court

during proceedings on incompetency to be executed and that it was found to not

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properly be before that Court. Id., p.7 (citing State v. Irick, 320 S.W.3d 284, 298

(Tenn. 2010)). The State argued in that case, and the Tennessee Supreme Court 1

agreed, “that that the present appeal from the trial court’s judgment finding Mr.

Irick competent to be executed is not the proper proceeding in which to ask this

Court to adopt a new constitutional rule barring execution of persons who suffer

from severe mental illnesses but who are otherwise competent” to be executed. Id.

Thus, it appears there is not a time or forum in which the State would find

determination of this constitutional question to be appropriate. This Court is the

last and only forum available to Mr. Irick for disposition of the merits of his claims.

III.

Mr. Irick Should Be Exempt From Execution Due To His Severe Mental

Illness At The Time Of The Offense And The Circumstances Call For This

Court To Exercise Discretionary Authority To Reach The Merits Of Mr.

Irick’s Eighth And Fourteenth Amendment Claims

While true that an original petition for writ of habeas corpus in this Court is

rarely granted, Mr. Irick’s Petition is not an attempt at forum-shopping, as the

State alleges. State’s Response, p. 9. This Court is the court of last resort for

important constitutional questions and should grant relief when warranted. See,

e.g., In re Davis, 557 U.S. 952 (2009), in which this Court transferred the case on an

original petition for writ of habeas corpus to the District Court for further

proceedings. The majority noted that the dissent’s assumption as a matter of law

that, the District Court would have no power to grant relief in light of 28 U.S.C. §

1

Prior to this Court’s opinion in Atkins, the Tennessee Supreme Court in Van Tran v. State, 66 S.W.3d 790 (Tenn.

2001) found the execution of the “mentally retarded” (now “intellectually disabled”) would violated the Tennessee

Constitution. Thus, it was conceivable that that court could reach this question and answer in the affirmative prior to

this Court. Mr. Irick tried and his claim was rejected. Again, years have passed since that opinion and standards

continue to evolve.

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2254(d)(1) was incorrect. The majority found that the District Court could “conclude

that § 2254(d)(1) does not apply, or does not apply with the same rigidity, to an

original habeas petition such as this.” Id. at 1(citing Felker v. Turpin, 518 U.S. 651,

663 (1996) (expressly leaving open the question whether and to what extent the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to original

petitions)).

The majority noted that the lower court “may also find it relevant to the

AEDPA analysis that Davis is bringing an ‘actual innocence’ claim. See, e.g.,

Triestman v. United States, 124 F.3d 361, 377–380 (C.A.2 1997) (discussing

“serious” constitutional concerns that would arise if AEDPA were interpreted to bar

judicial review of certain actual innocence claims) . . . .” Id. Further, the Court noted

that

[e]ven if the court finds that § 2254(d)(1) applies in full, it is arguably

unconstitutional to the extent it bars relief for a death row inmate who

has established his innocence. Alternatively, the court may find in

such a case that the statute’s text is satisfied, because decisions of this

Court clearly support the proposition that it “would be an atrocious

violation of our Constitution and the principles upon which it is based”

to execute an innocent person.

In re Davis, 557 U.S. 952 at 1–2.

While the claims before the Court in Mr. Irick’s Petition do not address

“actual innocence,” they do involve the constitutionality of execution of his death

sentence—a question of utmost importance to Mr. Irick, to other similarly situated

death-sentenced individuals, and to our society. See Kennedy v. Louisiana, 554 U.S.

407, 420 (2008) (“This [principle] is of particular concern . . . in capital cases. When

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the law punishes by death, it risks its own sudden descent into brutality,

transgressing the constitutional commitment to decency and restraint.”).

IV.

A Stay Of Execution Is Warranted For The Court To Review This Important

Constitutional Question And To Avoid Irreparable Harm to Mr. Irick

Billy Ray Irick suffers from the severe mental illness of psychotic disorder

and from a cognitive disorder which grossly impairs his ability to make decisions, to

plan, and to control impulses. He was psychotic at the time of the offense and in the

days leading up to then, chasing a school-aged girl with a machete down a Knoxville

public street in broad daylight with the explanation that he “didn’t like her looks.”

The people with whom he was living noted that Billy was frequently “talking with

the devil,” “hearing voices,” and “taking instructions from the devil.”

His claims involve the important constitutional questions of whether

“standards of decency that mark the progress of a maturing society” under the

Eighth and Fourteenth Amendments have evolved to the point that society agrees

that severely mentally ill individuals, such as Mr. Irick, lack the requisite moral

culpability to warrant the penalty of death and are thus exempt from execution.

Trop v. Dulles, 356 U.S. 86, 101 (1958).

If Mr. Irick is executed tomorrow, his life will be extinguished without an

answer to this important question. For all the reasons herein, this Court should

grant a stay of execution and address the merits of Mr. Irick’s Petition.

CONCLUSION AND PRAYER FOR RELIEF

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This Court should grant certiorari, schedule this case for briefing and oral

argument, and grant a stay of execution while review of the merits is pending.

Respectfully submitted,

KELLEY J. HENRY*

Supervisory Asst. Federal Public Defender

810 Broadway, Suite 200

Nashville, TN 37203

Phone: (615) 736-5047

Fax: (615) 736-5265

*Counsel of Record

CARL GENE SHILES, JR.

SPEARS, MOORE, REBMAN

& WILLIAMS

P.O. Box 1749

Chattanooga, TN 37401

Phone: (423) 756-7000

Fax: (423) 756-4801

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 Office of the Tennessee Attorney General, Jennifer L. Smith,

Associate Solicitor General, Criminal Justice Division, P.O. Box 20207, Nashville, TN

37202-0207.

____________________________________

KELLEY J. HENRY*

Supervisory Asst. Federal Public Defender

810 Broadway, Suite 200

Nashville, TN 37203

Phone: (615) 736-5047

Fax: (615) 736-5265

*Counsel of Record

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