Petition for Writ of Certiorari — Luis Alexis Briceno, Petitioner v. Tennessee

No.

____________________________________________________________

In the Supreme Court of the United States

_____________________________________________________________

LUIS ALEXIS BRICENO,

Petitioner-Applicant

vs.

STATE OF TENNESSEE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE TENNESSEE COURT OF CRIMINAL APPEALS

_____________________________________________________________

PETITION FOR WRIT OF CERTIORARI

_____________________________________________________________

TYLER M. CAVINESS

THE LAW OFFICE OF TYLER M. CAVINESS

932 W FOREST BOULEVARD

KNOXVILLE, TN 37909

PHONE: (865) 936-9499

FAX: (865) 936-9015

EMAIL: TYLER@CAVINESSLAWFIRM.COM

COUNSEL FOR PETITIONER

_____________________________________________________________

QUESTION PRESENTED

Whether Tennessee’s procedure for denying indigent defendants funding for

expert assistance at trial violates due process because a trial court’s order that

experts services are constitutionally necessary can be administratively denied and

that denial is subject to review only by the Chief Justice of the Tennessee Supreme

Court in a closed proceeding without the defendant’s involvement, without any

published standards of review, and without providing any explanation for overruling

the trial court?

ii

LIST OF PROCEEDINGS

1. State v. Briceno, Case No. 115160 (Knox County, Tenn. Crim. Ct. Mar. 4 2022).

2. State v. Briceno, No. E2022-00414-SC-RDM-CD (Tenn. Dec. 01, 2022) (Order

denying motion for TN Sup. Ct. to assume jurisdiction of case pending in lower

appellate court).

3. State v. Briceno, No. E2022-00414-CCA-R3-CD, 2023 WL 4444698 (Tenn.

Crim. App. July 11, 2023).

4. State v. Briceno, No. E2022-00414-SC-R11-CD (Tenn. Nov. 17, 2023).

iii

TABLE OF CONTENTS

QUESTION PRESENTED............................................................................................. ii

LIST OF PROCEEDINGS ............................................................................................ iii

TABLE OF CONTENTS ............................................................................................... iv

TABLE OF APPENDICES .............................................................................................v

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

OPINIONS AND ORDERS BELOW ............................................................................. 1

JURISDICTION ............................................................................................................. 1

CONSTITUTIONAL PROVISION INVOLVED ........................................................... 1

STATEMENT OF THE CASE ....................................................................................... 2

REASON FOR GRANTING THE WRIT ..................................................................... 10

Certiorari is necessary to revisit Ake v. Oklahoma, 470 U.S. 68 (1985) and

determine whether the Tennessee Court of Appeals incorrectly decided an

important question of federal due process by affirming Tennessee’s

standardless review procedure of indigent funding claims after the defendant

has previously demonstrated a constitutional need for the expert assistance to

the trial court ..................................................................................................... 10

CONCLUSION ............................................................................................................. 20

iv

TABLE OF APPENDICES

Appendix A: State v. Luis Briceno, No. E2022-00414-CCA-R3-CD, 2023 WL

4444698 (Tenn. Crim. App. July 11, 2023) ............................................................ A-001

Appendix B: State v. Luis Briceno, No. E2022-00414-SC-R11-CD .................... A-019

Appendix C: State v. Luis Briceno, No. E2022-00414-SC-RDM-CD .................. A-020

v

TABLE OF AUTHORITIES

Cases

Ake v. Oklahoma, 470 U.S. 68 (1985) ...................................... 10, 11, 18, 19, 24, 25, 27

Ayestas v. Davis, 584 U.S. 28 (2018) ........................................................................... 21

Dotson v. State, 637 S.W.3d 204 (Tenn. 2023) ............................................................ 17

Evitts v. Lucey, 469 U.S. 387 (1985) ................................................................ 19, 22, 23

Goldberg v. Kelly, 397 U.S. 254 (1970) ........................................................................ 19

Harbison v. Bell, 556 U.S. 180 (2009) ......................................................................... 21

Hinton v. Alabama, 571 U.S. 263 (2014) ..................................................................... 18

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951) ........................ 19

Long v. Board of Professional Responsibility, 435 S.W.3d 174 (Tenn. 2014) ............ 17

Mathews v. Eldridge, 424 U.S. 319 (1976) .................................................................. 19

Momon v. State, 18 S.W.3d 152 (Tenn. 1999) ............................................................. 24

McWilliams v. Dunn, 582 U.S. 183 (2017) .................................................................. 18

State v. Barnett, 909 S.W.2d 423 (Tenn. 1995) ..................................................... 11, 22

State v. Luis Briceno, No. E2022-00414-CCA-R3-CD,

2023 WL 4444698 (Tenn. Crim. App. July 11, 2023) ..................... 10-15, 17, 23,

State v. Luis Briceno, No. E2022-00414-SC-R11-CD ............................................ 1, 17

State v. Luis Briceno, No. E2022-00414-SC-RDM-CD ................................................. 1

State v. Minor, 546 S.W.3d 59 (Tenn. 2018) ............................................................... 25

State v. Rodriguez, 254 S.W.3d 361 (Tenn. 2008) ....................................................... 25

State v. Scott, 33 S.W.3d 746 (Tenn. 2000) ................................................................. 22

vi

Constitutional Provisions, Statutes, and Rules

Alaska Rules of Court, Rules of Administration, Rule 12 .......................................... 26

Ariz. R. Crim. P. 6.7 ..................................................................................................... 25

Ariz. Rev. Stat. Ann. § 13-4013 ................................................................................... 25

Cal. Penal Code, § 987.2............................................................................................... 26

N.C. Gen. Stat. Ann. § 7A-314 ..................................................................................... 26

N.H. Rev. Stat. Ann. § 604-A:1 .................................................................................... 26

Ohio Sup. Ct. R. 12 ....................................................................................................... 26

S.C. Code § 17-3-50....................................................................................................... 26

Tenn. R. App. P. 9......................................................................................................... 22

Tenn. R. App. P. 10....................................................................................................... 22

Tenn. R. App. P. 36....................................................................................................... 25

Tennessee Sup. Ct. R. 13 ................................................................ 10-12, 14, 16, 20, 24

U.S. Const. amend XIV .................................................................................................. 1

Utah Code Ann. § 78B-22-302 ................................................................................ 26-27

W. Va. Code. § 29-21-13a ............................................................................................. 27

Wyo. R. Crim. P. 44 ...................................................................................................... 27

Secondary Sources

Benner, Lawrence, The Presumption of Guilt: Systemic Factors that Contribute to

Ineffective Assistance of Counsel in California, 45 Cal. W. L. Rev. 263, 296

(2008-09)............................................................................................................. 26

vii

Gideon at 60: A Snapshot of State Public Defense Systems and Paths to System

Reform, National Institute of Justice, at p. v, Nov. 2023, accessible at

https://www.ojp.gov/pdffiles1/nij/307325.pdf .............................................. 25-26

Neff, Terri, County Could Pay for Murder Suspect’s Entire Defense or Only Pay for

Expert and Investigator, Arizona Daily Independent News Network, Mar. 2,

2021, accessible at https://arizonadailyindependent.com/2021/03/02/countycould-pay-for-murder-suspects-entire-defense-or-only-pay-for-expert-andinvestigator/ ....................................................................................................... 26

viii

OPINIONS AND ORDERS BELOW

The opinion of the Tennessee Court of Criminal Appeals is unpublished, and is

attached as Appendix A. State v. Luis Briceno, No. E2022-00414-CCA-R3-CD, 2023

WL 4444698 (Tenn. Crim. App. July 11, 2023). The Tennessee Supreme Court denied

Mr. Briceno’s application for discretionary review on November 17, 2023. That order

is attached as Appendix B. State v. Briceno, No. E2022-00414-SC-R11-CD (Tenn. Nov.

17, 2023). While Mr. Briceno’s appeal was pending in the Tennessee Court of

Criminal Appeals, he filed a motion for the Tennessee Supreme Court to assume

jurisdiction of the case. The order denying that motion is attached as Appendix C.

State v. Briceno, No. E2022-00414-SC-RDM-CD.

JURISDICTION

The Tennessee Supreme Court denied discretionary review on November 17,

2023. By order dated February 12, 2024, Justice Kavanaugh extended the time for

filing this petition until April 1, 2024 (Application 23A742). The jurisdiction of this

Court is pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the United States Constitution provides in

relevant part:

No state shall deprive any person of life, liberty, or property, without

due process of law.

U.S. Const., amend. XIV, § 1.

1

STATEMENT OF THE CASE

Luis Briceno was charged in Knox County, Tennessee with driving under the

influence, second offense, driving on a revoked license, and violation of the financial

responsibility law. State v. Briceno, No. E2022-00414-CCA-R3-CD, 2023 WL 4444698,

at *1 (Tenn. Crim. App. July 11, 2023). Mr. Briceno was indigent, and defense counsel

filed an ex parte motion requesting funding to hire a forensic psychiatrist to assess

Mr. Briceno’s psychological state at the time of the offense. Id. The defense asserted

that Mr. Briceno had mental health issues that were relevant at trial to rebut the

State’s allegations of impairment and also that the issues were relevant to pre-trial

litigation concerning the voluntariness of Mr. Briceno’s statements and consent to a

breathalyzer test. Id. The trial court agreed. It found that Mr. Briceno established a

constitutional need for the expert assistance, that the fees to be charged were

reasonable, and ordered that funding be provided. Id.

In Tennessee, the administration of funding for indigent defense services is

governed by Tennessee Supreme Court Rule 13 (“Rule 13”). Rule 13 provides that an

indigent defendant seeking funding for expert assistance must first establish a

“particularized need” for the expert services. This determination is made by the trial

court in an ex parte hearing. Tenn. Sup. Ct. R. 13, § 5(b)(4), (c)(1). Particularized need

means that the services “are necessary to protect the defendant’s right to a fair trial.”

Tenn. Sup. Ct. R. 13, § 5(c)(2). This standard incorporates this Court’s holding in Ake

v. Oklahoma, 470 U.S. 68 (1985) that due process principles of fundamental fairness

require that an indigent defendant be provided the tools necessary to have a fair

2

opportunity to present his defense. See State v. Barnett, 909 S.W.2d 423, 427-28

(Tenn. 1995) (citing Ake, 470 U.S. at 87) (cited by Tenn. Sup. Ct. R. 13, § 5(c)(2)).

If the trial court finds that the expert’s fees are reasonable and the assistance

is necessary to ensure the defendant receives a fair trial, it issues an order to that

effect and orders that the funds be disbursed. Tenn. Sup. Ct. R. 13, § 5(e)(1). Rule 13

directs that the funding order must be forwarded to the Director of the

Administrative Office of the Courts (“Director”) for prior approval. Id. at § 5(e)(4). If

the Director denies prior approval, the order shall be transmitted to the Chief Justice

of the Tennessee Supreme Court (“Chief Justice”) for prior approval. Id. at § 5(e)(5).

The decision of the Chief Justice is final. Id.

When Mr. Briceno forwarded the trial court’s order to the Administrative

Office of the Courts (“AOC”), the employee assigned to process the claims, Lacy

Wilber, disagreed with the trial court and stated that Mr. Briceno had not established

a constitutional need for the expert assistance. Briceno, No. E2022-00414-CCA-R3CD, 2023 WL 4444698, at *1. Ms. Wilber informed defense counsel that the funds

would not be disbursed. Id.

Although it was apparently standard practice in the AOC, Ms. Wilber had no

statutory or rule-based authority to approve or deny funding. Rule 13 states that the

prior approval must be made by the Director of the AOC. Despite this, Ms. Wilber

asked defense counsel whether he wanted to “appeal” the denial to the Director and

Chief Justice. Id. This, too, was in contravention of Rule 13, since the Rule states that

3

any denial “shall” be reviewed by the Chief Justice – the review is not triggered by

the defendant’s request. Tenn. Sup. Ct. R. 13, § 5(e)(5).

The denial happened on November 9, 2020. Briceno, No. E2022-00414-CCAR3-CD, 2023 WL 4444698, at *1. Mr. Briceno later revisited the issue and asked on

March 11, 2021 that the denial of the claim be reviewed by the Director and Chief

Justice. Briceno, No. E2022-00414-CCA-R3-CD, 2023 WL 4444698, at *1. This

request was made approximately one month before the motion hearing for which Mr.

Briceno sought the expert’s assistance and approximately seven weeks before the

scheduled trial date. Id. Mr. Briceno informed the AOC of the impending hearing and

trial dates when he requested the review. Tech. R., Vol. 2, p. 182.

On April 12, 2021, the date of the motion hearing, defense counsel had received

no information about the status of the Director’s review. Mr. Briceno filed a “Notice

of Denial of Funding” that morning with the trial court. Briceno, No. E2022-00414CCA-R3-CD, 2023 WL 4444698, at *1. The notice informed the trial court of the

administrative denial of funding and also contained an affidavit from the forensic

psychiatrist the defense had intended to retain. Id. The affidavit stated that, if Mr.

Briceno did have an anxiety disorder – as the defense believed – then the symptoms

of that disorder could result in acquiescence to law enforcement in an effort to avoid

the stress of a situation. Id. However, the affidavit was generalized because the

expert had not been retained and, as a result, had not evaluated Mr. Briceno.

At the suppression hearing, Mr. Briceno testified about his mental health and

anxiety at the time of the offense. He was the sole defense witness. He testified that

4

he had difficulty focusing on what was happening when he was being questioned by

law enforcement due to his anxiousness. Id. at *3. He also stated that he did not

understand the implied consent form as giving him the opportunity to refuse a breath

test. Id. The trial court ruled that Mr. Briceno’s consent to the breath test and waiver

of his Miranda rights were given voluntarily. Id. at *3-4. This ruling was based on

the court’s determination that Mr. Briceno’s testimony about his mental health

difficulties was not credible. Id. at *3.

At the time of trial, the AOC still had not given Mr. Briceno any information

about the status of the funding review. The case proceeded to trial. The defense

argued that Mr. Briceno’s alleged signs of impairment were instead symptoms of his

anxiety disorder. The defense also argued that the breathalyzer test results were not

accurate because the test was administered incorrectly. See generally, R., Vol. 6, p.

285-299; R., Vol. 7, p. 363-365. The State countered by presenting an expert to bolster

the accuracy and reliability of the breathalyzer test results in the case. R., Vol. 7, p.

308-310. This expert’s testimony was in addition to the testimony from multiple law

enforcement officers involved in the investigation of the case. Mr. Briceno testified on

his own behalf as the defense’s only witness. Briceno, No. E2022-00414-CCA-R3-CD,

2023 WL 4444698, at *5-6.

Mr. Briceno’s trial was a credibility contest. If the jury believed that he had

legitimate mental health issues, there was sufficient evidence upon which they could

decide that the breathalyzer test results were not reliable. Conversely, if the jury

accredited the testimony of the State’s law enforcement officers and expert witnesses,

5

they were likely to discredit Mr. Briceno’s testimony about his mental health. The

jury convicted Mr. Briceno.

In the motion for new trial proceedings, Mr. Briceno argued that the denial of

expert funding violated state and federal constitutional due process protections

because the review process lacked any meaningful standards or procedure. Tech. R.,

Vol. 2, p. 172. He also argued that, to the extent Rule 13 permitted that procedure, it

was unconstitutional. Id.

To support these arguments, Mr. Briceno continued his attempts to obtain

information about the funding review or to obtain funding so that he could make an

offer of proof at the motion for new trial hearing. Rule 13 states that funding is

available for indigent defense services “in the trial and direct appeal” of all cases in

which the defendant is entitled to appointed counsel. Tenn. Sup. Ct. R. 13, § 5(a)(1).

Several months before the motion for new trial hearing, Mr. Briceno asked Ms. Wilber

about the status of the appeal and whether funding would be available for the motion

for new trial hearing. He received two different answers. First, he was told that the

administrator could not ask the Chief Justice about the status of the review. Tech.

R., Vol. 2, p. 180. In a later email, he was told, without any explanation, that the

Chief Justice could not review the funding denial. Tech. R., Vol. 2, p. 178.

Mr. Briceno issued a subpoena for Ms. Wilber to appear at the motion for new

trial hearing and provide information and documents about the funding review

process. Briceno, No. E2022-00414-CCA-R3-CD, 2023 WL 4444698, at *8-9. The

Tennessee Attorney General’s Office intervened and filed a motion to quash the

6

subpoena. Id. at *8; see also Tech. R., Vol. 2, p. 198. The trial court partially quashed

the subpoena. Instead of requiring Ms. Wilber to appear, the court required her to

produce an affidavit answering a limited set of questions posed by the court. Tech. R.,

Vol. 2, p. 232-33.

Significantly, the affidavit revealed that the funding order was denied by the

Director on April 11, 2021, a month after the review was requested – and the day

before the motion hearing. R., Vol. 16, Exhibits, p. 17. The denial was forwarded to

the Chief Justice on April 11, 2021. Id. The affidavit stated that on the date of Mr.

Briceno’s trial, the review was still “pending.” Id. It also stated that, on the date the

affidavit was written, February 25, 2022, “there ha[d] been no final disposition” of the

review. Id.

The trial court denied Mr. Briceno’s motion for new trial. Mr. Briceno argued

to the Tennessee Court of Criminal Appeals that he was denied a fair trial under

state and federal law because he did not receive constitutionally necessary expert

assistance. In additional to raising other claims under the Tennessee Constitution,

he also challenged the constitutionality of Rule 13 facially and as-applied because it

violated federal constitutional requirements of due process and equal protection of

law. Brief of the Appellant, at p. 40-52.

The Court of Criminal Appeals held that Mr. Briceno waived these issues for

failing to ask for review quickly enough, failing to request a continuance of the

hearing and trial, and failing to make further efforts to obtain an expert in the case.

Briceno, No. E2022-00414-CCA-R3-CD, 2023 WL 4444698, at *7. The court held:

7

In this case, while the trial court granted Defendant's request for expert

funding, it was initially denied by general counsel for the AOC on the

basis that Defendant had not established a particularized need for the

services. Defendant indicated that he wished to appeal the denial of the

request for expert funding, but as pointed out by the State, he failed to

respond appropriately. After his request for expert funding was initially

denied, Defendant sought and was granted a continuance of his

suppression hearing and trial in order to obtain expert funding by other

means; however, there is nothing in the record to show what additional

steps, if any, were taken to obtain the funding.

Additionally, Defendant waited four months after the initial denial of

his funding request by the AOC to request an appeal to the AOC Director

and Chief Justice, which was one month before his motions hearing and

two months before trial was set. Finally, Defendant then proceeded to

the suppression hearing and trial without filing an additional request

for a continuance pending resolution of his appeal of the AOC's denial of

his request for funding.

Therefore, we agree with the State that Defendant has waived this issue

because he proceeded with the suppression hearing and trial without

resolution of his appeal to the AOC and without the services of an expert.

Relief on appeal is typically not available when a party is “responsible

for an error” or has “failed to take whatever action was reasonably

available to prevent or nullify the harmful effect of any error.” See Tenn.

R. App. P. 36(a). Defendant is not entitled to relief on this issue.

Id., at *7.

The Court of Criminal Appeals reached this conclusion despite the fact that

the review mechanism of Rule 13 is supposed to be automatic and Ms. Wilber had no

authority to make a decision about the funding. See Tenn. Sup. Ct. R. 13, §§ 5(e)(4),

(e)(5). Further, even if Mr. Briceno needed to initiate the review, there was no

deadline in the rule for doing so. Finally, the court did not explain what other steps

Mr. Briceno could or should have taken to obtain expert assistance when he had no

money to do so. In effect, the court imposed new, unwritten requirements into Rule

13 for the first time on appeal, then faulted Mr. Briceno for not following them.

8

The Tennessee Supreme Court has ruled that it is the only state court with

authority to modify or void any of its own rules. See Long v. Board of Professional

Responsibility, 435 S.W.3d 174, 184 (Tenn. 2014). As a result, Mr. Briceno’s claims

about the constitutionality of Rule 13 could only be reviewed by the Tennessee

Supreme Court. Despite this being an issue of first impression in Tennessee1, the

Court declined discretionary review of Mr. Briceno’s case. State v. Briceno, No. E202200414-SC-R11-CD (Tenn. Nov. 17, 2023).

1 Shortly before the Court of Criminal Appeals released its decision in Mr. Briceno’s

case, the Tennessee Supreme Court ruled in Dotson v. State, 637 S.W.3d 204 (Tenn.

2023). In Dotson, the Court addressed, for the first time, the constitutionality of Rule

13 in the capital post-conviction context. By statute, capital post-conviction

petitioners may request funding for defense services subject to statutory limits. The

issues present in Mr. Briceno’s case are of greater constitutional significance, as the

due process right to a fair trial and principles of fundamental fairness are implicated

by the pre-trial deprivation of funding for expert assistance.

9

REASON FOR GRANTING THE WRIT

Certiorari is necessary to revisit Ake v. Oklahoma, 470 U.S. 68 (1985)

and determine whether the Tennessee Court of Appeals incorrectly

decided an important question of federal due process by affirming

Tennessee’s standardless review procedure of indigent funding claims

after the defendant has previously demonstrated a constitutional

need for the expert assistance to the trial court.

In Ake v. Oklahoma, this Court held that when an indigent defendant makes

a showing that his mental health will be a significant factor at trial, “the State must,

at a minimum, assure the defendant access to a competent psychiatrist who will

conduct an appropriate examination and assist in evaluation, preparation, and

presentation of the defense.” 470 U.S. 68, 83 (1985). Further, “[u]nless a defendant is

‘assure[d]’ the assistance of someone who can effectively perform these functions, he

has not received the ‘minimum’ to which Ake entitles him.” McWilliams v. Dunn, 582

U.S. 183, 187-88 (2017) (citation omitted). This holding was premised on the

“Fourteenth Amendment’s due process guarantee of fundamental fairness” and the

conclusion that, in certain cases, meaningful expert assistance for the defense is a

necessary component of a fair trial. Id. at 77; c.f. Hinton v. Alabama, 571 U.S. 263,

273 (2014) (“Criminal cases will arise where the only reasonable and available

defense strategy requires consultation with experts or introduction of expert

evidence.”) (citation omitted).

In Ake, this Court did not define the system a State must use to ensure that a

defendant has meaningful access to expert assistance but left that decision to the

States’ discretion. 470 U.S. at 83. That discretion is not unlimited, however, and the

systems established must operate within the bounds of federal constitutional due

10

process protections. See Evitts v. Lucey, 469 U.S. 387, 401 (1985) (“When a State opts

to act in a field where its action has significant discretionary elements, it must

nonetheless act in accord with the dictates of the Constitution – and, in particular,

with the Due Process Clause.”).

The issue in Mr. Briceno’s case is that the scheme implemented by Tennessee

results in the denial of expert assistance to defendants who have proven to a trial

court that they will not receive a fair trial without the expert. This, alone, violates

the requirements of Ake, but compounding the constitutional violation is the absence

of any meaningful procedure by which a defendant is denied the funding. The denial

occurs without the foundational due process requirement of “the opportunity to be

heard…at a meaningful time and in a meaningful manner.” Goldberg v. Kelly, 397

U.S. 254, 269 (1970) (citations omitted); see also Mathews v. Eldridge, 424 U.S. 319,

348-49 (1976) (“The essence of due process is the requirement that ‘a person in

jeopardy of serious loss (be given) notice of the case against him and opportunity to

meet it.’”) (citation omitted).

In discussing the contours of due process, this Court has recognized that

“fairness can rarely be obtained by secret, one-sided determination of facts decisive

of rights.” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 170 (1951).

In keeping with this recognition, important to compliance with due process is the

opportunity to be informed of the information the State decisionmaker is relying upon

so that a person may directly challenge that information if necessary. Mathews, 424

U.S. at 345-46 (“These procedures [(access to information)] allow the [individual] to

11

‘mold’ his argument to respond to the precise issues which the decisionmaker regards

as crucial.”). Another component of due process is that a decisionmaker’s conclusions

in a case “must rest solely on the legal rules and evidence” adduced in the case. Id. at

271 (citations omitted). And while a formal written opinion is not necessarily

required, “to demonstrate compliance with this elementary requirement, the

decisionmaker should state the reasons for his determination and indicate the

evidence he relied on.” Id. (citations omitted).

Tennessee Supreme Court Rule 13 falls far short of these constitutional

requirements after the funding decision leaves the trial court. As discussed above,

Rule 13 states that a defendant must obtain “prior approval” by the Director of the

AOC after the trial court orders that funding is necessary. Tenn. Sup. Ct. R. 13, §

5(e)(4). There are no published standards or rules for the Director’s review, nor is

there any requirement that the Director provide reasons for a denial. As evidenced

by Mr. Briceno’s case, he did not learn of the Director’s denial of funding until the

motion for new trial proceedings when the trial court required Ms. Wilber to produce

an affidavit concerning the funding review. It was never explained why he did not

learn of the denial at the time it was made, even though it occurred a month before

trial. R., Vol. 16, Exhibits, p. 17. Yet, this standardless, inaccessible review process

is precisely what is permitted by Rule 13.2

2 Additionally, there are fundamental problems with an administrative employee

being empowered to reverse a trial court’s judicial determination. Perhaps those

12

The Chief Justice makes a judicial, not administrative, determination by

overruling the trial court’s order to deny funding. See Ayestas v. Davis, 584 U.S. 28,

39-43 (2018) (holding that district court’s order denying funding for investigative

services in habeas proceeding was judicial, not administrative, and thus petitioner

had right to appeal that final order); c.f. Harbison v. Bell, 556 U.S. 180, 183 (2009)

(holding district court’s order denying motion for federal counsel to represent

petitioner in state clemency proceedings was appealable). And so even though due

process is required in an administrative proceeding where an individual had a

property or liberty interest, see e.g., Matthews, 424 U.S. at 333 (due process applies

to administrative proceedings concerning denial of social security benefits), due

process is unquestionably required when a judge of higher jurisdiction exercises

review of a trial court’s determination whether the defendant should receive expert

assistance that may be necessary to his ability to prepare and present a defense at

trial.

Rule 13 essentially provides the State of Tennessee an automatic appeal of a

trial court’s funding order in which the defendant cannot participate. Viewed in that

light, Rule 13’s problems are magnified. The trial court’s decision is subject to being

overruled, but there are no rules governing the Chief Justice’s review. There is no

known standard of review, and even if the Chief Justice gave reasons for denying

problems could be cured by the Chief Justice’s final review, but the absence of any

standards or due process surrounding that review renders it meaningless.

13

funding – which he didn’t – there is no opportunity for the defendant to argue against

the reasons the Chief Justice would deny the funding order. All of this also prevents

appellate review after conviction, since there is nothing in the record other than that

the trial court’s order that the funding was necessary. A reviewing appellate court

could not review whether there was error in the Chief Justice’s determination.

Another way to view this is to contrast Rule 13 with what would happen if the

trial court denied funding in the first place. In that situation, the trial court would be

required to state reasons – either in writing on in an ex parte hearing – for the denial.

The defendant could potentially seek interlocutory appeal of that decision, see Tenn.

R. App. P. 9, 10, or the defendant could review the reasons for denial and make the

request again after bolstering the deficiencies in his motion. If the trial court again

denied funding, the defendant would have created a record for appellate review if

convicted at trial, and the appellate courts could determine whether the expert

assistance was, in fact, necessary to the defendant’s defense. See, e.g., State v. Scott,

33 S.W.3d 746, 753-55 (Tenn. 2000) (holding trial court erred by denying funding for

expert in the field of DNA analysis); State v. Barnett, 909 S.W.2d 423, 431 (Tenn.

1995) (holding trial court correctly denied defendant’s motion for expert funding

because defendant did not establish necessity of expert).

Rule 13 has similar deficiencies to the Kentucky appellate system this Court

held violated due process in Evitts v. Lucey, 469 U.S. 387 (1985). In Evitts, the

petitioner’s direct appeal had been summarily denied because his ineffective

appellate counsel failed to file a statement of appeal with his brief. Id. at 389. When

14

the petitioner filed a motion to reconsider with a correct statement of appeal, the

court of appeals summarily denied the motion. Id. at 390. The petitioner then sought

discretionary review by the Kentucky Supreme Court, but the lower court’s dismissal

was affirmed in a single sentence order. Id. This Court held that effective assistance

of counsel is required on appeal to ensure that the appeal gives the defendant a fair

opportunity to litigate his claims. Id. This Court held that counsel was necessary to

ensure the defendant’s liberty interest in his direct appeal was protected and also

rejected the State’s claims that due process did not apply to its appellate system since

a direct appeal is not required by the United States Constitution. Id. at 400-405. The

similarity to Evitts in Mr. Briceno’s case is that one constitutional deficiency must be

cured so another can be vindicated. In the same way that the absence of effective

counsel rendered direct appeals meaningless in Evitts, without due process in the

Rule 13’s review system, Mr. Briceno and other indigent defendants are deprived of

the constitutional rights to a fair trial and access to necessary expert assistance.

The treatment of Mr. Briceno’s case in the State appellate courts underscores

the need for this Court’s review. Mr. Briceno made every effort to get expert

assistance. After making the proper showing to the trial court, objected to his denial

of funding at every opportunity and even attempted to subpoena Ms. Wilber to his

motion for new trial hearing to present proof about why he did not get the funding.

In this issue of first impression, the Tennessee Court of Criminal Appeals declined to

address any of his constitutional or procedural claims based on the conclusion that

he waived those arguments. Briceno, No. E2022-00414-CCA-R3-CD, 2023 WL

15

4444698, at *7. However, it only reached this conclusion by crafting new, unwritten

provisions of Rule 13’s review process on appeal, then faulting Mr. Briceno for failing

to follow them. The court said that Mr. Briceno did not initiate the review process

quickly enough, that he did not request a continuance of his motion hearing or trial,

and that he did not attempt to obtain expert assistance by other means. Id. However,

all of this ignored that Ms. Wilber had no authority to make a decision about funding

– that could only be done by the Director in a review process that occurs

automatically. See Tenn. Sup. Ct. R. 13, §§ 5(e)(4), (e)(5). Further, the Chief Justice

never completed his required review of Mr. Briceno’s case – even in the motion for

new trial proceedings when Mr. Briceno still could have used the expert to make an

offer of proof. When the lower court faulted Mr. Briceno for failing to request a

continuance, it failed to provide any justification for why he should have sought a

continuance to wait for a review that would never occur.

Of note is that, as a thresholder matter in Ake, this Court addressed

Oklahoma’s argument that Ake waived his due process claim by failing to raise it in

his motion for new trial. 470 U.S. at 74-75. This Court held that Oklahoma’s waiver

determination necessarily depended on adjudication of federal issue, since state or

federal constitutional violations could not be waived under the state’s waiver rule. Id.

A similar federal determination exists here. In Tennessee, a constitutional

error is presumed to require reversal unless the State can prove it was harmless

beyond a reasonable doubt. See Momon v. State, 18 S.W.3d 152, 167 (Tenn. 1999). If

that constitutional error is waived, a court may review that issue for plain error

16

analysis if the error affected a fundamental right of the defendant. See State v. Minor,

546 S.W.3d 59, 66-67 (Tenn. 2018); Tenn. R. App. P. 36(b). However, if a

constitutional error is structural – depriving a defendant of the “basic protections”

necessary in a criminal trial – then that issue is not subject to waiver. See State v.

Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008) (comparing structural and nonstructural errors). Like in Ake, this Court has jurisdiction to decide whether the

federal constitutional violation required, at a minimum, plain error review, or

whether the expert’s assistance to the defense was so fundamental that the denial of

the funding constituted non-waivable constitutional error.

This Court’s review is also needed to ensure that other states’ funding systems

meet constitutional due process requirements, particularly as states have changed

their public defense models. See Gideon at 60: A Snapshot of State Public Defense

Systems and Paths to System Reform, National Institute of Justice, at p. v, Nov. 2023,

accessible at https://www.ojp.gov/pdffiles1/nij/307325.pdf (last accessed Apr. 1, 2024)

(noting at least a dozen states have made “noteworthy” changes to their public

defense systems in the last fifteen years – with Georgia and Montana being cited as

examples where reforms were undone and changes resulted in less state oversight).

Many states delegate indigent funding decisions to their counties, which leads

to inconsistent standards – or the absence of standards – for whether funding will be

provided. For example, in Arizona, state statute delegates funding for expert services

to the counties. Ariz. Rev. Stat. Ann. § 13-4013; see also Ariz. R. Crim. P. 6.7.

However, in at least one publicized instance in Cochise County, Arizona, the trial

17

court ordered funding, yet the funding was not provided by the County. See Neff,

Terri, County Could Pay for Murder Suspect’s Entire Defense or Only Pay for Expert

and Investigator, Arizona Daily Independent News Network, Mar. 2, 2021, accessible

at

https://arizonadailyindependent.com/2021/03/02/county-could-pay-for-murder-

suspects-entire-defense-or-only-pay-for-expert-and-investigator/ (last accessed Apr.

1, 2024). Similarly, the provision of indigent defense services is left to the counties in

California. See Cal. Penal Code, § 987.2. Yet, in one study, it was reported that 30%

of public defender’s offices surveyed reported difficulty in obtaining funding and over

half of the offices surveyed said that a lack of funding prevented access to experts

that matched the qualifications of the State’s experts. Benner, Lawrence, The

Presumption of Guilt: Systemic Factors that Contribute to Ineffective Assistance of

Counsel in California, 45 Cal. W. L. Rev. 263, 296 (2008-09); see also Gideon at 60: A

Snapshot of State Public Defense Systems and Paths to System Reform, National

Institute

of

Justice,

at

p.

5,

Nov.

2023,

accessible

at

https://www.ojp.gov/pdffiles1/nij/307325.pdf (last accessed Apr. 1, 2024) (citing lack

of rules for funding of expert services in Utah, which delegates such funding to its

counties).

Many states’ rules provide that a trial court must make the initial funding

decision but have no instructions for the actual disbursement of funds. See e.g.,

Alaska Rules of Court, Rules of Administration, Rule 12(e)(5)(D)-(E) (Alaska); N.H.

Rev. Stat. Ann. § 604-A:1 (New Hampshire); N.C. Gen. Stat. Ann. § 7A-314 (North

Carolina); Ohio Sup. Ct. R. 12(c)(6) (Ohio); S.C. Code § 17-3-50(B); Utah Code Ann. §

18

78B-22-302 (Utah); Wyo. R. Crim. P. 44 (Wyoming); see also Okla. Stat. Ann. T. 22, §

1355.4 (Oklahoma delegates sole authority for funding decisions to the Executive

Director of the Oklahoma Indigent Defense System). In contrast, a minority of States

have express rules for the review of a funding denial. See e.g., W. Va. Code. § 29-2113a(d)-(e) (West Virginia’s state-wide public defender organization administers

funding; when funding is denied, the reasons must be stated and an administrative

appeal is available).

This Court has not reviewed any state’s modern practices or procedures for

providing expert services to indigent defendants since Ake was decided. Certainly,

variance among the states is to be expected and is constitutionally permissible, but

Tennessee has fallen below minimum constitutional due process requirements and

the Tennessee Court of Criminal Appeals’ decision in this case reflects that. This

Court’s review is necessary to hold that Tennessee’s Supreme Court Rule 13 is

constitutionally deficient and enforce that, however states fund expert services for

indigent defendants, procedures that provide the defendant notice and an

opportunity to be heard are required.

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CONCLUSION

For these reasons, this Court should grant certiorari to address the Tennessee

Court of Criminal Appeal’s holding on an important question of constitutional due

process and to reverse Mr. Briceno’s convictions and remand for a new trial.

Respectfully submitted,

s/ Tyler M. Caviness

TYLER M. CAVINESS

THE LAW OFFICE OF TYLER M. CAVINESS

932 W FOREST BOULEVARD

KNOXVILLE, TN 37909

PHONE: (865) 936-9499

FAX: (865) 936-9015

EMAIL: TYLER@CAVINESSLAWFIRM.COM

COUNSEL FOR PETITIONER

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