Petition for Writ of Certiorari — Hersie Wesson, Petitioner v. Ohio

No. _______

IN THE SUPREME COURT OF THE UNITED STATES

_________

HERSIE WESSON, JR.,

Petitioner,

v.

STATE OF OHIO,

Respondent.

______________________________________________________________________________

On Petition for a Writ of Certiorari to the

Ninth District Court of Appeals of Ohio

______________________________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

______________________________________________________________________________

OFFICE OF THE OHIO PUBLIC DEFENDER

Rachel Troutman (0076741)

Supervising Attorney

Death Penalty Department

Rachel.Troutman@opd.ohio.gov

Counsel of Record

Melissa Jackson (0077833)

Assistant State Public Defender

Death Penalty Department

Melissa.Jackson@opd.ohio.gov

250 East Broad Street, Suite 1400

Columbus, Ohio 43215

(614) 466-5394 (Telephone)

(614) 644-0708 (Fax)

Counsel for Petitioner, Hersie Wesson, Jr.

CAPITAL CASE

QUESTIONS PRESENTED

Question #1: When a capital defendant can make a substantial threshold

showing of intellectual disability, are the state courts constitutionally

required to provide him the opportunity to be heard?

Question #2: Does a capital defendant have a constitutional right to have

his state court counsel present his evidence of intellectual disability,

which would per se exclude him from the death penalty?

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TABLE OF CONTENTS

Questions Presented............................................................................................................... i

Table of Contents .................................................................................................................... ii

Table of Authorities .............................................................................................................. iii

Petition for a Writ of Certiorari ........................................................................................1

Parties to the Proceedings ..................................................................................................1

Opinions Below .........................................................................................................................1

Jurisdiction ................................................................................................................................1

Constitutional Provisions ....................................................................................................1

Statement of the Case ............................................................................................................2

Reasons for Granting the Writ ...........................................................................................5

I. This Court did not qualify its holding in Atkins v. Virginia, and

the ban on executing the intellectually disabled should be treated

no differently than the categorical ban on executing juveniles and

the insane. .........................................................................................................................5

II. It is inconsistent with the Constitution to hold an intellectuallydisabled defendant at fault for his counsel’s failure to present

evidence of his intellectual disability. .........................................................................9

Conclusion ................................................................................................................................12

Appendix:

Appendix A: State of Ohio v. Hersie Wesson, Case No. 2018-0566 Ohio

Supreme Court, Entry (July 5, 2018) ................................................. A-1

Appendix B: State of Ohio v. Hersie R. Wesson, Case No. 28412,

Summit County Court of Appeals, Decision and Journal

Entry (Mar. 7, 2018)............................................................................ A-2

Appendix C: State of Ohio v. Hersie R. Wesson, Case No. CR 2008-030710, Summit County Common Pleas Court, Order (Oct.

4, 2016) .............................................................................................. A-12

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TABLE OF AUTHORITIES

CASES

Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002) ................................... passim

Baze v. Rees, 553 U.S. 35 (2008)..................................................................................... 12

Brumfield v. Cain, 576 U.S. __, 135 S. Ct. 2269 (2015) .............................................. 5

Coleman v. Thompson, 501 U.S. 722 (1991) ................................................................ 11

Ford v. Wainwright, 477 U.S. 399 (1986)................................................................... 7, 9

Furman v. Georgia, 408 U.S. 238 (1972) ...................................................................... 12

Gideon v. Wainwright, 372 U.S. 335 (1963) .................................................................. 9

Gregg v. Georgia, 428 U.S. 153 (1976) .......................................................................... 12

Hall v. Florida, 134 S. Ct. 1986 (2014) ....................................................................... 5, 6

Hodges v. Colson, 727 F.3d 517 (6th Cir. 2013) .......................................................... 11

Martinez v. Ryan, 566 U.S. 1 (2012).................................................................... 9, 10, 11

McCleskey v. Kemp, 481 U.S. 279 (1987)...................................................................... 12

Panetti v. Quarterman, 551 U.S. 930 (2007) ............................................................. 7, 8

Roper v. Simmons, 543 U.S. 551 (2005) ..................................................................... 6, 7

State v. Wesson, 153 Ohio St.3d 1433, 2018-Ohio-2639 (Ohio) ................................. 1

State v. Wesson, 2012-Ohio-4495, 2012 Ohio App. LEXIS 3929

(Summit County, Sept. 28, 2012) ...................................................................... 1, 9, 11

State v. Wesson, 2018-Ohio-834, 2018 Ohio App. LEXIS 877 (Ohio

Ct. App. 9th Dist.)................................................................................................. 1, 9, 11

United States v. Cronic, 466 U.S. 648 (1984) .............................................................. 12

Wesson v. Jenkins, N.D.Ohio No. 5:14 CV 2688, 2015 US Dist.

LEXIS 157218 (Nov. 20, 2015)..................................................................................... 8

CONSTITUTIONAL PROVISIONS

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

U.S. Const., amend. VI ........................................................................................... 1, 11, 12

U.S. Const., amend. VIII........................................................................................... passim

U.S. Const., amend. XIV .................................................................................................... 2

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PETITION FOR A WRIT OF CERTIORARI

Hersie Wesson respectfully petitions for a writ of certiorari to review the

judgment of the Ohio Court of Appeals for the Ninth District.

PARTIES TO THE PROCEEDINGS

Petitioner, Hersie Wesson, a death-sentenced Ohio prisoner, was the appellant

in the Ohio Ninth District Court of Appeals.

Respondent, the State of Ohio, was the appellee in the Ohio Court of Appeals

for the Ninth District.

OPINIONS BELOW

The opinion of the state court of appeals is reported at State v. Wesson, 2018Ohio-834 (Ohio Ct. App. 9th Dist.) and is reproduced in the Appendix at __. The

opinion of the trial court is reported at State v. Wesson, 2012-Ohio-4495 (Summit

County, Sept. 28, 2012) and is reproduced in the Appendix at __. The decision of the

Supreme Court of Ohio is reported at State v. Wesson, 153 Ohio St.3d 1433, 2018Ohio-2639 (Ohio) and is reproduced in the Appendix at __.

JURISDICTION

The Supreme Court of Ohio declined jurisdiction on July 5, 2018. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS

This case involves the following Amendments to the United States

Constitution:

A. Sixth Amendment, which provides in relevant part:

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In all criminal prosecutions, the accused shall enjoy the right . . . to

have the Assistance of Counsel for his defence.

B. Eighth Amendment, which provides:

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

C. Fourteenth Amendment, which provides in relevant part:

No State shall . . . deny to any person within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

Hersie Wesson is on Ohio’s death row despite his diagnosed intellectual

disability. The State of Ohio has refused to address or consider his Atkins claim based

on procedural grounds. Ohio will engage in cruel and unusual punishment, violating

the Eighth Amendment and this Court’s undisputed precedent. The state courts have

an avenue to ignore Wesson’s meritorious Atkins claim because Wesson had

ineffective assistance of counsel during his trial and initial post-conviction

proceedings. Due to post-conviction counsel’s ineffectiveness, Ohio courts have

dismissed Wesson’s claim as untimely and successive. The state, however, cannot

ignore the Constitution and refuse to hear a claim that would be a categorical

exception to the death penalty.

Wesson waived his right to a jury on January 6, 2009, and was found guilty of

Aggravated Murder, among other charges in the indictment, by a three-judge panel

on January 23, 2009. After a mitigation hearing on March 6, 2009, the three-judge

panel imposed a sentence of death plus 26 years. During that mitigation hearing, the

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psychologist who evaluated Wesson determined he did not have an intellectual

disability based only on his IQ score. Mit. Tr. 93-94.

Wesson’s first post-conviction proceedings did not address the issue of his

intellectual disability because his post-conviction counsel was ineffective. Once in

federal habeas, represented by new counsel, Wesson was evaluated by an expert who

specialized in intellectual disability. That expert diagnosed Wesson with an

intellectual disability based on his IQ score, adaptive functioning impairments, and

evidence that his limitations manifested before age 18. A second psychologist agreed

with his findings. The psychologist who evaluated Wesson at trial also retracted his

statement that Wesson was not intellectually disabled. He explained that he did not

apply the Flynn Effect to Wesson’s IQ score, which would have lowered it from 76 to

72, and he did not specialize in the area of intellectual disability.

To date, Wesson’s performance on three measures of intelligence have been

within one standard error of measurement of an IQ score of 70. Successor PostConviction Petition, Ex. 1, filed Dec. 11, 2015. His performance on the Wechsler Adult

Intelligence Scale – Fourth Edition yielded a Full Scale Flynn Corrected IQ Score of

73 with a confidence interval 69 to 78. Id. at 12. His performance on that was

consistent with his performance on the WAIS-III in 2008, which yielded a Full Scale

Flynn Corrected IQ Score of 72 with a confidence interval of 68 to 77. Id.

Evaluation of Wesson’s adaptive behavior revealed significant limitations. Id.

at 9. Wesson struggled to successfully function in society. He never lived

independently and instead relied on the women in his life or relatives to provide

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stability. His employment was limited to unskilled manual labor jobs. He did not have

a driver’s license.

The onset of Wesson’s deficiencies manifested before the age of 18. Id. at 12.

Wesson was a poor student and was socially promoted from fifth grade to seventh

grade. When he was 16 years old, his reading and vocabulary levels were seven to

eight grades below the level he should have been functioning given his age. Id.

Accordingly, the expert who evaluated Wesson determined that he had an intellectual

disability within mild range, as it manifested before the age of 18. Id.

This evaluation and both psychologists’ reports were presented in the federal

district court as support for an unexhausted Atkins claim. Determining that Wesson’s

Atkins claim was potentially meritorious, the Northern District of Ohio directed

Wesson to exhaust the claim in state court. The Ohio state courts, however, have

refused to address Wesson’s claim on the merits. Wesson’s Atkins claim was properly

presented in a successor post-conviction petition, yet both the trial court and court of

appeals denied it on procedural grounds. The Ohio Supreme Court declined

jurisdiction.

Wesson has an Eighth Amendment right to be free from cruel and unusual

punishment, which the State of Ohio has ignored. Because he is intellectually

disabled, he is categorically excluded from execution. Ohio may not ignore this

diagnosis and violate the Constitution with his execution.

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REASONS FOR GRANTING THE WRIT

Ohio courts are using procedural roadblocks to prevent a petitioner’s

intellectual disability claim from being heard on the merits. When a capital defendant

has a claim of a per se bar to execution, that claim cannot simply be ignored by the

courts.

The law is clear that individuals with intellectual disability may not be

executed. Atkins v. Virginia, 536 U.S. 304 (2002); Hall v. Florida, 134 S. Ct. 1986

(2014); Brumfield v. Cain, 576 U.S. __, 135 S. Ct. 2269 (2015). What is unclear is

whether that constitutional protection will shield an intellectually disabled petitioner

when ineffective counsel failed to properly raise his claim.

Hersie Wesson has been diagnosed with an intellectual disability and found by

two experts to fit the qualifications of Atkins, yet the State of Ohio has refused to hear

his claim.

I.

This Court did not qualify its holding in Atkins v. Virginia, and the

ban on executing the intellectually disabled should be treated no

differently than the categorical ban on executing juveniles and the

insane.

There is no qualifier to this Court’s holding in Atkins: executions of

intellectually disabled offenders are cruel and unusual punishments prohibited by

the Eighth Amendment. Atkins v. Virginia, 536 U.S. 304, 306, 122 S. Ct. 2242, 2244

(2002). It is a categorical exception to the death penalty because of the recognized

diminished culpability of those offenders. Id. at 306, 317-18. “[T]he Constitution

‘places a substantive restriction on the State’s power to take the life’ of a[n]

[intellectually disabled] offender.” Id. at 321 (quoting Ford v. Wainwright, 477 U.S.

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399, 405 (1986). That restriction is the Eighth Amendment’s ban on cruel and

unusual punishment.

State courts cannot circumvent the Eighth Amendment and impose a cruel and

unusual punishment. Nor can a state court ignore a defendant’s claim that the state

is going to engage in such punitive measures. The state of Ohio is attempting to create

a loophole to the Eighth Amendment’s ban by faulting a defendant for his failure to

alert the court in a timely manner that it is going to impose cruel and unusual

punishment.

The categorical ban against executing an offender with an intellectual

disability is determined by the clinical definition of the diagnosis. Hall v. Florida, 552

U.S. 701, 134 S. Ct. 1986, 1993, 1999 (2014). Three factors must be present: (1)

significant subaverage intellectual functioning, (2) deficits in adaptive functioning,

and (3) onset of these deficits before the age of 18. Id. at 1994. Significant subaverage

intellectual functioning is measured by IQ score below 70, which must be read as a

range, including the standard error of measurement of plus and minus five. Id. at

2001. “Intellectual disability is a condition, not a number.” Id. (citing DSM-5 at 37).

The categorical ban against the execution of intellectually disabled offenders

is parallel to the categorical ban against the execution of juvenile offenders. Roper v.

Simmons, 543 U.S. 551 (2005). Both bans relied on similar objective indicia of

consensus against the practice. Id. at 567. This Court’s decision to prohibit the

execution of offenders under the age of 18 relied heavily on Atkins. See id. Because

“society draws the line for many purposes between childhood and adulthood” at the

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age of 18, the categorical ban was defined by the defendant’s age at the time the crime

was committed. Id. at 574, 578.

The scenario of a state court refusing to address the age of a defendant is

unequivocally unreasonable and fundamentally unfair. The same is true for a capital

defendant’s Atkins claim. Atkins, its progeny, and Roper rely on the same reasoning

and principles, and coincide with the evolving standards of decency. The cases are

explicit categorical exceptions to the death penalty. Just as a court cannot simply

ignore a defendant’s age, a state court cannot simply ignore a capital defendant’s

meritorious Atkins claim.

The Eighth Amendment also prohibits the execution of a prisoner who is

insane. Ford v. Wainwright, 477 U.S. 399, 409-10 (1986). “Under Ford, once a

prisoner makes the requisite preliminary showing that his current mental state

would bar his execution, the Eighth Amendment . . . entitles him to an adjudication

to determine his condition.” Panetti v. Quarterman, 551 U.S. 930, 934 (2007). A

“substantial threshold showing of insanity” includes a “fair hearing” in accord with

fundamental fairness. Id. at 949. “This protection means a prisoner must be accorded

an ‘opportunity to be heard.’” Id. (quoting Ford, 477 U.S. at 424 (opinion concurring

in part and concurring in judgment)).

The same must be true for a capital defendant with an Atkins claim. He must

be afforded the opportunity to be heard. Wesson never received an Atkins hearing—

not at trial, during his initial post-conviction proceedings, nor during his successor

post-conviction proceedings. At trial, the psychologist who evaluated him concluded

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he was not intellectually disabled based only on his IQ score. Mit Tr. 94-95. The

psychologist did, however, identify several areas of significant deficits in adaptive

functioning. Mit. Tr. 100,116-18, 123-24, 128. He also testified that Wesson’s

limitations manifested before the age of 18. Mit. Tr. 108-09, 128-29.

Wesson’s post-conviction counsel also missed the mark. They failed to

investigate Wesson’s potential Atkins claim and failed to have him evaluated by an

expert in intellectual disability. Once Wesson was represented by effective counsel,

he was evaluated properly and diagnosed with an intellectual disability. Two

psychologists determined Wesson’s IQ, deficits in adaptive functioning, and the onset

of these deficits occurred before the age of 18, sufficient to categorically exclude him

from execution under Atkins. Successor Post-Conviction Petition, Exs. 1 and 2, filed

Dec. 11, 2015. The original psychologist also retracted his statement from trial that

Wesson was not intellectually disabled, that he should not have offered that opinion,

and he did not apply the Flynn Effect or consider his IQ score as a range. Successor

Post-Conviction Petition, Ex. 3, filed Dec. 11, 2015. The area of intellectual disability

was not his area of expertise. Id.

Recognizing Wesson’s “potentially meritorious Atkins claim,” the federal

district court directed Wesson to exhaust this claim in State court. Wesson v. Jenkins,

N.D.Ohio No. 5:14 CV 2688, 2015 US Dist. LEXIS 157218 (Nov. 20, 2015). At the very

least, Wesson has made a substantial threshold of an Atkins claim, yet the State

courts have refused to grant him his right to a fair hearing. Panetti, 551 U.S. at 934.

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Not only are Ohio courts refusing to grant him a hearing, they have refused to address

the merits of Wesson’s claims at all.

The State of Ohio has avoided the merits of Wesson’s Atkins claim and instead

relied on procedural roadblocks to refuse him the opportunity to be heard. Both the

trial court and the Ninth District Court of Appeals determined Wesson’s petition was

untimely and successive. State v. Wesson, 2012-Ohio-4495, 2012 Ohio App. LEXIS

3929 (Summit County, Sept. 28, 2012); State v. Wesson, 2018-Ohio-834, 2018 Ohio

App. LEXIS 877 (Ohio Ct. App. 9th Dist.). Both courts found that Wesson was not

unavoidably prevented from raising the issue in a timely manner. Id. Neither

addressed the merits of Wesson’s Atkins claim. Id.

Wesson is entitled to an Atkins hearing and he is entitled to have the state

courts address the merits of his claim. Because his claim is a categorical exception to

a death sentence, turning a blind eye is violative of the Eighth Amendment.

II.

It is inconsistent with the Constitution to hold an intellectuallydisabled defendant at fault for his counsel’s failure to present

evidence of his intellectual disability.

A capital defendant has a Sixth Amendment right to have counsel enforce the

Eighth Amendment’s “substantial restriction” on the State’s power to take his life.

Atkins, 536 U.S. at 321, Ford, 477 U.S. at 405. “The right to the effective assistance

of counsel at trial is a bedrock principle in our justice system.” Martinez v. Ryan, 566

U.S. 1, 8 (2012). It is “an obvious truth” that an individual “haled into court . . . cannot

be assured a fair trial unless counsel is provided for him.” Gideon v. Wainwright, 372

U.S. 335, 344 (1963).

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Wesson’s right to be heard on his Atkins claim coincides with his right to

counsel: “The right to be heard would be, in many cases, of little avail if it did not

comprehend the right to be heard by counsel.” Id. “Even the intelligent and educated

layman has small and sometimes no skill in the science of law.” Id. at 345 (emphasis

added). “He lacks both the skill and knowledge adequately to prepare his defense,

even though he have a perfect one.” Id. If even an educated and intelligent defendant

“requires the guiding hand of counsel at every step in the proceedings against him,”

then a defendant with an intellectual disability is even more reliant on the assistance

of counsel. Id.

Post-conviction counsel is also essential, but their necessity is heightened

when the defendant is intellectually-disabled. “While confined to prison, the prisoner

is in no position to develop the evidentiary basis for a claim of ineffective assistance,

which often turns on evidence outside the trial record.” Martinez, 566 U.S. at 12.

Without the assistance of “an adequate attorney, a prisoner will have similar

difficulties vindicating a substantial ineffective-assistance-of-trial-counsel claim . . .

[these] claims . . . often require investigative work and an understanding of trial

strategy.” Id. at 11. Prisoners are simply unable to effectively litigate post-conviction

claims due to their restrictions of freedom and resources.

Wesson was completely reliant on his attorneys at trial and in his initial postconviction proceedings. Though it is readily apparent that effective state postconviction counsel is essential to a capital defendant’s defense, Ohio courts have not

recognized Martinez as a constitutional right to post-conviction counsel. Hodges v.

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Colson, 727 F.3d 517, 530-31 (6th Cir. 2013). The Sixth Circuit reads Martinez as an

equitable, narrow exception to Coleman v. Thompson, 501 U.S. 722 (1991), where a

petitioner may establish cause for a procedural default on a claim of ineffective

assistance of trial counsel. Id.

Had Wesson’s trial or post-conviction counsel been effective, he would not be

on Ohio’s death row, as he should be categorically excluded from the death penalty.

A petitioner with an intellectual disability is unable to litigate this claim on his own.

By nature of the diagnosis, he may not even be aware of his own limitations. He must

rely on competent attorneys to recognize his constitutional rights and advocate any

violations of them on his behalf.

A meritorious Atkins claim, like Wesson’s, is not something that may be waived

or procedurally defaulted, because it is a strict violation of the Eighth Amendment.

Wesson’s Sixth Amendment right to counsel required that his attorneys identify

constitutional violations such as this one. The purpose of post-conviction proceedings

is to identify issues outside the trial record that render a prisoner’s sentence

unconstitutional. An evaluation and diagnosis of intellectual disability is exactly that.

That duty falls upon post-conviction counsel.

The state courts determined that Wesson failed to raise his Atkins claim in

post-conviction in a timely manner. State v. Wesson, 2012-Ohio-4495, 2012 Ohio App.

LEXIS 3929 (Summit County, Sept. 28, 2012); State v. Wesson, 2018-Ohio-834, 2018

Ohio App. LEXIS 877 (Ohio Ct. App. 9th Dist.). But it was post-conviction counsel

who failed Wesson when they missed raising the issue in his initial post-conviction

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petition. See Amend. to Successor Post-Conviction Petition, Exs. 25 and 26, filed Feb.

29, 2016 (postconviction counsel’s affidavits that failure to retain intellectual

disability expert was due to inexperience). It is because of this ineffectiveness that

Wesson’s Atkins claim was untimely, but the Ohio court refused to consider the cause

for the untimeliness and dismissed Wesson’s Atkins claim without addressing the

merits. Id.

The stakes of capital cases are extraordinary. Death is different. Baze v. Rees,

553 U.S. 35, 84 (2008) (Stevens, J., concurring); McCleskey v. Kemp, 481 U.S. 279,

340 (1987) (Brennan, J., dissenting); Gregg v. Georgia, 428 U.S. 153, 188 (1976);

Furman v. Georgia, 408 U.S. 238, 286 (1972) (Brennan. J., concurring). A capital

defendant must be able to rely on his counsel to identify claims of such significant

importance that would per se exclude him for execution.

The Sixth Amendment mandates the effective assistance of counsel. “Mere

appointment of competent counsel” is not enough. United States v. Cronic, 466 U.S.

648, 654, n. 11 (1984). “Assistance begins with the appointment of counsel, it does not

end there.” Id. Failing to raise a claim that per se excludes a capital defendant from

execution is nothing short of ineffective. The Sixth and Eighth Amendments require

the presentation of such evidence.

CONCLUSION

Wesson is categorically excluded from execution because of his diagnosed

intellectual disability. He has a Sixth and Eighth Amendment right to have his Atkins

claim addressed on the merits. Because he is per se excluded from a death sentence,

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Ohio cannot ignore his claim on procedural grounds. Wesson respectfully requests

that this Court grant a writ of certiorari to review the decision below.

Respectfully submitted,

Office of the Ohio Public Defender

/s/ Rachel Troutman

Rachel Troutman (0076741)

Supervising Attorney

Death Penalty Department

Rachel.Troutman@opd.ohio.gov

Counsel of Record

/s/ Melissa Jackson

Melissa Jackson (0077833)

Assistant State Public Defender

Death Penalty Department

Melissa.Jackson@opd.ohio.gov

250 East Broad Street, Suite 1400

Columbus, Ohio 43215

(614) 466-5394 (Telephone)

(614) 644-0708 (Fax)

Counsel for Petitioner Hersie Wesson, Jr.

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