Opposition Brief — Byron Lewis Black, Petitioner v. Tennessee

Nos. 25-5214; 25A118

In the Supreme Court of the United States

BYRON LEWIS BLACK,

PETITIONER

v.

STATE OF TENNESSEE,

RESPONDENT

___________________________

ON APPLICATION FOR STAY OF EXECUTION AND ON

PETITION FOR WRIT OF CERTIORARI

TO THE TENNESSEE SUPREME COURT

BRIEF IN OPPOSITION

Jonathan Skrmetti

Attorney General and Reporter

J. Matthew Rice

Solicitor General

Nicholas White Spangler

Associate Solicitor General

Counsel of Record

Harrison Gray Kilgore

Senior Assistant Attorney General

Joshua Daniel Minchin

Assistant Solicitor General

OFFICE OF THE TENNESSEE

ATTORNEY GENERAL

P.O. Box 20207

Nashville, TN 37202

(615) 741-3486

Nick.Spangler@ag.tn.gov

CAPITAL CASE

QUESTION PRESENTED

Did the Tennessee Supreme Court violate the Due Process Clause by denying

Byron Lewis Black’s motion to recall a nineteen-year-old mandate?

i

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

TABLE OF AUTHORITIES ......................................................................................... iii

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

STATEMENT ................................................................................................................. 2

A.

Legal Background .................................................................................... 2

B.

Factual Background ................................................................................. 3

C.

Procedural Background ............................................................................ 5

1.

Black’s death sentence survives exhaustive review. .................... 5

2.

Black moves to recall a 2006 mandate in the appeal

affirming that he is not intellectually disabled. ........................... 7

REASONS FOR DENYING A STAY AND THE WRIT ............................................... 7

I.

Black’s Tactical Delay Justifies the Denial of a Stay. ............................ 8

II.

The Court Lacks Jurisdiction to Consider Black’s Waived DueProcess Claim. .......................................................................................... 9

III.

Black’s Meritless Due-Process Argument Presents No Compelling

Reason for Review. ................................................................................. 11

IV.

Hamm Is a Red Herring. ........................................................................ 15

CONCLUSION............................................................................................................. 18

CERTIFICATE OF COMPLIANCE ............................................................................ 20

ii

TABLE OF AUTHORITIES

CASES

Adams v. Robertson,

520 U.S. 83 (1997) ............................................................................................. 10

Atkins v. Virginia,

536 U.S. 304 (2002) ........................................................................... 6, 16, 17, 18

Black v. Bell,

664 F.3d 81, reh’g denied (6th Cir. 2012) ......................................................... 15

Black v. Bell,

No. 3:00-0764, 181 F. Supp. 2d 832 (M.D. Tenn. 2001) ..................................... 5

Black v. Carpenter,

866 F.3d 734 (6th Cir. 2017) ......................................................................... 6, 15

Black v. Mays,

584 U.S. 1015 (2018) ..................................................................................... 6, 15

Black v. State,

No. M2022-00423-CCA-R3-PD, 2023 WL 3843397

(Tenn. Crim. App. June 6, 2023) .................................................................. 7, 15

Black v. State,

No. M2004-01345-CCA-R3-PD, 2005 WL 2662577

(Tenn. Crim. App. Oct. 19, 2005) .................................................................. 6, 15

Black v. Tennessee,

549 U.S. 852 (2006) ....................................................................................... 6, 15

Bowe v. Scott,

233 U.S. 658 (1914) ........................................................................................... 10

Bucklew v. Precythe,

587 U.S. 119 (2019) ......................................................................................... 8, 9

Calderon v. Thompson,

523 U.S. 538 (1998) ............................................................................... 2, 8, 9, 13

Conn. Bd. of Pardons v. Dumschat,

452 U.S. 458 (1981) ..................................................................................... 12, 13

iii

Crowell v. Randell,

35 U.S. 368 (1836) ............................................................................................. 10

Greenholtz v. Inmates of Neb. Penal and Corr. Complex,

442 U.S. 1 (1979) ............................................................................................... 12

Hamm v. Smith,

No. 24-872 (U.S.) ......................................................................... 1, 15, 16, 17, 18

Hemphill v. New York,

595 U.S. 140 (2022) ................................................................................. 1, 10, 11

Herndon v. Georgia,

295 U.S. 441 (1935) ........................................................................................... 10

Hill v. McDonough,

547 U. S. 573 (2006) ............................................................................................ 7

Hollingsworth v. Perry,

558 U. S. 183 (2010) ............................................................................................ 8

Johnson v. Bechtel Assocs. Prof’l Corp.,

801 F.2d 412 (D.C. Cir. 1986) ............................................................................. 2

Ky. Dep't of Corr. v. Thompson,

490 U.S. 454 (1989) ........................................................................................... 13

Mathews v. Eldridge,

424 U.S. 319 (1976) ..................................................................................... 14, 17

Nelson v. Campbell,

541 U.S. 637 (2004) ............................................................................................. 9

Olim v. Wakinekona,

461 U.S. 238 (1983) ..................................................................................... 12, 13

Oxley Stave Co. v. Butler Cty.,

166 U.S. 648 (1897) ........................................................................................... 10

Price v. Dunn,

587 U.S. 999 (2019) ......................................................................................... 8, 9

Rhines v. Weber,

544 U.S. 269 (2005) ............................................................................................. 8

iv

Rogers v. Peck,

199 U.S. 425 (1905) ........................................................................................... 11

State v. Black,

815 S.W.2d 166 (Tenn. 1991) .................................................................. 2, 3, 4, 5

State v. Smith,

151 S.W.3d 533 (Tenn. Crim. App. 2003) ........................................................... 2

Webb v. Webb,

451 U.S. 493 (1981) ........................................................................................... 10

Wilkinson v. Austin,

545 U.S. 209 (2005) ..................................................................................... 12, 13

STATUTES

28 U.S.C. § 1257(a) ...................................................................................................... 10

Tenn. Code Ann. § 39-13-203(a)(3).............................................................................. 18

Tenn. Code Ann. § 39-13-203(g) .................................................................................... 6

OTHER AUTHORITIES

Tenn. Const. art I, § 35 .................................................................................................. 8

Sup. Ct. R. 10 ............................................................................................................... 11

Sup. Ct. R. 10(a) ........................................................................................................... 11

Tenn. R. App. P. 13(b).................................................................................................. 11

Tenn. R. App. P. 42(d).................................................................................. 2, 11, 12, 13

2021 Tenn. Pub. Acts, ch. 399, § 2 ................................................................................ 6

2021 Tenn. Pub. Acts, ch. 399, § 3 ................................................................................ 6

v

INTRODUCTION

The U.S. Constitution does not entitle capital defendants to infinite rounds of

re-litigation.

Over twenty years ago, Byron Lewis Black raised an intellectual

disability claim in state court. He lost. He then re-litigated the same intellectual

disability claim in federal court under de novo review. He lost again. Black’s third

attempt to litigate intellectual disability failed on procedural grounds—and he did

not even bother to exhaust his appellate rights. Now, days before his execution, Black

comes to this Court arguing that the Tennessee Supreme Court violated his dueprocess rights by declining to recall a decades-old mandate so that he could litigate—

for the fourth time—his claim of intellectual disability. He is wrong.

But a lack of merit is not the only problem with Black’s petition; this Court has

a plethora of reasons for denying review. First, Black waited until days before his

execution to raise the proffered argument. That delay alone justifies denying the

petition. Second, this Court “has almost unfailingly refused to consider any federallaw challenge to a state-court decision unless the federal claim was either addressed

by or properly presented to the state court.” Hemphill v. New York, 595 U.S. 140, 148

(2022). And Black never presented his due-process argument below. Third, Black

identifies no circuit split on the due-process question presented, nor any cogent

argument that failing to recall a nearly two-decade old mandate amounts to a

deprivation of a liberty interest without due process of law. Finally, Black’s effort to

tie this case to Hamm v. Smith, No. 24-872 (U.S.), goes nowhere: Hamm involves a

distinct substantive question and, in any event, could have no bearing on this case.

1

At bottom: Black requests splitless error correction—with no apparent error—

on a question that was never raised below and that could have been raised almost

two decades ago. The Court should deny review.

STATEMENT

A.

Legal Background

Generally, “[i]ssuance of the mandate formally marks the end of appellate

jurisdiction.” Johnson v. Bechtel Assocs. Prof’l Corp., 801 F.2d 412, 415 (D.C. Cir.

1986). Nevertheless, “courts . . . have an inherent power to recall their mandates.”

Calderon v. Thompson, 523 U.S. 538, 549 (1998). The Tennessee Rules of Appellate

Procedure recognize this inherent power. Tenn. R. App. P. 42(d) (“The power to stay

a mandate includes the power to recall a mandate.”).

But “the power can be exercised only in extraordinary circumstances.”

Calderon, 523 U.S. at 550; State v. Smith, 151 S.W.3d 533, 544 (Tenn. Crim. App.

2003) (“The power to recall mandate is an extraordinary remedy and should be

exercised sparingly.” (quoting State v. Abdur’Rahman, No. M1998-00026-SC-DPEPD (Tenn. Apr. 5, 2002))). The sparing use of the power demonstrates it “is one of

last resort, to be held in reserve against grave, unforeseen contingencies.” Id. (same).

In “cases where, as here, a court [considers] recall[ing] its mandate to revisit the

merits of its earlier decision denying . . . relief . . . the State’s interests in finality are

all but paramount.” Calderon, 523 U.S. at 557.

2

B.

Factual Background

Almost four decades ago, Black brutally murdered his girlfriend, Angela Clay,

and her two young daughters, Latoya (age nine) and Lakeisha (age six), amid a

jealous lover’s quarrel. State v. Black, 815 S.W.2d 166, 170-72 (Tenn. 1991). About

a year before the murders, Angela separated from her husband, Bennie Clay, and

started dating Black. Id. at 170. But “at times she was seeing both.” Id. And in

December 1986, “during a dispute over Angela,” Black shot Bennie twice, chased him

down the street, and “stood over him” with a cocked gun before Angela pushed him

away. Id. at 170-71. Black pled guilty to the non-lethal shooting but received only a

workhouse sentence that allowed weekend furloughs. Id. at 171.

With Black on furlough, the violence continued. He kicked in the front door of

Angela’s apartment when she refused to let him enter.

Id. at 172.

He later

threatened Angela: “If I can’t have you, won’t nobody have you.” Id. Three weeks

before the murders, Angela’s neighbor heard Black again threaten to kick in Angela’s

apartment door. Id. And days before the killings, Black was seen arguing with

Angela. Id.

Tragically, early in the morning on March 28, 1988, Black murdered Angela,

Latoya, and Lakeisha in their Nashville home.

Police first found the bodies of Angela and nine-year-old Latoya in the master

bedroom. Angela had been shot in the head while asleep in her bed. Id. at 171.

Latoya was found wedged between the bed and a chest of drawers. Id. She had been

shot once through the neck and chest while lying in bed. Id. But death was not

3

instantaneous; she bled out over the course of three to ten minutes. Id.

In the other room, police found the body of six-year-old Lakeisha lying face

down on the floor next to her bed. Id. She had been shot once in the chest and once

in the pelvis while lying in bed. Id. at 171-72. “Abrasions on her arm indicated a

bullet had grazed her as she sought to protect herself from the attacker.” Id. at 172.

And “bloody finger marks . . . running from the head of the bed to the foot of the bed”

showed that the six-year-old struggled before her death. Id.

Trial evidence clearly pointed at Black. Id. at 175. He was with the victims

the evening they were murdered. Id. He had been fighting with Angela just days

before, having previously threatened to kill her. Id. Inside the victims’ house, police

found the receiver from the kitchen phone in the master bedroom. Id. at 172. And

the phone from the master bedroom was lying in the hallway between the two

bedrooms. Id. Black’s fingerprints were recovered from both phones. Id.

Ballistics evidence also directly tied Black to the murders.

The evidence

showed that the same weapon fired the .44 caliber bullet recovered from Latoya’s

pillow, the .44 caliber bullet removed from Lakeisha’s body, a bullet fragment

recovered from the automobile driven by Bennie the day Black shot him, and the .44

caliber bullet removed from Bennie’s body. Id. at 173. So, Black used the same gun

to murder Angela and her children that he had previously used to shoot Bennie.

The night the bodies were discovered, the police interviewed Black. Id. at 172.

When a detective informed Black that his girlfriend was found murdered in her

apartment, he initially looked distraught, and he began crying. Id. But when two

4

other detectives entered the interview room, Black’s demeanor changed, the tears

ceased, and he became “dull.” Id.

Black initially claimed that the last time he saw Angela was about 10 p.m. the

previous night, when he dropped her off at her mother’s house after picking her up

from work. Id. But during a later interview, Black admitted returning to Angela’s

house that night, finding the victims dead inside, and leaving without seeking help

or notifying authorities because he “didn’t want to get involved.” Id. at 173. After

seeing his girlfriend and her children dead, Black said he simply went to his mother’s

house and “got . . . at least seven or eight hours of sleep.” Id. He did not report the

deaths or tell anyone what he had seen that night until his third police interview. Id.

C.

Procedural Background

A jury convicted Black of murdering Angela, Latoya, and Lakeisha, under “six

aggravating circumstances.” Id. at 170. Black was sentenced to death. Id.

1.

Black’s death sentence survives exhaustive review.

In 1991, the Tennessee Supreme Court affirmed Black’s murder convictions

and death sentence.

Id.

For decades after, Black attempted to overturn his

convictions and death sentence in state and federal courts. He unsuccessfully sought

relief under the Tennessee Post-Conviction Procedure Act. Black v. State, No. 01C019709-CR-00422, 1999 WL 195299, at *1 (Tenn. Crim. App. Apr. 8, 1999). He then

petitioned for a federal writ of habeas corpus, but the U.S. District Court for the

Middle District of Tennessee denied relief. Black v. Bell, No. 3:00-0764, 181 F. Supp.

2d 832 (M.D. Tenn. 2001).

5

While Black’s federal habeas appeal was pending, he reopened his state postconviction petition to litigate an intellectual disability claim under Atkins v. Virginia,

536 U.S. 304 (2002). Black v. State, No. M2004-01345-CCA-R3-PD, 2005 WL 2662577

(Tenn. Crim. App. Oct. 19, 2005). But the trial court ultimately found that Black

“failed to prove that he was [intellectually disabled] and that the weight of the proof

was that he was not [intellectually disabled].” Id. at *1. The Tennessee Court of

Criminal Appeals affirmed, and the Tennessee Supreme Court denied further review.

Id. This Court denied certiorari. Black v. Tennessee, 549 U.S. 852 (2006).

Black then raised his intellectual disability arguments in federal habeas,

where he received de novo review. Black v. Carpenter, 866 F.3d 734, 740 (6th Cir.

2017). After the federal district court rejected Black’s intellectual disability claim,

the Sixth Circuit affirmed, holding that Black “cannot show that he has significantly

subaverage general intellectual functioning that manifested before Black turned

eighteen.” Id. at 750. This Court denied certiorari. Black v. Mays, 584 U.S. 1015

(2018).

In 2021, the Tennessee General Assembly amended Tennessee’s intellectual

disability statute. See 2021 Tenn. Pub. Acts, ch. 399, § 3. The revision established a

procedure for certain death-row inmates to raise an intellectual disability claim if

they never previously had the chance to do so. See id. § 2 (codified at Tenn. Code

Ann. § 39-13-203(g)).

Black sought to relitigate his intellectual disability claim through a motion

under that 2021 amendment. Black v. State, No. M2022-00423-CCA-R3-PD, 2023

6

WL 3843397, at *3 (Tenn. Crim. App. June 6, 2023). But he had already litigated

intellectual disability. Twice. So the trial court summarily dismissed that motion as

statutorily barred by the prior adjudications of Black’s intellectual disability claim.

Id. at *4. The Tennessee Court of Criminal Appeals affirmed, and Black did not seek

further review from the Tennessee Supreme Court or from this Court. Id. at *14.

2.

Black moves to recall a 2006 mandate in the appeal

affirming that he is not intellectually disabled.

On July 1, 2025, Black filed a motion to recall the 2006 mandate in the appeal

affirming that he is not intellectually disabled. Resp. Appx. at 1-18. The Tennessee

Supreme Court denied that motion on July 8, 2025. Pet. Appx. at 1-2. The Court

emphasized that “[t]he power to recall the mandate is ‘one of last resort, to be held in

reserve against grave, unforeseen contingencies.’” Pet. Appx. at 1 (quoting Calderon,

523 U.S. at 550). The Court concluded that “Black’s intellectual disability claim was

fully litigated on the merits, and the judgment is final. He may not seek to recall the

mandate as a vehicle to relitigate his claim.” Pet. Appx. at 2.

Black then waited twenty days—until just eight days before his scheduled

execution—to petition this Court for certiorari and a stay of execution.

REASONS FOR DENYING A STAY AND THE WRIT

“[A] stay of execution is an equitable remedy. It is not available as a matter of

right, and equity must be sensitive to the State’s strong interest in enforcing its

criminal judgments without undue interference from the federal courts.” Hill v.

McDonough, 547 U.S. 573, 584 (2006). An applicant for a stay of execution must

satisfy all the traditional stay factors and therefore must show that there is “a

7

reasonable probability that four Justices will consider the issue sufficiently

meritorious to grant certiorari,” that there is “a fair prospect that a majority of the

Court will vote to reverse the judgment below,” and, in a close case, that the equities

favor the granting of relief. Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per

curiam). None of those factors are satisfied here.

I.

Black’s Tactical Delay Justifies the Denial of a Stay.

Black’s tactical delay—requesting a stay a mere eight days before his

execution—is reason enough to deny review.

It is well known that “capital petitioners might deliberately engage in dilatory

tactics to prolong their incarceration and avoid execution of a sentence of death.”

Rhines v. Weber, 544 U.S. 269, 277-78 (2005). “[I]t is the same strategy adopted by

many death-row inmates with an impending execution: bring last-minute claims that

will delay the execution, no matter how groundless.” Price v. Dunn, 587 U.S. 999,

1008 (2019) (Thomas, J., concurring in denial of certiorari).

But “[l]ast-minute stays should be the extreme exception, not the norm.”

Bucklew v. Precythe, 587 U.S. 119, 150 (2019) (cleaned up). The State and victims

have a “powerful and legitimate interest in punishing the guilty.” Calderon, 523 U.S.

at 556 (cleaned up). They also “have an important interest in the timely enforcement

of a [death] sentence.” Bucklew, 587 U.S. at 149 (cleaned up). In Tennessee, victims

have the constitutional right to “a prompt and final conclusion of the case after the

conviction or sentence.” Tenn. Const. art I, § 35. Once post-conviction proceedings

“have run their course . . . finality acquires an added moral dimension.” Calderon,

8

523 U.S. at 556. “Only with an assurance of real finality can the State execute its

moral judgment in a case” and “the victims of crime move forward knowing the moral

judgment will be carried out.” Id. “To unsettle these expectations is to inflict a

profound injury.” Id.

To avoid such injury, “the last-minute nature of an application that could have

been brought earlier, or an applicant’s attempt at manipulation, may be grounds for

denial of a stay.” Bucklew, 587 U.S. at 150 (cleaned up). Indeed, this Court applies

“a strong equitable presumption against the grant of a stay where a claim could have

been brought at such a time as to allow consideration of the merits without requiring

entry of a stay.” Nelson v. Campbell, 541 U.S. 637, 650 (2004).

That equitable presumption should foreclose a stay here. Black had nearly two

decades to seek recall of the contested mandate, yet he waited until a month before

his execution to do so. Resp. Appx. at 1-18. When that motion was denied, he delayed

again—waiting twenty more days to seek this Court’s review. Pet. Appx. at 1-2. The

result is an all-too-common, last-minute stay request—on a new, unpreserved theory,

no less—filed mere days before the execution. This kind of gamesmanship is as

obvious as it is baseless. “The proper response to [Black’s] maneuvering is to deny

[his] meritless request[] expeditiously.” Price, 587 U.S. at 1008.

II.

The Court Lacks Jurisdiction to Consider Black’s Waived Due-Process

Claim.

This Court lacks jurisdiction to review the due-process question presented

because Black failed to raise it to the Tennessee Supreme Court.

9

Under 28 U.S.C. § 1257(a), this Court may review “[f]inal judgments or decrees

rendered by the highest court of a State” only when a federal question “is specially

set up or claimed” in the state court. 28 U.S.C. § 1257(a). This Court has long

understood that jurisdictional limit to prevent consideration of a “federal claim unless

it was either addressed by or properly presented to the state court that rendered the

decision . . . [under] review.” Adams v. Robertson, 520 U.S. 83, 86 (1997) (per curiam);

see also Crowell v. Randell, 35 U.S. 368 (1836) (interpreting Section 25 of the

Judiciary Act of 1789, the lineal ancestor of § 1257(a)). The Court “has almost

unfailingly refused to consider any federal-law challenge to a state-court decision”

that was not presented below. Hemphill, 595 U.S. at 148.

Petitioners bear the “burden of showing that the issue was properly presented.”

Adams, 520 U.S. at 86. And “[w]hen the highest state court is silent on a federal

question,” this Court “assume[s] that the issue was not properly presented.” Id. That

presumption cannot be overcome with cursory references to the “Constitution of the

United States” or the “laws of the United States.” Herndon v. Georgia, 295 U.S. 441,

442-43 (1935); Oxley Stave Co. v. Butler Cty., 166 U.S. 648, 656 (1897). Nor do cursory

allusions to “due process of law” suffice. Bowe v. Scott, 233 U.S. 658, 665 (1914). A

petitioner must show that the state court had “a fair opportunity to address the

federal question that is sought to be presented here.” Webb v. Webb, 451 U.S. 493,

501 (1981).

Black made no such showing here. His motion to recall the mandate nowhere

argued that failure to grant a recall would violate due process. Resp. Appx. at 1-18.

10

His motion did not even mention the Fourteenth Amendment or any deprivation of a

liberty interest without due process.

Resp. Appx. at 1-18.

Unsurprisingly, the

Tennessee Supreme Court did not address any due-process question because its

“[r]eview generally will extend only to those issues presented for review.” Tenn. R.

App. P. Rule 13(b). Black’s failure to present any due-process question in state court

means this Court lacks jurisdiction to consider that waived issue. See Hemphill, 595

U.S. at 148. And the Tennessee Supreme Court’s application of Tenn. R. App. P. 42(d)

is otherwise “entirely a question of state procedure, presenting no Federal question

for review here.” Rogers v. Peck, 199 U.S. 425, 435 (1905).

III.

Black’s Meritless Due-Process Argument Presents No Compelling

Reason for Review.

This Court grants a writ of certiorari “only for compelling reasons.” Sup. Ct.

R. 10.

But Black’s petition tees up no “compelling reason[]”—from Rule 10 or

otherwise—to justify this Court’s review. The petition does not suggest that the

decision below “conflict[s] with the decision of a United States court of appeals on the

same important matter” or “conflicts with a decision by a state court of last resort.”

Sup. Ct. R. 10(a). And it does not claim that the court below “departed from the

accepted and usual course of judicial proceedings, or sanctioned such a departure by

a lower court.” Id. Instead, the petition presses an outlandish theory that the Due

Process Clause requires the Tennessee Supreme Court to recall its mandate to

entertain Black’s fourth swipe at an exhaustively rejected intellectual disability

claim. There is no compelling reason to grant review of that argument.

11

There is simply no error to correct here.

Black points to the Tennessee

Supreme Court’s power to recall mandates under Tenn. R. App. P. 42(d) and claims

a liberty interest in accessing “this state-created procedure.” Pet. at 10. But he never

explains how the Court violated his due-process rights. And for good reason: Rule

42(d) does not confer on Black a liberty interest that is protected by the Due Process

Clause. And even if Rule 42(d) did create a constitutionally protected liberty interest,

Black received all the process that he was due.

To begin, a liberty interest does not automatically flow from every statecreated process or procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); cf.

Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 11 (1979) (a statecreated statute or regulation that merely “holds out the possibility of parole provides

no more than a mere hope that the benefit will be obtained . . . a hope which is not

protected by due process”). Instead, “a State creates a protected liberty interest by

placing substantive limitations on official discretion.” Id. (emphasis added). The

requisite substantive limitations can come “from an expectation or interest created

by state laws or policies,” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (cleaned up),

or from a state entities’ practices, Greenholtz, 442 U.S. at 4. But there must be

“particularized standards or criteria [that] guide the State’s decisionmakers.” Olim,

461 U.S. at 249 (quoting Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 467 (1981)

(Brennan, J., concurring)).

Here, Black cannot credibly argue that Tenn. R. App. P. 42(d) confers on him

a liberty interest protected by the Due Process Clause. The rule provides, in its

12

entirety, that “[t]he power to stay a mandate includes the power to recall a mandate.”

Tenn. R. App. P. 42(d). This rule simply pronounces a power that the Tennessee

Supreme Court possesses—nothing more. It contains no “substantive predicates” to

guide that court toward any particular outcome. Ky. Dep’t of Corr. v. Thompson, 490

U.S. 454, 463 (1989). It contains no “explicitly mandatory language.” Id. (quotations

omitted). And it “place[s] no substantive limitations” on the Tennessee Supreme

Court whatsoever in deciding when to recall a mandate, or whether to even entertain

a mandate recall motion in the first place.

Olim, 461 U.S. at 249.

“If the

decisionmaker is not required to base its decisions on objective and defined criteria,

but instead can deny the requested relief for any constitutionally permissible reason

or for no reason at all, the State has not created a constitutionally protected liberty

interest.” Conn. Bd. of Pardons, 452 U.S. at 467 (Brennan, J., concurring) (cleaned

up). That is this case.

Aside from the text of Rule 42(d), Black points to no policy or practice of the

Tennessee Supreme Court that would indicate the creation of a protected liberty

interest.

Consistent with this Court’s precedent, the Tennessee Supreme Court

recognized that mandate recall is an “extraordinary remedy” that “should be

exercised sparingly” and only as a “last resort.” Pet. Appx. at 1; see Calderon, 523

U.S. at 550. Extraordinary, last-resort remedies surely do not create “an expectation

or interest.” Wilkinson, 545 U.S. at 221. At bottom, Rule 42(d) does not confer on

Black a constitutionally protected liberty interest.

13

But even if Black had a liberty interest in “accessing” the mandate-recall

procedure, Pet. at 10, he received all the process he was due because he did access

the procedure. “The fundamental requirement of due process is the opportunity to be

heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424

U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

Black’s contention that he was denied “access to the state-created right to

pursue a motion to recall the mandate” is as puzzling as it is wrong. Pet. at 11. On

July 1, 2025, Black filed a motion to recall his March 2006 mandate. Resp. Appx. at

1-18. After receiving full briefing, the Tennessee Supreme Court denied Black’s

motion. Pet. Appx. at 1-2. And this was not an arbitrary, one-sentence denial. The

court explained the extraordinary nature of the mandate-recall remedy, detailed

Black’s many failed attempts to litigate his intellectual disability claim in state and

federal courts over the past two decades, and explained that Black had not presented

any “extenuating circumstances to warrant reconsideration of” the court’s “earlier

denial.” Pet. Appx. at 1-2. Black cannot reasonably argue that he was denied access

to the mandate-recall procedure, or that he was deprived of the opportunity to be

meaningfully heard, when he filed a mandate-recall motion, presented full briefing,

and received an order from the court detailing its reasons for denying the motion.

And the Tennessee Supreme Court’s reliance on prior court orders further

demonstrates that Black has received sufficient due process all along. Two decades

ago, Black pursued his intellectual disability claim in state court. After a hearing,

the trial court determined that Black had failed to establish that he was intellectually

14

disabled. That holding was affirmed by the Tennessee Court of Criminal Appeals,

and both the Tennessee Supreme Court and this Court declined to review it. Black,

2005 WL 2662577, perm. app. denied (Tenn. Feb. 21, 2006), cert. denied, Black, 549

U.S. 852. The Tennessee Supreme Court issued a mandate in March 2006.

Black then took multiple bites at the apple by relitigating his intellectual

disability claim in federal court. After thorough merits review de novo, all his efforts

ultimately failed. Black v. Bell, 664 F.3d 81 (6th Cir. 2011), reh’g denied (6th Cir.

2012); Black, 866 F.3d 734, reh’g en banc denied (6th Cir. 2017), cert. denied sub nom,

Black, 584 U.S. 1015.

In 2021, Black once again tried to raise an intellectual disability claim in state

court, but the trial court determined that these efforts were procedurally barred. And

after this holding was affirmed by the Tennessee Court of Criminal Appeals, Black

did not even bother to seek further review. Black, 2023 WL 3843397 at *3 (no perm.

app. filed).

For over twenty years, Black has trotted out his intellectual disability claim in

state and federal courts. It has failed consistently at every level. On the eve of his

execution, Black tried once again—this time asking the Tennessee Supreme Court to

recall his 2006 mandate. But after extensive briefing, the Court conscientiously

denied his motion. In doing so, it did not violate Black’s due-process rights.

IV.

Hamm Is a Red Herring.

Black pitches his case as related to Hamm v. Smith, No. 24-872 (U.S.), and

suggests this Court “hold his case for the outcome” there. Pet. at 2-3. But the

15

substantive Eighth Amendment question raised in Hamm is entirely different than

the due-process question presented here. And waiting on Hamm would make no

difference—beyond delay. However this Court resolves Hamm, Black is not entitled

to relief.

A. Black and Hamm raise distinct questions. Black asks this Court to decide

whether the Tennessee Supreme Court “deprived” him of “his liberty interest to

access a state-created procedure” by declining to recall a nineteen-year-old mandate

so that he could take a fourth turn at his failed intellectual disability claim. Pet. at

i. In Hamm, on the other hand, the Court is set to address “[w]hether and how courts

may consider the cumulative effect of multiple IQ scores in assessing an Atkins

claim.” 2025 WL 1603602, at *1 (U.S. June 6, 2025) (order granting certiorari).

Black’s question is nothing like Hamm’s.

Start with Hamm, where the Court will need to first answer whether courts

assessing Atkins claims can consider multiple IQ scores to “help identify a test-taker’s

true IQ score.” See Cert. Pet. at 27, No. 24-872 (U.S. Feb. 12, 2025) (citation omitted).

If the answer to that question is “yes,” the Court will then need to instruct lower

courts on how to go about conducting such an analysis. See id. at 27-28. For example,

should a set of scores be averaged to determine an offender’s relevant IQ score, or

should courts use “the median,” the “mode,” or some “more complicated method” that

“treats each score as part of a larger test by accounting for the correlation between

the different tests” administered? See id. at 28. And whatever method the Eighth

Amendment requires, the Court will need to explain how to square that analytical

16

framework with the prior admonition to consider the scores’ standard error of

measurement. See id. at 28-29 (citing Hall v. Florida, 572 U.S. 701, 724 (2014)).

None of that is relevant to the question here. This case turns on whether the

Due Process Clause requires recall of a nineteen-year-old mandate.

Hamm’s

forthcoming instructions on assessing composite IQ scores will have no bearing on

whether the Tennessee Supreme Court “deprive[d]” black of a “liberty interest to

access a state-created procedure.” Pet. at i. Hamm turns on the Eighth Amendment’s

requirements; Black’s petition turns on whether a liberty interest exists and whether

Black received “the opportunity to be heard ‘at a meaningful time and in a meaningful

manner.’” Mathews, 424 U.S. at 333 (quoting Armstrong, 380 U.S. at 552).

At bottom, Black’s reliance on Hamm is a case of the cart leading the horse.

Black seeks renewed scrutiny of his intellectual disability claim under whatever

standard Hamm sets. But he can only unlock that review—in this proceeding—if the

Tennessee Supreme Court was required to withdraw the mandate it issued nineteen

years ago. This case only concerns that latter procedural question, and as explained

(at 11-15), Black received all the process he was due. The Tennessee Supreme Court

was not required to reanimate Black’s decades-old and oft-rejected argument, and

Hamm does not stand to hold otherwise.

B. In any event, Black will get no relief however Hamm is decided. In Hamm,

Alabama asked this Court to address whether “every valid score of ‘about’ 75 or less

supports an Atkins claim.’” Cert. Pet. at i, No. 24-872 (U.S. Feb. 12, 2025). Even

assuming the answer to that question is “yes,” an intellectual disability claim still

17

requires a showing that the disability “manifested during the developmental period,

or by eighteen (18) years of age.” Tenn. Code Ann. § 39-13-203(a)(3); see also Atkins,

536 U.S. at 318. Black cannot make that showing no matter how this Court resolves

Hamm.

Black’s five IQ scores before age eighteen were: 83, 97, 92, 91, 83. Black, 866

F.3d at 738. Even if Hamm holds that a range of IQ scores must be averaged, Black’s

pre-adult average score sits over 89, well above the 75 mark at issue in Hamm.

Indeed, his pre-adult composite score clears the Hamm standard whether this Court

requires using the mode (83), the median (91), or even the lowest possible score (83).

The upshot: However this Court decides Hamm, Black simply “cannot show

that he has significantly subaverage general intellectual functioning that manifested

before [he] turned eighteen.” Id. at 750. There is no reason to hold this case for a

decision that will not affect its outcome.

CONCLUSION

The application for stay of execution and petition for writ of certiorari should

be denied.

18

Respectfully submitted,

JONATHAN SKRMETTI

Attorney General and Reporter

J. MATTHEW RICE

Solicitor General

/s/ Nicholas W. Spangler

NICHOLAS WHITE SPANGLER

Associate Solicitor General

Counsel of Record

HARRISON GRAY KILGORE

Senior Assistant Attorney General

JOSHUA DANIEL MINCHIN

Assistant Solicitor General

P.O. Box 20207

Nashville, TN 37202

(615) 741-3486

Nick.Spangler@ag.tn.gov

19

CERTIFICATE OF SERVICE

I certify that a true and exact copy of the foregoing document has been sent by

first class mail to the petitioner’s counsel, Kelley J. Henry, at 810 Broadway Ste 200,

Nashville, Tennessee 37203-3861, on the 30th day of July, 2025.

/s/ Nicholas W. Spangler

NICHOLAS W. SPANGLER

Associate Solicitor General

20