Amicus Curiae Brief — Harry Franklin Phillips, Petitioner v. Florida

Supreme Court briefFeb 16, 2021

Ask Donna

What actually matters in this document.

Text

No. 20-6887

================================================================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------HARRY FRANKLIN PHILLIPS,

Petitioner,

STATE OF FLORIDA,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The Supreme Court Of Florida

In A Capital Case

-----------------------------------------------------------------BRIEF OF AMICI CURIAE THE ARC OF THE

UNITED STATES, THE NATIONAL DISABILITY

RIGHTS NETWORK, DISABILITY RIGHTS

FLORIDA, THE BAZELON CENTER FOR MENTAL

HEALTH LAW, AND THE CENTER FOR PUBLIC

REPRESENTATION IN SUPPORT OF PETITIONER

-----------------------------------------------------------------JOHN H. BLUME

Counsel of Record

CORNELL LAW SCHOOL

159 Hughes Hall

Ithaca, NY 14853

jb94@cornell.edu

(607) 255-1030

JAMES W. ELLIS

ANN M. DELPHA

1117 Stanford, N.E.

Albuquerque, NM 87131

ellis@law.unm.edu

(505) 277-2146

Counsel for Amici Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ...........................

SUMMARY OF ARGUMENT ................................

ARGUMENT ...........................................................

HALL AND THE RULE OF TEAGUE .......

II. HALL AND DIAGNOSTIC PRACTICE ......

CONCLUSION .......................................................

TABLE OF AUTHORITIES

Page

FEDERAL CASES

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

Bousley v. United States, 523 U.S. 614 (1998) ..............9

Carnley v. Cochran, 369 U.S. 506 (1962) ......................9

Chaidez v. United States, 568 U.S. 342 (2013) ... passim

Edwards v. Vannoy, No. 19-5807 No. 18-31095,

2019 WL 8643258 (5th Cir. May 20, 2019),

cert. granted, 206 L.Ed.2d 917 (U.S. May 4,

2020) (No. 19-5807) ...................................................7

Hall v. Florida, 572 U.S. 701 (2014) ................... passim

In re Henry, 757 F.3d 1151 (11th Cir. 2014)....... passim

Kilgore v. Secretary, Florida Department of Corrections, 805 F.3d 1301 (11th Cir. 2015) ...................7

McNeal v. Culver, 365 U.S. 109 (1961) .........................9

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) .........5

Moore v. Texas, 137 S. Ct. 1039 (2017) .........................1

Roper v. Simmons, 543 U.S. 551 (2005) ......................11

Smith v. Sharp, 935 F.3d 1064 (10th Cir. 2019)...........7

Teague v. Lane, 489 U.S. 288 (1989) ................... passim

Van Tran v. Colson, 764 F.3d 594 (6th Cir. 2014) ........7

Williams v. Taylor, 529 U.S. 362 (2000)........................9

iii

TABLE OF AUTHORITIES—Continued

Page

STATE CASES

Cribbs v. State, No. W2006-01381-CCA-R3-PD,

2009 WL 1905454 (Tenn. Crim. App. 2009) .............6

Phillips v. State, 299 So. 3d 1013 (Fla. 2020) ..... passim

State v. Elmore, No. 2005-CA-32, 2005 WL

2981797 (Ohio App. Nov. 3, 2005) .............................6

Walls v. State, 213 So. 3d 340 (Fla. 2016) ................ 4, 5

Witt v. State, 387 So. 2d 922 (Fla. 1980) .......................5

FEDERAL STATUTE

42 U.S.C. § 15043(a)(2)(A)(i) (2018) ..............................2

RULES

Sup. Ct. R. 10(c) ..........................................................18

Sup. Ct. R. 14.1(a) .........................................................5

Sup. Ct. R. 37.6 .............................................................1

OTHER AUTHORITIES

American Association on Intellectual and Developmental Disabilities, Intellectual Disability:

Deﬁnition, Classiﬁcation, and Systems of Supports (12th ed. 2021) ...............................................17

American Association on Intellectual and Developmental Disabilities, Intellectual Disability:

Deﬁnition, Classiﬁcation, and Systems of Supports (11th ed. 2010) ...............................................13

TABLE OF AUTHORITIES—Continued

Page

American Association on Intellectual and Developmental Disabilities, User’s Guide: [to] Mental Retardation: Deﬁnition, Classiﬁcation, and

Systems of Supports (2007) ............................... 14, 15

American Association on Mental Retardation,

Mental Retardation: Deﬁnition, Classiﬁcation,

and Systems of Supports (10th ed. 2002) ......... 13, 15

American Association on Mental Retardation,

Mental Retardation: Deﬁnition, Classiﬁcation,

and Systems of Supports (9th ed. 1992) .................14

American Association on Mental Retardation,

Classiﬁcation in Mental Retardation (1983) ..........14

American Psychiatric Association, Diagnostic

and Statistical Manual of Mental Disorders

(4th ed. text rev. 2000) ............................................16

American Psychiatric Association, Diagnostic

and Statistical Manual of Mental Disorders

(3d ed. 1980) ............................................................16

American Psychological Association, APA’s Guidelines for Test User Qualiﬁcations: An Executive

Summary, 56 Am. Psychologist 1099 (2001) ..........15

Blume, John H., Sheri Lynn Johnson, Paul Marcus & Emily Paavola, A Tale of Two (and Possibly Three) Atkins: Intellectual Disability

and Capital Punishment Twelve Years after

the Supreme Court’s Creation of a Categorical

Bar, 23 William & Mary Bill of Rights J. 393

(2014) .........................................................................6

TABLE OF AUTHORITIES—Continued

Page

Blume, John H., Sheri Lynn Johnson & Christopher Seeds, Of Atkins and Men: Deviations

from Clinical Deﬁnitions of Mental Retardation in Death Penalty Cases, 18 Cornell J. L. &

Pub. Pol’y 689 (2009) ...............................................16

Bonnie, Richard J. & Katherine Gustafson, The

Challenge of Implementing Atkins v. Virginia:

How Legislatures and Courts Can Promote

Accurate Assessments and Adjudications of

Mental Retardation in Death Penalty Cases,

41 U. Richmond L. Rev. 811 (2007) .........................15

Ellis, James W., Caroline Everington, and Ann

M. Delpha, Evaluating Intellectual Disability:

Clinical Assessments in Atkins Cases, 46 Hofstra L. Rev. 1305 (2018) ..........................................17

Fabian, John Matthew, William W. Thompson,

IV & Jeffrey B. Lazarus, Life, Death, and IQ:

It’s Much More than Just a Score: Understanding and Utilizing Forensic Psychological

and Neuropsychological Evaluations in Atkins

Intellectual Disability/Mental Retardation Cases,

59 Cleveland State L. Rev. 399 (2011) ....................13

Slawski, Edward J., Error of Measurement, in 1

Encyclopedia Hum. Intelligence 395 (Robert J.

Sternberg ed., 1994) ................................................14

Tobolowsky, Peggy M., Atkins Aftermath: Identifying Mentally Retarded Offenders and Excluding Them from Execution, 30 J. Legis. 77 (2004) ......15

Wechsler, David, The Measurement of Adult Intelligence (1939) ................................................. 14, 15

INTERESTS OF AMICI CURIAE1

THE ARC OF THE UNITED STATES (“The Arc”),

founded in 1950, is the nation’s largest communitybased organization of and for people with intellectual

and developmental disabilities and consists of over 600

state and local chapters across the country. The Arc

promotes and protects the human and civil rights of

people with intellectual and developmental disabilities

and actively supports their full inclusion and participation in the community throughout their lifetimes.

The Arc has a vital interest in ensuring that all individuals with intellectual and developmental disabilities receive the protections and supports to which they

are entitled by law, and that courts and administrative

agencies employ commonly accepted scientiﬁc principles for the diagnosis of intellectual and developmental disabilities. The Arc has appeared as amicus curiae

in this Court in a variety of cases involving intellectual

disability and the death penalty, including Atkins v.

Virginia, 536 U.S. 304 (2002), Hall v. Florida, 572 U.S.

701 (2014), and Moore v. Texas, 137 S. Ct. 1039 (2017).

THE NATIONAL DISABILITY RIGHTS NETWORK (“NDRN”) is the non-profit membership organization for the federally mandated Protection and

Pursuant to Supreme Court Rule 37.6, Amici Curiae state

that no counsel for a party authored this brief in whole or in part

and no person other than Amici Curiae, their members, or their

counsel made a monetary contribution intended to fund the preparation or submission of this brief. Counsel for both the State of

Florida (Jeffrey DeSousa) and Mr. Phillips (Marie-Louise Parmer) received timely notice and have consented to the ﬁling of this

amicus brief.

Advocacy (P&A) and Client Assistance Program (CAP)

agencies for individuals with disabilities. The P&A and

CAP agencies were established by the United States

Congress to protect the rights of people with disabilities and their families through legal support, advocacy,

referral, and education. There are P&As and CAPs in

all 50 states, the District of Columbia, Puerto Rico, and

the U.S. Territories (American Samoa, Guam, Northern Mariana Islands, and the U.S. Virgin Islands), and

there is a P&A and CAP afﬁliated with the Native

American Consortium which includes the Hopi, Navajo, and San Juan Southern Paiute Nations in the Four

Corners region of the Southwest. Collectively, the P&A

and CAP agencies are the largest provider of legally

based advocacy services to people with disabilities in

the United States.

DISABILITY RIGHTS FLORIDA is a not-forproﬁt corporation serving as Florida’s federally-funded

protection and advocacy system for individuals with

disabilities. Disability Rights Florida’s mission is to

advance the quality of life, dignity, equality, self-determination, and freedom of choice of people with disabilities through collaboration, education, and advocacy,

as well as legal and legislative strategies. Specifically, on behalf of persons with intellectual and other

developmental disabilities, Disability Rights Florida

is authorized by federal law to “pursue legal, administrative, and other appropriate remedies or approaches

to ensure the protection of, and advocacy for, the rights

of such individuals within the State. . . .” 42 U.S.C.

§ 15043(a)(2)(A)(i) (2018). Disability Rights Florida

has represented and continues to represent persons

with disabilities in individual actions, class actions,

and systemic relief initiatives affecting all such individuals. The protection and advocacy system is unique

in its authority to protect and advocate for the legal

and human rights of persons with disabilities and its

presence will provide a necessary perspective to assist

the Court in this matter.

THE BAZELON CENTER FOR MENTAL HEALTH

LAW is a national public interest organization founded

in 1972 to advocate for the rights of individuals with

mental disabilities. Through litigation, legislative and

administrative advocacy, and public education, the Bazelon Center advances equal opportunities for individuals with mental disabilities in all aspects of

life, including employment, education, housing, health

care, community living, voting, and family rights.

THE CENTER FOR PUBLIC REPRESENTATION (“CPR”) is a public interest law ﬁrm that has assisted people with disabilities for more than 40 years.

CPR uses legal strategies, systemic reform initiatives,

and policy advocacy to enforce civil rights, expand opportunities for inclusion and full community participation, and empower people with disabilities to exercise

choice in all aspects of their lives. CPR is both a

statewide and a national legal backup center that provides assistance and support to public and private

attorneys representing people with disabilities in Massachusetts and to the federally funded protection and

advocacy programs in each of the States. CPR has

litigated systemic cases on behalf of persons with

disabilities in more than 20 states and submitted amicus briefs to the United States Supreme Court and

many courts of appeals in order to enforce the constitutional and statutory rights of persons with disabilities, including those involved in the criminal justice

system.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

The purpose of this submission is to ensure that

the Court is aware of the central issue which this case

presents for review. It is whether Hall v. Florida2 establishes a new rule for Teague3 purposes.

The case arises from a surprise decision of the

Florida Supreme Court in Phillips v. State4 overruling

sua sponte its own 2016 decision that had held Hall

retroactive as a matter of state law.5 Phillips’ motion

for rehearing—the ﬁrst chance he had to challenge this

judicial about-face—argued inter alia and thus preserved the contention that “[t]his Court’s May 21, 2020

holding in Mr. Phillips’ case—that Hall announced a

new non-watershed rule of federal Eighth Amendment

572 U.S. 701 (2014).

Teague v. Lane, 489 U.S. 288 (1989).

299 So. 3d 1013 (Fla. 2020).

Walls v. State, 213 So. 3d 340 (Fla. 2016).

law for purposes of Teague and Witt—was error. This

Court’s holding violates Witt6 and Teague.”7

The issue whether Hall is retroactive as a matter

of federal Eighth Amendment law is subsumed8 in the

ﬁrst Question Presented by Mr. Phillips to this Court.9

That issue is one whose erroneous resolution may have

fatal consequences not only for condemned individuals

in Florida; it also potentially affects death-sentenced

people in many other States.10 It is the subject of

The reference is to Florida’s leading state-law retroactivity

decision, Witt v. State, 387 So. 2d 922 (Fla. 1980).

Motion for Rehearing at 8, Phillips v. State, 299 So. 3d 1013

(Fla. 2020) (No. SC18-1149).

Sup. Ct. R. 14.1(a) (“The statement of any question presented is deemed to comprise every subsidiary question fairly included therein.”).

“[O]n appeal from the denial of his Atkins/Hall claim, a

newly constituted ﬁve-Justice Florida Supreme Court sua sponte

reversed its decision in Walls, held Phillips was not entitled to

have his intellectual disability claim analyzed under the Hall

framework, and determined that Hall announced a new non-watershed rule for Eighth Amendment purposes and thus was not

retroactive. The question[ ] presented [is]:

Whether a state court must give retroactive effect on

collateral review to the rule announced in Hall because

the Supremacy Clause, as held in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), mandates that a State

court cannot deny a prisoner’s claim that his sentence

is violative of the federal constitution by interpreting a

case such as Hall as a mere procedural modiﬁcation of

the substantive holding of Atkins but rather the State

court must give effect to Atkins’ substantive holding?”

Pet. Cert., at i.

See Hall, 572 U.S. at 714–17. Kentucky, Alabama, Arizona, Kansas, North Carolina and Nebraska are states in which

conﬂicting lower-court decisions.11 Its consideration by

the Court would provide a clarifying counterpoint to

it appeared that the standard error of measurement (SEM) might

not be taken into account in adjudicating the issue of subaverage

intellectual functioning. Id. at 714–15. The Hall opinion notes

that in several of these States there were no pre-Hall appellate

decisions authoritatively resolving the SEM question. Id. at 716.

We know of no reported data bearing directly on the number of

cases in which Atkins claims were lost on that issue in these

States, or on the number of cases in which Atkins claims were not

raised because postconviction counsel failed to consider the SEM.

But it does appear that nationwide 31% of the Atkins losses between mid-2002 and the end of 2013 rested solely upon adverse

appellate ﬁndings on the intellectual-deﬁcits prong of the threepronged orthodox diagnostic formula, and that 29% of these cases

in turn involved average I.Q. scores below 75. And the study

which documents these ﬁgures mentions at least two such cases—

State v. Elmore, No. 2005-CA-32, 2005 WL 2981797 (Ohio App.

Nov. 3, 2005), and Cribbs v. State, No. W2006-01381-CCA-R3-PD,

2009 WL 1905454 (Tenn. Crim. App. July 1, 2009)—in which the

SEM was erroneously disregarded in a State other than those

identiﬁed by Hall as treating an I.Q. above 70 as precluding Atkins relief. John H. Blume, Sheri Lynn Johnson, Paul Marcus &

Emily Paavola, A Tale of Two (and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years after the

Supreme Court’s Creation of a Categorical Bar, 23 Wm. & Mary

Bill of Rights J. 393, 400–04 (2014).

Compare In re Henry, 757 F.3d 1151, 1158–59 (11th Cir.

2014) (“For the ﬁrst time in Hall, the Supreme Court imposed a

new obligation on the states not dictated by Atkins because Hall

restricted the states’ previously recognized power to set procedures governing the execution of the intellectually disabled. In

addition, Justice Kennedy’s Hall opinion explained that the basis

for its holding stretched beyond Atkins alone: ‘[T]he precedents of

this Court “give us essential instruction,” . . . but the inquiry must

go further. . . . In this Court’s independent judgment, the Florida

statute, as interpreted by its courts, is unconstitutional.’ Hall

. . . (quoting Roper v. Simmons. . . .). Nothing in Atkins dictated

or compelled the Supreme Court in Hall to limit the states’

Edwards v. Vannoy,12 which presents a less stark, more

complicated variant of the “new rule” issue under

Teague.

------------------------------------------------------------------

previously recognized power to set an IQ score of 70 as a hard

cutoff. This is plainly a new obligation that was never before imposed on the states, under the clear language of Atkins, and of

Hall itself.”) (internal citations omitted), and Kilgore v. Sec’y, Fla

Dep’t of Corr., 805 F.3d 1301, 1313 (11th Cir. 2015) (“[I]n In re

Henry . . . we rejected the argument that Hall’s holding—limiting

the states’ previously recognized power to set an IQ score of 70 as

a hard cutoff—was ‘clearly established’ by Atkins. . . . [W]e held

that Hall necessarily established a new rule of constitutional

law.”) (internal citations omitted), with Smith v. Sharp, 935 F.3d

1064, 1084–85 (10th Cir. 2019) (“As in Strickland, the Supreme

Court in Atkins declared ‘a rule of general application . . . designed for the speciﬁc purpose of evaluating a myriad of factual

contexts.’ . . . The application of this general rule to Hall, . . .

Moore I . . . and Moore II cannot be understood to ‘yield[ ] a result

so novel that it forges a new rule, one not dictated by precedent’

. . . in light of the Court’s proclamation in Hall that ‘Atkins . . .

provide[s] substantial guidance on the deﬁnition of intellectual

disability’. . . . The Court’s application of Atkins more closely resembles, for example, our conclusion that the extension of Strickland’s guarantee of effective counsel to the plea-bargaining

context merely applied Strickland rather than created a new

rule.”); and see Van Tran v. Colson, 764 F.3d 594, 612 (6th Cir.

2014) (determining that Hall “clariﬁed the minimum Atkins

standard under the U.S. Constitution. . . . In [Hall], the Court

confronted directly the question of ‘how intellectual disability

must be deﬁned in order to implement the[ ] principles and the

holding of Atkins.’ ”).

No. 18-31095, 2019 WL 8643258 (5th Cir. May 20, 2019),

cert. granted, 206 L.Ed.2d 917 (U.S. May 4, 2020) (No. 19-5807).

ARGUMENT

Hall and the rule of Teague

Under Teague, “[w]hen . . . [this Court] announce[s]

a ‘new rule,’ a person whose conviction is already ﬁnal

may not beneﬁt from the decision in a habeas or similar proceeding.” Chaidez v. United States, 568 U.S. 342,

347 (2013). This Court continued in Chaidez:

But that account has a ﬂipside. Teague also

made clear that a case does not “announce a

new rule, [when] it ‘[is] merely an application

of the principle that governed’ ” a prior decision to a different set of facts. . . . As JUSTICE

KENNEDY has explained, “[w]here the beginning point” of our analysis is a rule of “general

application, a rule designed for the speciﬁc

purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields

a result so novel that it forges a new rule, one

not dictated by precedent.” Wright v. West, 505

U.S. 277, 309 . . . (1992) (concurring in judgment). . . . Otherwise said, when all we do is

apply a general standard to the kind of factual

circumstances it was meant to address, we

will rarely state a new rule for Teague purposes.

Chaidez, 568 U.S. at 347–48 (full citation omitted).

In Hall v. Florida, this Court stated with deliberate precision the issue it decided: “The question this

case presents is how intellectual disability must be deﬁned in order to implement these principles and the

holding of Atkins.”13 572 U.S. 701, 709 (2014). And the

concluding passage of Hall’s Atkins analysis casts

Hall’s holding in terms of invalidation of an evidentiary restriction that impedes the proper adjudication

of Atkins claims:

The Florida statute, as interpreted by its

courts, misuses IQ score on its own terms; and

this, in turn, bars consideration of evidence

that must be considered in determining

whether a defendant in a capital case has intellectual disability. Florida’s rule is invalid

under the Constitution’s Cruel and Unusual

Punishments Clause.

Hall, 572 U.S. at 723.

A state-law rule that precludes the proper evidentiary examination of a federal claim is constitutionally

impermissible, as this Court has told the Florida Supreme Court more than once.14 “There is surely nothing new about this principle,” Bousley v. United States,

523 U.S. 614, 620 (1998)—nothing that is “novel,”

Chaidez, 568 U.S. at 347, or that “ ‘breaks new ground

or imposes a new obligation on the States,’ ” Williams

v. Taylor, 529 U.S. 362, 381 (2000) (quoting Teague, 489

U.S. at 301).

Atkins is reported as Atkins v. Virginia, 536 U.S. 304

(2002).

See McNeal v. Culver, 365 U.S. 109 (1961); Carnley v.

Cochran, 369 U.S. 506 (1962).

To the contrary, Hall simply implemented the substantive rule of Atkins by invalidating an aberrant

Florida ruling that

misconstrue[d] the Court’s statements in Atkins that intellectual disability is characterized by an IQ of “approximately 70.” . . .

Florida’s rule is in direct opposition to the

views of those who design, administer, and interpret the IQ test. By failing to take into account the standard error of measurement,

Florida’s law not only contradicts the test’s

own design but also bars an essential part of

a sentencing court’s inquiry into adaptive

functioning.

Hall, 572 U.S. at 724. To correct a glaring misconception about the sort of factual analysis necessary for the

proper adjudication of a claim under an established

rule of federal constitutional law is not to make “new

law.”15

It is notable that the key elements in the reasoning by

which the Eleventh Circuit in In re Henry, 757 F.3d 1151 (11th

Cir. 2014), concluded that Hall created a new rule are manifestly

ill-conceived. The Henry court writes: “For the ﬁrst time in Hall,

the Supreme Court imposed a new obligation on the states not

dictated by Atkins because Hall restricted the states’ previously

recognized power to set procedures governing the execution of the

intellectually disabled.” Id. at 1158–59. But the Hall Court explained:

If the States were to have complete autonomy to deﬁne

intellectual disability as they wished, the Court’s decision in Atkins could become a nullity, and the Eighth

Amendment’s protection of human dignity would not

become a reality. This Court thus reads Atkins to

The Florida Supreme Court’s Phillips opinion itself recognizes that Hall represents only “an evolutionary refinement of the procedure necessary to

comply with Atkins. It [Hall] merely clarified the

manner in which courts are to determine whether a

capital defendant is intellectually disabled and

therefore ineligible for the death penalty.” 299 So. 3d

at 1021.

Hall merely more precisely defined the procedure that is to be followed in certain cases

to determine whether a person facing the

death penalty is intellectually disabled. Hall

is merely an application of Atkins. . . . Hall’s

limited procedural rule does nothing more

than provide certain defendants—those with

IQ scores within the test’s margin of error—

provide substantial guidance on the deﬁnition of intellectual disability.

572 U.S. at 720–21. The Henry opinion says:

In addition, Justice Kennedy’s Hall opinion explained

that the basis for its holding stretched beyond Atkins

alone: “[T]he precedents of this Court ‘give us essential

instruction,’ . . . but the inquiry must go further. . . . In

this Court’s independent judgment, the Florida statute, as interpreted by its courts, is unconstitutional.”

757 F.3d at 1159. But Hall’s reference to the Court’s “independent judgment” did not mean “independent of Atkins.” It was an

instance of the Court’s repeated recognition that legislative

judgments and other indicia of national consensus are to be

supplemented in Eighth Amendment analysis by “the Court’s

independent judgment.” Roper v. Simmons, 543 U.S. 551, 562–64

(2005).

with the opportunity to present additional evidence of intellectual disability.

299 So. 3d at 1020.16

These descriptions accurately portray the respective positions of Atkins and Hall for Teague purposes:

Atkins as “ ‘the beginning point’ of . . . analysis is a rule

of ‘general application, a rule designed for the speciﬁc

purpose of evaluating a myriad of factual contexts’ ”;

and “all . . . [this Court did in Hall was to] apply a general standard to the kind of factual circumstances it

was meant to address. . . .” Chaidez, 568 U.S. at 348.

But the conclusion of non-retroactivity which the Florida Supreme Court drew from this entirely accurate

portrait ﬂouts the admonition of this Court that its decisions clarifying how a general rule is to be applied to