Petition for Rehearing — Kevin B. Burns, Petitioner v. Tony Mays, Warden

No. 22-5891

CAPITAL CASE

KEVIN B. BURNS,

Petitioner,

v.

TONY MAYS, WARDEN,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR REHEARING

RICHARD LEWIS TENNENT*

DAVID FLETCHER

KATHERYN P. THOMAS

Assistant Federal Public Defenders

Office of the Federal Public Defender

Middle District of Tennessee

810 Broadway, Suite 200

Nashville, Tennessee 37203

(615) 736-5047

Richard_Tennent@fd.org

*Counsel of Record

TABLE OF CONTENTS

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

PETITION FOR REHEARING ..........................................................................1

INTRODUCTION ...............................................................................................1

A. The Two Grounds for Rehearing Under Rule 44. ...............................3

B. While this Court was deliberating Mr. Burns’ case, the last

remaining co-defendant, “the big man in glasses,” identified

by Eric Thomas as the killer of Damon Dawson, was released

on parole. .............................................................................................5

C. Kevin Burns has received the death penalty for a felony

murder when he did not kill anyone. Yet, the man who

wantonly murdered Mr. Burns’ niece and two cousins in a

planned arson is serving life without parole. This extreme

sentencing disparity is morally absurd. ............................................6

D. Justices of this Court have found that similar grounds justify

summary reversal in the past, particularly when addressing

a court of appeals that contumaciously refuses to follow this

Court’s precedents. .............................................................................7

CONCLUSION ..................................................................................................10

CERTIFICATE OF COUNSEL .........................................................................11

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TABLE OF AUTHORITIES

CASES

Allen v. Lawhorn, 562 U.S. 1118 (2010) ..............................................................7

Bell v. Cone, 535 U.S. 685 (2002) ........................................................................9

Bell v. Cone, 543 U.S. 447 (2005) ........................................................................9

Berghuis v. Smith, 559 U.S. 314 (2010) ..............................................................9

Berghuis v. Thompkins, 560 U.S. 370 (2010) ......................................................9

Bobby v. Dixon, 565 U.S. 23 (2011) .....................................................................9

Bobby v. Mitts, 563 U.S. 395 (2011) ....................................................................9

Bobby v. Van Hook, 558 U.S. 4 (2009) ................................................................9

Bradshaw v. Richey, 546 U.S. 74 (2005) .............................................................9

Burt v. Titlow, 571 U.S. 12 (2013) .......................................................................8

Carroll v. Raney, 953 S.W.2d 657 (Tenn. 1997) .............................................. 2, 3

Gaines v. State, 8 S.W.3d 547 (Ark. 2000) ..........................................................6

Grzegorczyk v. United States 142 S. Ct. 2580 (2022)..........................................2

Guzek v. Oregon, 546 U.S. 517 (2006) .................................................................8

Hinton v. Alabama, 571 U.S. 263 (2014) ............................................................8

Holland v. Jackson, 542 U.S. 649 (2004) ...........................................................9

Howes v. Fields, 565 U.S. 499 (2012) .................................................................9

Jenkins v. Hutton, 137 S. Ct. 1769 (2017) ..........................................................8

Kimmelman v. Morrison, 477 U.S. 365 (1986) ...................................................8

Mays v. Hines, 141 S. Ct. 1145 (2021) ................................................................8

Metrish v. Lancaster, 569 U.S. 351 (2013) ..........................................................8

Mitchell v. Esparza, 540 U.S. 12 (2003) .............................................................9

Parker v. Matthews, 567 U.S. 37 (2012) .........................................................8, 9

Price v. Vincent, 538 U.S. 634 (2003) .................................................................9

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Rapelje v. Blackston, 577 U.S. 1019 (2015) ........................................................8

Renico v. Lett, 559 U.S. 766 (2010) .....................................................................9

Salazar-Limon v. City of Houston, Tex. 137 S. Ct. 1277 (2017) .........................7

Shinn v. Ramirez, 142 S. Ct. 1718 (2022) ..........................................................3

Shoop v. Hill, 139 S. Ct. 504 (2019) ...................................................................8

Smith v. Spisak, 558 U.S. 139 (2010) ................................................................9

State ex rel. Rowe v. Connors, 61 S.W.2d 471 (Tenn. 1993) ..............................3

White v. Wheeler, 136 S. Ct. 456 (2015) .............................................................8

White v. Woodall, 572 U.S. 415 (2014) ...............................................................8

Woods v. Donald, 575 U.S. 312 (2015) ...............................................................8

Woods v. Etherton, 136 S. Ct. 1149 (2016) ..........................................................8

CONSTITUTIONAL PROVISIONS AND STATUTES

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) ................ 8, 9

U.S. Sup. Ct. R. 10 ...............................................................................................2

U.S. Sup. Ct. R. 44 ................................................................................. 1, 3, 6, 10

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PETITION FOR REHEARING

Pursuant to Rule 44, Petitioner Kevin Burns respectfully requests rehearing

and reconsideration of the Court’s April 24, 2023 order denying the Petition for a

Writ of Certiorari.

This petition is submitted based on substantial intervening

circumstances and substantial grounds not previously presented.

Specifically: (1) as of April 14, 2023, “the big man in glasses,” as well as the

other codefendant, have been paroled from their life sentences, leaving Mr. Burns as

the only defendant in custody—let alone facing execution; and (2) his death sentence

is uniquely disproportionate when compared to the life sentence given to the man

who murdered Mr. Burns’ young niece and two cousins in an intentional domestic

violence arson. These two grounds do not change the legal calculus under which Mr.

Burns easily prevails, rather they change the moral equation that determines

whether this Court should exercise judicial discretion to grant extraordinary relief.

INTRODUCTION

Kevin Burns should not be on death row for a killing he did not commit. That

our felony murder law permits such a sentence in general, and that this Court’s

aversion to error correction has permitted such a sentence specifically, does not make

his capital sentence just. Respectfully, pursuant to Rule 44, Mr. Burns asks that this

Court rehear and reconsider its discretionary decision not to correct the extreme

errors in this case.

Previously, Mr. Burns relied upon the law when requesting relief—and his

legal arguments were successful.

Three justices found that under controlling

Supreme Court precedents he was entitled to relief. Dissent at 5-7. The ruling of the

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Sixth Circuit Court of Appeals was “indefensible” (and undefended by Respondent)

with errors so obvious “they leap off the page.” Id. However, Mr. Burns also lost, as

the law is only the half of it. He also needed to convince this Court that relief was

warranted as a matter of “judicial discretion” based on “compelling reasons.” Sup. Ct.

R. 10. He needed to overcome this Court’s strong aversion to error correction.

Thus, Mr. Burns was originally denied relief, because a controlling plurality 1

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of this Court did not exercise its judicial discretion to correct the Sixth Circuit’s

“indefensible” legal errors. This was not entirely surprising: this case did not involve

a circuit split (all courts of appeal across the country, including other panels of the

Sixth Circuit, would rule in Mr. Burns favor), and the issues of law were all clearly

established by the well-recognized precedents of this Court. See Pet. at 16-24. Under

these circumstances, at least four Justices found that there was not a compelling

reason to correct such obvious errors.

The controlling plurality may have believed that Mr. Burns’ claims are better

addressed through executive clemency. See e.g. Grzegorczyk v. United States, 142 S.

Ct. 2580, 2581 (2022) (Statement of Kavanaugh, J. with Roberts, C.J., Thomas, J.,

Alito, J. and Barrett, J). No doubt, under the Tennessee Constitutional system,

Governor Bill Lee has the power to step in and remedy the obvious wrong. Tenn.

Const. Art. III, § 6. Of course, like this Court, he also may decline to exercise his

power—and his discretion is virtually unbridled. Carroll v. Raney, 953 S.W.2d 657,

1 Counsel understands that the informal rules of this Court require six votes for a per

curiam summary reversal.

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659 (Tenn. 1997); State ex rel. Rowe v. Connors, 61 S.W.2d 471, 472 (Tenn. 1933).

Thus, before turning to the Tennessee Governor, Mr. Burns must seek

rehearing. And he will seek rehearing based on powerful grounds that justify a

unique exercise of this Court’s judicial discretion.

A.

The Two Grounds for Rehearing Under Rule 44

Correction of the Sixth Circuit’s indefensible legal errors is a proper exercise

of judicial discretion, due to (1) an intervening circumstances of a substantial effect,

and (2) another substantial ground not previously presented. Sup. Ct. R. 44. These

grounds are not legal and will not alter the already favorable conclusion reached by

Justices Sotomayor, Kagan, and Jackson. Rather, these grounds demonstrate that

Mr. Burns’ sentence of death is truly an “extreme malfunction” in our justice system,

such that “justice require[s]” relief. Shinn v. Ramirez, 142 S. Ct. 1718, 1731 (2022).

The intervening circumstance is that Derrick Garrin—“the big man in

glasses,” at whose home the murder weapons were found—made parole on April 14,

2023, less than two weeks before certiorari was denied in this case. His reform and

rehabilitation in prison was successful, and he can now return to society. However,

with his parole, two of the three men convicted of murder in this matter are now

free—with only Mr. Burns remaining behind bars.

Most pertinently, the man

identified as the actual killer of Damon Dawson has been found morally fit to return

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to society—while Mr. Burns awaits execution for this same killing. 2

1F

The other substantial ground was not appropriate for Mr. Burns’ certiorari

petition, which focused on the law, but it is appropriate in this appeal to judicial

discretion.

In less than one year in the mid-1990s, the Burns family lost four

members to crime. On September 23, 1995, Kevin Burns was sentenced to death. On

June 22, 1996, Mr. Burns’ niece Latoya (age 12), and cousins Ashley (age 4), and

Kevin (8 months) were murdered by Andra Gaines.

Mr. Gaines set the three

children’s apartment on fire in a failed effort to kill his estranged girlfriend. Despite

having committed these horrific capital murders, Mr. Gaines was sentenced to life

without parole—because the Burns family opposed the death penalty.

The Court should examine these uniquely compelling circumstances and

exercise its independent discretion to intervene. The per curiam decision has already

been written by Justice Sotomayor. Granting Kevin Burns the relief that he deserves

will not burden the Court. Summary reversal would be just under these unique

circumstances.

Eric Thomas was the only survivor inside the car. At Garrin’s trial he testified

unequivocally that he and Damon Dawson were shot over and over by the big man in

glasses. Derrick Garrin is 6’4” and wears glasses. Burns is 5’7” and does not. The

guns that fired all the shots into the car, including the gun that killed Damon

Dawson, were found at Derrick Garrin’s home. See Pet. at 4-10.

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B.

While this Court was deliberating Mr. Burns’ case, the last

remaining co-defendant, “the big man in glasses,” identified by

Eric Thomas as the killer of Damon Dawson, was released on

parole.

On April 12, 2023, while this case was being conferenced, Derrick Garrin, the

6’4” tall “big man in glasses,” made parole. Garrin Parole Sheet, Appx. at App. 001.

In 2017, Carlito Adams, the man at the center of the dispute, made parole. Adams

Parole Sheet, Appx. at App. 002. The man who organized the crime, Kevin Shaw,

was never prosecuted. Pet. at 4.

Thus, today, the organizer, the motivator, and the man with both murder

weapons who was identified as the killer of Damon Dawson, are all free.

Kevin Burns and Counsel are happy for all of them. That Mr. Adams and Mr.

Garrin both successfully rehabilitated themselves in prison is a testament to the

efficacy of reasonable sentencing practices. Justice worked in their cases.

However, in this Court’s discretionary calculus the fact that Kevin Burns,

alone, faces death due not to his moral culpability, but due to the ineptitude of his

defense attorneys should matter. That two men with better lawyers are all free, and

that one was not even prosecuted, reduces our justice system from a rational one to a

medieval trial-by-combat farce. 3 It is impossible to explain to a person who relies on

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common sense why Kevin Burns, alone, despite his incredible reforms in prison is

ineligible for parole. See Amicus Brief at 3-5 for discussion of prison behavior. That

3 In this trial-by-combat, Kevin Shaw was defended by Lancelot, Adams, and Garrin,

by Tristram and Gawain, while Kevin Burns was appointed Sir Robin the-not-quiteso-brave.

5

Adams and Garrin could take classes, earn credits, and prove their worth in prison,

so that now they are at liberty, while the less-culpable Kevin Burns awaits execution

is morally inexplicable.

Derrick Garrin’s parole is one of those truly unique “intervening

circumstances” of “substantial effect” that warrants rehearing and relief. Sup. Ct. R.

44. The Court should exercise its judicial discretion, adopt the opinion already drafted

by Justice Sotomayor, and grant summary reversal.

C.

Kevin Burns has received the death penalty for a felony murder

when he did not kill anyone. Yet, the man who wantonly

murdered Mr. Burns’ niece and two cousins in a planned arson

is serving life without parole. This extreme sentencing disparity

is morally absurd.

On June 22, 1996, a month after the issuance of an order of protection, Andra

Gaines set fire to his girlfriend’s apartment for a second time (the first attempt had

failed to cause sufficient destruction). Gaines v. State, 8 S.W.3d 547, 550 (Ark. 2000),

found at Appx. 003-012. His girlfriend escaped with her life, but three children who

lived upstairs were killed. Id. The victims were Kevin Burns’ niece, Latoya Nicole

Burns Abston (age 12), and his cousins Ashley La-Cheryl Greene (3), and Kevin

Jermol Simmons (8 months). Funeral Notice, Appx. at App. 013-016.

Mr. Gaines was found guilty by a jury of all three murders and sentenced by

the court to life without parole. Gaines, 8 S.W.3d at 552. The State initially sought

Mr. Gaines’ execution; however, “[r]ight before trial, the Burns family asked the

prosecutor not to seek the death penalty. The prosecutor did not seek death.” Affid.

of Gaines Attorney, Gerald Coleman, Appx. at App. 017.

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Mr. Gaines’ terrible premeditated arson took place 9 months after Kevin Burns

was sentenced to death for (supposedly) killing Damon Dawson. Thus, in less than a

year, the Burns family lost four members to murder. 4

3F

To the non-lawyer who relies on common sense it is utterly inexplicable how

one man who intentionally burns down an apartment killing three children is granted

life, while another is sentenced to death for a sudden and unplanned murder

committed by his companions. The radical disparity between the mercy given to

Andra Gaines and the “indefensible” sentence of death given to Kevin Burns is a

“substantial ground” warranting this Court’s discretionary intervention. Not only

does the law favor relief, but so do the equities.

D.

Justices of this Court have found that similar grounds justify

summary reversal in the past, particularly when addressing a

court of appeals that contumaciously refuses to follow this

Court’s precedents.

The Sixth Circuit’s decision is legally indefensible.

That a lower court’s

decision is “patently wrong” with “no basis in law” justifies summary reversal. Allen

v. Lawhorn, 562 U.S. 1118 (2010) (Scalia, J. dissenting from denial of certiorari,

joined by Thomas, J., and Alito, J.).

Review is appropriate “if the lower court

conspicuously failed to apply a governing rule.” Salazar-Limon v. City of Houston,

Tex., 137 S. Ct. 1277, 1278 (2017) (Alito, J. concurring in denial of certiorari, joined

by Thomas, J.). As set-forth in the dissent, and in Mr. Burns’ petition, the Sixth

4 On October 20, 2010, Kevin Burns’ younger brother Derrick Burns was shot and

killed. No one has been punished for this murder, and the “reasons” for this killing

are unknown to counsel.

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Circuit failed to apply two governing rules established by this Court, while declining

to engage in required AEDPA analysis, producing an opinion that is patently wrong

with no basis in law. 5

4F

That the opinion comes from the Sixth Circuit should be significant. This is not

an aberration—the Sixth Circuit has uniquely refused to abide by this Court’s habeas

jurisprudence. Eight years ago, Justice Scalia observed that the Sixth Circuit has

“acquired a taste for disregarding AEDPA.” Rapelje v. Blackston, 577 U.S. 1019

(2015) (Scalia, J., dissenting from denial of petition for writ of certiorari, joined by

Thomas, J. and Alito, J.). As a result, this Court has reversed the Sixth Circuit no

fewer than twenty-five times in the past twenty years, with no less than fourteen of

those reversals being per curiam summary reversals on petitions for certiorari in

capital cases. Mays v. Hines, 141 S. Ct. 1145 (2021) (per curiam); Shoop v. Hill, 139

S. Ct. 504, 505 (2019) (per curiam); Jenkins v. Hutton, 137 S. Ct. 1769, 1771-73 (2017)

(per curiam); Woods v. Etherton, 136 S. Ct. 1149, 1151-52 (2016) (per curiam); White

v. Wheeler, 136 S. Ct. 456, 458 (2015) (per curiam); Woods v. Donald, 575 U.S. 312,

313 (2015) (per curiam); White v. Woodall, 572 U.S. 415, 427, (2014); Burt v. Titlow,

571 U.S. 12, 22–23 (2013); Metrish v. Lancaster, 569 U.S. 351, 365–68 (2013); Parker

5 Contrary to Hinton v. Alabama, 571 U.S. 263 (2014) (per curiam) and Kimmelman

v. Morrison, 477 U.S. 365 (1986) the panel held that ineffective assistance claims

cannot be based on errors under state law; contrary to Guzek v. Oregon, 546 U.S. 517

(2006) the panel failed to consider “how, not whether, [Burns] committed the crime;”

and based on those two flagrant errors the panel failed to apply AEDPA analysis to

Mr. Burns’ claims. See Dissent at 4-7.

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v. Matthews, 567 U.S. 37, 38 (2012) (per curiam); Howes v. Fields, 565 U.S. 499, 505–

08 (2012); Bobby v. Dixon, 565 U.S. 23, 24 (2011) (per curiam); Bobby v. Mitts, 563

U.S. 395, 400 (2011) (per curiam); Bobby v. Mitts, 563 U.S. 395, 399–400, 131 S.Ct.

1762, 179 L.Ed.2d 819 (2011); Berghuis v. Thompkins, 560 U.S. 370, 380–91 (2010);

Renico v. Lett, 559 U.S. 766, 776–79 (2010); Berghuis v. Smith, 559 U.S. 314, 332–33

(2010); Smith v. Spisak, 558 U.S. 139, 148–56 (2010); Bobby v. Van Hook, 558 U.S. 4,

4-5 (2009) (per curiam); Bradshaw v. Richey, 546 U.S. 74, 75, 79-80 (2005) (per

curiam); Bell v. Cone, 543 U.S. 447, 447-48 (2005) (per curiam); Holland v. Jackson,

542 U.S. 649, 651-52 (2004) (per curiam); Mitchell v. Esparza, 540 U.S. 12, 13 (2003)

(per curiam); Price v. Vincent, 538 U.S. 634, 638–43 (2003); Bell v. Cone, 535 U.S. 685,

693–702 (2002).

No doubt, those twenty-five reversals involved legally defective pro-inmate

rulings that failed to apply controlling AEDPA standards and failed to give state

courts proper deference.

However, what must matter to this Court, which is

scrupulously neutral, is not which side prevails, but whether the law is followed. The

errors that required those twenty-five reversals are nearly identical in form and

substance to the errors here. That, for once, the Sixth Circuit has chosen to disregard

AEDPA and this Court’s controlling precedents when they would require relief for a

prison inmate is of little import—what matters is that, yet again, the Sixth Circuit

has chosen to thumb its nose at this Court’s authority.

This Court should exercise its judicial discretion to correct this 26th legally

defective, “indefensible,” and AEDPA-ignoring decision of the Sixth Circuit.

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CONCLUSION

This is an extraordinary case where judicial discretion favors rehearing and

summary reversal. That “the big man in glasses” was paroled days before this Court

denied Kevin Burns relief is “an intervening circumstance of substantial effect.” Sup.

Ct. R. 44. While the disparate life sentence given to the triple murderer of Mr. Burns’

niece and two cousins is a substantial ground not previously presented. Id. That the

legally absurdist decision to deny Mr. Burns relief comes from the Sixth Circuit Court

of Appeals is only a final factor that should support an exercise of this Court’s

discretion. Kevin Burns should not be on death row for a killing he did not commit.

Respectfully submitted,

/s/ Richard Lewis Tennent

RICHARD LEWIS TENNENT*

DAVID FLETCHER

KATHERYN P. THOMAS

Assistant Federal Public Defenders

Office of the Federal Public Defender

Middle District of Tennessee

810 Broadway, Suite 200

Nashville, Tennessee 37203

(615) 736-5047

Richard_Tennent@fd.org

*Counsel of Record

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CERTIFICATE OF COUNSEL

Pursuant to Rule 44.2, undersigned counsel certifies that this Petition for

Rehearing is submitted based on an intervening circumstance of substantial effect,

and on a substantial ground not previously presented. Counsel further certifies that

this Petition is presented in good faith and not for purposes of delay.

/s/ Richard Lewis Tennent

Counsel for Petitioner

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