Petition for Writ of Certiorari — David Ivy, Petitioner v. Tennessee

CAPITAL CASE

No.

IN THE

SUPREME COURT OF THE UNITED STATES

DAVID IVY,

Petitioner

vs.

STATE OF TENNESSEE,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE TENNESSEE SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

Kelley J. Henry*

Supervisory Assistant Federal Public

Defender, Capital Habeas Unit

*Counsel of Record

Amy D. Harwell

Assistant Federal Public Defender

810 Broadway, Suite 200

Nashville, Tennessee 37203

(615) 736-5047

Counsel for David Ivy

QUESTION PRESENTED

Where this Court has declared, “States may not execute anyone in ‘the entire

category of [intellectually disabled] offenders.” Moore v. Texas, 137 S. Ct. 1039,

1051 (2017)(emphasis in original) (quoting Roper v. Simmons, 543 U.S. 551, 563-64

(2005)), may a state thwart the Constitutional prohibition against execution of the

intellectually disabled by failing to provide a procedural vehicle for the adjudication

of an Atkins-exemption claim?

TABLE OF CONTENTS

QUESTION PRESENTED Wwe ececececsesesseseseseacareesscasaceeesesesesscscavevsrsassnsusuceveneetes i

TABLE OF AUTHORITIES. cece eecceeesesessesssssencseesssessscseensassescsasacatensncevsusecerenes ii

OPINIONS BELOW .......cccccssecsssesscsessssneeseeescseessseescsececseeseseesescsnseessesscaravssesssaesasanenvanes 1

JURISDICTION o.oo. cccescsscsscsceseescesssesssseeseaeessssssssnsesiseensasssssessssusscsnesesscersaavenesassusasaves 2

CONSTITUTIONAL PROVISIONS INVOLVED... ..cecccsscscscesessesssesssesscsesrsnesvecsevesenens 2

STATEMENT OF THE CASE ooo ..ceccceecececeeseeesecesesesstsescassseseseseseensscseessussesecreevanssevens 2

REASON THE WRIT SHOULD BE GRANTED 0.0. ccccceescsescscsesseesesesssssecereeseceees 5

CONCLUSION oo cccccceecccsecsseesesvereereescacseeuessscseseeseseseseasssseseatssssavessseacsetsesesecasansesecerens 8

CERTIFICATE OF SERVICE .0ooo..ccccceceeeceseescseenesescscseacaneneacsuesssesesceucsesesesussnseneacseaes 9

TABLE OF AUTHORITIES

FEDERAL CASES

Atkins v. Virginia, 536 U.S. 804 (2002). ccccsstcscesesesssssesssssssessereseseesecereeces passim

Brumfield v. Cain, 185 S. Ct. 2269 (2015) ...cccccccscccsssssssssececscecsersscsscsseverseteeecescececcecces 3

Ford v. Wainwright, 477 U.S. 399 (1986) ....cccccssscscccscsscssssescssecsessesssveuseeeecececcecescecees 4

Hall v. Florida, 134 S. Ct. 1986 (2014) coccecccccccsccsssessessssessescsssssssestseverseuseveesecececccseee. 7

Marbury v. Madison, 1 Cranch 187 (1808)......c.cccscscsscssescsscsssecsevessesetereeveveceecececececcee. 7

Montgomery v. Louisiana, 136 S.Ct. 718 (2016) oo eccscsccscsssesessesessssesestetseceeeeess passim

Moore v. Texas, 187 S. Ct. 1089 (2017) vec escscscsesssssesesesesecesecesceeseceesessesees passim

Roper v. Simmons, 543 U.S. 551, 563-64 (2005) oo. cccccecccosscsssssssesessesevecceseceeeeeccece. 4,7

Van Tran v. State, 6 S.W. 3d, 257, 265 (Tenn. 1999) 0... cecccccccscscsssssecsssesesesseveesecesceees, 4

STATE CASES

Ivy v. State, No. W2016-02454-SC-R11-ECN (Tenn. May 18, 2018) .occcccccccscsosesecssosees 1

Ivy v. State, 2018 WL 625127 (Tenn. Ct. Crim. App. 2018) ..cccccccccccccccccccsesscsessoseeeees 1,4

Ivy v. Westbrooks, 2:03-cv-O2374 ...cccccceccccsecsssssssvssssssevevassssseasssssesssvevseceseveeiseseeseescecee. 3

Keen v. State, 398 S.W.3d 594, 613 (Tenn. 2012) icccccccccsccsssccessstsesesessessseseeeteevesceses. 6

Payne v. State, No. W2018-01248-SC-RAL-PD ooo. ceccccccccsecscscssceessarecserecverserercescesess 2

Payne v. State, 492 S.W.8d 478 (Tern. 2016) .occcccccecccccsssssssesssseececsessstseeseseeceseeccece. 2,6

iii

CONSTITUTIONAL AND STATUTORY PROVISIONS

2B U.S.C. § 1257 oocccccccscceccssesssssesssstessssssessasssssesavesucsatcssesssessusessssasisavesavssssesiscesseeteessuees 2

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

U.S. Const. Amend. VITD ...ccccccccccsessccseescesesescescesenscnscnsssasssevecsssuacesesesaessesuerasassaceaeeces 2

U.S. Const. Amend. XIV... ccccssesssssescesetssccsecsecsevscsasssccssseceesacseeessevavsausaecsucsevsecaceee 2

OTHER AUTHORITIES

American Association on Intellectual and Developmental Disabilities, Intellectual

Disability: Definition, Classification, and Systems of Supports (11th ed. 2010).....5, 7

American Psychiatric Association, Diagnostic and Statistical Manual of Mental

Disorders (Sth ed. 2018) ..ccccccecccsccsssesssssceceevevscensessscsesscsvsssesssceavaceasssssuasseasseecevans 5,7

iv

IN THE

SUPREME COURT OF THE UNITED STATES

No.

DAVID IVY,

Petitioner,

v.

STATE OF TENNESSEE

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE TENNESSEE SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

David Ivy respectfully petitions for a writ of certiorari to review the judgment

of the Tennessee Supreme Court.

OPINIONS BELOW

The ruling of the Tennessee Supreme Court denying a discretionary appeal is

unreported.. Appendix A. The opinion of the court of criminal appeals upholding the

denial of relief is unreported. Ivy v. State, 2018 WL 625127 (Tenn. Ct. Crim. App.

2018). Appendix B.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1257. The Tennessee Supreme

Court issued its denial of relief on May 18, 2018. The mandate of the Tennessee

Supreme Court issued on May 29, 2018. Appendix C. This petition is timely filed.

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves the Eighth and Fourteenth Amendments to the United

States Constitution:

The Eighth Amendment provides in pertinent part: “[Nlor [shall] cruel and

unusual punishments [bel inflicted.”

The Fourteenth Amendment provides in pertinent part: “[Nlor shall any

State deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws.”

STATEMENT OF THE CASE

David Ivy filed a Petition for Writ of Error Coram Nobis and/or Other Relief

in the Criminal Court of Shelby County Tennessee on May 20, 2015. TR pp. 27-89.1

The State of Tennessee responded on August 24, 2015. TR pp. 92-94. The

proceeding was stayed pending the outcome of the Tennessee Supreme Court’s

decision in Payne v. State, No. W2013-01248-SC-R11-PD; TR p. 95. On April 7,

2016, the Tennessee Supreme Court issued its opinion in the Payne case. 492

S.W.3d 478 (Tenn. 2016). The Criminal Court ordered Mr. Ivy to amend his

‘TR citations are to the state court appellate technical record.

2

pleadings in light of Payne. TR p. 97. Mr. Ivy complied. TR pp. 98-105. Mr. Ivy’s

additional arguments alerted the lower court to this Court’s decisions in Brumfield

v. Cain, 185 S.Ct. 2269 (2015) and Montgomery v. Louisiana, 136 S.Ct. 718 (2016).

Mr. Ivy included in his requests for relief the opportunity to invoke the court’s

jurisdiction pursuant to Tenn. R. Crim. P. 36.1 (correct illegal sentence), as well as

under the common law writ of audita querela. The State responded. TR pp.104-108.

The Criminal Court denied relief on September 29, 2016. TR pp. 111-117. Mr. Ivy

timely appealed. TR pp.118-119.

While Mr. Ivy’s case was pending in the court of criminal appeals, this Court

issued its opinion in Moore v. Texas, 187 S.Ct. 1039 (2017). During this same time,

the state attorney general advised the federal district court — who is also

considering an Atkins claim in Mr. Ivy’s pending federal petition for writ of habeas

corpus under 28 U.S.C. § 2254 — that Mr. Ivy had an available remedy in state

court. The state attorney general suggested that the Atkins claim raised in federal

court should be dismissed as unexhausted. Ivy v. Westbrooks, 2:03-cv-02374, D.E.

85-1, PageID 5003-04. Given the state attorney general’s representation that the

Mr. Ivy had a remedy in state court, the federal district court stayed federal

proceedings for Mr. Ivy to pursue relief in state court. Jd, D.E. 91, PageID 5197. In

granting the stay, the federal district court wrote: “A stay will allow the State of

Tennessee to fulfill its role in developing appropriate ways to enforce the

constitutional restriction on executing the intellectually disabled in the procedural

and substantive context of Ivy’s claims.” Jd.

At oral argument in the Court of Criminal Appeals on Mr. Ivy’s coram nobis

petition, however, the state attorney general argued that Mr. Ivy did not have an

available remedy in state court. Mr. Ivy argued that the state was taking

inconsistent positions and that it was incumbent on the state of Tennessee to

provide a procedural vehicle for Mr. Ivy in light of Moore.

http://www.tncourts.gov/courts/court-criminal-appeals/arguments/2017/07/1 l/david-

ivy-v-state-tennessee (last checked April 2, 2018).

The court of criminal appeals denied relief without citation to Moore. Ivy.

State, 2018 WL 625127 (Tenn. Crim. App. January 30, 2018), Appendix A. Counsel

for Mr. Ivy sought permission to appeal to the Tennessee Supreme Court.

Specifically, counsel for Mr. Ivy presented the Tennessee Supreme Court with the

following question:

In Moore v. Texas, 581 U.S. __, 187 S.Ct. 1039 (2017), the United

States Supreme Court declared “States may not execute anyone in ‘the

entire category of [intellectually disabled] offenders.” 137 S. Ct. at

1051 (emphasis in original) (quoting Roper v. Simmons, 543 U.S. 551,

563-64 (2005)). Moore’s dictate echoes the earlier prohibition regarding

execution of the mentally incompetent. See, Ford v. Wainwright, 477

US. 399 (1986). This Court recognized that the Ford decision created

“an affirmative constitutional duty [for this Court] to ensure that no

incompetent prisoner is executed.” Van Tran v. State, 6 S.W. 3d, 257,

265 (Tenn. 1999). Here, the Supreme Court has extended the

prohibition against execution to the intellectually disabled — creating

another duty for this Court to fulfill. Moore places “an affirmative

constitutional duty” on the State of Tennessee to provide a forum for

the adjudication of Mr. Ivy’s intellectual disability claim. Therefore,

the court of criminal appeals decision upholding the denial of Mr. Ivy’s

petition presents the following question:

In light of Moore, which procedure will this Court identify as the

most appropriate vehicle for the adjudication of Mr. Ivy’s Atkins claim?

The Tennessee Supreme Court denied Mr. Ivy’s application for permission to

appeal on May 18, 2018.

REASON THE WRIT SHOULD BE GRANTED

Moore requires state courts to provide a remedy for persons who are exempt from

the death penalty due to intellectual disability.

In Moore v. Texas, 137 S.Ct. 1039 (2017), this Court held that under the

Eighth Amendment, state courts must evaluate an intellectual disability claim

using the “medical community’s current standards” for identifying those who are

intellectually disabled. Moore, 137 S.Ct. at 1053. All aspects of an intellectual

disability determination must comport with those current clinical standards —

which include criteria and standards established by the APA in the Diagnostic and

Statistics Manual of Mental Disorders, 5th Edition (DSM-5), and AAIDD’s User’s

Guide to Intellectual Disability, Eleventh Edition (AAIDD-11). Jd. at 1050.

Adhering to the rule of Montgomery v. Louisiana, 138 S.Ct. 718 (2016), that

states may not fail to provide a forum for vindication of a constitutional protection,

Moore holds that states may not fail to provide an appropriate forum for the

adjudication of intelectual disability claims. Moore adds to Montgomery that the

Eighth Amendment requires application of the current clinical, scientific standards

to the determination of exemption from execution under Atkins. Just as Mr. Moore

was entitled to have evidence of his intellectual disability assessed in accordance

with the current clinical standards set forth in DSM-5 and AAIDD-11, Moore v.

Texas mandates that Mr. Ivy receive that same review of his intellectual disability

claim.

In the years following this Court’s decision in Atkins, Tennessee courts have

failed to grant sentencing phase relief to a single post-conviction defendant based on

a claim of intellectual disability. Although the Court has repeatedly stated that the

state of Tennessee has no interest in executing the intellectually disabled, they

continue to fail to identify a procedural vehicle for inmates such as Mr. Ivy. See

Keen v. State, 398 8.W.3d 594, 613 (Tenn. 2012)(“ We remain committed to the

principle that Tennessee has no business executing persons who are intellectually

disabled.”); Payne v. State, 493 S.W.3d 478 (Tenn. 2016)(same).

Mr. Ivy has a meritorious claim that he is ineligible for execution because he

is intellectually disabled. He dropped out of school at the age of seventeen at which

time he was in the seventh grade for the third consecutive year. Mr. Ivy previously

failed the 4th grade. He was recommended for special education classes in the third

grade. TR 86. His mother described him as “kind of slow.” Jd. His full scale IQ on

the Wechsler Intelligence Scale for Children-Revised was 73 when he was 12 years

of age. Jd. At that same time, Mr. Ivy’s “performance on the Bender Gestalt test

suggestled] impaired perceptual functioning.” Id. Mr. Ivy’s performance on

academic measures “indicate deficits in all three areas.” Jd. Mr. Ivy was “reading on

the third grade level.” Jd. The school report concluded:

David is most appropriately diagnosed as a child having

continuing handicap in intellectual functioning and achievement which

significantly impairs the ability to think and/or act in a regular school

program, but who is functioning socially at or near a level appropriate

to his chronological age. Intellectual functioning is more than two

standard deviations below the mean|[.]”

Tad.

At age fourteen, Mr. Ivy was given the Peabody Picture Vocabulary Test-

Revised and achieved a score of 63. He was also given the Culture Fair Intelligence

Test and received an IQ score of 73.

The evidence in record indicates that Mr. Ivy fits within the:

generally accepted, uncontroversial intellectual-disability diagnostic

definition, which identifies three core elements: (1) intellectualfunctioning deficits Gndicated by an IQ score “approximately two

standard deviations below the mean”—i.e., a score of roughly 70—

adjusted for “the standard error of measurement,” AAIDD-11, at 27);

(2) adaptive deficits (“the inability to learn basic skills and adjust

behavior to changing circumstances,” Hall v. Florida, 572 U.S. .—

—, 18458.Ct. 1986, 1994, 188 L.Ed.2d 1007 (2014)); and (3) the onset of

these deficits while still a minor. See App. to Pet. for Cert. 150a (citing

AAIDD-11, at 1). See also Hall, 572 U.S., at , 184 S.Ct., at 1993—

1994

Moore, 137 8. Ct. at 1045. Tennessee should not be permitted to execute him.

“States may not execute anyone in “the entire category of [intellectually disabled]

offenders,” Roper, 543 U.S., at 563-564, 125 S.Ct. 1183 (emphasis added).” Jd. at

1051.

Where there is a constitutional right there must be a remedy. Such is a

bedrock principle of our judicial system. Marbury v. Madison, 1 Cranch 137, 162

(1803) (“The very essence of civil liberty certainly consists in the right of every

indicial to claim the protection of the laws whenever he receives an injury”). When

there is a constitutional limitation on the state’s power to act, the courts are

constitutionally obligated to provide a substantive opportunity to determine

whether that limitation applies. Montgomery v. Louisiana, 577 U.S___, 138 S.Ct.

718 (2016). Moore places a constitutional obligation on the State of Tennessee to

provide a forum for the adjudication of Mr. Ivy’s intellectual disability exemption

claim.

Moore and Montgomery as well as the bedrock protections of constitutional

due process, require that the procedural barricades be removed, and that Mr. Ivy be

given a merits hearing on his claim of intellectual disability.

CONCLUSION

For this reason, David Ivy requests that the Court grant a writ of certiorari.

Respectfully submitted,

Ktlbn() dbus

Kelley J. Henty

Supervisory Assistant Pod al Public

Defender, Capital Habeas Unit

Amy D. Harwell

Assistant Federal Public Defender

Office of the Federal Public Defender

810 Broadway, Suite 200

Nashville, Tennessee 37203

(615) 736-5047

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing petition for writ of certiorari, and

accompanying appendix, were served upon counsel for Respondent, Andrew

Coulam, Assistant Attorney General, 425 Fifth Avenue North, Nashville,

Tennessee, 37203, this llth day of October, 2018.

APPENDIX A

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

DAVID IVY v. STATE OF TENNESSEE

Criminal Court for Shelby County

No. 01-12388

No. W2016-02454-SC-RLI-ECN

ORDER

FILED

05/18/2018

Clerk of the

Appellate Courts

Upon consideration of the application for permission to appeal of David Ivy and the

record before us, the application is denied.

PER CURIAM

APPENDIX B

Ivy v. State, Slip Copy (2018)

2018 WL 625127

Only the Westlaw citation is currently available.

SEE RULE 19 OF THE RULES OF THE

COURT OF CRIMINAL APPEALS RELATING

TO PUBLICATION OF OPINIONS AND

CITATION OF UNPUBLISHED OPINIONS.

Court of Criminal Appeals of Tennessee,

AT JACKSON.

David IVY

v.

STATE of Tennessee

No. W2016-02454—CCA-—R3~ECN

|

July 11, 2017 Session

|

FILED 01/30/2018

|

Application for Permission to Appeal

Denied by Supreme Court May 18, 2018

Appeal from the Criminal Court for Shelby County, No. 01~-

12388, James C. Beasley, Jr., Judge

Attorneys and Law Firms

Kelley J. Henry, Supervisory Assistant Federal Public

Defender, and Amy D. Harwell, Assistant Federal Public

Defender, Nashville, Tennessee, for the appellant, David

Ivy.

Herbert H. Slatery IT, Attorney General and Reporter;

Andrew C. Coulam, Assistant Attorney General; Amy P.

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

Assistant District Attorney General, for the appellee,

State of Tennessee.

Norma Mcgee Ogle, J., delivered the opinion of the court,

in which D. Kelly Thomas, Jr., and Camille R. McMullen,

JJ., joined.

OPINION

Norma Mcgee Ogle, J.

The Petitioner, David Ivy, appeals the Shelby County

Criminal Court's denial of his petition for a writ of error

coram nobis, seeking relief from his conviction of first

degree premeditated murder and resulting sentence of

death. On appeal, the Petitioner contends that the coram

nobis court erred by dismissing his petition, by denying

his Rule 36.1 motion to correct an illegal sentence, and by

denying his writ of error audita querela. In addition, he

asks that this court advise him as to the correct pleading

to file in order to challenge his death sentence. Based upon

the oral arguments, the record, and the parties' briefs, we

conclude that the coram nobis court did not err by denying

relief, and we decline to provide an advisory opinion

regarding future requests for relief.

1, Factual Background

*1 In June 2000, the Petitioner was released from prison

and placed on parole. David Ivy v. State, No. W2010-

01844--CCA-R3-PD, 2012 WL 6681905, at *1 (Tenn.

Crim. App. at Jackson, Dec. 21, 2012). Subsequently,

he began dating the victim, LaKisha Thomas. Id. Their

relationship was “marked by Ivy's violence against

Thomas,” and the victim obtained an order of protection

against the Petitioner on June 6, 2001. Id, at *2. Two days

later, the Petitioner ran up to the victim while she was

sitting in her car and shot her five times, killing her. Id.

In 2003, a Shelby County Criminal Court Jury convicted

the Petitioner of first degree premeditated murder and

sentenced him to death. State v. Ivy, 188 S.W.3d 132, 138~

39 (Tenn. 2006).

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

relief claiming, in pertinent part, that trial counsel

were ineffective during the penalty phase of his trial

by failing to have him evaluated by a mental health

professional. David Ivy, No. W2010-01844-CCA-R3-

PD, 2012 WL 6681905, at *26. This court found that

while counsel were deficient, the Petitioner failed to

demonstrate prejudice. Id. at 44-46. On May 28, 2015,

the Petitioner filed a petition for a writ of error coram

nobis “and/or other relief,” which is the basis for this

appeal, asserting that he was intellectually disabled and,

therefore, ineligible for the death penalty pursuant to

Atkins v. Virginia, 536 U.S. 304 (2002). In support of

his claim, the Petitioner attached a 1984 mental health

report from the Memphis School System. According to

the report, the then twelve-year-old Petitioner's 1.Q. score

Ivy v. State, Slip Copy (2018)

on the WISC-R was 73, “placing him in the borderline

range of intelligence.” The report stated that additional

testing showed the Petitioner, who was in the sixth

grade, exhibited “deficits” in reading, math, and written

language and was reading on just the third-grade level.

The report concluded that the Petitioner's “[ijntellectual

functioning is more than two standard deviations below

the mean, academic achievement is at or below the

fourth percentile in Reading Comprehension, Reading

Mechanics and Written Language and adaptive behavior

is not significantly impaired.”

The State responded to the petition, arguing that it was

barred by the one-year statute of limitations. On May I1,

2016, the Petitioner filed additional argument in support

of his petition, also seeking relief pursuant to Tennessee

Rule of Criminal Procedure 36. and a petition for writ of

audita querela.

The coram nobis court denied relief without a hearing.

First, the court concluded that relief was not available to

the Petitioner for his intellectual disability issue due to

our supreme court's ruling in Payne v, State, 493 S.W.3d

478, 480 (Tenn. 2016). As to the motion for relief pursuant

to Tennessee Rule of Criminal Procedure 36.1, the court

determined that the Petitioner was not entitled to relief

because his death sentence was authorized by statute. The

court noted that “changes in constitutional law render

a sentence voidable, not illegal and void.” As to the

audita querela claim, the court concluded that the writ was

obsolete and, thus, could not provide relief. The Petitioner

challenges the rulings of the coram nobis court.

Il. Analysis

A, Writ of Error Coram Nobis

*2 The Petitioner “acknowledges that our supreme

court's decision in Payne holds that coram nobis does not

provide a procedural adjudication of an Atkins claim.” He

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

alternative, he contends that this case is distinguishable

from Payne. The State maintains on appeal that the

petition was barred by the statute of limitations. The State

also argues that Payne held that a defendant cannot raise

an intellectual disability claim via a petition for a writ of

error coram nobis and that this court is bound by that

decision.

The writ of error coram nobis is codified in Tennessee

Code Annotated section 40-26-105 and provides as

follows:

There is hereby made available to

convicted defendants in criminal

cases a proceeding in the nature

of a writ of error coram nobis,

to be governed by the same rules

and procedure applicable to the

writ of error coram nobis in civil

cases, except insofar as inconsistent

herewith .... Upon a showing by the

defendant that the defendant was

without fault in failing to present

certain evidence at the proper time, a

writ of error coram nobis will lie for

subsequently or newly discovered

evidence relating to matters which

were litigated at the trial if the

judge determines that such evidence

may have resulted in a different

judgment, had it been presented at

the trial.

Tenn. Code Ann. § 40-26~-105(a), (b). Generally, a

decision whether to grant a writ of error coram nobis rests

within the sound discretion of the trial court. See State vy.

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

The writ of error coram nobis is a post-conviction

mechanism that has a long history in the common law

and the State of Tennessee. See, e.g., State v. Vasques.

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

extraordinary procedural remedy ... [that] fills only a slight

gap into which few cases fall.” State v. Mixon, 983 §.W.2d

661, 672 (Tenn. 1999),

A writ of error coram nobis must be filed within one

year afler the judgment becomes final in the trial court.

Tenn. Code Ann. § 27-7-103. Nevertheless, the statute

of limitations may be tolled on due process grounds if a

petition seeks relief based upon newly discovered evidence

234 (Tenn. 2012). Our supreme court has stated that “[iJn

determining whether tolling of the statute is proper, the

court is required to balance the petitioner's interest in

having a hearing with the interest of the State in preventing

a claim that is stale and groundless.” Id. In general,

ivy v. State, Slip Copy (2018)

“ ‘before a state may terminate a claim for failure to

comply with ... statutes of limitations, due process requires

that potential litigants be provided an opportunity for

the presentation of claims at a meaningful time and in

a meaningful manner.’ ” Id. (quoting Burford v. State,

845 S.W.2d 204, 208 (Tenn. 1992) ). Our supreme court

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

“(1) determine when the limitations

period would normally have begun

to run; (2) determine whether the

grounds for relief actually arose

after the limitations period would

normally have commenced; and (3)

if the grounds are ‘later-arising,’

determine if, under the facts of

the case, a strict application of the

limitations period would effectively

deny the petitioner a reasonable

opportunity to present the claim.”

Id, (quoting Sands v. State, 903 $.W.2d 297, 301 (Tenn.

1995)).

In Payne, the petitioner was sentenced to death in 1988

for two murders he committed in 1987. 493 S.W.3d

at 480-81. In 1990, the Tennessee General Assembly

passed legislation prohibiting a death sentence for a

defendant with an intellecual disability at the time of the

offense. On December 4, 2001, our supreme court held

in Van Tran y, State, 66 S.W.3d 790, 812 (Tenn. 2001),

that the federal and state constitutions prohibited the

execution of individuals who were intellectually disabled.

Id. at 480, 481. In 2002, the United States Supreme

constitution prohibited the execution of intellectually

disabled defendants. Id. at 481.

*3 Ten years later, Payne sought coram nobis relief on

the basis that his intellectual disability prohibited his death

sentence. Id. at 483. In support of his claim, he submitted a

psychologist's 2012 affidavit, opining that the petitioner's

“ ‘functional intelligence clearly is at or below 70.’ ” Id.

at 482. The petitioner claimed that the opinion “was new

scientific evidence establishing that ‘he is actually innocent

of capital murder and the death penalty.’ ” Id. at 483. In

denying relief, our supreme court explained as follows:

The evil that the coram nobis statute

is aimed at remedying is a conviction

based on materially

or inaccurate information.

incomplete

It is

not intended to provide convicted

felons a second trial due to

subsequent changes in the law.

Here, the Petitioner is attempting

to challenge his sentence of death

based on changes in the law

that occurred many years after

his trial. A petition for writ

of error coram nobis pursuant

to Tennessee Code Annotated

section 40~26-105(b) is not the

appropriate procedural mechanism

for pursuing the Petitioner's claim of

intellectual disability. We hold that

the Petitioner has failed to state a

claim that is cognizable under the

coram nobis statute.

Id. at 486.

Turning to the instant case, both the Petitioner and the

State contend that Payne held that a defendant cannot

raise an intellectual disability claim via a petition for a

writ of error coram nobis. However, our supreme court

actually found in Payne that a writ of error coram nobis

was not the proper avenue for relief in that particular

case because the petitioner was “attempting to challenge

his sentence of death based on changes in the law that

occurred many years after his trial.” Id.; see David Keen

vy, State, No. W2016-02463-CCA-R3-ECN, 2017 WL

3475438 (Tenn. Crim. App. at Jackson, Aug. I1, 2017),

perm. to app. filed, (Tenn. Oct. 9, 2017). Such is not

the case here. The statutory and case law prohibiting the

execution of the intellectually disabled was established

before the Petitioner went to trial. Therefore, we do not

think Payne is dispositive of this case.

That said, though, the Petitioner has failed to satisfy

a crucial prerequisite to a proper petition for a writ

of error coram nobis in that, unlike the petitioner in

Payne, he did not allege in his petition and does not

allege on appeal that he is presenting newly discovered

evidence. In fact, he notes in his brief that his mental

deficiencies were first recognized when he was a child, and

he attached only a 1984 mental health report from the

Memphis School System to his petition. Furthermore, the

Petitioner's judgment became final in 2003, but he did not

file his petition for a writ of error coram nobis until 2015.

ivy v. State, Slip Copy (2018)

The Petitioner offered no explanation in his petition and

has offered no explanation on appeal as to why the statute

of limitations should be tolled. His petition was untimely

by well over a decade, and, therefore, was barred by the

statute of limitations. Accordingly, the coram nobis court

properly dismissed the petition.

B. Rule 36.1 Relief from an Illegal Sentence

The Petitioner argues that he is entitled to relief pursuant

to Tennessee Rule of Criminal Procedure 36.1 because

he is intellectually disabled and, thus, not eligible to be

executed. In support of this argument, he cites Tennessee

Code Annotated section 39-13-203(b), which prohibits

capital punishment for defendants who are intellectually

disabled, stating that “no defendant with intellectual

disability at the time of committing first degree murder

shall be sentenced to death.”

*4 Rule 36.1 permits a defendant to seek correction of an

479 S.W.3d 200, 211 (Tenn. 2015). “[AJn illegal sentence

is one that is not authorized by the applicable statutes or

that directly contravenes an applicable statute.” Tenn. R.

Crim. P. 36. 1a).

As the State correctly notes, the flaw in the Petitioner's

argument is that his punishment was authorized by statute

when it was imposed upon him and, thus, was not

illegal. Moreover, neither at the time of the Petitioner's

sentencing, nor when this present petition was filed, had he

been found to be “intellectually disabled” as contemplated

by the applicable statute. ! Thus, at the time of sentencing,

the Petitioner's sentence did not contravene any statute,

and he is not eligible for relief under Rule 36.1.

C. Writ of Audita Querela

Finally, the Petitioner argues that he is entitled to a

writ of audita querela, which is “a common law writ

Footnotes

affording ‘relief to a judgment debtor against a judgment

or execution because of some defense or discharge arising

subsequent to the rendition of the judgment or the issue

of the execution.’ ” Dwight Seaton v. State, No. E1999-

01312-CCA-R3-CD, 2000 WL 1177462, at *3 (Tenn.

Crim. App. at Knoxville, Aug. 21, 2000) (quoting United

States v. Fonseca—Martinez, 36 F.3d 62, 64 (9th Cir.

1994) (citation omitted) ). However, the writ is no longer

available in Tennessee. As this court explained in James

Dellinger y. State:

The Tennessee Supreme Court has concluded that

the writ of audita querela “is absolutely unknown

and obsolete in the practice of this State.” Marsh

vy, Haywood, 25 Tenn. 210, 1845 WL 1897, at *1

(Tenn. 1845). Furthermore, Tennessee Code Annotated

section 27~-8—102 (2000) reflects that the writ of audita

querela is obsolete by providing that the statutory writ

of certiorari lies “[iJnstead of audita querela[.]”

No. E2013-02094-CCA-R3-ECN, 2015 WL 4931576, at

*13 (Tenn. Crim. App. at Knoxville, Aug. 18, 2015).

Accordingly, we conclude that this claim is without merit.

We note that the Petitioner requests that we “identify an

appropriate procedural vehicle” in which he can present

his claim that he is ineligible for the death penalty due

to his intellectual disability. However, this court cannot

provide such an advisory opinion. See Nichols v. State, 90

S.W.3d 576, 607 (Tenn. 2002) (stating that this court erred

by providing an advisory opinion).

MI. Conclusion

Based upon the oral arguments, the record, and the

parties’ briefs, we affirm the judgment of the coram nobis

court.

All Citations

Slip Copy, 2018 WL 625127

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

intellectual functioning as evidenced by a functional intelligence quotient (1.Q.) of seventy (70) or below; (2) Deficits in

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

Ivy v. State, Slip Copy (2018}

eighteen (18) years of age.” We note that the Memphis School System report stated that the Petitioner's I.Q. was 73 and

that his adaptive behavior was not significantly impaired.

End of Document

48 Thomsen Reuters. N

ginal U.S. Governmer

APPENDIX C

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

DAVID IVY v. STATE OF TENNESSEE

Shelby County Criminal Court

01-12388

No. W2016-02454-SC-R11-ECN

Date Printed: 05/29/2018 Notice / Filed Date: 05/29/2018

NOTICE - Mandate - Issued

The Appellate Court Clerk's office has issued the Court of Criminal Appeals mandate in its

entirety to the trial court clerk in the above-styled appeal. The mandate consists of certified

copies of the judgment, any order as to costs, and a copy of the opinion. This action signifies the

end of the appeal.

The Appellate Court Clerk's office will not accept any filing from any parties or their counsel

after issuance of mandate except those requesting recall of the mandate, those related to

withdrawing the record or portions thereof, and those related to the assessment of costs.

James M. Hivner

Clerk of the Appellate Courts