Reply Brief — Terry Lynn King, Petitioner v. Tony Mays, Warden

No. 22-6534

IN THE SUPREME COURT

OF THE UNITED STATES

TERRY LYNN KING,

Petitioner,

v.

TONY MAYS,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

REPLY IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

– CAPITAL CASE –

SHAWN NOLAN

Chief, Capital Habeas Unit

Counsel of Record

FEDERAL COMMUNITY DEFENDER OFFICE FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

601 Walnut Street, Suite 545 West

Philadelphia, PA 19106

(215) 928-0520

Shawn_nolan@fd.org

Counsel for Petitioner

TABLE OF CONTENTS

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

ARGUMENT .................................................................................................................. 1

I.

Clearly Established Federal Law Requires Cumulative-Error Review, and

This Court Should Grant Certiorari to Correct the Jurisprudence of Those

Circuit Courts that Hold Otherwise. .................................................................. 2

II. But for the Sixth Circuit’s Misapplication of this Court’s Precedents

Regarding Cumulative Error, Petitioner Would Have Been Entitled to

Relief.. .................................................................................................................. 8

CONCLUSION............................................................................................................. 11

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TABLE OF AUTHORITIES

Federal Cases

Ake v. Oklahoma, 470 U.S. 68 (1985)............................................................................ 5

Alvarez v. Boyd, 225 F.3d 820 (7th Cir. 2000) .............................................................. 6

Beck v. Alabama, 447 U.S. 625 (1980) .......................................................................... 5

Berger v. United States, 295 U.S. 78 (1935).................................................................. 5

Chambers v. Mississippi, 410 U.S. 284 (1973).............................................................. 5

Chapman v. California, 386 U.S. 18 (1967).................................................................. 5

Fahy v. Horn, 516 F.3d 169 (3d Cir. 2008) ................................................................... 6

Ford v. Wainwright, 477 U.S. 399 (1986) ..................................................................... 5

Gregg v. Georgia, 428 U.S. 153 (1976) .......................................................................... 5

Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012)..................................................... 6

King v. Bell, No. 3:99-CV-454, 2011 WL 3566843 (E.D. Tenn. Aug. 12, 2011), aff’d

sub nom. King v. Westbrooks, 847 F.3d 788 (6th Cir. 2017) ................................. 5, 8

Kyles v. Whitley, 514 U.S. 419 (1995)............................................................................ 5

Lewis v. Jeffers, 497 U.S. 764 (1990) ............................................................................ 5

Lockett v. Ohio, 438 U.S. 586 (1978) ............................................................................. 5

Lockyer v. Andrade, 538 U.S. 63 (2003) ........................................................................ 7

Mello v. DiPaulo, 295 F.3d 137 (1st Cir. 2002) ............................................................. 6

Nickleson v. Stephens, 803 F.3d 748 (5th Cir. 2015) .................................................... 6

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

Parle v. Runnels, 505 F.3d 922 (9th Cir. 2007) ............................................................ 6

Taylor v. Kentucky, 436 U.S. 478 (1978) ....................................................................... 5

United States v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993) ............................................ 5

Williams v. Taylor, 529 U.S. 362 (2000) ....................................................................... 7

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Wilson v. Sellers, 138 S. Ct. 1188 (2018)....................................................................... 3

Woodson v. North Carolina, 428 U.S. 280 (1976) ......................................................... 5

Yarborough v. Alvarado, 541 U.S. 652 (2004) .............................................................. 7

State Cases

King v. State, 989 S.W.2d 319 (Tenn. 1999) ............................................................. 4–5

King v. State, No. 03C01-9601-CR-00024, 1997 WL 416389 (Tenn. Crim. App. July

14, 1997) ..................................................................................................................... 8

State v. Howell, 868 S.W.2d 238 (Tenn. 1993) .............................................................. 4

State v. King, 718 S.W.2d 241 (Tenn. 1986) ................................................................. 8

State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992) ................................................... 9

Statutes

28 U.S.C. § 2254 ......................................................................................................... 1, 5

iii

ARGUMENT

Petitioner seeks certiorari because the Sixth Circuit’s approach to cumulative

error review is out-of-step with the balance of the Circuits and contrary to this Court’s

precedents. Mr. King properly raised his cumulative-error claim in state court, but

the Tennessee Supreme Court refused to consider the aggregate harm resulting from

all of the errors found on both direct appeal and in state post-conviction proceedings.

Mr. King then raised his cumulative error claim in federal habeas proceedings,

arguing that the state court’s denial of the claim constituted an unreasonable

application of clearly established federal law under 28 U.S.C. § 2254(d)(1). But his

claim was denied based on Sixth Circuit jurisprudence finding that this Court has

never recognized a constitutional right to cumulative error review. As set forth in Mr.

King’s initial petition for certiorari, the Sixth Circuit is wrong. The majority of circuit

courts of appeal have recognized that multiple decisions of this Court establish a due

process right to cumulative-error review. Furthermore, this Court’s Eighth

Amendment jurisprudence establishes that a capital prisoner is entitled to

cumulative error review of his death sentence. Mr. King asks that this Court grant

certiorari and order full briefing or, in the alternative, grant certiorari, vacate, and

remand to the Sixth Circuit in light of this Court’s precedents that are contrary to

the lower court ruling.

The bulk of the State’s brief in opposition is a response to a strawman. In

particular, the State argues from the erroneous premise that Mr. King has ignored

the state court adjudication in this case and that he is seeking the creation of a new

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constitutional right. In reality, Mr. King’s claim is that the state court refused to

conduct a constitutionally-adequate cumulative error review as required by this

Court’s precedents and that the federal court wrongly deferred to that ruling under

the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Nothing in the State’s

brief persuasively rebuts this claim.

The State also denies that Mr. King would be entitled to relief even if an

appropriate cumulative-error review were conducted. But the State, like the

Tennessee Supreme Court, fails to actually consider the cumulative effect of the many

errors found in this case. This Court should grant review to address the Sixth

Circuit’s cumulative-error jurisprudence that is contrary to this Court’s precedents

and an outlier among the circuit courts of appeals.

I.

CLEARLY ESTABLISHED FEDERAL LAW REQUIRES CUMULATIVE-ERROR

REVIEW, AND THIS COURT SHOULD GRANT CERTIORARI TO CORRECT THE

JURISPRUDENCE OF THOSE CIRCUIT COURTS THAT HOLD OTHERWISE.

As stated above, the State’s first argument in opposition to Mr. King’s petition

effectively creates a strawman and then proceeds to attack it, while largely failing to

respond to Mr. King’s actual claim. Yet even if considered responsive, the State’s

position suffers from three fundamental flaws: it misrepresents the operative state

court decision in this case, it ignores this Court’s precedents that expressly and

implicitly require cumulative-error review in capital cases, and it misconstrues the

jurisprudence of the majority of circuit courts that conduct cumulative-error review.

First, the State accuses Mr. King of making “no mention that his cumulativeerror claim was adjudicated on the merits in state court.” BIO 13. In fact, Mr. King

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accurately described the post-conviction decision of the Tennessee Supreme Court,

explaining that it “declined” to conduct cumulative error review. See Pet. 12. The

State does not debate that the high court failed to conduct a cumulative error

analysis, yet argues that it implicitly adopted the reasoning of the Court of Criminal

Appeals (“CCA”) and that this Court must “look through” the Tennessee Supreme

Court opinion to that of the CCA on this issue. BIO 14–15 (citing Wilson v. Sellers,

138 S. Ct. 1188, 1192 (2018)). But the Wilson “look through” doctrine applies only

where the last state court summarily affirms a denial of relief. See Wilson, 138 S. Ct.

at 1192. By contrast, when the “last state court to decide a prisoner’s federal claim

explains its decision on the merits in a reasoned opinion[,] . . . a federal habeas court

simply reviews the specific reasons given by the state court and defers to those

reasons if they are reasonable.” Id. (emphasis added).

The state court’s decision that cumulative error review was not required was

both reasoned and explicit. The Tennessee Supreme Court expressly granted

discretionary review of Mr. King’s claim that his case had “yet to be subjected to a

realistic, comprehensive view of the cumulative effect of the multiple errors which

have infected [the] case from beginning to end.” See Rule 11 Application for

Permission to Appeal Judgment of the Court of Criminal Appeals, King v. State, No.

03C01-9601-CR-204, 5 (Tenn. Sept. 12, 1997); Notice, King v. State, No. 03C01-9601CR-204 (Tenn. Jan. 5, 1998). The high court then devoted one of the opinion’s four

sections (and more than five hundred words) to reasoning through whether the

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requested analysis was required. King v. State, 989 S.W.2d 319, 327–28 (Tenn. 1999).

Ultimately, the court “decline[d]” to conduct a cumulative-error review. Id. at 328.

That section (and the one preceding it) are telling. It begins by acknowledging

that Mr. King “contends that there are numerous ‘harmless’ errors in the record, that

when considered cumulatively[,] . . . render his death sentence fundamentally unfair

and invalid.” Id. But any further consideration of the cumulative effect of those errors,

the court reasoned, was unnecessary: It had already conducted its own version of that

analysis under a case called State v. Howell, 868 S.W.2d 238, 243 (Tenn. 1993). King,

989 S.W.2d at 325. Howell, however, describes a truncated version of error review,

requiring only consideration of some of the errors that affected the sentencing phase

of the trial and not others. See Howell, 868 S.W.2d at 262. In the preceding section,

the Tennessee Supreme Court had applied Howell to Petitioner’s case. See King, 989

S.W.2d at 323–27. And, according to the process described in Howell, it had relegated

all consideration of the Bruton error to a different section of the opinion, where it

considered only the effect that error had on the determination of guilt. See id. at 330–

34. Worse, it appeared to rely in part on the erroneously admitted statement itself

when conducting the Howell analysis. See id. at 323 (relying on the “evidence at trial,”

which included Sexton’s erroneously admitted statement, to conclude—exactly as

Sexton’s statement had explicitly said—that Petitioner had killed the victim to avoid

accusations of rape). And in the end, the Tennessee Supreme Court determined only

that “appellant’s sentence of death would have been the same,” id. at 327, failing to

apply any of the more strict standards of review that normally attend due-process

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informed cumulative error review. See, e.g., United States v. Sepulveda, 15 F.3d 1161,

1196 (1st Cir. 1993) (asking whether the errors “undermine due process” or “cast a

shadow upon the integrity of the verdict”).

Even if the operative state court adjudication of Mr. King’s cumulative error

claim is the decision of the CCA, Mr. King alleged in his federal habeas petition that

the state court adjudication constituted an unreasonable application of clearly

established federal law. But, relying on Sixth Circuit jurisprudence, the federal

district court held that cumulative-error review is not required by this Court’s

jurisprudence and that the state court adjudication could therefore not be challenged

under § 2254(d)(1). King v. Bell, No. 3:99-CV-454, 2011 WL 3566843, at *49 (E.D.

Tenn. Aug. 12, 2011), aff’d sub nom. King v. Westbrooks, 847 F.3d 788 (6th Cir. 2017).

As detailed in Mr. King’s initial petition, the Sixth Circuit’s position runs afoul

of this Court’s precedent under both the Fourteenth and the Eighth Amendments.

See Pet. 3 (citing Chambers v. Mississippi, 410 U.S. 284, 289–94 (1973); Taylor v.

Kentucky, 436 U.S. 478, 487–88 (1978); Berger v. United States, 295 U.S. 78, 84

(1935); Chapman v. California, 386 U.S. 18 (1967); Kyles v. Whitley, 514 U.S. 419,

420 (1995)); Pet. 34–35 (citing Woodson v. North Carolina, 428 U.S. 280, 305 (1976);

Lockett v. Ohio, 438 U.S. 586, 604 (1978); Beck v. Alabama, 447 U.S. 625, 637 (1980);

Ford v. Wainwright, 477 U.S. 399, 411 (1986); Gregg v. Georgia, 428 U.S. 153, 187

(1976); Ake v. Oklahoma, 470 U.S. 68, 87 (1985); Lewis v. Jeffers, 497 U.S. 764, 774

(1990)). The brief in opposition does not even mention any of these cases, let alone

identify any flaws in Mr. King’s reasoning. Rather, it pretends that Mr. King relies

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entirely “on various approaches taken by other courts when presented with claims of

cumulative error.” BIO 1 (emphasis added). Of course, this assertion ignores not only

the many cases from this Court cited in the petition, but also the fact the approaches

of the “other courts” cited in the petition are themselves grounded in this Court’s

precedents supporting cumulative-error review. See Pet. 23 (listing various circuit

court opinions citing this Court’s precedents regarding cumulative error review).

The only portion of the brief in opposition that actually responds to the

arguments presented in Mr. King’s initial petition appears in footnote 7, where the

State denies that there is a circuit split concerning whether cumulative-error review

is required under clearly established federal law. See BIO 17 n. 7. But even here, the

State misses the mark. It incorrectly asserts that only the Ninth Circuit has declared

cumulative-error doctrine to be clearly established federal law. See id. (citing Parle v.

Runnels, 505 F.3d 922 (9th Cir. 2007)). In fact, the First Circuit has recognized the

same. Mello v. DiPaulo, 295 F.3d 137, 152 (1st Cir. 2002). And, while other circuits

have not expressly declared cumulative review to be required under clearly

established federal law, they have nevertheless conducted cumulative-error analyses

of federal habeas claims, thereby “signal[ing]” that “cumulative-error analysis is

clearly established federal law.” Hooks v. Workman, 689 F.3d 1148, 1194 n.10 (10th

Cir. 2012); see also Fahy v. Horn, 516 F.3d 169 (3d Cir. 2008); Alvarez v. Boyd, 225

F.3d 820 (7th Cir. 2000); cf. Nickleson v. Stephens, 803 F.3d 748, 753 & n.5 (5th Cir.

2015) (declining to review habeas petitioner’s cumulative error claim because not

6

exhausted in state court, but recognizing that such review would be available on a

properly-exhausted habeas claim).

Meanwhile, even if applied outside of the habeas context, a circuit court’s

recognition that this Court’s jurisprudence establishes a constitutional right to

cumulative-error review constitutes a recognition of a “governing principle from this

Court’s decisions” that may be applied unreasonably by a state court. Williams v.

Taylor, 529 U.S. 362, 413 (2000); see also Panetti v. Quarterman, 551 U.S. 930, 953

(2007) (AEDPA recognizes “that even a general standard may be applied in an

unreasonable manner”). Indeed, this Court has previously found clearly established

federal law to have been formed across a series of prior decisions that together

articulated a general legal principle. See, e.g., Yarborough v. Alvarado, 541 U.S. 652,

665 (2004) (identifying a clearly established federal law with respect to whether a

suspect is “in custody” from a “matrix” of prior decisions); Lockyer v. Andrade, 538

U.S. 63, 71–72 (2003) (identifying controlling precedent regarding “gross

disproportionality” even though its “precise contours . . . [were] unclear”). As detailed

in Mr. King’s initial petition, a number of circuit courts have relied on various

decisions of this Court in identifying a due process right to cumulative-error review,

and a similar right may be drawn from this Court’s Eighth Amendment

jurisprudence. See Pet. 23, 34–35.

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II.

BUT FOR THE SIXTH CIRCUIT’S MISAPPLICATION OF THIS COURT’S

PRECEDENTS REGARDING CUMULATIVE ERROR, PETITIONER WOULD HAVE

BEEN ENTITLED TO RELIEF.”.

Mr. King has identified five trial errors found by the state courts that should

be reviewed cumulatively:

•

the trial court permitted the introduction of irrelevant and highly

prejudicial testimony of Mr. King’s ex-girlfriend, Lori Eastman Carter,

who falsely told the jury that Petitioner had once beaten her with a stick

while asking, “how it felt to be dying, so that the next woman he killed

he would know how she felt,” and added that Mr. King was not

intoxicated at the time of this purported beating;

•

it allowed the state to cross-examine Petitioner about his juvenile record

in violation of a state statute;

•

it instructed the jury to apply an unconstitutionally vague “heinous,

atrocious or cruel” aggravating circumstance in violation of the

Fourteenth Amendment; 1

1 In his initial petition, Mr. King incorrectly repeated an error made by the

federal district court, namely that on direct appeal, the Tennessee Supreme Court

had found no error regarding the use of the so called “HAC” aggravator in this case.

See Pet. 12–13; King, 2011 WL 3566843, at *16. In reality, the Tennessee Supreme

Court identified the error on direct appeal, but found that it was not “prejudicial.”

State v. King, 718 S.W.2d 241, 249 (Tenn. 1986); see also King v. State, No. 03C019601-CR-00024, 1997 WL 416389, at *18 (Tenn. Crim. App. July 14, 1997) (CCA

recognizing, on post-conviction review, that the Tennessee Supreme Court’s direct

appeal decision had found error in the “the trial court’s failure to define the word

‘torture’ in its instruction to the jury on the [HAC] aggravating circumstance,” but

that the high court had determined the error to be harmless).

8

•

it permitted Petitioner’s co-defendant to inculpate Petitioner without

taking the stand in violation of the Confrontation Clause, including

testimony that directly bolstered the improper testimony of Ms. Carter;

and

•

it permitted the jury to sentence Petitioner to death for the same reason

it found him death-eligible in violation of the Eighth Amendment.

In denying that these errors cumulatively prejudiced Mr. King at his

sentencing proceeding, the State largely relies on the state courts’ holdings

determining each error to have individually been harmless, which cannot resolve the

issue of whether they are collectively harmless. The State also cites to the Tennessee

Supreme Court’s harmless-error analysis under State v. Middlebrooks, 840 S.W.2d

317 (Tenn. 1992), in which, after finding that the jury’s reliance on the felony-murder

aggravating circumstance was erroneous, the court considered whether any of the

three errors found on direct appeal individually affected the remaining aggravating

circumstances. Again, this analysis did not satisfy the requirements of either the

Fourteenth Amendment’s Due Process Clause or the Eighth Amendment’s Cruel and

Unusual Punishment Clause.

Under a proper cumulative-error analysis required by this Court’s precedents,

the five errors listed above unconstitutionally prejudiced Mr. King at his capital

sentencing. During the penalty phase, the defense argued four mitigating

circumstances, two of which were: (i) Mr. King was under the influence of extreme

mental or emotional disturbance at the time of the crime; and (iii) his capacity to

9

appreciate the wrongfulness of his conduct or to conform his conduct to the

requirements of the law was substantially impaired as a result of intoxication.

Collectively, three of the five trial errors decimated each of these circumstances. In

particular, Ms. Carter’s testimony falsely conveyed to the jury that Mr. King was

violent towards women even when not under the influence of an extreme emotion

disturbance or intoxication, and Mr. Sexton’s unconstitutionally-admitted confession

bolstered Ms. Carter’s testimony.

Likewise, the improper admission of Mr. King’s juvenile crimes conveyed that

he had long been engaged in criminal activity and that therefore the jury could not

reasonably view the present crime as the product of emotional disturbance and/or

intoxication. 2 Meanwhile, the remaining two errors each invalidated one of four

aggravating circumstances relied upon by the prosecution. In other words, absent the

errors, the jury would have been weighing just two aggravating circumstances

against four convincing mitigating circumstances. With the errors, the jury weighed

four aggravating circumstances against just two credible mitigating circumstances.

Mr. King was prejudiced, particularly given that his jury was instructed that it must

impose death if it did not find that the mitigating circumstances were “sufficiently

2 Although Mr. King had been convicted of another murder as an adult, that

crime had occurred shortly before the capital crime. Absent the juvenile convictions,

the defense could have portrayed both murders as having taken place in the context

of a larger emotional disturbance, which had itself driven him to become grossly

intoxicated.

10

substantial” to outweigh the aggravating circumstances. Trial Testimony, Vol. 18 at

948.

CONCLUSION

The Sixth Circuit’s approach to cumulative error claims is at odds with this

Court’s precedents and out of step with the other courts of appeals. Mr. King

respectfully requests that, for the reasons set forth above and in Mr. King’s petition,

the Court should grant the petition for a writ of certiorari. In the alternative, he

requests that the Court grant the petition, vacate the lower court’s decision, and

remand in light of this Court’s cumulative error precedents.

Respectfully submitted,

/s/ Shawn Nolan

Shawn Nolan*

Federal Community Defender Office

for the Eastern District of Pennsylvania

Suite 545 West – Curtis Building

601 Walnut Street

Philadelphia, PA 19106

(215) 928-0520

Counsel for Petitioner, Terry King

*Counsel of Record, Member of the Bar of the

Supreme Court

Dated: February 24, 2023

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