Reply Brief — Byron Lewis Black, Petitioner v. Tennessee

Supreme Court briefJul 21, 2025

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No. 25-5129; 25A65

IN THE

Supreme Court of the United States

BYRON LEWIS BLACK,

Petitioner,

STATE OF TENNESSEE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE TENNESSEE SUPREME COURT

REPLY TO RESPONDENT'S BRIEF IN OPPOSITION

KELLEY J. HENRY*

Supervisory Asst. Fed. Pub.

Defender

AMY D. HARWELL

First Asst. Fed. Pub. Defender

Asst. Chief, Capital Habeas Unit

MARSHALL A. JENSEN

Asst. Federal Public Defender

810 Broadway, Suite 200

Nashville, TN 37203

Phone: (615) 736-5047

Fax: (615) 736-5265

Email: Kelley Henry@fd.org

*Counsel for Petitioner

TABLE OF CONTENTS

Table of Contents.........ccccccccecee cece ee cee eee ee bees ee be EEA EERE REE AUS EEE EG Eee EEE EEG EGE DEE EEE EEE i

Table of AUthorities.........ccccccccscee een eeneee eee eeeeee eee ene eee sees e AEG RAG SAS EEE ESE EE SG Foe GER GEEeES ii

Tntroduction........cccccec cece sens nee nee cena ee bea eee nee eee eee GeenEEH EG HES EEG EEE EEE OSE SA SEES SEE E DE DEE aE eeaES 1

L THE ASSERTION THAT MR. BLACK’S “IDIOCY” CLAIM IS

PROCEDURALLY BARRED IS UNAVAILING AND CONFLICTS WITH

ESTABLISHED PRECEDENT ..........cccccsscsscccecneseetecsceenseeeeee een eneneeeneneetee nes tng ens 1

II.

JI.

Conclusion

A. My. Black’s claim was not ripe until execution was

UMMINENE cee cece cece ce cece ee ene eee eee een bees eee beens tee see sees 1

B. The State’s attempts to recast Mr. Black’s petition as something

other than a competency petition is disingenuous and

legally flawed... cece cee eec eee ece eee eee teeta ea ee becuse eee ber tensa eneneenee eee 2

C. The State’s assertion that Mr. Black procedurally defaulted his

competency claim lacks a basis in law..........ccseecseceneeeneensenensesseseenees 4

RESPONDENT ATTEMPTS TO CONCEAL AND AVOID THE

TENNESSEE COURTS’ UNAMBIGUOUS AND INCORRECT

HOLDINGS BY ASSERTING THAT THE STANDARD SET OUT BY

TH rea IN PANETT APPLIES EQUALLY TO IDIOTS AS TO

SENOS eee EEN eE OOO E EEA E EEE O UH OLS H IE EEE AEE E EEE EE ESO MEE SSO DES ESSE ESE eu EEE BES 7

THE STATE’S ASSERTION THAT MR. BLACK HAS ENGAGED IN

GAMESMANSHIP AND DELAY IN SEEKING A STAY OF

EXECUTION IS UNSUPPORTED BY THE RECORD...........c0008 8

TABLE OF AUTHORITIES

Page

Cases

Black v. State, No. M2000-00641-SC-DPE-CD, 2025 WL 1927568,

(Tenn. July 8, 2025). oo. ccccccecccescccecsseeceensesssecescecceseesseeeseeensecesseeesseesenneeseesseseess 8

Black v. State, M2004-01345-SC-R11-PD (Tenn. July 1, 2025) oo... ccceccseceesseseeenees 2

Coleman v. Thompson, 501 U.S. 722(1991)....cccccccccccccsceesecesscecesesseecsaeecseseeessresseesseee 6

Cruz v. Arizona, 598 U.S. 17 (2028)... ccccccccccccsccsssccsesceeeseeesscsasesesseecsssecseaseeesnecseesaees 6

Drope v. Missouri, 420 U.S. 162 (1975) .o.cccceccceseseecesereceaeeeseceeeensaeeesaeeceesseseeneseessaaes 4

Ford v. Georgia, 498 U.S. 411 (1991) oo. cc cccesecescneeeesceneecaesaeeneeeeeecasssneeesaeseeasessaeens 6

Ford v. Wainwright, 477 U.S. 399 (1986) 0.0... ceescccccensececeessssecestecenseecesseneceesccssessseues 4,5

Glossip v. Oklahoma, 145 S. Ct. 612 (2025) oie ccesesesccesseccesseeecessneseceeessenneeesensuseees 7

Godinez v. Moran, 509 US 389 (1988) .0.....eccceessecessecssseeeetsessseesseesseeenseeesensetenseeesensesseees 3

dames v. Kentucky, 466 U.S. 841 (1984)... cece ccescscccecessneecnnseeesnsesecesnseesccesesssetssenenass 5

Nat'l Ass'n for Advancement of Colored People v. State of Ala. ex rel. Patterson, 357

US. 449 (1958) ooo ceecececeeee eee cec nen ene eee recee een eeeeeeane ees saenne ees 6

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022)... eeeceeeneee 8

Panetti v. Quarierman, 551 U.S. 930 (2007)... cece cc ence tee eee nec eee eee eeneeeene ene 2,7,8

Pate v. Robinson, 383 U.S. 375 (1966)... 0... cece cece cence eee eee ten eee eee ees era seesbecneaeeeee 4

Stewart v. Martinez- Villareal, 523 U.S. 687 (1998)... ...::ccccccecssceeesesecnesteteesenseeens 2

Van Tran v. State, 6 S.W.3d 257 (Tenn. 1999).......cccccccccceecesccesensecensenens 2,4,5,6,8,8

poy

Constitution

US. Const., amend. VIII] oo. cccccccesssnsecesssneceeesnsaceecesneescavensesensaneceseeaneeesenenuae 1,5,7

Other Authorities

Matthew Hale, The History of Pleas of the Crown (1847). .......eceececeseesetseeeeteeeeeee 3

INTRODUCTION

The State of Tennessee has responded in opposition to Mr. Black’s Petition for

a Writ of Certiorari claiming that this Court need not trouble itself with Tennessee’s

refusal to recognize and apply rights guaranteed by common law. The Petition amply

demonstrates that Mr. Black’s execution would violate the Eighth Amendment

because he qualifies for protection that existed at the Founding for people who suffer

from memory loss, low IQ, are unable to manage their affairs, and brain damage.

Respondent ignores the extensive common law protection of such persons and the

Tennessee Supreme Court “respectfully declined” to entertain his common law claim.

App. at 012. Because this Court has repeatedly emphasized that the Constitution

must be read in light of the history and traditions at the Founding, Tennessee’s

failure to provide Mr. Black process must be addressed.

I. THE ASSERTION THAT MR. BLACK’S “IDIOCY” CLAIM IS PROCEDURALLY

BARRED IS UNAVAILING AND CONFLICTS WITH ESTABLISHED PRECEDENT

In response to Mr. Black’s petition, the State has responded by variously

asserting that he should have filed his claim earlier, his claim is an attempt to

relitigate his Atkins claim, and the lower court’s rejection of this claim on procedural

grounds precludes this Court’s review. Each argument fails.

A. Mr. Black’s claim was not ripe until execution was imminent.

The State repeatedly asserts that Mr. Black’s competency to be executed claim

is procedurally barred because it should have been brought at an earlier time. Brief

in Opposition (“BIO”) at 2 (asserting that the claim “could—and should—have been

raised at [Mr.] Black’s trial in 1989, not on the eve of execution 36 years later”); id.

at 15 (arguing Mr. Black “had ‘ample opportunities’ to present this idiocy claim ‘at

an earlier stage.” (quoting Tennessee Supreme Court Order)); id. (arguing Mr. Black

should have raised idiocy claim “at trial, on direct appeal, or in the wake of Atkins.”).

Respondent does not explain how Mr. Black would have been able to litigate

competency issues concerning his mental functioning at the time of his execution 36

years prior to the setting of an execution date. And this argument is obviously

contrary to well settled law that a competency claim is not ripe until execution is

imminent. Panetti v. Quarterman, 551 U.S. 930, 932 (2007); Stewart v. Martinez-

Villareal, 523 U.S. 637, 643 (1998). Tennessee state law holds the same. Van Tran v.

State, 6S.W.3d 257, 267 (Tenn. 1999) (holding that competency to be executed is “ripe

for determination only when the motion [to set execution date] is set and an execution

date is set”). Therefore, it was only appropriate for Mr. Black to assert a competency

claim once his execution was imminent.

B. The State’s attempts to recast Mr. Black’s petition as something

other than a competency petition is disingenuous and legally

flawed.

In an effort to argue that Mr. Black’s claim was not properly before the

Tennessee courts, the State attempts to recast it as something as something it is not.

The State claims Mr. “Black’s idiocy claim is an intellectual-disability challenge

dressed up in competency garb.” BIO at 12.1 Not true. “Idiocy” is, and always has

been, a question of competency. In fact, the entire development of the legal concept of

1 The State struggles to grasp that Mr. Black’s low intellectual functioning can

serve as the basis of multiple legal claims. Mr. Black filed a motion to recall the

mandate with the Tennessee Supreme Court regarding that court’s rejection of Mr.

Black’s Atkins claim on July 1, 2025. Black v. State, M2004-01345-SC-R11-PD

(Tenn. July 1, 2025). That action squarely seeks to litigate the merits of Mr. Black’s

intellectual disability. Mr. Black does not assert an Atkins claim here. There is,

moreover, nothing inconsistent with Mr. Black’s assertion that he is intellectually

disabled under Atkins and that he is incompetent to be executed because he is an

“idiot.”

non compos mentis recounted in Mr. Black’s papers reflects the early common law

origin of much of our present competency jurisprudence in both civil and criminal

contexts. “Idiocy’s” defining characteristic is low intellectual functioning. And Mr.

Black does contend that he meets the definition of “idiocy’—in part—because of his

low intellectual functioning as described by the half dozen experts who have

diagnosed him as intellectually disabled. Throughout these proceedings, however,

Mr. Black has emphasized that “idiocy” differs in material respects from a clinical—

or forensic—diagnosis of intellectual disability. Mr. Black has emphasized that the

existence of “unsound memory,” an inability to manage his own affairs, and the

presence of brain “malformations” with wide-spread volumetric loss are

characteristics of “idiocy” at common law. It is these characteristics that combine

synergistically with Mr. Black’s intellectual deficits and constitute “idiocy.”

Both present law and the common law recognize that competency

determinations must occur at various points in the criminal litigation process. See,

e.g., Godinez v. Moran, 509 US 389, 396-97, 402 (1983) (eviewing competency

standards to stand trial and articulating standard to articulating standard to plead

guilty and waive the right to counsel). Lord Hale wrote:

If a man in his sound memory commits a capital offence, and before his

arraignment he becomes absolutely mad, he ought not by law to be

arraigned .. .And if such person after his plea, and before his trial he

becomes of non sane memory, he shall not be tried; or, if after his trial

he comes of non sane memory he shall not receive judgment; or, if after

judgment he becomes of non sane memory, his execution shall be

spared.”

Matthew Hale, The History of Pleas of the Crown 34 (1847).

Consistent with that tradition, the law recognizes and provides procedures for

pre-trial competency determinations, competency deterioration during trial, and for

omy

determinations of an individual’s competency to be executed. Pate v. Robinson, 383

U.S. 375, 385 (1966) (failure to provide a pre-trial competency hearing “deprived

Robinson of his constitutional right to a fair trial”); Drope v. Missouri, 420 U.S. 162,

181 (1975) “Even when a defendant is competent at the commencement of his trial,

a trial court must always be alert to circumstances suggesting a change that would

render the accused unable to meet the standards of competence to stand trial.”); Ford

v. Wainwright, 477 U.S. 399, 410 (1986) (holding that the Eighth Amendment

prohibits the execution of the incompetent shortly before execution). These inquiries

reflect distinct constitutional concerns. The State’s persistence that Mr. Black should

have brought his claim at an earlier time fails to appreciate the distinct constitutional

inquiries at play in each of these contexts.

C. The State’s assertion that Mr. Black procedurally defaulted his

competency claim lacks a basis in law.

Prior to its decision in Black, the Tennessee Supreme Court had never

addressed the scope of common on law rights under its competency jurisprudence.

App. at 012; Black v. State, No. M2000-00641-SC-DPE-CD, 2025 WL 1927568, at *8

(Tenn. July 8, 2025). But in the seminal case of Van Tran v. State, the Tennessee

Supreme Court unambiguously said that such rights exist: “Accordingly, we exercise

our inherent supervisory authority and hereinafter adopt and set forth the procedure

that a prisoner sentenced to death must follow in order to assert his or her common

law and constitutional right to challenge competency to be executed.” 6 S8.W.3d at 265

(emphasis added). Mr. Black followed those procedures, timely filing his petition

asserting his incompetence under common law. Despite Mr. Black’s faithful

adherence to the Van Tran procedures, the State now contends that he allegedly

violated a state procedural rule. BIO at 12-16. The State’s unexplained assertion is

that Mr. Black was required by some unidentified Tennessee procedural rule to raise

his common law competency right not to be executed at some unidentified previous

stage of litigation. To articulate the State’s position demonstrates its fatal flaws.

For a state procedural rule to bar review in this Court, it must be a “firmly

established and regularly followed state practice.” James v. Kentucky, 466 U.S. 341,

348 (1984). Prior to Black, Tennessee jurisprudence had never held that common law

competency claims were limited to claims “grounded in insanity.” App. at 011; Black,

2025 WL 1927568, at *8. And as described above, there was ample reason to believe

that common law competency claims were cognizable under Van Tran. As the court

in Van Tran explained “there currently is no Tennessee statute that contains a

procedure for litigating the issue of present competency” and recognized that “[t]he

common law recognized that a prisoner sentenced to death had a right to assert a

claim of present incompetency.” 6 S.W.3d at 260. Only after recognizing the common

law rights did the Tennessee Supreme distinguish this Court’s decision in Ford. Id.

(Moreover, in Ford v. Wainwright, 477 U.S. 399 (1986), the United States Supreme

Court held that the Eighth Amendment to the United States Constitution precludes

execution of a prisoner who is incompetent.”) (emphasis added). Indeed, the

Tennessee Supreme Court cites the “common law” twenty-four times in Van Tran,

distinguishing common law protections from those already recognized as protected

by the Eighth Amendment by this Court. See, e.g., id. at 261 (setting “forth the

procedure that a prisoner sentenced to death must follow in order to assert his or her

common law and constitutional rights to challenge competency to be executed”).?

2 See also Van Tran, 6 S.W.3d at 263 (“Recognizing the common law and

constitutional prohibitions and the due process requirements of Ford, many states

have passed statutes providing procedures for determining a prisoner’s competency

Until the Tennessee Supreme Court’s decision in this case, no statute or caselaw

specified any procedural rule prohibiting raising a common law competency right in

any proceeding other than proscribed by Van Tran. Moreover, the Tennessee

Supreme Court did not articulate any rule in this case to provide any guidance as to

when and where such claims should be raised.

Under these circumstances, an inmate “could not be ‘deemed to have been

apprised of [the rule’s] existence.” Ford v. Georgia, 498 U.S. 411, 423 (1991) (quoting

Nat'l Ass’n for Advancement of Colored People v. State of Ala. ex rel. Patterson, 357

U.S. 449, 457 (1958) (N.A.A.C_P.)). “Novelty in procedural requirements cannot be

permitted to thwart review in this Court applied for by those who, in justified reliance

upon prior decisions, seek vindication in state courts of their federal constitutional

rights.” N.A.A.C.P., 357 U.S. at 457-58. Thus, any rule established for the first time

in Mr. Black’s case, cannot serve as a procedural bar.

Even if Tennessee had a procedural rule regarding raising common law

competency issues other than insanity, such a rule would be insufficient to bar this

Court’s review. “This Court will not take up a question of federal law in a case ‘if the

decision of [the state] court rests on a state law ground that is independent of the

federal question and adequate to support the judgment.” Cruz v. Arizona, 598 U.S.

17, 25 (2023) (cleaned up) (emphasis original). “In the context of direct review of a

state court judgment, the independent and adequate state ground doctrine is

to be executed.”), 265 (“Accordingly, we exercise our inherent supervisory authority

and hereinafter adopt and set forth the procedure that a prisoner sentenced to death

must follow in order to assert his or her common law and constitutional right to

challenge competency to be executed.”), 273 (setting “the procedure” “that a prisoner

sentenced to death must follow in order to assert his or her common law and

constitutional rights to challenge competency to be executed”).

jurisdictional.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). But “[a] state ground

of decision is independent only when it does not depend on a federal holding... and

also is not intertwined with questions of federal law.” Glossip v. Oklahoma, 145 S. Ct.

612, 624 (2025) (internal citation omitted).

Here, any purported application of a state procedural rule is necessarily

intertwined with the federal constitutional question presented. Mr. Black asserts

that “idiocy” constitutes a form of incompetency recognized by the Eighth

Amendment at the time of the Founding. The Tennessee Supreme Court’s

unexplained assertion that that this claim is procedurally defaulted wholly depends

on its mistaken understanding that this form of incompetency is not encompassed by

the Eighth Amendment. If it is—as Ford and the common law hold—then “the

procedural bar depend{s] on an antecedent ruling on federal law.” Glossip, 145 S. Ct.

at 626. Accordingly, the purported application of a state procedural rule cannot serve

as a bar to review as it inextricably intertwined with the merits of the constitutional

issue presented.

II. RESPONDENT ATTEMPTS TO CONCEAL AND AVOID THE TENNESSEE

CourRTS’ UNAMBIGUOUS AND INCORRECT HOLDINGS BY ASSERTING THAT

THE STANDARD SET OUT BY THIS COURT IN PANETTI APPLIES EQUALLY TO

IDIOTS AS TO LUNATICS.

This Court has never addressed the question raised in Mr. Black’s petition.

Despite this unassailable fact, Respondent argues that because Mr. Black passes the

competency test set out in Panetti, he cannot be incompetent to be executed. BIO at

19-24. However, in Panetti itself, this Court was explicit that the test set out therein

was not all encompassing: “We do not attempt to set down a rule governing all

competency determinations.” Panetti 551 U.S. at 960-61. As Panetti involved a

delusional prisoner and did not address “idiocy” (or its components) or the common

pow

law standards for adjudicating such, its standard necessarily cannot be imputed to

Mr. Black’s claim—not without a decision so holding from this Court.

Equally, Respondent’s argument is incongruous with the judgment below. That

is, the Tennessee courts did not determine that Panetti’s rational understanding test

governs Mr. Black’s claim. On the contrary, the Tennessee courts simply refused to

entertain his claim at all. As the Tennessee Supreme Court held, in Tennessee an

incompetency to be executed claim is “limited” to “Ford-based claims of incompetency

grounded in insanity.” App. at 011; Black, 2025 WL 1927568, at *8. Respondent

attempts to reframe the Tennessee holding to a nothing-to-see-here application of

Panetti, but that is not what happened below.

The Tennessee courts’ preclusion of Mr. Black’s claim defies this Court’s wellestablished jurisprudence regarding constitutional interpretation and also ignores its

own precedent. See, e.g., New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S.

1, 24 (2022) (holding that courts must use an historical understanding of

constitutional rights). As explained above, in Van Tran, the Tennessee Supreme

Court repeatedly invoked the common law. That is, in 1999 when Van Tran was

decided, the Tennessee Court understood that the determination of competency to be

executed flowed from the common law. The Tennessee courts’ refusal, now, to engage

with Mr. Black’s petition reflects its fundamental misunderstanding of the role of

history and tradition in the interpretation of common law rights.

III. THE STATE’S ASSERTION THAT MR. BLACK HAS ENGAGED IN

GAMESMANSHIP AND DELAY IN SEEKING A STAY OF EXECUTION IS

UNSUPPORTED BY THE RECORD.

Mr. Black’s case was remanded to the trial court for consideration of his

competency claim on March 3, 2025, when the Tennessee Supreme Court set his

execution date. Competency proceedings commenced on May 29, when Mr. Black filed

his initial competency petition in compliance with the Tennessee Supreme Court’s

order that he do so by that date. On June 5, the trial court denied relief. Pursuant to

Van Tran, the record was forwarded to the Tennessee Supreme Court on June 16.

The Tennessee Supreme Court denied relief on July 7. On July 15, Mr. Black filed his

petition for certiorari and accompanying application for a stay of execution. This

Court received Mr. Black’s petition three weeks prior to Mr. Black’s execution.

The timing of this case was entirely a function of the schedule created by the

Tennessee Supreme Court in Van Tran. Van Tran, 6 8.W.3d at 266-72 (outlining the

procedures applied in Mr. Black’s case). The timing of Mr. Black’s petition and the

ultimate denial by the Tennessee Supreme Court were made on a schedule of that

court’s choosing. Under these circumstances, Mr. Black cannot be said to have

delayed—indeed, he moved with all appropriate dispatch.

CONCLUSION

For the foregoing reasons, this Court should grant this petition for a writ of

certiorari.

Dated: July 21, 2025

Respectfully submitted,

Killa fff