Petition for Writ of Certiorari — Kentucky, Petitioner v. Larry Lamont White
Supreme Court briefAug 24, 2020
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No. ______
In the Supreme Court of the United States
__________________
COMMONWEALTH OF KENTUCKY,
Petitioner,
v.
LARRY LAMONT WHITE,
Respondent.
__________________
On Petition for Writ of Certiorari to the
Supreme Court of Kentucky
__________________
PETITION FOR WRIT OF CERTIORARI
__________________
DANIEL CAMERON
Attorney General
S. CHAD MEREDITH
Solicitor General
BARRY L. DUNN
Deputy Attorney General
MATTHEW F. KUHN*
JEFFREY A. CROSS
Deputy Solicitors General
Office of the Kentucky
Attorney General
700 Capital Avenue
Suite 118
Frankfort, Kentucky 40601
(502) 696-5300
Matt.Kuhn@ky.gov
* Counsel of Record
EMILY B. LUCAS
Assistant Attorney General
Counsel for Petitioner
August 24, 2020
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
i
CAPITAL CASE
QUESTION PRESENTED
Whether a capital defendant can waive a claim of
intellectual disability under Atkins v. Virginia, 536
U.S. 304 (2002), and its progeny.
ii
PARTIES TO THE PROCEEDING
The Commonwealth of Kentucky, petitioner here,
was the appellee below.
Larry Lamont White, respondent here, was the
appellant below.
STATEMENT OF RELATED PROCEEDINGS
No such proceedings exist.
iii
TABLE OF CONTENTS
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . ii
STATEMENT OF RELATED PROCEEDINGS . . . . ii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . vi
PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1
OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL PROVISIONS INVOLVED . . . 1
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 4
REASONS FOR GRANTING THE PETITION . . . 10
I.
The lower court’s decision is wrong . . . . . . . 10
II.
There is a split of authority about whether
an Atkins claim can be waived . . . . . . . . . . . 17
III.
This case raises an important and
recurring issue and is an ideal vehicle for
deciding it . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
APPENDIX
Appendix A Opinion in the Supreme Court of
Kentucky
(March 26, 2020) . . . . . . . . . . . . . . App. 1
iv
Appendix B Order Denying Appellant’s Multiple
Motions to Waive Claim of Intellectual
Disability
(March 26, 2020) . . . . . . . . . . . . . App. 13
Appendix C Order in the Supreme Court of the
United States
(January 14, 2019) . . . . . . . . . . . App. 15
Appendix D Opinion in the Supreme Court of
Kentucky
(August 24, 2017) . . . . . . . . . . . . App. 16
Appendix E Opinion and Order in the Jefferson
Circuit Court Division Two
(September 15, 2014) . . . . . . . . . App. 69
Appendix F Motion for New Trial and Judgment
Notwithstanding the Verdict in the
Jefferson Circuit Court Division Two
(August 4, 2014) . . . . . . . . . . . . . App. 87
Appendix G Motion to Exclude Death as Possible
Punishment Based Upon Defendant’s
Previous Borderline IQ Testing and
Recent Opinion of Supreme Court in
Hall v. Florida in the Jefferson Circuit
Court Division Two
(July 28, 2014). . . . . . . . . . . . . . App. 103
Appendix H Pro Se Filing
(May 21, 2019). . . . . . . . . . . . . . App. 107
Appendix I Pro Se Filing
(July 1, 2019). . . . . . . . . . . . . . . App. 109
v
Appendix J Pro Se Filing
(July 5, 2019). . . . . . . . . . . . . . . App. 112
Appendix K Pro Se Filing
(August 16, 2019) . . . . . . . . . . . App. 115
Appendix L Pro Se Filing
(January 24, 2020) . . . . . . . . . . App. 119
vi
TABLE OF AUTHORITIES
CASES
Atkins v. Virginia,
536 U.S. 304 (2002). . . . . . . . . . . . . . . . . . . passim
Barker v. Wingo,
407 U.S. 514 (1972). . . . . . . . . . . . . . . . . . . . . . . 12
Bobby v. Bies,
556 U.S. 825 (2009). . . . . . . . . . . . . . . . . . . . . 3, 14
Bowling v. Commonwealth,
163 S.W.3d 361 (Ky. 2005) . . . . . . . . . 4, 21, 22, 25
Box v. Planned Parenthood of Ind. & Ky., Inc.,
139 S. Ct. 1780 (2019). . . . . . . . . . . . . . . . . . . . . 25
Boykin v. Alabama,
395 U.S. 238 (1969). . . . . . . . . . . . . . . . . . . . . . . 11
Brumfield v. Cain,
576 U.S. 305 (2015). . . . . . . . . . . . . . . . . . . . . . . 14
Bucklew v. Precythe,
139 S. Ct. 1112 (2019). . . . . . . . . . . . . . . . . . . . . 28
Coleman v. Thompson,
501 U.S. 722 (1991). . . . . . . . . . . . . . . . . . . . . . . 22
Commonwealth v. Aponte,
855 A.2d 800 (Pa. 2004) . . . . . . . . . . . . . . . . . . . 23
Commonwealth v. Robinson,
82 A.3d 998 (Pa. 2013) . . . . . . . . . . . . 4, 23, 24, 25
Cox Broad. Corp. v. Cohn,
420 U.S. 469 (1975). . . . . . . . . . . . . . . . . . . . 27, 28
vii
Ex parte Blue,
230 S.W.3d 151
(Tex. Crim. App. 2007) . . . . . . . . . 4, 20, 21, 24, 25
Ex Parte Ramirez,
Nos. WR-71,401-01, WR-71,401-02,
2015 WL 6282336 (Tex. Crim. App.
Oct. 14, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Ford v. Wainwright,
477 U.S. 399 (1986). . . . . . . . . . . . . . . . . . . . . . . 13
Frazier v. Jenkins,
770 F.3d 485 (6th Cir. 2014). . . . . . . . . . . . . . . . 18
Gilmore v. Utah,
429 U.S. 1012 (1976). . . . . . . . . . . . . . . . . . . . . . 26
Glossip v. Gross,
576 U.S. 863 (2015). . . . . . . . . . . . . . . . . . . . . . . 28
Gross v. Commonwealth,
648 S.W.2d 853 (Ky. 1983) . . . . . . . . . . . . . . . . . . 7
Hall v. Florida,
572 U.S. 701 (2014). . . . . . . . . . . . . 3, 6, 10, 15, 17
Head v. Hill,
587 S.E.2d 613 (Ga. 2003) . . . . . . 4, 19, 20, 22, 25
Hill v. McDonough,
547 U.S. 573 (2006). . . . . . . . . . . . . . . . . . . . . . . 28
Johnson v. Zerbst,
304 U.S. 458 (1938). . . . . . . . . . . . . . . . . . . . 11, 13
Knight v. Florida,
528 U.S. 990, 120 S. Ct. 459 (1999) . . . . . . . . . . 25
viii
LaGrand v. Stewart,
173 F.3d 1144 (9th Cir. 1999). . . . . . . . . . . . . . . 12
Lenhard v. Wolff,
444 U.S. 807 (1979). . . . . . . . . . . . . . . . . . . . . . . 26
McCoy v. Louisiana,
138 S. Ct. 1500 (2018). . . . . . . . . . . . . . . . . . 16, 27
Moore v. Texas,
137 S. Ct. 1039 (2017). . . . . . . . . . . . 6, 7, 9, 14, 15
New York v. Hill,
528 U.S. 110 (2000). . . . . . . . . . . . . . . . . . . . . . . 11
Palmer v. Commonwealth,
3 S.W.3d 763 (Ky. App. 1999). . . . . . . . . . . . . . . . 7
Peretz v. United States,
501 U.S. 923 (1991). . . . . . . . . . . . . . . . . . . . 11, 18
Ricketts v. Adamson,
483 U.S. 1 (1987). . . . . . . . . . . . . . . . . . . . . . . . . 12
Rogers v. State,
575 S.E.2d 879 (Ga. 2003) . . . . . . . . . 4, 23, 24, 25
Schneckloth v. Bustamonte,
412 U.S. 218 (1973). . . . . . . . . . . . . . . . . . . . . . . 12
Singer v. United States,
380 U.S. 24 (1965). . . . . . . . . . . . . . . . . . . . . . . . 12
State v. Frazier,
873 N.E.2d 1263 (Ohio 2007) . . . . 3, 17, 18, 24, 25
State v. Jackson,
23 N.E.3d 1023 (Ohio 2014) . . . . . . . . . . . . . . . . 18
ix
Stewart v. LaGrand,
526 U.S. 115 (1999). . . . . . . . . . . . . . . . . 12, 13, 26
United States v. Mezzanatto,
513 U.S. 196 (1995). . . . . . . . . . . . . . . . . . . . . . . 11
Whitmore v. Arkansas,
495 U.S. 149 (1990). . . . . . . . . . . . . . . . . . . . . . . 26
Winston v. Commonwealth,
604 S.E.2d 21 (Va. 2004). . . . . . . . . . . . . . . passim
Woodall v. Commonwealth,
563 S.W.3d 1 (Ky. 2018) . . . . . . . . . . . 4, 17, 21, 22
Yakus v. United States,
321 U.S. 414 (1944). . . . . . . . . . . . . . . . . . . . . . . 11
CONSTITUTION AND STATUTES
U.S. Const. amend. VIII. . . . . . . . . . . . . . . . . . passim
U.S. Const. amend. XIV, § 1 . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 1257(a). . . . . . . . . . . . . . . . . . . . . . . . 1, 27
RULES
Ky. R. Crim. P. 11.42 . . . . . . . . . . . . . . . . . . . . . . . . . 7
Sup. Ct. R. 10(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1
PETITION FOR WRIT OF CERTIORARI
The Commonwealth of Kentucky respectfully
petitions for a writ of certiorari to review the judgment
of the Supreme Court of Kentucky.
OPINIONS BELOW
The Supreme Court of Kentucky’s decision
remanding this matter for an evidentiary hearing,
which is the decision upon which certiorari is sought,
is reported at 600 S.W.3d 176. Pet. App. 1–12. The
Supreme Court of Kentucky’s initial decision affirming
Larry Lamont White’s convictions and sentences is
reported at 544 S.W.3d 125. Pet. App. 16–68. This
Court’s decision granting certiorari, vacating the
judgment, and remanding this matter for further
consideration is reported at 129 S. Ct. 532. Pet. App.
15. The Jefferson Circuit Court’s decision rejecting
White’s intellectual-disability claim is unreported. Pet.
App. 69–86
JURISDICTION
The Supreme Court of Kentucky rendered its
decision on March 26, 2020. This Court has jurisdiction
under 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISIONS INVOLVED
U.S. Const. amend. VIII, provides:
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
punishments inflicted.
2
U.S. Const. amend. XIV, § 1 states:
All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are
citizens of the United States, and of the State
wherein they reside. No State shall make or
enforce any law which shall abridge the
privileges or immunities of citizens of the United
States; nor 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.
INTRODUCTION
Larry Lamont White, a 62-year-old death-row
inmate, desires to waive his right to pursue a claim of
intellectual disability under Atkins v. Virginia, 536
U.S. 304 (2002). In his words, he wants to move past
the “intellectual disability foolishness” and focus on
proving his innocence in post-conviction proceedings.
Pet. App. 114, 116. White agrees with the
Commonwealth of Kentucky that he is not
intellectually disabled. As he put it, “if given the
chance I would argue the same way.” Pet. App. 108.
White has a firmer grasp on his case than most. As
the Supreme Court of Kentucky recounted, during his
trial White “was able to comport himself well in the
courtroom, conveyed his thoughts without difficulty,
and demonstrated a thorough understanding of the
charges he faced.” Pet. App. 63. And White has been an
effective jailhouse lawyer. During his trial, White
“often advocated for himself through numerous pro se
motions. One such motion was written so persuasively
3
that defense counsel specifically asked the trial court to
rule on its merits.” Id. at 61.
Yet, in the decision below, the Supreme Court of
Kentucky refused White’s request to waive his Atkins
claim. In the court’s view, White is powerless to effect
such a waiver. According to the court, the Eighth
Amendment compels that this matter be remanded for
an evidentiary hearing under Atkins. Pet. App. 6–7.
White, of course, does not want this hearing and will
refuse to participate in it. See Pet. App. 108, 114, 117.
And so this evidentiary hearing, in all likelihood, will
be an empty exercise. The primary effect will be to
delay justice for a murder that happened nearly 40
years ago.
The Supreme Court of Kentucky viewed this result
as compelled by Atkins and its progeny. But that is
wrong. Atkins, this Court has told us, did not establish
“definitive procedural . . . guides.” Bobby v. Bies, 556
U.S. 825, 831 (2009). Instead, this Court has said that
Atkins provides defendants a “fair opportunity to show
that the Constitution prohibits their execution.” Hall v.
Florida, 572 U.S. 701, 724 (2014) (emphasis added). A
“fair opportunity,” however, does not equate to a forced
opportunity, like that imposed on White.
This case is not just an instance of the court below
making a legal error. The question presented in this
matter—whether an Atkins claim can be waived—is an
issue about which state courts of last resort disagree.
On one side of the divide are the highest courts of Ohio,
Virginia, Georgia, and Texas, which have held that an
Atkins claim can be waived. State v. Frazier, 873
N.E.2d 1263, 1291 (Ohio 2007); Winston v.
4
Commonwealth, 604 S.E.2d 21, 51 (Va. 2004); Head v.
Hill, 587 S.E.2d 613, 618, 620 (Ga. 2003); Ex parte
Blue, 230 S.W.3d 151, 153–59 (Tex. Crim. App. 2007).
Prior to this matter, the Supreme Court of Kentucky
agreed with these courts. Bowling v. Commonwealth,
163 S.W.3d 361, 371–72 (Ky. 2005), abrogated on other
grounds by Woodall v. Commonwealth, 563 S.W.3d 1
(Ky. 2018). The highest courts of Pennsylvania and
Georgia (Georgia is on both sides of the split of
authority), by contrast, have held that an Atkins claim
cannot be waived or cannot be waived under certain
circumstances. Commonwealth v. Robinson, 82 A.3d
998, 1020 (Penn. 2013); Rogers v. State, 575 S.E.2d 879,
882 (Ga. 2003). This deep, established disagreement
among the states’ highest courts warrants plenary
review by this Court.
STATEMENT OF THE CASE
In 2014, a jury convicted Larry Lamont White of the
1983 rape and murder of Pamela Armstrong. Pet. App.
16–17. Ms. Armstrong’s body was found “in a public
alley, with her pants and underwear pulled down
around her legs and shirt pulled up to her bra line.” Id.
at 16. She had been shot twice in the head. Id. at
16–17.
From the outset, the police suspected that White
was responsible, but Ms. Armstrong’s murder remained
unsolved for more than 20 years, until a cold-case unit
recovered DNA from the victim’s underwear. Id. at 17,
37–38. The police then secured White’s DNA from a
cigar that he left on the back of a car during a lawful
traffic stop. Id. at 31–33, 43. White’s DNA matched the
5
DNA recovered from Ms. Armstrong’s underwear “with
certainty—one in 160 trillion people.” Id. at 43.
In 2007, a grand jury indicted White for Ms.
Armstrong’s rape and murder. Id. at 17. During the
ensuing trial, the Commonwealth introduced, among
other things, the DNA evidence connecting White to
Ms. Armstrong and evidence of two other murders that
White committed within several weeks of Ms.
Armstrong’s murder.1 Id. at 17, 19. These two other
murders bore remarkable similarities to Ms.
Armstrong’s murder—namely, the race and age of the
victims, the date and location of the murders, and the
mode of execution. Id. at 23–24.
White played an active role during the guilt phase
of his trial. As the Supreme Court of Kentucky
recounted, White “often advocated for himself through
numerous pro se motions. One such motion was written
so persuasively that defense counsel specifically asked
the trial court to rule on its merits.” Id. at 61. White,
the court further observed, “was able to comport
himself well in the courtroom, conveyed his thoughts
without difficulty, and demonstrated a thorough
understanding of the charges he faced.” Id. at 63.
White’s counsel nevertheless argued to the trial
court, albeit in an untimely fashion, that White
suffered from an intellectual disability and asked for an
evidentiary hearing on the issue. Pet. App. 99–101,
1
A jury found White guilty of these other murders and he was
sentenced to death. That judgment, however, was later vacated,
White v. Commonwealth, 725 S.W.2d 597, 598 (Ky. 1987), after
which White pleaded guilty to the two murders in exchange for a
term-of-years sentence, Pet. App. 19.
6
103–06. White’s counsel primarily pointed to an IQ
score of 76 from a test administered in 1971. Id. at 100,
105. The trial judge denied the motion. Pet. App.
82–83, 85.
The jury convicted White of Ms. Armstrong’s rape
and murder. Pet. App. 17. The jury subsequently
recommended a death sentence for Ms. Armstrong’s
murder plus 20 years’ imprisonment for her rape. Id.
The trial judge imposed those sentences. Id.
On direct appeal, the Supreme Court of Kentucky
unanimously affirmed. Id. at 67. Relevant here, the
court rejected the argument that White was entitled to
an evidentiary hearing to determine whether he
suffered from an intellectual disability. Id. at 58–61.
The court did so based largely on this Court’s decision
in Hall v. Florida, 572 U.S. 701 (2014). Applying Hall,
the court reasoned that, accounting for the standard
error of measurement in an IQ score, White’s IQ score
of 76 “is higher than the 70-point minimum threshold.”
Pet. App. 59–60. In the alternative, the court concluded
that even if it “was obliged to . . . place less weight on
[White’s] IQ score, there is ample evidence of [White’s]
mental acumen.” Id. at 61.
White’s counsel sought a writ of certiorari. This
Court granted certiorari, vacated the judgment, and
remanded for further consideration in light of Moore v.
Texas, 137 S. Ct. 1039 (2017). Pet. App. 15. Justices
Alito, Thomas, and Gorsuch dissented because “Moore
was handed down on March 28, 2017—almost five
months before the Supreme Court of Kentucky reached
a decision in this case.” Id.
7
On remand to the Supreme Court of Kentucky, the
Commonwealth and White’s attorneys filed briefs
addressing the effect of Moore. Shortly thereafter,
White, acting pro se, wrote to the then-Attorney
General of Kentucky. Pet. App. 107–08. White
expressed surprise that his attorneys were arguing
that he has an intellectual disability: “I was never
apprised of existent litigation and had not until here
lately received any copies of this litigation about me
being retarded, this news was very astonishing to me.”
Id. at 107. White also expressed agreement with the
Commonwealth’s position that he is not intellectually
disabled. Id. at 108.
In his letter, White emphasized that his objective is
to “prove my innocence.” Id. Or, “all I want is a fair
opportunity for post-conviction 11.42,2 but my lawyers
cannot start because of this ‘retarded foolishness.’” Id.
at _. Thus, White correctly understood the nuance that
he could not meaningfully pursue post-conviction relief
until the Supreme Court of Kentucky resolved his
direct appeal. See Ky. R. Crim. P. 11.42(10); Palmer v.
Commonwealth, 3 S.W.3d 763, 764 (Ky. App. 1999);
Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky.
1983).
White did not stop there. He also filed several pro se
motions in this matter. In a July 1, 2019 filing, White
wrote:
[T]he appellant asks this Court to take the
words of mine and not allow this intellectual
2
State post-conviction proceedings can be filed under Kentucky
Rule of Criminal Procedure 11.42.
8
disability issue to stand. I am asking this Court
to dismiss the issue because it was argued
without my approval and the law states that
these attorney’s [sic] are my assistance therefore
they were obligated to inform appellant of their
plan to cross me out.
Pet. App. 111. White therefore made clear that he did
not wish to pursue an Atkins claim, but instead “to
proceed with . . . my post-conviction team.” Id. at 109.
In another
emphasized:
pro
se
filing,
White
similarly
I am innocent of these charges and don’t
understand where this intellectual disable [sic]
“foolishness” come[s] from, they are trying or
have toss[ed] my real issues aside, instead of
representing me like they do their white clients.
Pet. App. 113. White again underscored that he wanted
to “move on to prove my innocence.” Id. at 114. In
another pro se filing, White referred to his Atkins claim
as “intellectual disability foolishness” and requested
that the court deny “anything” filed by his attorneys
“relating [to] intellectual disability.” Pet. App. 116–17;
see also Pet. App. 119–20.
Based upon White’s pro se filings, the
Commonwealth argued that White had waived his
Atkins claim. After ordering supplemental briefing, in
which White’s attorneys disagreed with their client, the
Supreme Court of Kentucky concluded that, as a legal
matter, White cannot waive his Atkins claim. Atkins
and its progeny, the court reasoned, “placed an
absolute bar against imposing the death penalty on the
9
intellectually disabled.” Pet. App. 5. In particular, the
court relied on Moore’s statement that “the
Constitution ‘restricts the State’s power to take the life
of’ any intellectually disabled individual.” Id. at 5–6
(cleaned up) (quoting Moore, 137 S. Ct. at 1048). The
court explained: “We take the Moore court’s emphasis
on ‘any’ to include any individual who has not yet been
determined to have an intellectual disability, but who
is entitled to an evidentiary hearing by showing ‘some
evidence creating a [reasonable] doubt as to whether he
is [intellectually disabled].’” Id. at 6 (citation omitted).
The court below thus concluded that “when a
punishment is prohibited by the Eighth Amendment
blocking an entire category of individuals from a
certain penalty, and evidence has been established
creating a reasonable doubt as to whether a defendant
is a member of that category, the issue cannot be
waived.” Id. A contrary rule, in the court’s view, “would
impose the death penalty on a potentially intellectually
disabled defendant—something the Commonwealth is
without power to do.” Id. at 6–7. The court reached this
conclusion despite recognizing that White wants to
“waive his intellectual disability claim, so he can move
forward with post-conviction proceedings.” Id. at 2.
With the waiver issue decided, the court remanded
for an evidentiary hearing to determine whether White
suffers from an intellectual disability. The court
reasoned that “[a]t the very least—combined with
[White’s] low-end IQ scores achieved while still a
minor—White’s potential adaptive deficits and the lack
of any substantial contact with the outside world
during adulthood warrant further consideration in the
10
form of an evidentiary hearing at the trial court level.”
Id. at 10. The court, however, emphasized that White
“still bears the burden of proving intellectual disability
by a preponderance of the evidence.” Id. at 11 (citation
omitted). The court also noted that, on remand, White
could request a hearing “regarding his competency to
self-represent.” Id.
This petition for a writ of certiorari follows.
REASONS TO GRANT THE PETITION
The Court should grant certiorari. The Supreme
Court of Kentucky’s decision is not only wrong, but it
also deepens an established split of authority among
state courts of last resort. This matter is an ideal
vehicle for addressing whether and under what
circumstances a capital defendant can waive a claim of
intellectual disability.
I.
The lower court’s decision is wrong.
The Supreme Court of Kentucky held that a
defendant is powerless to waive his Atkins right if he is
entitled to an evidentiary hearing in which he must
prove an intellectual disability. But surely a defendant
can waive a constitutional right that provides him no
protection absent the presentation of sufficient
supporting evidence. The lower court’s holding also
overlooks the presumption, affirmed time and again by
this Court, that constitutional rights can in fact be
waived. Although the court below believed that Atkins
and its progeny dictate its anti-waiver rule, those cases
do no such thing. On the contrary, it necessarily follows
from Hall that a capital defendant can waive a claim of
intellectual disability.
11
1. Legal rights, even constitutional ones, are
presumptively waivable. United States v. Mezzanatto,
513 U.S. 196, 200–01 (1995). This is true not just in the
civil context, but in the criminal one as well. “The most
basic rights of criminal defendants are . . . subject to
waiver.” Peretz v. United States, 501 U.S. 923, 936
(1991). Thus, “the Constitution affords no protection to
a defendant who waives [his or her] fundamental
rights.” Id. at 937. This notion is not new. Almost 80
years ago, this Court emphasized that “[n]o procedural
principle is more familiar to this Court than that a
constitutional right may be forfeited in the criminal as
well as civil cases by the failure to make timely
assertion of the right before a tribunal having
jurisdiction to determine it.” Yakus v. United States,
321 U.S. 414, 444 (1944). This, the Court
acknowledged, may lead to a circumstance where a
court “refuse[s] to consider a constitutional objection
even though a like objection had previously been
sustained in a case in which it was properly taken.” Id.
The Court nevertheless presumes that constitutional
rights can be waived. See New York v. Hill, 528 U.S.
110, 114 (2000) (stating the “general rule that
presumes the availability of waiver”).
Under this rule of presumptive waivability, the
Court has allowed criminal defendants to waive all
manner of constitutional rights. A criminal defendant
can waive the right to counsel. Johnson v. Zerbst, 304
U.S. 458, 464–65 (1938). So too the privilege against
compulsory self-incrimination, the right to a jury trial,
and the right to confront one’s accusers. Boykin v.
Alabama, 395 U.S. 238, 242–43 (1969). The same goes
for the right to be tried in the state and district where
12
the defendant allegedly committed the crime, Singer v.
United States, 380 U.S. 24, 35 (1965), the right to a
public trial, id., the right to a speedy trial, Barker v.
Wingo, 407 U.S. 514, 529 (1972), and the protection
against double jeopardy, Ricketts v. Adamson, 483 U.S.
1, 10–11 (1987). Fourth Amendment rights likewise can
be waived. See Schneckloth v. Bustamonte, 412 U.S.
218, 219 (1973) (warrant and probable cause).
Eighth Amendment rights, even in the deathpenalty context, also are subject to the general rule of
presumptive waivability. In Stewart v. LaGrand, 526
U.S. 115 (1999) (per curiam), a death-row inmate chose
to be executed by lethal gas, rather than by lethal
injection—the state’s default method of execution. Id.
at 119. The state sought to execute the inmate by lethal
gas, but the Ninth Circuit enjoined the state from using
that method of execution. Id. at 118. The court
reasoned that the defendant’s choice of lethal gas did
not waive his claim that this method of execution
violates the Eighth Amendment. This was so, the Ninth
Circuit found, because “Eighth Amendment protections
may not be waived, at least in the area of capital
punishment.” See LaGrand v. Stewart, 173 F.3d 1144,
1148 (9th Cir. 1999); see Stewart, 526 U.S. at 118
(noting the Ninth Circuit found that this “reasoning
remained sound”).
13
This Court, however, disagreed. It found that the
inmate, “by his actions, has waived his claim that
execution by lethal gas is unconstitutional.”3 Id. at 119
(emphasis added). The Court continued: “By declaring
his method of execution, picking lethal gas over the
State’s default form of execution—lethal injection—[the
defendant] has waived any objection he might have to
it.” Id. For this proposition, the Court cited its decision
in Johnson, which, as discussed above, recognizes that
a defendant can waive his Sixth Amendment right to
counsel. Johnson, 304 U.S. at 464. By analogizing the
defendant’s waiver to Johnson, Stewart determined
that the waiver of constitutional rights is viewed no
differently in the Eighth Amendment context. See
Stewart, 526 U.S. at 119. In this context as well,
constitutional rights are presumptively waivable.
The court below did not grapple with the
presumption that constitutional rights can be waived.
Instead, the court viewed Atkins and its progeny as
compelling its holding. But Atkins did not establish
specific procedures to implement the constitutional
right it recognized. To the contrary, Atkins expressly
disclaimed doing so. It left “to the State[s] the task of
developing appropriate ways to enforce the
constitutional restriction upon [their] execution of
sentences.” Atkins v. Virginia, 536 U.S. 304, 317 (2002)
(quoting Ford v. Wainwright, 477 U.S. 399 (1986)). Or,
as this Court more recently put it, Atkins “did not
3
Justices Souter, Ginsburg, and Breyer joined this holding “on the
understanding that petitioner makes no claim that death by lethal
injection would be cruel and unusual under the Eighth
Amendment.” Stewart, 526 U.S. at 120–21 (Souter, J., concurring
in part and concurring in the judgment).
14
provide definitive procedural or substantive guides for
determining when a person who claims mental
retardation ‘will be so impaired as to fall within
[Atkins’ compass].’” Bobby v. Bies, 556 U.S. 825, 831
(2009) (quoting Atkins, 536 U.S. at 317).
2. Yet, the court below read Atkins and its progeny
to do exactly that—to constitutionalize the procedure
for determining whether a defendant has an
intellectual disability. For this proposition, the court
mostly relied on a single sentence from Moore v. Texas,
137 S. Ct. 1039 (2017), to the effect that Atkins
“‘restricts the State’s power to take the life of’ any
intellectually disabled individual.” Id. at 1048 (cleaned
up) (quoting Atkins, 536 U.S. at 321). This portion of
Moore merely summarized Atkins’ holding. To the court
below, however, Moore’s emphasis of the word “any”
was key. That emphasis, the court found, means that
Atkins extends to “any individual who has not yet been
determined to have an intellectual disability, but who
is entitled to an evidentiary hearing . . . .” Pet. App.
5–6. In the court’s view, the Commonwealth is “without
power” to execute such an individual. Id. at 6–7.
This conclusion reads far too much into the
italicized term “any.” And it plucks that term from the
context in which Moore arose. Moore did not concern
whether an inmate claiming an intellectual disability
is entitled to an evidentiary hearing. See Brumfield v.
Cain, 576 U.S. 305, 344 (2015) (Thomas, J., dissenting)
(Atkins “did not so much as mention an evidentiary
hearing, let alone hold that prisoners raising Atkins
claims are entitled to one.”). Instead, Moore primarily
dealt with a state court’s failure to follow the
15
instruction from Hall v. Florida, 134 S. Ct. 1986 (2014),
that “adjudications of intellectual disability should be
‘informed by the views of medical experts.’” Moore, 137
S. Ct. at 1044 (citation omitted). In summary, not one
word of Moore dealt—directly or even indirectly—with
whether the Constitution prohibits executing an
inmate if he or she is entitled to, but does not desire, an
evidentiary hearing on an Atkins claim. Viewed in
context, the italicized term from Moore is much too thin
a reed to bear the enormous weight that the lower
court placed upon it.
This is all the more true in light of this Court’s
decision in Hall—another case that the court below
mentioned in fashioning its anti-waiver rule. Pet.
App. 5. Hall invalidated Florida’s “rigid rule” under
which an inmate with an IQ score above 70 could not
be found intellectually disabled. Hall, 572 U.S. at 704.
Important for present purposes, Hall concluded that a
defendant must prove the existence of an intellectual
disability. Id. at 724 (“[T]he law requires that he have
the opportunity to present evidence of his intellectual
disability, including deficits in adaptive functioning
over his lifetime.”). More to the point, under Hall,
“[p]ersons facing that most severe sanction [of death]
must have a fair opportunity to show that the
Constitution prohibits their execution.” Id. (emphasis
added).
This passage can only mean that Atkins does not
bar the execution of a defendant who fails to prove an
intellectual disability. Indeed, the court below plainly
held that although White does not want an evidentiary
hearing, he still bears the burden of proving an
16
intellectual disability during that hearing. Pet. App. 11
(“It is important to note that even after receiving an
evidentiary hearing the defendant still bears the
burden of proving intellectual disability by a
preponderance of the evidence.” (brackets and citation
omitted)). It follows that a person who decides not to
offer evidence of an intellectual disability—i.e., the
person waives that right—likewise can be executed
consistent with Atkins.
Or, consider the issue this way: According to
Kentucky’s highest court, White cannot waive his right
to pursue an Atkins claim, but he presumably can
decide to offer no evidence at an evidentiary hearing or,
at a minimum, not to cooperate with his counsel at that
hearing.4 In fact, the court below recognized that White
may well be entitled to represent himself during an
evidentiary hearing. Pet. App. 11. The reasoning of the
court below, taken to its logical end, therefore means
that the Commonwealth is powerless to execute
someone who wants to waive his Atkins claim, but is
free to execute someone who altogether refuses to offer
evidence of such a claim at an evidentiary hearing. See
White v. Commonwealth, 500 S.W.3d 208, 212, 215 (Ky.
2016) (holding that such an inmate acts “to his great
4
The Supreme Court of Kentucky did not decide who—lawyer or
client—gets to decide whether to pursue an Atkins claim. Pet. App.
5. But this decision plainly belongs to White in the circumstances
presented here. As White repeatedly explained in his pro se filings,
he desires to prove his innocence in post-conviction proceedings.
Pet. App. 108, 109, 114. That is, White’s objective is not simply to
get off death row (i.e., by being found intellectually disabled), but
to walk out of prison a free man. Establishing the objectives of the
legal representation belongs to White, not to his attorneys. See
McCoy v. Louisiana, 138 S. Ct. 1500, 1508–09 (2018).
17
risk of not being spared”), abrogated on other grounds
by Woodall v. Commonwealth, 536 S.W.3d 1 (Ky. 2018).
The Supreme Court of Kentucky offered no explanation
for why one should be treated differently from the
other, and no such justification exists.
Taking Hall at its word, Atkins entitles defendants
to “a fair opportunity to show that the Constitution
prohibits their execution.” Hall, 572 U.S. at 724. Atkins
does not give constitutional protection to a defendant
who, like White, has no desire to take advantage of
that “fair opportunity.” Stated differently, a “fair
opportunity” does not mean a forced opportunity.
II.
There is a split of authority about whether
an Atkins claim can be waived.
The Supreme Court of Kentucky deepened an
existing split of authority about whether an Atkins
claim can be waived. Contrary to the holding here, the
highest courts of Ohio, Virginia, Georgia, and Texas
have held that an inmate can waive an Atkins claim.
Those courts so held without regard to whether the
defendant otherwise was entitled to an evidentiary
hearing. In addition, prior to this case, the Supreme
Court of Kentucky actually agreed with these sister
courts on this point. Other courts, however, disagree.
Two state courts of last resort have found that an
Atkins claim cannot be waived or cannot be waived in
certain circumstances. The Court should grant
certiorari to resolve this split of authority. See S. Ct. R.
10(b).
1. The Supreme Court of Ohio has plainly held that
a defendant can waive an Atkins claim. In State v.
18
Frazier, 873 N.E.2d 1263 (Ohio 2007), the defendant
filed a pre-trial motion seeking an intellectualdisability determination. Id. at 1290. The inmate
received IQ scores of 72 and 75. However, rather than
pursue an Atkins claim, “trial counsel withdrew the
claim”—a decision to which the defendant acceded. Id.
at 1290, 1292. In his direct appeal, the defendant reasserted his Atkins claim. Id. at 1277, 1290. The state
responded by arguing that the defendant had “waived
this claim because the defense counsel withdrew its
Atkins motion at trial.” Id. at 1291.
Ohio’s highest court recognized that this was a
question of first impression, but acknowledged the
general rule (discussed above) that “a constitutional
right can be waived in criminal cases by the failure to
make timely assertion of it.” Id. (citing Peretz, 501 U.S.
at 936–37). The court also surveyed how other courts
have decided this question, summarizing that “other
jurisdictions have held that the failure to raise an
Atkins claim results in waiver.” Id. (collecting cases).
Based upon this analysis, the court held that a
defendant can waive an Atkins claim. Id. (“Absent plain
error, [the defendant] has waived his Atkins claim.”).
Other courts have recognized Frazier’s holding. State v.
Jackson, 23 N.E.3d 1023, 1041 (Ohio 2014) (reiterating
that an inmate “would have waived his Atkins claim if
he had not raised it at trial”); Frazier v. Jenkins, 770
F.3d 485, 496 (6th Cir. 2014) (reading Frazier as
holding that a defendant can “forfeit his rights under
Atkins”).
Virginia’s highest court likewise has held that an
Atkins claim can be waived. In Winston v.
19
Commonwealth, 604 S.E.2d 21 (Va. 2004), the
defendant argued that an offender’s lack of an
intellectual disability must be proved by the state. In
rejecting this argument, the court recognized that
Atkins “expressly left ‘to the states the task of
developing appropriate ways to enforce the
constitutional restriction upon its execution of
sentences.’” Id. at 50 (quoting Atkins, 536 U.S. at 317).
The court held that the presence of an intellectual
disability is “an affirmative defense to the imposition of
the death penalty” and that “the burden of such proof
is on the defendant.” Id.
Although it resolved these issues, the court declined
to reach the defendant’s additional Atkins arguments.
Id. at 51. These issues were “waived,” the court held,
because the defendant “deliberately declined to raise
such a claim of mental retardation under the statutory
provisions that apply to him and his trial.” Id. That is
to say, because the inmate never argued to the trial
court that he suffered from an intellectual disability, he
waived his further arguments on this issue. See id.
The Supreme Court of Georgia reached an
analogous conclusion in Head v. Hill, 587 S.E.2d 613
(Ga. 2003).5 The court explained that, under Georgia
law, capital defendants tried after a certain date “are
entitled to present evidence of retardation to the jury
at the guilt/innocence phase of their trials and, if found
beyond a reasonable doubt to be retarded, to avoid a
death sentence.” Id. at 618. However, the defendant in
Head did not follow this procedure. Although he
5
As discussed below, another decision by the Supreme Court of
Georgia takes a somewhat different view.
20
“presented evidence of his intellectual slowness” at
trial, the defense’s expert “testified that [the defendant]
had an intelligence quotient of 77 and was not mentally
retarded.” Id. In addition, the defendant “did not
request that the jury be charged on a ‘guilty but
mentally retarded’ verdict.” Id.
The court concluded that this qualified as a waiver
of the defendant’s Atkins claim. “Because [the
defendant] did not seek a jury determination of his
alleged mental retardation at trial, that issue is
procedurally defaulted.” Id. The court went on to
emphasize that the defendant had the “right” to have
the jury decide at his original trial whether he was
intellectually disabled, but he “waived it.” Id. at 620.
Texas’s highest criminal court has reached a similar
conclusion. In Ex parte Blue, 230 S.W.3d 151 (Tex.
Crim. App. 2007), a defendant filed a successive habeas
petition claiming that he was intellectually
disabled—an issue he had failed to raise in his initial
petition. Id. at 153. In arguing that his successive
petition was proper, the defendant claimed that
“because the Eighth Amendment prohibition against
executing the mentally retarded is absolute, [the court]
should suspend all notions of waiver, forfeiture,
procedural default, and abuse of the writ . . . .” Id. The
court disagreed: “[H]aving afforded the applicant one
opportunity to raise his Atkins claim in a postconviction setting, the Texas Legislature may
legitimately limit any second chance it may afford him
to raise it again, notwithstanding the absolute nature
of the prohibition against executing the mentally
retarded.” Id. at 154.
21
In so holding, the court rejected the defendant’s
argument that a state violates the Constitution simply
because “it might deny a particular applicant review of
an allegation of facts that, if true, might impose a
fundamental bar to execution.” See id. at 156. The
court similarly “reject[ed] any assertion that, because
the Eighth Amendment erects an absolute bar to
executing the mentally retarded, an applicant must be
permitted to proceed with his subsequent writ
application upon no more than a bare allegation of
mental retardation . . . .”6 Id. at 159; see also Ex Parte
Ramirez, Nos. WR-71,401-01, WR-71,401-02, 2015 WL
6282336, at *1–*2 (Tex. Crim. App. Oct. 14, 2015)
(Alcala, J., concurring) (“[I]t appears to me that
applicant abandoned all of his intellectual-disability
claims in his initial and subsequent writs.”).
Consequently, the highest courts of Ohio, Virginia,
Georgia, and Texas have held that an Atkins claim can
be waived. These courts reached this conclusion
without regard to whether a defendant is otherwise
entitled to an evidentiary hearing.
2. Although the Supreme Court of Kentucky now
disagrees with these sister courts, it was not always so.
In Bowling v. Commonwealth, 163 S.W.3d 361 (Ky.
2005), abrogated on other grounds by Woodall v.
6
Although this quote from Blue refers to a defendant who offers
only a “bare allegation of mental retardation,” Blue, 230 S.W.3d at
159, earlier in the opinion, the court made clear that the amount
of evidence does not make a constitutional difference, id. at 154
(“[T]he Texas Legislature may legitimately limit any second chance
it may afford him to raise [an Atkins claim] again, notwithstanding
the absolute nature of the prohibition against executing the
mentally retarded.” (emphasis added)).
22
Commonwealth, 563 S.W.3d 1 (Ky. 2018), a death-row
inmate filed a civil action seeking to invalidate his
sentence under Atkins. Id. at 364. The trial court
dismissed this action on the basis that, as relevant
here, the inmate “had not timely asserted his mental
retardation claim.” Id. at 365. Kentucky’s highest court
affirmed. It started with the proposition that “[e]ven a
constitutional right can be waived by failure to timely
assert it.” Id. at 371. The court also recognized that
under Coleman v. Thompson, 501 U.S. 722 (1991),
there is “[n]o procedural principle [that] is more
familiar” than that a criminal defendant can forfeit a
constitutional right. See Bowling, 163 S.W.3d at 371
(citation omitted).
Against this backdrop, the Bowling court
determined that the defendant had waived his Atkins
claim. The court summarized that “[t]he
Commonwealth did not prevent [the defendant] from
presenting his mental retardation claim; he simply did
not assert it at his trial or in his [post-conviction]
motion.” Id. Because the defendant “chose not to assert
the claim at trial,” he “waived it.” Id. at 372. In
reaching this conclusion, Bowling cited the Supreme
Court of Virginia’s decision in Winston as well as the
Supreme Court of Georgia’s decision in Head. Id.
This case, then, not only presents a clear split of
authority about whether an Atkins claim can be
waived, but it also involves dueling opinions from the
Supreme Court of Kentucky on this issue. Notably,
although the decision under review cited Bowling, the
court did not cite it while deciding whether an Atkins
claim can be waived. Pet. App. 8–9.
23
3. In concluding that White cannot waive his Atkins
claim, the Supreme Court of Kentucky did not identify
any other court that agreed with its holding. Id. at 5–7.
But it could have cited two cases to that effect, one
from Pennsylvania and the other from Georgia. Thus,
the decision under review deepened an already-existing
split of authority.
Consider first Commonwealth v. Robinson, 82 A.3d
998 (Pa. 2013), where the Supreme Court of
Pennsylvania explained that it had “broadly stated that
questions relating to the legality of sentencing are not
waivable.” Id. at 1020 (citing Commonwealth v. Aponte,
855 A.2d 800, 802 n.1 (Pa. 2004)). The court extended
this reasoning to Atkins claims, reasoning that Atkins
“places a substantive restriction on the State’s power to
take the life of a mentally retarded offender, leaving
little doubt that actual Atkins claims implicate the
legality of sentencing.” Id. (cleaned up) (quoting Atkins,
536 U.S. at 321).
The second case stating that Atkins claims cannot
be waived, at least under certain circumstances, is
Rogers v. State, 575 S.E.2d 879 (Ga. 2003). There, the
Supreme Court of Georgia considered an intellectualdisability claim brought by an inmate who was
sentenced to death before Atkins and before Georgia
adopted a statute prohibiting the execution of an
intellectually disabled person. Following the procedure
set by Georgia’s courts for an offender in this
circumstance, the defendant requested a jury trial on
the issue of intellectual disability. Id. at 880. At the
hearing to determine whether to order a jury trial, the
defendant “presented evidence of mental retardation,
24
including affidavits of mental health experts who
diagnosed him as mentally retarded and suffering from
significant neurological impairment.” Id. at 880–81. On
the basis of this evidence, the trial court found a
“genuine issue of fact” and ordered a jury trial on the
issue. Id. at 881.
The defendant then had his first of three changes of
heart. Shortly before the jury trial, he asked the judge
to dismiss his intellectual-disability claim, to which the
court acceded. Id. The defendant, however, changed his
mind again. And then he changed it still again,
ultimately telling the trial court that “I do not want the
mental retardation trial and I would like it dismissed.”
Id. The trial court again granted this request. Id.
On appeal, the Supreme Court of Georgia reversed.
It reasoned that “[o]nce a petitioner carries his burden
of proof in the habeas corpus court of creating a
genuine issue regarding his mental retardation, the
issue must be thoroughly reviewed and passed upon. At
such point in the proceedings, the issue is no longer
subject to waiver by a petitioner.” Id. at 882 (internal
citation omitted). Thus, Georgia’s highest court
concluded that a defendant who initiates the process
for determining whether he has an intellectual
disability cannot pretermit that process once he has
convinced a trial court that he is entitled to a jury trial
on the issue. See id.
* * *
In sum: Three state courts of last resort have held
that an Atkins claim can be waived (Frazier, Winston,
and Blue). One state high court disagrees (Robinson).
And two state courts of last resort are on both sides of
25
this split of authority (Kentucky in this case and
Bowling, and Georgia in Head and Rogers). This Court
should grant certiorari to resolve this issue once and
for all.
III.
This case raises an important and
recurring issue and is an ideal vehicle for
deciding it.
Whether and under what circumstances a capital
defendant can waive an Atkins claim warrants this
Court’s plenary review.
This legal issue is a recurring one. Since the Court
decided Atkins in 2002, six state courts of last resort
have passed on the question presented. The issue has
arisen in direct appeals (as here and in Frazier and
Winston) and in state post-conviction proceedings (in
Blue, Robinson, Head, Rogers, and Bowling). In short,
this is not an instance where the question presented
needs to percolate further. See Box v. Planned
Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1782
(2019) (per curiam) (“We follow our ordinary practice of
denying petitions insofar as they raise legal issues that
have not been considered by additional [courts].”).
Rather, the states’ highest courts have exhaustively
reviewed the question presented in different procedural
contexts over nearly two decades.
The question presented also is an important one. It
cannot be disputed that the decision below invites
delay, maybe much more delay, in death-penalty
appeals. See Knight v. Florida, 528 U.S. 990, 120 S. Ct.
459, 459 (1999) (Thomas, J., concurring) (“[T]he delay
in carrying out the prisoner’s execution stems from this
26
Court’s Byzantine death penalty jurisprudence.”). The
decision under review remands for an evidentiary
hearing that White does not want and in which he will
not participate. Whether the Constitution forces this
delay not just on the Commonwealth, but also on
White, warrants this Court’s attention. For the
Commonwealth, the delay undercuts its sovereign
ability to impose White’s sentence in a timely manner.
And for the 62-year-old White, he must delay any
meaningful pursuit of his objective in post-conviction
proceedings.
This case also is important because it arises in the
context of a capital defendant who desires to waive a
right protected by the Eighth Amendment. Although
Stewart demonstrates that Eighth Amendment rights
are presumptively waivable, several justices have
voiced concerns about this issue. In his Stewart dissent,
for example, Justice Stevens viewed this as an
“important question” that should be decided with “full
briefing and argument.” See Stewart, 526 U.S. at 121
(Stevens, J., dissenting); see also Whitmore v.
Arkansas, 495 U.S. 149, 175 (1990) (Marshall, J.,
dissenting); Gilmore v. Utah, 429 U.S. 1012, 1018
(1976) (White, J., dissenting); Lenhard v. Wolff, 444
U.S. 807, 810–12 (1979) (Marshall, J., dissenting). This
case will allow the Court to build on Stewart and to
provide further clarity on this important issue.
In addition, there can be no doubt that this case
squarely raises the question presented. The Supreme
Court of Kentucky unequivocally decided the issue
after receiving supplemental briefing on it. Nor is this
an issue that matters little to this case. White’s
27
insistence on waiving his Atkins rights, as shown by his
pro se filings, underscores the centrality of the question
presented to this case. White desires to get moving on
post-conviction proceedings so that he can try to
demonstrate his innocence. Pet. App. 108, 109, 114.
This is White’s prerogative alone. See McCoy, 138 S. Ct.
at 1508 (“Autonomy to decide that the objective of the
defense is to assert innocence” belongs to a criminal
defendant.). Due entirely to the Supreme Court of
Kentucky’s holding, White is stuck litigating an issue
on which he agrees with the Commonwealth and that
keeps him from pursuing his objective.
One final point. The Supreme Court of Kentucky’s
remand of this matter for an evidentiary hearing does
not affect this Court’s jurisdiction. The applicable
jurisdictional statute, it is true, speaks in terms of
reviewing “[f]inal judgments,” 28 U.S.C. § 1257(a), but
a “pragmatic approach” governs in determining
finality, Cox Broad. Corp. v. Cohn, 420 U.S. 469, 486
(1975). The Supreme Court of Kentucky’s decision is
“plainly final” on the waiver issue and “is not subject to
further review in the state courts.” See id. at 485. If the
Commonwealth ultimately prevails during the
evidentiary hearing (for example, on the basis that
White introduced too little evidence), that will mean
that an important constitutional question on which
state courts of last resort are divided will be “le[ft]
unanswered.” See id. at 486 (citation omitted). If,
however, the Commonwealth prevails on the waiver
issue in this Court, “this litigation ends.” See id. at
485–86 (“[I]f the [state] court erroneously upheld the
statute, there should be no trial at all.”).
28
In addition, finding no jurisdiction at this stage will
“seriously erode federal policy.” See id. at 483. White
raped and murdered Ms. Armstrong nearly 40 years
ago, yet Kentucky’s highest court remanded this case
for an evidentiary hearing that White does not desire
and during which he may well represent himself. Pet.
App. 11, 108, 109, 117. The end result will be more
delay. Even if the Commonwealth can seek certiorari
on the waiver issue after the trial court’s ruling on the
evidentiary hearing and after the inevitable appeal to
the Supreme Court of Kentucky, that will, in all
likelihood, be years from now. To permit the Supreme
Court of Kentucky’s waiver holding to go un-reviewed
until that late date will add to the “proliferation of
labyrinthine restrictions on capital punishment.” See
Glossip v. Gross, 576 U.S. 863, 898 (2015) (Scalia, J.,
concurring). “Courts should police carefully against
attempts to use [death-penalty litigation] as tools to
interpose unjustified delay.” See Bucklew v. Precythe,
139 S. Ct. 1112, 1134 (2019). This is because “[b]oth the
State and the victims of crime have an important
interest in the timely enforcement of a sentence.” See
id. at 1133 (quoting Hill v. McDonough, 547 U.S. 573,
584 (2006)).
29
CONCLUSION
The Court should grant the petition for a writ of
certiorari.
Respectfully submitted,
DANIEL CAMERON
Attorney General
S. CHAD MEREDITH
Solicitor General
BARRY L. DUNN
MATTHEW F. KUHN*
Deputy Attorney General JEFFREY A. CROSS
Deputy Solicitors General
Office of the Kentucky
Attorney General
EMILY B. LUCAS
Assistant Attorney General
700 Capitol Ave., Ste.118
Frankfort, KY 40601
(502) 696-5300
Matt.Kuhn@ky.gov
* Counsel of Record
Counsel for Petitioner
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.