Petition for Writ of Certiorari — Isaiah Glenndell Tryon, Petitioner v. Christe Quick, Warden

Capital Case

No. _________________________________

IN THE SUPREME COURT OF THE UNITED STATES

ISAIAH GLENNDELL TRYON,

Petitioner,

v.

CHRISTE QUICK, Warden,

Oklahoma State Penitentiary,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

CALLIE HELLER, Texas Bar No. 24101897*

Assistant Federal Public Defender

Office of the Federal Public Defender

Western District of Oklahoma

215 Dean A. McGee, Suite 707

Oklahoma City, OK 73102

405-609-5975 (phone)

405-609-5976 (fax)

Callie_Heller@fd.org

ATTORNEY FOR ISAIAH GLENNDELL TRYON

March 25, 2024

* Counsel of Record

QUESTIONS PRESENTED (CAPITAL CASE)

At Isaiah Tryon’s capital trial, the sole psychological expert, Dr. John Fabian,

conceded on cross-examination that funding issues prevented him from performing

neuroimaging to confirm the presence of brain damage. After a direct appeal that

omitted all reference to trial counsel’s effectiveness, despite Oklahoma law

mandating the raising of such claims at that stage, Dr. Fabian provided initial postconviction counsel an affidavit explaining he was not provided the time or funding to

develop effective brain damage testimony, to perform confirmatory neuroimaging, or

to conduct an Atkins evaluation, despite his recommendations that trial counsel do

all of the above. However, post-conviction counsel was similarly stymied by a lack of

funding and could not obtain brain scans, allowing the Oklahoma Court of Criminal

Appeals (OCCA) to dismiss the initial post-conviction claim for a lack of prejudice.

Though post-conviction counsel provided an affidavit from Dr. Fabian

diagnosing Mr. Tryon with intellectual disability after finally performing an

evaluation, the OCCA dismissed that ineffective assistance of trial counsel claim as

well, reasoning that Dr. Fabian relied on the Flynn Effect, which it was precluded

from considering. The court looked to the decades-old Oklahoma statute, which does

not mention the Flynn Effect, as well as an eight-year-old state case discounting the

Flynn Effect as lacking universal acceptance.

In denying the successive post-conviction petition that finally presented

neuroimaging, the OCCA reasoned that, “The real issue is whether the omitted

evidence would have impacted the jury’s sentencing decision” and answered in the

negative. Though the OCCA examined trial counsel’s effectiveness to determine

whether post-conviction counsel had ineffectively omitted the underlying federal

claim, which would have overcome the state procedural bar on successive postconviction applications, the Tenth Circuit refused to consider the OCCA’s merits

adjudication, finding Mr. Tryon’s argument on that subject “conflat[es] the OCCA’s

analysis of his statutory-based ineffective assistance of post-conviction counsel claim

with a merits determination.”

This case therefore presents the following questions:

1. Where a state habeas court, in a non-alternative holding, considers the merits

of a defaulted ineffective-assistance-of-trial counsel claim to decide whether

statutorily required post-conviction counsel was ineffective for omitting the

claim, may a federal habeas court ignore the antecedent ruling on federal law

to find the underlying claim defaulted?

2. Could reasonable jurists debate whether a state court may apply the state’s

Atkins statute in a way precluding consideration of current clinical standards?

i

List of Parties to the Proceeding

Petitioner Isaiah Glenndell Tryon and Respondent Warden of Oklahoma

State Penitentiary have at all times been the parties in the action below. There

have been automatic substitutions for individuals serving in the Warden’s position,

to include the following individuals: Mike Carpenter, Tommy Sharp, Jim Farris,

and presently Christe Quick, Warden.

ii

TABLE OF CONTENTS

Question Presented ........................................................................................................ i

List of Parties ................................................................................................................ ii

Table of Contents ......................................................................................................... iii

Index of Appendices ...................................................................................................... v

Table of Authorities ..................................................................................................... vi

Petition for Writ of Certiorari ...................................................................................... 1

Opinions Below ............................................................................................................. 1

Statement of Jurisdiction ............................................................................................. 1

Constitutional and Statutory Provisions Involved ...................................................... 2

Statement of the Case .................................................................................................. 3

A. Trial and Direct Appeal .................................................................................... 3

B. Initial State Post-Conviction Proceedings ........................................................ 6

C. Federal Habeas and Successive Post-Conviction Proceedings ........................ 8

Reasons for Granting the Petition ............................................................................. 12

I. THIS COURT SHOULD GRANT CERTIORARI TO ALIGN THE TENTH

CIRCUIT’S APPROACH TO DETERMINING THE INDEPENDENCE OF

OKLAHOMA’S PROCEDURAL BAR WITH THAT OF OTHER

JURISDICTIONS ............................................................................................. 13

A. The Oklahoma Court of Criminal Appeals Relied on an Antecedent

Federal Law Determination to Apply Its Procedural Bar ................... 13

B. Other Federal Courts Scrutinize the Specifics of the State Court

Ruling to Determine Whether It Can Serve as a Federal Default ...... 15

C. The Tenth Circuit Stands Apart in Failing to Engage with the

Effect of the Antecedent Federal Adjudication in Mr. Tryon’s case .... 17

iii

II. THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE

WHETHER REASONABLE JURISTS COULD DEBATE WHETHER

OKLAHOMA IS APPLYING ITS ATKINS STATUTE

CONSTITUTIONALLY ................................................................................... 21

A. Mr. Tryon’s Underlying Constitutional Claim is At Least

Debatable ............................................................................................... 21

B. Atkins and Its Progeny Mandate Adherence to Current, Clinical

Guidelines ............................................................................................... 22

C. Clinical Guidance Mandates Adjustment of IQ Scores for the

Inflationary Impact of Obsolete Testing Norms ................................... 24

D. The Tenth Circuit is Enforcing Unconstitutional Application of

Oklahoma’s Statute ............................................................................... 26

Conclusion ................................................................................................................... 31

iv

INDEX OF APPENDICES

APPENDIX A

Opinion from the Tenth Circuit Court of Appeals, Tryon v. Quick,

81 F.4th 1110 (10th Cir. 2023)

APPENDIX B

Order Denying Rehearing, Tryon v. Quick, No. 21-6097

(September 28, 2023)

APPENDIX C

Memorandum Opinion from the Western District of Oklahoma,

Tryon v. Farris, No. CIV-19-195-J, 2021 WL 3042664 (W.D.

Okla. July 19, 2021) (unpublished)

APPENDIX D

Opinion from the Oklahoma Court of Criminal Appeals, Tryon v.

State, 423 P.3d 617 (Okla. Crim. App. 2018)

APPENDIX E

Opinion Denying Application for Post-Conviction Relief, Tryon v.

State, Case No. PCD-2015-378 (Okla. Crim. App. August 9, 2018)

APPENDIX F

Opinion Denying Second Application for Post-Conviction Relief,

Tryon v. State, Case No. PCD-2020-231 (Okla. Crim. App. March

11, 2021)

APPENDIX G

Letter extending time to file petition for certiorari until March 25,

2024.

v

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT

Ake v. Oklahoma,

470 U.S. 68 (1985) ............................................................................................ 15

Atkins v. Virginia,

536 U.S. 304 (2002) ...................................................................................passim

Brumfield v. Cain,

576 U.S. 305 (2015) .......................................................................................... 23

Buck v. Davis,

580 U.S. 100 (2017) .......................................................................................... 22

Coleman v. Thompson,

501 U.S. 722 (1991) .............................................................................. 15, 16, 19

Hall v. Florida,

572 U.S. 701 (2014) .......................................................................... 7, 22, 23, 27

Evitts v. Lucey,

469 U.S. 387 (1985) .......................................................................................... 13

Ford v. Wainwright,

477 U.S. 399 (1986) .................................................................................... 22, 23

Martinez v. Ryan,

566 U.S. 1 (2012) .............................................................................................. 20

Miller-El v. Cockrell,

537 U.S. 322 (2003) .................................................................................... 21, 22

Moore v. Texas,

139 S. Ct. 666 (2019) ........................................................................................ 29

Moore v. Texas,

581 U.S. 1 (2017) ............................................................................ 23, 24, 27, 31

Stewart v. Smith,

536 U.S. 856 (2002) .............................................................................. 15, 16, 19

vi

Strickland v. Washington,

466 U.S. 668 (1984) ........................................................................ 10, 12, 13, 21

Wiggins v. Smith,

539 U.S. 510 (2003) .......................................................................................... 13

FEDERAL CASES

Bennett v. Mueller,

322 F.3d 573 (9th Cir. 2003) ............................................................................ 19

Black v. Bell,

664 F.3d 81 (6th Cir. 2011) .............................................................................. 28

Black v. Workman,

682 F.3d 880 (10th Cir. 2012) .................................................................... 16, 19

Borden v. Allen,

646 F.3d 785 (11th Cir. 2011) .......................................................................... 17

Fulks v. Watson,

4 F.4th 586 (7th Cir. 2021) ........................................................................ 27, 28

Goode v. Carpenter,

922 F.3d 1136 (10th Cir. 2019) ........................................................................ 18

Henderson v. Stephens,

791 F.3d 567 (5th Cir. 2015) ............................................................................ 29

Hooks v. Ward,

184 F.3d 1206 (10th Cir. 1999) ........................................................................ 13

Hooks v. Workman,

689 F.3d 1148 (10th Cir. 2012) ........................................................................ 27

Hutchison v. Bell,

303 F.3d 720 (6th Cir. 2002) ............................................................................ 16

In re: Cathey,

857 F.3d 221 (5th Cir. 2017) ............................................................................ 30

In re: Mathis,

483 F.3d 395 (5th Cir. 2007) ............................................................................ 29

vii

Ivey v. Catoe,

36 F. App’x 718 (4th Cir. 2002) ........................................................................ 14

Ledford v. Warden, Ga. Diagnostic & Classification Prison,

818 F.3d 600 (11th Cir. 2016) .......................................................................... 30

Maldonado v. Thaler,

389 F.App’x 399 (5th Cir. 2010) ....................................................................... 30

McGowen v. Thaler,

675 F.3d 482 (5th Cir. 2012) ............................................................................ 22

McManus v. Neal,

779 F.3d 634 (7th Cir. 2015) ............................................................................ 28

Milton v. Miller,

744 F.3d 660 (10th Cir. 2014) .......................................................................... 13

Nitschke v. Belleque,

680 F.3d 1105 (9th Cir. 2012) .......................................................................... 16

Postelle v. Carpenter,

901 F.3d 1202 (10th Cir. 2018) ........................................................................ 26

Powell v. Allen,

602 F.3d 1263 (11th Cir. 2010) ........................................................................ 17

Rivera v. Quarterman,

505 F.3d 349 (5th Cir. 2007) ............................................................................ 16

Rocha v. Thaler,

626 F.3d 815 (5th Cir. 2010) ................................................................ 14, 16, 17

Smith v. Comm’r, Ala. Dep’t of Corr.,

67 F.4th 1335 (11th Cir. 2023) ........................................................................ 30

Smith v. Duckworth,

824 F.3d 1233 (10th Cir. 2016) ........................................................................ 26

Snow v. Pfister,

880 F.3d 857 (7th Cir. 2018) ............................................................................ 17

viii

Sullivan v. Wilson,

673 F. App’x 855 (10th Cir. 2016) .................................................................... 19

Thomas v. Allen,

607 F.3d 749 (11th Cir. 2010) .......................................................................... 28

Thomas v. Allen,

614 F.Supp.2d 1257 (N.D. Ala. 2009) .............................................................. 29

Tryon v. Quick,

81 F.4th 1110 (10th Cir. 2023) .......................................................................... 1

United States v. Hardy,

762 F.Supp.2d 849 (5th Cir. 2010) .................................................................. 30

United States v. Wilson,

170 F.Supp.3d 347 (E.D.N.Y. 2016) ................................................................ 29

Walker v. True,

399 F.3d 315 (4th Cir. 2005) ............................................................................ 29

Wiley v. Epps,

668 F.Supp.2d 848 (N.D. Miss. 2009) .............................................................. 30

STATE CASES

Bowling v. Commonwealth,

163 S.W.3d 361 (Ky. 2005) ............................................................................... 28

Ex Parte Briseno,

135 S.W.3d 1 (Tex. Crim. App. 2004) ........................................................ 29, 30

Fuston v. State,

470 P.3d 306 (Okla. Crim. App. 2020) ......................................................... 7, 26

Smith v. State,

245 P.3d 1233 (Okla. Crim. App. 2010) ..................................................... 13, 26

State v. Ford,

140 N.E.3d 616 (Ohio 2019) ............................................................................. 27

State v. Thurber,

420 P.3d 389 (Kan. 2018) ................................................................................. 28

ix

Tryon v. State,

423 P.3d 617 (Okla. Crim. App. 2018) ............................................................... 6

Washington v. State,

989 P.2d 960 (Okla. Crim. App. 1999) ............................................................. 13

Woodall v. Commonwealth,

563 S.W.3d 1 (Ky. 2018) ................................................................................... 28

FEDERAL STATUTES

28 U.S.C. §2253 ........................................................................................................... 21

28 U.S.C. §2254 ................................................................................................. 2, 17, 18

28 U.S.C. §2255 ........................................................................................................... 28

U.S. Const. amend. VI .................................................................................................. 2

U.S. Const. amend. VIII ............................................................................................... 2

U.S. Const. amend. XIV ................................................................................................ 2

STATE STATUTES

Okla. Stat. tit. 21, § 701.10b(C)..................................................................................... 3

Okla. Stat. tit. 22, § 1089(C) ................................................................................passim

x

PETITION FOR WRIT OF CERTIORARI

Petitioner Isaiah Glenndell Tryon respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals for the Tenth Circuit.

OPINIONS BELOW

The decision of the United States Court of Appeals for the Tenth Circuit

denying relief is found at Tryon v. Quick, 81 F.4th 1110 (10th Cir. 2023). See Appendix

A. The order of the United States Court of Appeals for the Tenth Circuit denying

rehearing is found at Tryon v. Quick, No. 21-6097 (Sept. 28, 2023). See Appendix B.

The federal district court decision denying Mr. Tryon’s petition for writ of habeas

corpus is found at Tryon v. Farris, No. CIV-19-195-J, 2021 WL 3042664 (W.D. Okla.

July 19, 2021). See Appendix C. The decision of the Oklahoma Court of Criminal

Appeals (OCCA) denying Mr. Tryon’s state direct appeal is reported at Tryon v. State,

423 P.3d 617 (Okla. Crim. App. 2018). See Appendix D. The decision of the OCCA

denying Mr. Tryon’s first state post-conviction action is found at Tryon v. State, Case

No. PCD-2015-378 (Okla. Crim. App. Aug. 9, 2018). See Appendix E. The decision of

the OCCA denying Mr. Tryon’s second state post-conviction action is found at Tryon

v. State, Case No. PCD-2020-231 (Okla. Crim. App. Mar. 11, 2021). See Appendix F.

STATEMENT OF JURISDICTION

The Tenth Circuit rendered its opinion denying relief on August 30, 2023. Mr.

Tryon filed a timely petition for rehearing and rehearing en banc, which the Tenth

Circuit denied on October 27, 2023. See Appendix B. Justice Gorsuch extended the

1

time to petition for certiorari until March 25, 2024. See Appendix G. This Court has

jurisdiction pursuant to 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Title 28 U.S.C. § 2254(d) provides the following:

An application for writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with

respect to any claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim –

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

U.S. Const. amend. VI provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein

the crime shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defence.

U.S. Const. amend. VIII provides:

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

U.S. Const. amend. XIV provides:

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

where in 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

2

due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

A. Trial and Direct Appeal

Isaiah Tryon was charged on March 21, 2012, with the stabbing death of Tia

Bloomer, his son’s mother, at a bus station five days prior. OR 1. 1 His trial counsel

requested a pretrial hearing to determine whether Mr. Tryon was ineligible for the

death penalty due to intellectual disability (ID). Counsel pointed to a recent

neuropsychological examination by their expert, Dr. John Fabian, Ph.D., which

yielded evidence of serious cognitive deficiencies and brain impairments as well as a

68 on a full-scale IQ test and triggered the need to proceed to adaptive skill evaluation

(the second prong of the diagnosis). Mot. Tr. 12/18/2014 at 5; see also ROA I at 162;

ROA II at 292-94, 296.

Arguing against the need for a hearing due to the score of 81 Mr. Tryon

received at age fourteen, the State relied on Okla. Stat. tit. 21, § 701.10b(C), which

provides “in no event shall a defendant who has received an intelligence quotient of

seventy-six (76) or above . . . be considered mentally retarded and, thus, shall not be

subject to any proceedings under this section.” Mot. Tr. 12/18/2014 at 8-9. The trial

court denied the hearing motion. Id. at 19. Trial counsel did not file a pretrial motion

challenging the constitutionality of the statute and were unable to fund Dr. Fabian

1 The consecutively-paginated Original Record is referred to

as “OR [page].” The

consecutively-paginated trial transcript is referred to as “Tr.[Vol.] [page].” The Tenth

Circuit Record on Appeal is referred to as “ROA [Vol.] at [page].”

3

to conduct an Atkins evaluation, despite his flagging the possibility of ID for counsel

based on their client’s “low intelligence and current IQ of 68.” ROA II at 296. See also

id. at 186 ¶10(b), (h)-(i) (trial counsel affidavit regarding systemic issues in the

Oklahoma County Public Defender Office preventing adequate expert funding); id. at

205 ¶¶7-13 (head of homicide division at Oklahoma County Public Defender at time

of Mr. Tryon’s trial describing limited pool of funding allotted to cover all office expert

needs and Public Defender’s policy against requesting additional funding from trial

court); id. at 725 (internal funding request for $13,500 for Dr. Fabian denied by Public

Defender as costing “too much”).

Despite their inability to ensure their expert could do the needed work, trial

counsel put him on the stand during the penalty phase. There, he inexplicably

discarded the actual conclusion of his testing—that Mr. Tryon “should be considered

for an Atkins v. Virginia mental retardation/intellectual disability evaluation,” ROA

II at 296, to instead testify to a diagnosis that he had been unable to make: that Mr.

Tryon was “certainly not mentally retarded.” Tr.VII 1684.

Elsewhere, Dr. Fabian testified regarding his neuropsychological battery,

examining Mr. Tryon’s “neuropsychological . . . functioning, such as . . . attention,

memory, executive functioning, which is problem solving, planning impulse control,

visual spatial abilities and perception, as well as language skills.” Tr.VII 1644. Dr.

Fabian explained how the test results pointed to deficits in several of these areas. Id.

at 1677-78. He briefly touched on potential causes of brain damage and decreased

cognitive functioning, including Mr. Tryon’s exposure to drugs both in utero and as a

4

result of his own drug use, blows to the head, early and repeated exposure to violence

and trauma, and his other mental health conditions. Tr.VII 1657-58; 1679-80. He was

not asked about, and did not discuss, prenatal alcohol exposure. On crossexamination, Dr. Fabian conceded that he had not conducted any brain scans or

neuroimaging to “see if that [damage] was actually there,” but rather, “had informed

the attorneys that they should get his brain scan [sic] and there was a funding issue.”

Id. at 1750.

Several family members also testified for Mr. Tryon during the penalty phase,

including testifying to Mr. Tryon’s mother’s drug use. See Tr.VI 1345, 1348 (testimony

of Mr. Tryon’s sister); Tr.IX 2090-91 (testimony of Mr. Tryon’s brother); Tr.VII 157986 (testimony of Mr. Tryon’s cousin); Tr.VII 1543-46 (testimony of Mr. Tryon’s

mother); Tr.VI 1486-88 (testimony of Mr. Tryon’s father); Tr.VI 1399-1401 (testimony

of Mr. Tryon’s aunt). The State in closing, however, pressed the jury to doubt the

severity of Mr. Tryon’s mother’s drug use. See, e.g., Tr.IX 2219 (“I would submit to

you, there’s no doubt that Sheryl Wilson was using, but I would submit to you, she

wasn’t using to the extreme that they want you to believe she was.”); 2223 (“[T]he

majority of this book is Sheryl Wilson, who according to the defense, was in such a

crack cocaine induced stupor, couldn’t have possibly taken him to all these

psychologists, filled out all these social security records, and done all the things that

there’s documentation that she did.”).

The jury handed down its death verdict on March 5, 2015. Tr.IX 2237-38. On

direct appeal, counsel employed by the same office as Mr. Tryon’s trial counsel

5

omitted all claims of trial counsel’s ineffectiveness, despite Oklahoma law waiving

such claims if they are not brought at this earliest opportunity. See Okla. Stat. tit.

22, § 1089(C). Mr. Tryon’s conviction and sentence were affirmed. Tryon v. State, 423

P.3d 617 (Okla. Crim. App. 2018), cert. denied, 139 S. Ct. 1176 (2019) (mem.). 2

B. Initial State Post-Conviction Proceedings

Oklahoma law required Mr. Tryon to file his application for post-conviction

relief while his conviction was pending on direct review. See Oklahoma Court of

Criminal Appeals Rule 9.7(A)(2). His post-conviction counsel raised trial counsel’s

ineffectiveness through the lens of direct appeal counsel’s ineffectiveness for the

omission, the only available framework given the claim’s availability on direct appeal.

See ROA I at 26. Though post-conviction counsel raised a subclaim focused on prior

counsel’s “failure to obtain a brain scan,” ROA I at 57-59, Mr. Tryon’s post-conviction

application also omitted the brain scan evidence that would have comprised the

prejudice showing due to a lack of funding. See id. at 59 n.2; see also ROA II at 786 ¶

8 (head of capital post-conviction division of indigent defense office explaining that,

due to a budget shortfall, the office’s Executive Director had denied the request for

brain scan funding in this case). The OCCA summarily denied relief on the subclaim

given this lack of evidence, ROA II at 136, and also denied the evidentiary hearing

2 The state court invalidated one of the four aggravating circumstances found by the

jury, that the murder was committed while serving a sentence of imprisonment on a

conviction of a felony, Tryon, 423 P.3d at 648-50, but nonetheless upheld the death

sentence. Id at 657.

6

that would have served as Mr. Tryon’s chance to develop his claim and retain expert

assistance. See id. at 144.

Mr.

Tryon’s

post-conviction

application

also

raised

prior

counsel’s

ineffectiveness for omitting adaptive functioning testing and a claim under Atkins v.

Virginia, 536 U.S. 304 (2002), ROA I at 59-69, as well as the unconstitutionality of

Oklahoma’s Atkins statute. Id. at 63-64. The post-conviction application further

included a new report from Dr. Fabian completing his evaluation and diagnosing Mr.

Tryon with intellectual disability, as well as adjusting downward due to norm

obsolescence the single score on an outdated test that had precluded Mr. Tryon from

Atkins eligibility under Oklahoma’s statute. Id. at 36-37; see also id. at 233-34. In

addition, Dr. Fabian provided an affidavit detailing the ways the insufficient funding

had prevented him from completing an Atkins evaluation and from testifying

adequately to Mr. Tryon’s brain damage at trial. Id. at 162, ¶¶15-17.

Despite Dr. Fabian’s diagnosis and acknowledgement of his inability to

perform an Atkins evaluation at the time of trial, the OCCA referred to his trial

testimony that Mr. Tryon “was not mentally retarded” to deny the claim. ROA II at

137. 3 The OCCA further denied, by way of reference to an eight-year-old state case

3 The OCCA used the term “mental retardation” instead of intellectual disability

throughout, including in its heading for the subclaim adjudication, despite issuing its

opinion more than four years after this Court clarified that intellectual disability is

the correct term in Hall v. Florida, 572 U.S. 701, 704-705 (2014). Even more recently,

the OCCA has rejected scientific consensus by insisting it will continue to use “mental

retardation,” drawing a spurious distinction between the two terms. See Fuston v.

State, 470 P.3d 306, 315 n.2 (Okla. Crim. App. 2020) (“Use of the term ‘intellectual

disability’ tends to negate the conclusion that the condition is the result of a birth

7

that had stated in a footnote that Oklahoma’s 2006 statute did not reference the

Flynn Effect, that the Flynn Effect could be of any “consequence.” Id. at 18.

C. Federal Habeas and Successive Post-Conviction Proceedings

Mr. Tryon presented the omitted neuroimaging to the OCCA in a successive

post-conviction

application.

The

neuroimaging—a

Quantitative

Electroencephalogram (qEEG) performed by psychiatrist Richard Adler, M.D.—

evidenced widespread abnormalities across Mr. Tryon’s brain. ROA III at 322-24. In

addition to providing physical proof of brain damage, the neuroimaging results

supported an additional diagnosis. The OCCA explained its understanding of the

evidence:

Petitioner

submits

affidavits

and

reports

from

various

neuropsychological and medical experts opining that Petitioner suffers

from Fetal Alcohol Spectrum Disorder and/ or Alcohol Related

Neurodevelopment Disorder. Petitioner’s experts utilize the results of

recent neuroimaging of Petitioner’s brain to support this conclusion.

Petitioner argues that his prenatal exposure to alcohol explains his

cognitive and adaptive functioning deficits across the entire span of his

lifetime. Petitioner argues the proposed testimony about his prenatal

alcohol exposure, including evidence relating to his recent brain scan,

could have resulted in [a different outcome].

ROA III at 264-65. These affidavits and reports included the findings from Dr. Adler,

who concluded to a reasonable medical certainty that the qEEG and additional

testing results were consistent with FASD. Id. at 321-22. Dr. Adler described the

ways the widespread and symmetrical pattern of Mr. Tryon’s brain abnormalities is

consistent with what would be expected when looking at a brain exposed to alcohol

defect and likens it to later developing mental impairments caused by lifestyle choices

or disease.”).

8

while in the womb. Id. at 323-24. Dr. Kenneth Jones, M.D., a physician, used the

neuropsychological test scores as well as the reported level of prenatal alcohol

exposure and a physical examination of Mr. Tryon’s facial features to also diagnose

Mr. Tryon with FASD. Id. at 324-25. In addition, two different psychological reports

were produced by the multi-disciplinary team.

Neuropsychologist Dr. Paul Connor, Ph.D., identified deficits across all ten

domains of functioning in reviewing Mr. Tryon’s neuropsychological testing (with the

CDC requiring only three domains for this aspect of the diagnosis). Id. at 314. And

psychologist Dr. Natalie Novick Brown, Ph.D., provided a report discussing the way

Mr. Tryon’s life history, executive dysfunction in cognitive skills, secondary

disabilities, and hypersensitivity to stress are part and parcel with FASD. Id. at 31521.

The OCCA again denied relief, finding “postconviction counsel’s performance

was not rendered ineffective for failing to obtain funding for the brain scan.” ROA III

at 267. The OCCA looked to the underlying merits of trial counsel’s effectiveness and

emphasized, “The real issue is whether the omitted evidence would have impacted

the jury’s sentencing decision.” Id. Though presented with the precise evidence whose

omission it previously deemed fatal to the claim, ROA II at 136, the OCCA did not

engage with or discuss the neuroimaging results, instead resolving the claim by

reference to the mitigation presented at trial:

This is not a case where counsel presented a substantially weaker case

in mitigation than could have been presented through the omitted

evidence. To the extent Petitioner is claiming that the brain

neuroimaging shows he suffers from prenatal alcohol exposure, the

9

record shows that trial counsel did not neglect Petitioner’s prenatal

development.

ROA III at 267. The court went on to detail for three pages the trial mitigation

evidence regarding Mr. Tryon’s prenatal drug exposure. ROA III at 267-271.

In federal habeas proceedings following Mr. Tryon’s successive state petition,

the United States District Court for the Western District of Oklahoma upheld OCCA’s

initial finding of no prejudice without the neuroimaging as a reasonable application

of Strickland v. Washington, 466 U.S. 668 (1984). ROA III at 475-76. The district

court addressed the OCCA’s subsequent opinion regarding the neuroimaging

evidence in a footnote, ROA III at 474 n.10, in which it referenced the OCCA’s

adjudication that the “omitted evidence would not have impacted the jury’s

sentencing decision” but did not address whether this was an unreasonable

Strickland application. The district court addressed the separate federal habeas

FASD claim procedurally barred by the OCCA as federally defaulted, ROA III at 47576, but did not acknowledge or engage with the OCCA’s pronouncement that, “To the

extent Petitioner is claiming that the brain neuroimaging shows he suffers from

prenatal alcohol exposure, the record shows that trial counsel did not neglect

Petitioner’s prenatal development,” ROA III at 267, and its lengthy supporting

discussion. Though Mr. Tryon had argued that the “OCCA’s discussion of the merits

of Mr. Tryon’s new claims, which provided unexhausted evidence explaining why his

underlying IATC claim was defaulted, necessarily involved a merits analysis of Mr.

Tryon’s federal constitutional claims,” ROA III at 439, the district court did not

10

examine whether the OCCA’s procedural bar rested upon an adjudication of the

federal claim.

The district court also concluded that direct appeal counsel was not ineffective

for omitting trial counsel’s failure to challenge Oklahoma’s Atkins statute and to

conduct an ID investigation. ROA III at 462-69. Looking to the merits of the omitted

claim to evaluate appellate ineffectiveness, the court found that the statute’s

ineligibility for those with one score of 76 or above, and the OCCA’s refusal to consider

the Flynn Effect, were both within the range of discretion permitted by Atkins. ROA

III at 465. The court further denied that the OCCA had unreasonably adjudicated

Mr. Tryon’s ineffective assistance of counsel (IAC) claim for the failure to pursue an

ID evaluation, citing, as did the OCCA, Dr. Fabian’s testimony as well as Mr. Tryon’s

preclusion from statutory protection given his outlier IQ score. ROA III at 466-69.

After a Certificate of Appealability grant from the Tenth Circuit on his IACbrain scan subclaim, Order at 1, Tryon v. Farris (10th Cir. Feb. 3, 2022) (No. 21-6097),

Mr. Tryon argued that the neuroimaging forming the prejudice showing was properly

before the appellate court. The argument relied on the intertwining of the procedural

bar’s application with federal law: the OCCA had applied § 1089(D) to bar the IAC

claim because the one exception at play—for post-conviction counsel’s ineffective

omission—did not apply, given the finding that the underlying claim lacked

Strickland merit. Reply Br. of Pet’r/Appellant at 9-13, Tryon v. Quick (10th Cir. Mar.

15, 2023) (No. 21-6097). The Tenth Circuit found that such argument “conflat[ed] the

OCCA’s analysis of his statutory-based ineffective assistance of post-conviction

11

counsel claim with a merits determination” of the underlying constitutional claim.

App. 65a. The circuit court thus limited its review to the OCCA’s initial postconviction opinion—which had summarily denied the claim due to the lack of

prejudice showing—and denied relief. The Tenth Circuit further declined to modify

its Certificate of Appealability to review Mr. Tryon’s IAC-Atkins claim, finding the

district court’s rejection of the claim not debatable due to, once more, Dr. Fabian’s

testimony and case law it construed as precluding Oklahoma courts from considering

the Flynn Effect. App. 56-61a.

REASONS FOR GRANTING THE PETITION

The Tenth Circuit found undebatable that the OCCA reasonably denied Mr.

Tryon’s IAC-Atkins claim. It did so without considering whether the state court’s

decision had deferred to current clinical guidelines, as mandated by this Court in

Atkins and its progeny. It further declined to consider the effect of the OCCA’s explicit

evaluation of the merits of the underlying Strickland claim omitted by post-conviction

counsel in the course of the state court’s adjudication of Mr. Tryon’s successive postconviction application. This Court should grant certiorari to ensure that the Tenth

Circuit reviews lower court Atkins decisions in accordance with this Court’s

precedent, and to mandate that the Tenth Circuit not altogether ignore state court

merits adjudications in deciding whether a procedural default applies.

12

I.

THIS COURT SHOULD GRANT CERTIORARI TO ALIGN THE

TENTH CIRCUIT’S APPROACH TO DETERMINING THE

INDEPENDENCE OF OKLAHOMA’S PROCEDURAL BAR WITH

THAT OF OTHER JURISDICTIONS.

A. The Oklahoma Court of Criminal Appeals Relied on an Antecedent

Federal Law Determination to Apply Its Procedural Bar.

In Strickland v. Washington, 466 U.S. 668 (1984), this Court made clear that

when counsel provides deficient performance, resulting in prejudice, judicial relief is

necessary. The same two-pronged standard applies when assessing counsel’s penalty

phase effectiveness. Wiggins v. Smith, 539 U.S. 510, 521 (2003). Subsequent counsel

are judged using the same two-pronged metric. See, e.g., Evitts v. Lucey, 469 U.S. 387

(1985). Logic dictates that, in determining whether subsequent counsel provided

ineffective assistance by omitting a claim, the merits of the omitted claim serve as

the guide. Courts in this jurisdiction have recognized the same:

The heart of an ineffective assistance of counsel allegation is the

underlying substantive claim that counsel supposedly mishandled.

Washington v. State, 1999 OK CR 22, ¶ 57, 989 P.2d 960, 977. To

determine whether an appellant has met his burden of proving counsel’s

performance was deficient and that he was prejudiced by that

performance, we review the merits of the appellant’s substantive claim.

Id. Unless an appellant meets this burden, the substantive claim

remains waived. Id.

Smith v. State, 245 P.3d 1233, 1237 (Okla. Crim. App. 2010); see also Hooks v. Ward,

184 F.3d 1206, 1221 (10th Cir. 1999) (internal citation omitted) (“When considering

a claim of ineffective assistance of appellate counsel for failure to raise an issue, we

look to the merits of the omitted issue.”); cf. Milton v. Miller, 744 F.3d 660, 670 (10th

Cir. 2014) (“By ignoring the merits of the underlying predicate claim in assessing

13

appellate counsel’s performance, the OCCA necessarily rendered meaningless any

accompanying prejudice analysis.”).

The OCCA applies the same logic in considering whether post-conviction

counsel ineffectively omitted a claim. Oklahoma provides a statutory right to postconviction counsel, whose effectiveness is also governed by Strickland. See ROA III

at 262-63. The OCCA recognized in adjudicating Mr. Tryon’s successive postconviction application that, “The only ineffectiveness claims raised in the current

application that were not, and could not have been, raised in prior proceedings, are

Petitioner’s claims that original post-conviction counsel was ineffective.” Id. Thus,

ineffectiveness of post-conviction counsel is one ground through which Mr. Tryon

could have overcome application of the §1089(D) procedural bar to his successive

application.

Ineffectiveness of initial post-conviction counsel is not always a ground

allowing for a successive post-conviction application. See Ivey v. Catoe, 36 F. App’x

718, 730 (4th Cir. 2002) (noting that in South Carolina, “[t]he mere fact that PCR

counsel was ineffective is not sufficient grounds for a successive PCR application”).

Oklahoma’s “choice [comes] with costs” to the ability of its procedural bar to serve as

a federal default. Rocha v. Thaler, 626 F.3d 815, 831 (5th Cir. 2010) (where state

court screening function entails review of substantive merits, dismissals of successive

petitions per state statute necessarily “robbed . . . of their independent, state-law

character”).

14

To determine whether post-conviction counsel ineffectively omitted the

underlying ineffective assistance of trial counsel claim, the OCCA explicitly and at

length examined the merits of the omitted claim. ROA III at 267-72. The opinion was

devoid of any explicit or implicit framing as an alternative merits decision. Rather,

the state court addressed the underlying merits of the ineffective assistance of trial

counsel claim to determine whether post-conviction counsel ineffectively omitted it.

After determining the omitted claim was without merit, because trial counsel was not

ineffective for failing to obtain neuroimaging, OCCA denied relief. Just as in Ake v.

Oklahoma, 470 U.S. 68, 75 (1985), the OCCA “has made application of the procedural

bar depend on an antecedent ruling on federal law, that is, on the determination of

whether federal constitutional error has been committed.” Here, “[b]efore applying §

[1089(D)] to a constitutional question, the state court must rule, either explicitly or

implicitly, on the merits of the constitutional question.” Id.

B. Other Federal Courts Scrutinize the Specifics of the State Court

Ruling to Determine Whether It Can Serve as a Federal Default.

Courts of appeal, in examining whether a state habeas decision procedurally

defaulted federal consideration of a claim or the state court instead intertwined its

holding with federal law, have grappled with the question in various ways, as has

this Court following Ake. See Stewart v. Smith, 536 U.S. 856, 859-60 (2002) (finding,

after certifying question to Arizona Supreme Court, that rule at issue required only

categorization of claim, not decision on claim’s merits); Coleman v. Thompson, 501

U.S. 722, 741-42 (1991) (rejecting argument that Virgina rule at issue required review

of constitutional claims before denying extension of time and finding rule’s

15

application independent of federal law). 4 The Sixth Circuit, citing Coleman, found a

state court decision independent of federal law where the Tennessee court determined

whether application of the procedural bar would impact due process rights and

explicitly did not reach the claim’s merits. Hutchison v. Bell, 303 F.3d 720, 740-41

(6th Cir. 2002). The Ninth Circuit has similarly applied Stewart to distinguish

between state-court decisions explicitly or implicitly ruling on the merits of the

constitutional claim, and those merely categorizing the claim. See Nitschke v.

Belleque, 680 F.3d 1105, 1112 (9th Cir. 2012).

The Fifth Circuit, in determining whether the Texas state court applied the

state’s “abuse of the writ” doctrine to dismiss a successive state habeas petition in a

way interwoven with federal law, has scrutinized the type of claim at issue. In Rivera

v. Quarterman, 505 F.3d 349, 359 (5th Cir. 2007), the Fifth Circuit found that the

state court necessarily adjudicates the merits of successive state habeas petitions

raising Atkins claims, explaining that, “to decide whether an Atkins claim is an abuse

of the writ, the [Texas court] examines the substance of the claim to see if it

establishes a prima facie case of retardation, and only upon deciding that question

can the state court decide whether remand is appropriate.” Then, in ruling on a

different type of underlying claim, the Fifth Circuit decided in Rocha v. Thaler that

4 In both cases, the Court noted that it had not yet found Ake to apply in a case coming

before it in a federal habeas, rather than direct review, posture. Stewart, 536 U.S. at

860; Coleman, 501 U.S. at 741. Courts of appeal have not found this to be a point of

contention in deciding whether federal habeas petitioners may receive merits review

due to state habeas decisions being dependent upon federal grounds, with some

circuits holding so explicitly. See Black v. Workman, 682 F.3d 880, 919 (10th Cir.

2012); Rocha v. Thaler, 626 F.3d 815, 827 n.54 (5th Cir. 2010).

16

the state court need not have reached the merits in procedurally barring a successive

state action raising actual innocence as the gateway, because a decision on the merits

of the gateway innocence claim does not equate to a decision on the underlying federal

claim. 626 F.3d at 823-24. Similarly, the Seventh Circuit found it “difficult” to default

a Brady claim where the state court’s rule regarding leave to file a successive state

habeas petition rested on the same cause-and-prejudice analysis as used in the

underlying claim. Snow v. Pfister, 880 F.3d 857, 868 (7th Cir. 2018).

And the Eleventh Circuit has repeatedly found an aspect of Alabama’s postconviction review scheme not to procedurally bar federal habeas review due to an

antecedent ruling on the underlying claim’s merits. See, e.g., Borden v. Allen, 646

F.3d 785, 816 (11th Cir. 2011) (“[A]n Alabama court’s consideration of the sufficiency

of the pleadings concerning a federal constitutional claim contained in a Rule 32

petition necessarily entails a determination on the merits of the underlying claim; we

cannot construe such a rule to be a state procedural bar that would preclude our

review.”); Powell v. Allen, 602 F.3d 1263, 1272-73 (11th Cir. 2010) (reviewing merits

of underlying ineffective assistance of trial counsel claim under § 2254(d) after

holding same).

C. The Tenth Circuit Stands Apart in Failing to Engage With the

Effect of the Antecedent Federal Adjudication in Mr. Tryon’s Case.

There is no reading of the OCCA’s successor denial in which it did not examine

the merits of the underlying federal claim to determine whether post-conviction

counsel ineffectively omitted it, thereby overcoming § 1089. The Tenth Circuit’s

treatment of this question, in which it sidestepped any analysis of the effect of the

17

OCCA’s antecedent ruling, is out of step with that of its sister circuits and of this

Court.

In the past, the Tenth Circuit has recognized the antecedent ruling on the

underlying claim upon which the OCCA premised its procedural bar application:

[T]he OCCA essentially resolved the substantive issue now before us

while deciding the procedural bar. It said that the procedural bar could

be overcome if Goode’s counsel in the first postconviction proceeding had

been ineffective in failing to raise the claim presented in the third

postconviction application. It then held that counsel had not been

ineffective because the new claim failed for lack of a showing of

prejudice.

Goode v. Carpenter, 922 F.3d 1136, 1159 (10th Cir. 2019) (emphasis added). The

Tenth Circuit went on to explain that, in disposing of the merits of the underlying

IATC claim presented in the successive application, “OCCA ruled that Goode had not

shown ‘a reasonable probability that the evidence would have impacted the jury’s

weighing of the aggravating and mitigating evidence.’” Id.; see also id. at 1161 (“The

OCCA rejected this additional evidence [presented in successive APCR] as

procedurally barred but, as previously described, went on to examine whether Goode

had presented a claim of ineffective assistance of postconviction counsel that would

excuse the procedural bar.”). The Tenth Circuit proceeded to a detailed review of

whether the OCCA’s adjudication of the underlying IATC claim was an unreasonable

application of Strickland under § 2254(d)(1). Goode, 922 F.3d at 1160-62.

Similarly, in examining the successive state-court litigation process in

Wyoming, the Tenth Circuit had previously referred to ineffectiveness of later counsel

as the “portal through which otherwise waived claims of trial-level error may be

18

reached.” Sullivan v. Wilson, 673 F. App’x 855, 858 (10th Cir. 2016) (unpub.) (internal

citation omitted).

Despite these previous adjudications, the Tenth Circuit has now become an

outlier in refusing entirely to engage with an adjudication of the underlying

constitutional claim’s merits. The oral argument in the case at bar further muddied

the waters, with a Tenth Circuit judge attempting to draw a distinction by

misattributing the issue in Goode to one of cause and prejudice. See Oral Argument

at 3:50-57, Tryon v. Quick (10th Cir. June 13, 2023) (No. 21-6097), available at

https://www.ca10.uscourts.gov/sites/ca10/files/oralarguments/21-6097.mp3. But this

was the opposite of what the Goode Court had held. 922 F.3d at 1161 n.11

(“Consideration of ineffective assistance of postconviction counsel was undertaken by

the OCCA purely as a matter of state law. We doubt that the Supreme Court would

consider such ineffective assistance as cause to overcome a procedural bar.”); see also

Coleman, 501 U.S. at 755 (“Counsel’s ineffectiveness will constitute cause only if it is

an independent constitutional violation.”).

The current confused approach deviates from the Tenth Circuit’s past practice,

in which it saw fit to confirm independence with the state court, just as this Court

did in Stewart, rather than “speculate.” Black v. Workman, 682 F.3d 880, 919 (10th

Cir. 2012) (certifying question of whether a state miscarriage-of-justice exception to

procedural bar required decision on merits of underlying federal claim); cf. Bennett v.

Mueller, 322 F.3d 573, 581-82 (9th Cir. 2003) (finding independence after reviewing

evolution of case law through which, in response to earlier Ninth Circuit finding of

19

dependence on federal law, the “California Supreme Court made clear that it would

no longer consider federal law in denying a petition on untimeliness grounds”).

***

This Court has recently requested briefing on the question of whether the

OCCA’s application of § 1089 to bar post-conviction relief was an adequate and

independent state-law ground for the state court’s judgment. Glossip v. Oklahoma,

No. 22-7466 (Jan. 22, 2024). While the question of whether a state court’s procedural

bar was applied independently of federal law turns on the specifics of each decision,

it would nonetheless be appropriate for the Court to hold Mr. Tryon’s certiorari

petition pending its decision in Mr. Glossip’s case.

Mr. Tryon’s case presents a similarly important question about the

independence of Oklahoma’s procedural bar where its application hinges on the

merits of the underlying federal claim, a question that the Tenth Circuit has been

unable to answer in accordance with other circuits, or even with its own rulings. The

nature of Mr. Tryon’s underlying federal claim, on which he seeks his one bite at the

apple of federal habeas review, underscores this case’s propriety as a vehicle for

certiorari review. See Martinez v. Ryan, 566 U.S. 1, 12 (2012) (calling procedural

hurdles preventing claim’s presentation “of particular concern when the claim is one

of ineffective assistance of counsel,” as “[t]he right to the effective assistance of

counsel as trial is a bedrock principle in our justice system”).

20

II.

THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE

WHETHER REASONABLE JURISTS COULD DEBATE WHETHER

OKLAHOMA

IS

APPLYING

ITS

ATKINS

STATUTE

CONSTITUTIONALLY.

A. Mr. Tryon’s Underlying Constitutional Claim is At Least

Debatable.

Both the state and federal courts found that appellate counsel could not have

ineffectively omitted a claim that trial counsel was ineffective for failing to challenge

Oklahoma’s Atkins statute, because the OCCA would have upheld the statute given

its rejection of the Flynn Effect in the past. 5 The federal courts found the issue did

not even warrant a certificate of appealability (COA).

28 U.S.C. § 2253(c)(2) provides that a COA should issue if an inmate “has made

a substantial showing of the denial of a constitutional right.” “The question is the

debatability of the underlying constitutional claim, not the resolution of that debate.”

Miller-El v. Cockrell, 537 U.S. 322, 342 (2003). In fact, “a claim can be debatable even

The Tenth Circuit also claimed that trial counsel did raise a constitutional

challenge, but pointed to a statement made during the trial, just before the penalty

phase began. See App. 57a. Trial counsel made no such argument at the time they

requested a pretrial Atkins hearing. Further, the Tenth Circuit pointed to Dr.

Fabian’s testimony that Mr. Tryon “was not mentally retarded” as evidence that

appellate counsel did not omit a meritorious issue. App. 58a. But as described in

Section A of the Statement of the Case, supra, this testimony flew in the face of Dr.

Fabian’s pretrial report, in which he recommended Mr. Tryon for an Atkins v.

Virginia evaluation. The juxtaposition between Dr. Fabian’s report and testimony

should have been a red flag for appellate counsel, not a stop sign. See Strickland, 466

U.S. at 690-91 (“Strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the

limitations on investigation.”); see also ROA I at 784-85 ¶ 4 (head of post-conviction

division of indigent defense office describing in affidavit how review of Mr. Tryon’s

trial transcripts and original record revealed potentially meritorious ID issue and

precipitated post-conviction retention of Dr. Fabian to perform adaptive testing).

5

21

though every jurist of reason might agree, after the COA has been granted and the

case has received full consideration, that petitioner will not prevail.” Buck v. Davis,

580 U.S. 100, 117 (2017) (quoting Miller-El, 537 U.S. at 338) (internal quotation

marks omitted). “[A]ny doubts as to whether a COA should be granted are resolved

in the petitioner’s favor, and the severity of the death penalty may be a consideration

in deciding whether a petitioner has made a ‘substantial showing.’” McGowen v.

Thaler, 675 F.3d 482, 498 (5th Cir. 2012) (citation omitted).

After first being called not intellectually disabled by an unfunded expert

without receiving an evaluation, Mr. Tryon has now received a diagnosis from the

same expert, following adequate funding, that exempts him from the death penalty.

No court, however, has heard his claim. He meets the COA requirements and

deserves “encouragement to proceed further” on his underlying constitutional claim

at this threshold stage. Miller-El, 537 U.S. at 327.

B. Atkins and Its Progeny Mandate Adherence to Current, Clinical

Guidelines.

Although Atkins v. Virginia reserved to the states “the task of developing

appropriate ways to enforce the constitutional restriction,” 536 U.S. 304, 317 (2002)

(quoting Ford v. Wainwright, 477 U.S. 399, 416-17 (1986)), it did not give the states

“unfettered discretion to define the full scope of the constitutional protection.” Hall v.

Florida, 572 U.S. 701, 719 (2014). “If the States were to have complete autonomy to

define intellectual disability . . . the Court’s decision in Atkins could become a nullity.”

Id. at 720. Nothing in Atkins suggests states have the authority to narrow the

definition of intellectual disability and thus alter the constitutional restriction itself.

22

Permitting that would circumvent the rule announced in Atkins and allow the

execution of persons who meet the clinical definitions of intellectual disability.

Instead, states are limited to developing procedures to vindicate substantive

constitutional rights, not to impair them. See Ford, 477 U.S. at 416.

When this Court announced the bright-line, categorical exemption of the

intellectually disabled from execution, it relied on the clinical definitions promulgated

by the American Association on Mental Retardation (AAMR), now the American

Association on Intellectual and Developmental Disabilities (AAIDD), and the

American Psychiatric Association (APA), which issues the Diagnostic and Statistical

Manual of Mental Disorders (DSM). Atkins, 536 U.S. at 317 n.22; see also id. at 308

n.3. Without a doubt, “[t]he clinical definitions of intellectual disability . . . were a

fundamental premise of Atkins.” Hall, 572 U.S. at 721.

In its interpretation of Atkins in subsequent cases, this Court has continued to

emphasize the clinical underpinnings of the constitutional restriction. In Hall, by

recognizing that “[i]ntellectual disability is a condition, not a number,” id. at 723, the

Court relied on clinical definitions and diagnostic practices in finding Florida’s IQ

cutoff of 70 for intellectual disability claims was flatly unconstitutional. Id. at 721

(“The legal determination of intellectual disability . . . is informed by the medical

community’s diagnostic framework”). And in Brumfield v. Cain, 576 U.S. 305, 316,

319-20 (2015), the Court pointed to the discord between the state court’s decision and

current clinical guidelines. In Moore v. Texas, 581 U.S. 1, 5-6 (2017), the Court once

more made clear that tension between state-level Atkins law and clinical guidance is

23

resolved in favor of adherence to clinical guidelines. In overruling Texas’s

scientifically unsound Atkins standard, Moore further emphasized that, “The medical

community’s current standards supply one constraint on States’ leeway in this area.”

581 U.S. at 20.

C. Clinical Guidance Mandates Adjustment of IQ Scores for the

Inflationary Impact of Obsolete Testing Norms.

The inflationary impact of obsolete testing norms on IQ scores, known as the

Flynn Effect, describes the reality that as IQ tests become more distant from when

they were normed to the population as a whole, they provide increasingly inflated

scores. “There is a scientific and professional consensus that the Flynn [E]ffect is a

scientific fact.” Kevin S. McGrew, Norm Obsolescence: The Flynn Effect, in The Death

Penalty and Intellectual Disability 155, 158 (Edward Polloway ed., 2015) (AAIDD

Death Penalty). Adjusting for the effect in the Atkins setting is also the consensus

best or standard practice. Id. at 160-61. “[T]he global scores impacted by the outdated

norms should be adjusted downward by 3 points per decade (0.3 points per year) of

norm obsolescence.” Id. at 165. The older test norms reflect a level of performance

that is lower than that of individuals in contemporary society. Id. at 155. “[B]est

practices require recognition of a potential Flynn Effect when older editions of an

intelligence test (with corresponding older norms) are used in the assessment . . . of

an IQ score.” American Association on Intellectual and Developmental Disabilities,

Intellectual Disability: Definition, Classification, and Systems of Supports at 37 (11th

ed. 2010) (emphasis added); see also AAIDD, User’s Guide: Mental Retardation,

Definition, Classification and Systems of Supports at 20-21 (10th ed. 2007) (endorsing

24

correction for age of norms). Even if the Flynn Effect had not gained scientific

acceptance in 2006, when the Oklahoma statute went into effect, or in 2010, when

the OCCA questioned their relevance given their omission from the statute—already

debatable contentions given the 2007 AAIDD Guide—clinical standards are not static

and lower courts contravene Atkins and its progeny by deferring to precedent while

ignoring current guidelines.

The mandated exclusion of this scientific reality from legal proceedings is thus

contrary to the consensus best practice and to this Court’s directive to rely on clinical

standards. To exclude consideration and application of the Flynn Effect is to elevate

inaccurate and unreliable scores. This was especially the case for Mr. Tryon, as Dr.

Fabian found, where the test on which Mr. Tryon received the single score that

disqualified him from an Atkins hearing was obsolete even at the time of its

administration. Dr. Fabian pointed out that the evaluator had used an outdated test,

contrary to professional psychology ethics and standards. ROA I at 234. This was not

just a matter of ethical principal; as new IQ test versions are developed, the older

versions and their norming become outdated. Id. See also AAIDD Death Penalty at

161 (“In cases of tests with multiple versions, the most recent version with the most

current norms should be used at all times.”)

Although the WISC-IV had been available since 2003, the administrator of the

2004 test used the WISC-III, which was normed in 1989 and published in 1991. After

stating the Flynn Effect “has been generally accepted in the field of psychology,” Dr.

Fabian applied it to the 2004 test and its 1989 norm, which adjusted the 81 on the

25

2004 administration of the test to a 76. ROA I at 234. With the standard error of

measurement of 3.2 points, this brought the 81 down to a score as low as 73. Id.

D. The Tenth Circuit is Enforcing Unconstitutional Application of

Oklahoma’s Statute.

The Tenth Circuit’s dismissal was premised on the finding that “even if

appellate counsel had challenged the constitutionality of the Oklahoma statute, the

OCCA was certain to reject the argument. This is because the OCCA had already

upheld the statute’s constitutionality against a challenge based on the Flynn Effect.”

App. 59a. For this, the circuit court cited a footnote from a 2010 state court opinion,

in which the OCCA denied the Flynn Effect had achieved universal acceptance and

found that it could not be relevant in Oklahoma given its omission from the state

statute. See Smith v. State, 245 P.3d 1233, 1237 n.6 (Okla. Crim. App. 2010).

The Tenth Circuit further noted that the OCCA had relied on this 2010 opinion

as recently as 2020. App. 60a (citing Fuston v. State, 470 P.3d 306, 316 n.3 (Okla.

Crim. App. 2020)). Finally, the Tenth Circuit cited its own decision upholding the

OCCA in Smith, as well as another of its decisions in which it again cited to Smith.

App. 60a (citing Postelle v. Carpenter, 901 F.3d 1202, 1212-13 (10th Cir. 2018); Smith

v. Duckworth, 824 F.3d 1233, 1246 (10th Cir. 2016)).

In the Tenth Circuit, then, due to a footnote in a 2010 OCCA decision that

noted the absence of the Flynn Effect in the 2006 statute, capital petitioners find the

door shut to any consideration of their IQ scores with this clinical best-practice

adjustment. Far from incorporating medical community’s diagnostic framework, the

Tenth Circuit upholds the OCCA’s frozen-in-time preclusion of such standards,

26

impermissibly “fasten[ing] its intellectual-disability determination[s],” Moore, 581

U.S. at 20, to the four corners of a decades-old state statute.

Even ten years ago, clinicians took note of the Tenth Circuit’s deviation from

clinical guidelines in its refusal to consider the Flynn Effect. See Nancy Haydt,

Stephen Greenspan, Bhushan S. Agharkar, Advantages of DSM-5 in the Diagnosis of

Intellectual Disability: Reduced Reliance on IQ Ceilings in Atkins (Death Penalty)

Cases, 82 UMKC L. Rev. 359, 382-83 (2014) (calling the Tenth Circuit’s

denouncement of the Flynn Effect in Hooks v. Workman, 689 F.3d 1148, 1170 (10th

Cir. 2012) “grossly inaccurate” and finding “this rejection of the Flynn Effect, in

combination with the use of scientifically unjustified bright-line IQ cutoff scores,

causes artificially high IQ scores, thus denying defendants a fair determination of

intellectual functioning for Atkins purposes.”). A 2023 decision citing the same

outdated case law should be viewed with even greater scrutiny and skepticism.

Other jurisdictions commonly understand that a constitutional Atkins process

is not static, but rather, allows room for current clinical guidelines—including, where

pertinent, the Flynn Effect. See, e,g., Fulks v. Watson, 4 F.4th 586, 591 (7th Cir. 2021)

(“The Supreme Court’s decisions in Hall, Moore I, and Moore II recognized that the

medical diagnostic standards have not stood still since Atkins.”); United States v.

Lewis, No. 1:08 CR 404, 2010 WL 5418901, at *5-6 (defining “critical” role of clinical

judgment and noting Flynn Effect considered an AAIDD “best practice”); State v.

Ford, 140 N.E.3d 616, 654-55 (Ohio 2019) (finding that, although state and federal

law did not mandate Flynn Effect inclusion, trial court should not have excluded it

27

from consideration, and further finding state law followed outdated clinical

guidelines in evaluation of adaptive deficits); Woodall v. Commonwealth, 563 S.W.3d

1, 6 (Ky. 2018) (“Courts [] must follow [] Moore, which predicate[d] a finding of

intellectual disability by applying prevailing medical standards. Because prevailing

medical standards change as new medical discoveries are made, routine application

of a bright-line test alone to determine death-penalty-disqualifying intellectual

disability is an exercise in futility.”); 6 State v. Thurber, 420 P.3d 389, 450 (Kan. 2018)

(“Kansas cannot statutorily require courts to disregard other relevant medical

standards.”).

And regarding the Flynn Effect in particular, courts across the country have

allowed room for its potential application, even while not necessarily mandating its

use, contrary to Oklahoma’s categorical exclusion upheld by the Tenth Circuit. See,

e.g., Fulks, 4 F.4th at 591-92 (citing McManus v. Neal, 779 F.3d 634, 652-53, 653 n.6

(7th Cir. 2015) for proposition that evaluators may adjust scores based on the Flynn

Effect and using “Flynn-adjusted IQ scores” in evaluating 28 U.S.C. § 2255 claim);

Black v. Bell, 664 F.3d 81, 89 (6th Cir. 2011) (noting state court had “determined it

was prohibited from considering [] scientific concepts” such as Flynn Effect in

assessing IQ); id. at 95 (finding state court prohibition “misinterpreted the Flynn

Effect’s relevance” where controlling state law “made no mention whatsoever” of the

Flynn Effect); Thomas v. Allen, 607 F.3d 749, 752-53 (11th Cir. 2010) (laying out

6 Woodall abrogated Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005), which in

upholding Kentucky’s bright-line cutoff had noted that the legislature had omitted

the margin of error and Flynn Effect from the state statute. Id. at 375.

28

Alabama statute, which made no mention of Flynn Effect, and stating “[a]n evaluator

may consider the ‘Flynn effect’”); Walker v. True, 399 F.3d 315, 323 (4th Cir. 2005)

(despite Virginia statute not mentioning Flynn Effect, finding district court’s refusal

to consider Flynn Effect based on “lack of legal basis” ignored evidence that “directly

addressed the relevant question”); United States v. Wilson, 170 F.Supp.3d 347, 374,

374 n.6 (E.D.N.Y. 2016) (district court upholding on post-Hall remand its prior

opinion’s application of Flynn Effect, despite noting that Hall did not mandate such

application); Thomas v. Allen, 614 F.Supp.2d 1257, 1277 (N.D. Ala. 2009) (rejecting

State’s argument of Flynn Effect irrelevance given lack of official endorsements

outside the AAIDD because that “does not justify ignoring the phenomenon in the

face of its unchallenged existence”).

The Fifth Circuit in particular, while not definitively accepting the Flynn

Effect, has grappled with the phenomenon’s applicability over the years, unlike the

Tenth Circuit. 7 Compare In re Mathis, 483 F.3d 395, 398 n.1 (5th Cir. 2007) (noting

Flynn Effect “has not been accepted in this Circuit as scientifically valid”) with In re

7 The Fifth Circuit’s attention to the Flynn Effect over the years is also notable when

considering that the same circuit repeatedly found that Texas’s so-called Briseno

factors, Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004), which premised the

ID determination on lay stereotypes, passed constitutional muster. See Henderson v.

Stephens, 791 F.3d 567, 585 (5th Cir. 2015) (“This Court has held that Briseno is a

constitutionally permissible interpretation and application of Atkins”); but see Moore,

581 U.S. at 17-18 (overturning “outlier” Briseno test as incompatible with Eighth

Amendment); Moore v. Texas, 139 S. Ct. 666, 672 (2019) (Moore II) (finding “Moore

has shown he is a person with intellectual disability” after Texas court continued to

apply lay stereotypes). The Tenth Circuit has thus distinguished itself from even this

previous outlier jurisdiction in its refusal to engage with the potential effect of a

clinically recognized phenomenon.

29

Cathey, 857 F.3d 221, 227 n.33 (5th Cir. 2017) (“Importantly, however, nor has the

Flynn Effect been rejected”) and id. at 232-33 (further finding, in authorizing

successive habeas petition, that petitioner’s “IQ score may be even lower should a

reviewing court ultimately find merit in the Flynn Effect”). 8

Even without explicit acceptance in the circuit, courts in the Fifth Circuit have

not viewed themselves as categorically prohibited from applying the Flynn Effect

where warranted. See Maldonado v. Thaler, 389 F. App’x 399, 403 (5th Cir. 2010)

(unpub.) (granting COA on Atkins claim where, among other issues, State’s expert

“had failed to take the ‘Flynn Effect’ into account”); 9 United States v. Hardy, 762

F.Supp.2d 849, 862-63 (5th Cir. 2010) (noting unsettled state of Flynn Effect in circuit

before holding that, “In light of the substantial evidence supporting the existence of

the Flynn Effect, the Court concludes that Hardy’s score of 73 should be corrected to

take it into account.”); Wiley v. Epps, 668 F. Supp. 2d 848, 894 (N.D. Miss. 2009) (“The

Court finds that regardless of whether the ‘Flynn effect’ is considered as a precise

mathematical formula in this case, it will take into consideration the obsolescence of

8 Cathey also pointed to “the Eleventh Circuit’s recent conclusion that district courts,

upon their consideration of expert testimony, may apply or reject the Flynn Effect,

which is a finding of fact reviewed for clear error.” 857 F.3d at 227 n.33 (citing Ledford

v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 640 (11th Cir.

2016)). Ledford was recently abrogated by Smith v. Comm’r, Ala. Dep’t of Corr., 67

F.4th 1335, 1348 (11th Cir. 2023), cert. pending, Hamm v. Smith (No. 23-167), based

on the Eleventh Circuit’s recognition that its pre-Moore law no longer comported with

this Court’s dictates.

9 The Fifth Circuit saw fit to grant a COA on this claim despite that the controlling

Texas law at that time did not account for the Flynn Effect and was overall

noncompliant with clinical guidance. See supra, n.7 (citing Ex parte Briseno).

30

test

norms

in

weighing

the

evidence

concerning

Petitioner’s

intellectual

functioning.”).

With the OCCA refusing to consider current clinical standards, and the

reviewing federal courts cutting off consideration of such refusal at the quick,

Oklahoma is operating outside the bounds of this Court’s Atkins protection. A grant

of certiorari and reversal of the Tenth Circuit decision would not require this Court

to overturn Oklahoma’s statute, but narrowly to hold that the Oklahoma courts’

application of the statute, in a way precluding adherence to current clinical

guidelines, is unconstitutional. Without this Court’s intervention, the Tenth Circuit

will continue to apply outdated case law to defer to the OCCA’s scientifically unsound

reading of the state statute as excluding the Flynn Effect from the calculus. This

Court should grant certiorari to remind the Tenth Circuit that Atkins and its progeny

“cannot sensibly be read to give courts leave to diminish the force of the medical

community’s consensus.” Moore, 581 U.S. at 5-6.

CONCLUSION

For the foregoing reasons, Mr. Tryon respectfully requests this Court grant his

petition for writ of certiorari or alternatively hold his petition for consideration of

Question (1) until after this Court decides Glossip v. Oklahoma, No. 22-7466 (cert.

granted, Jan. 22, 2024).

31

Respectfully submitted,

s/ Callie Heller___________________________

CALLIE HELLER, Texas Bar No. 24101897*

Assistant Federal Public Defender

Office of the Federal Public Defender

Western District of Oklahoma

215 Dean A. McGee, Suite 707

Oklahoma City, Oklahoma 73102

(405) 609-5975 Phone

(405) 609-5976 Fax

Callie_Heller@fd.org

ATTORNEY FOR PETITIONER,

ISAIAH GLENNDELL TRYON

* Counsel of Record

32