Petition for Writ of Certiorari — Byron Lewis Black, Petitioner v. Tennessee

CAPITAL CASE

EXECUTION SCHEDULED AUGUST 5, 2025, AT 10:00 A.M.

No.

IN THE

Supreme Court of the United States

________________

IN RE: BYRON LEWIS BLACK

________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

________________

PETITION FOR A WRIT OF CERTIORARI

KELLEY J. HENRY*

Supervisory Asst. Fed. Pub.

Defender

AMY D. HARWELL

First Asst. Fed. Defender

Assistant Chief, Capital Habeas

Unit

MARSHALL A. JENSEN

SAMANTHA N. BARRY

Asst. Federal Public Defenders

810 Broadway, Suite 200

Nashville, TN 37203

Phone: (615) 736-5047

Fax:

(615) 736-5265

Email: Kelley_Henry@fd.org

*Counsel for Petitioner

i

QUESTION PRESENTED

In Panetti v. Quarterman, this Court held that a competency to be

executed claim does not constitute a second or successive habeas petition. 551

U.S. 930, 945 (2007). “We conclude, in accord with this precedent, that

Congress did not intend the provisions of AEDPA addressing ‘second or

successive’ petitions to govern a filing in the unusual posture presented here:

a § 2254 application raising a Ford-based incompetency claim filed as soon as

that claim is ripe.” Id. Mr. Black raised a competency to be executed claim in

state court arguing that he was incompetent to be executed based upon the

common law prohibition on the execution of “idiots.” See Ford v. Wainwright,

477 U.S. 399, 406 (1986). After the state courts denied relief, Mr. Black filed a

petition for a writ of habeas corpus raising an identical competency claim.

Distinguishing Mr. Black’s claim from that of the “true Ford” claim, the district

court held that Mr. Black’s claim constituted a second or successive habeas

petition and transferred the case to the Sixth Circuit. Disregarding the Court’s

unmistakable holding in Panetti, the Sixth Circuit held that Mr. Black’s claim

was a second or successive claim and denied Mr. Black permission to file a

successor petition. The question presented in this case is:

Does a competency to be executed claim based upon common law “idiocy”

that presents a petitioner’s current mental functioning and supported

by recent and debilitating brain defects constitute a second or successive

habeas petition?

ii

LIST OF PARTIES TO THE PROCEEDINGS

Petitioner, petitioner-appellant below, is Byron Black.

Respondent, respondent-appellee below, is Kenneth Nelsen.

iii

LIST OF PROCEEDINGS

1. State v. Black, 815 S.W.2d 166 (Tenn. 1991) (direct appeal).

2. Black v. State, No. 01C01-9709-CR-00422, 1999 WL 195299 (Tenn. Crim.

App. Apr. 8, 1999), cert denied Black v. Tennessee, 528 U.S. 1192 (2000)

(post-conviction).

3. Black v. State, No. M2004-01345-CCA-R3PD, 2005 WL 2662577 (Tenn.

Crim. App. Oct. 19, 2005), cert. denied Black v. Tennessee, 549 U.S. 852

(2006) (motion to reopen post-conviction/intellectual disability).

4. Black v. Bell, 181 F. Supp. 2d 832 (M.D. Tenn. 2001) (habeas corpus).

5. Black v. Bell, No. 02-5032, 2007 U.S. App. LEXIS 30798 (6th Cir. May 30,

2007) (remanding Atkins claim).

6. Black v. Bell, No. 3:00-0764, 2008 U.S. Dist. LEXIS 33908 (M.D. Tenn. Apr.

24, 2008) (Atkins claim).

7. Black v. Bell, 664 F.3d 81 (6th Cir. 2011) (remanding Atkins claim).

8. Black v. Colson, No. 3:00-0764, 2013 WL 230664 (M.D. Tenn. Jan. 22, 2013)

(reconsideration of Atkins claim).

9. Black v. Carpenter, 866 F.3d 734 (6th Cir. 2017), cert. denied Black v. Mays,

584 U.S. 1015 (2018) (affirming the denial of the Atkins claim).

10. Black v. State, No. M202200423CCAR3PD, 2023 WL 3843397 (Tenn. Crim.

App. June 6, 2023) (intellectual disability).

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

July 8, 2025) (competency to be executed).

12. Black v. Nelsen, No. 3:00-cv-00764 (M.D. Tenn. July 29, 2025) (transferring

jurisdiction to the Sixth Circuit).

13. In re Black, 25-5677 (6th Cir. Aug. 1, 2025) (instant case).

iv

TABLE OF CONTENTS

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

LIST OF PARTIES TO THE PROCEEDINGS............................................................. ii

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

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

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

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

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

OPINIONS AND ORDERS BELOW............................................................................. 2

JURISDICTION............................................................................................................. 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED........................ 3

STATEMENT OF THE CASE ....................................................................................... 4

A. Brief Procedural History ................................................................................ 4

B. A Brief Recitation of the Common Law ...........................................................

C. A Brief Recitation of Mr. Black’s Conditions................................................. 8

REASONS FOR GRANTING THE WRIT .................................................................... 5

A. Certiorari is warranted to clarify whether an incompetency claim based

upon the common law prohibition on the execution of “idiots” is subject to the same

ripeness analysis as Panetti

CONCLUSION............................................................................................................. 19

CERTIFICATE OF SERVICE ..................................................................................... 20

v

TABLE OF APPENDICES

U.S. Court of Appeal for the 6th Circuit, Order, August 1, 2025 ...................... APX001

U.S. District Court for the Middle District of TN, Order, July 29, 2025 .......... APX009

U.S. District Court for the Middle District of TN, Petition for Writ of Habeas

Corpus ................................................................................................................. APX041

vi

TABLE OF AUTHORITIES

Page

Cases

Black v. Bell, 664 F.3d 81 (6th Cir. 2011) ..................................................................... 4

Black v. Carpenter, 866 F.3d 734 (6th Cir. 2017) .................................................... 4,14

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

Black v. State, No. 01C01-9709-CR-00422, 1999 WL 195299 (Tenn. Crim. App. Apr.

8, 1999) ........................................................................................................................... 4

Black v. State, No. M2004-01345-CCA-R3PD, 2005 WL 2662577 (Tenn. Crim. App.

Oct. 19, 2005) ................................................................................................................. 4

District of Columbia v. Heller, 554 U.S. 570 (2008) ................................................... 16

Ex Parte Cramner, (1806) 33 E.R. 168 (Ch.) ............................................................ 6,16

Folkes v. Nelsen, 34 F.4th 258 (4th Cir. 2022) ............................................................ 18

Ford v. Wainwright, 477 U.S. 399 (1986) ............................................... i,4,12,13,16,17

In re Mason, 1 Barb. 436, 1847 WL 4122 (N.Y. S. Ct. 1847)........................................ 7

In re Omnicare, Inc. Sec. Litig., 769 F.3d 455 (6th Cir. 2014) ................................... 18

Lackey v. Texas, 514 U.S. 1045 (1995) ........................................................................ 17

L’Amoureux v. Crosby, 2 Paige Ch. 422, 1831 WL 2894 (N.Y. Ch. 1831) .................... 8

Natividad v. Raley, No. CV 22-5061, 2025 WL 1550740 (E.D. Pa. May 30, 2025) ... 18

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. (2022) .............. 15,16,17

Panetti v. Quarterman, 551 U.S. 930 (2007)...................................... i,2,12,13,14,15,18

Smith v. Bishop, No. 1:19-CV-3275-LKG, 2022 WL 16783306 (D. Md. Nov. 8, 2022)

...................................................................................................................................... 18

Solem v. Helm, 463 U.S. 277 (1983) ............................................................................ 16

State v. Black, 815 S.W.2d 166 (Tenn. 1991) ................................................................ 4

Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) ................................................ 4,12

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

vii

Constitution

U.S. Const., Amend. VIII ............................................................................................... 3

U.S. Const., Amend. XIV ............................................................................................... 3

Statutes

28 U.S.C. §2244 ........................................................................................................... 2,3

28 U.S.C § 2254 ....................................................................................................... i,3,12

Other Authorities

Am. Psych. Ass’n, DSM-5-TR (2022)........................................................................ 8,10

William Blackstone, 1 Commentaries on the Laws of England (1826) .................... 5,7

Joseph Chitty, A Practical Treatise on Medical Jurisprudence, with So Much of

Anatomy, Physiology, and Pathology, and the Practice of Medicine and Surgery as

are Essential to Be Known by Members of Parliament, Lawyers, Coroners,

Magistrates, Officers in the Army and Navy, and Private Gentlemen (1835) ..... 6,7,17

Edward Coke, 1 Institutes of the Laws of England (1633) ................................ 5,6,7,16

George D. Collinson, Treatise on the Law Concerning Idiots, Lunatics, and Other

Person Non Compotes Mentis (1812) ............................................................................. 7

Matthew Hale, 1 History of Pleas of the Crown (1736) ................................. 6,16,17,18

John Hawles, Remarks on the Trial of Mr. Charles Bateman (1685) ........................ 16

Simon Jarrett, Those They Called Idiots (2020) ........................................................... 7

Ellis Lewis, An Abridgement of the Criminal Law of the United States (1847) ........ 15

Margaret McGlynn, Idiots, Lunatics, and the Royal Prerogative in Early Tudor

England 26 J. LEGAL HIST. (April 2005) ................................................................... 6

J.A. Paris & J.S.M. Fonblanque, Medical Jurisprudence (1823) ................................. 7

viii

Leonard Shelford, Practical Treatise on the Law concerning Lunatics, Idiots and

Persons of Unsound Mind (1833) .................................................................................. 5

Jo Thomas, McVeigh Ends Appeal of His Death Sentence,

N.Y. Times, Dec. 13, 2000............................................................................................ 17

Francis Wharton & Moreton Stille, Wharton and Stille’s Medical Jurisprudence

(1905) .............................................................................................................................. 7

1

INTRODUCTION

This case concerns when a common law competency to be executed claim based

on a petitioner’s current functioning becomes ripe under our modern jurisprudence.

Consistent with long-standing precedent, Mr. Black raised an “idiocy” claim under

Tennessee’s competency to be executed procedure, supporting the claim with medical

information obtained only in 2025. After those courts altogether refused to engage

with the substance of Mr. Black’s argument, he turned to the federal courts and

sought a writ of habeas corpus. But the federal courts below held that Mr. Black’s

“idiocy” claim was brought too late in time and needed to be brought decades ago. Not

only is such an approach wholly inconsistent with this Court’s existing jurisprudence,

it defies the nature of the medical evidence supporting the claim and the

constitutional inquiry required. Mr. Black’s petition unambiguously demonstrates

that although the origin of some of his debilitating mental conditions stem from early

in life, the full consequences of these conditions, coupled with unquestionably recent

severe brain deterioration, may only be evaluated when execution is imminent.

This petition has taken seriously this Court’s instruction to examine the

common law at the time of the Founding to animate the meaning of the Eighth

Amendment. The common law protection for the incompetent has historically

concerned itself not only with a defendant’s capacity to participate in a trial but also

with an inmate’s mental functioning at the time of his or her imminent execution.

Because existing precedent and the common law demand a competency inquiry at

each phase of the criminal litigation process—up to and including execution—a

competency petition based upon “idiocy” must be treated like any other competency

to be executed claim. When properly understood, it is evident that Mr. Black’s habeas

2

petition was not second or successive because it falls squarely within the rule

announced in Panetti.

OPINIONS AND ORDERS BELOW

The order of the district court transferring Mr. Black’s habeas petition to the

Sixth Circuit is unpublished and is produced in the appendix at XX. The opinion of

the Sixth Circuit will be published and is produced in the appendix at XX.

JURISDICTION

Pursuant to 28 U.S.C. Section 2244(b)(3)(E) the “grant or denial of an

authorization by a court of appeals to file a second or successive application shall not

be appealable and shall not be subject of a petition for certiorari.” This petition does

not seek review of the denial of authorization to file a second or successive petition

by the Sixth Circuit. Rather, this petition seeks review of the Sixth Circuit’s denial of

Mr. Black’s motion to remand his case to the district court, because Mr. Black’s

incompetency claim did not constitute a second or successive petition pursuant to this

Court’s unambiguous holding in Panetti. As such, Mr. Black invokes this Court’s

jurisdiction pursuant to 28 U.S.C. Section 1254. See also Panetti, 551 U.S. at 942–47.

3

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

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

unusual punishments inflicted.

U.S. Const., amend. VIII

No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

U.S. Const., amend. XIV, § 1

(a) No circuit or district judge shall be required to entertain an application for a writ

of habeas corpus to inquire into the detention of a person pursuant to a judgment of

a court of the United States if it appears that the legality of such detention has been

determined by a judge or court of the United States on a prior application for a writ

of habeas corpus, except as provided in section 2255.

(b)(1) A claim presented in a second or successive habeas corpus application under

section 2254 that was presented in a prior application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus application under

section 2254 that was not presented in a prior application shall be dismissed unless(A) the applicant shows that the claim relies on a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously

through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a

whole, would be sufficient to establish by clear and convincing evidence that, but for

constitutional error, no reasonable factfinder would have found the applicant guilty

of the underlying offense.

28 U.S.C. § 2244(a)–(b).

4

STATEMENT OF THE CASE

A. A Brief Procedural History

Mr. Black was convicted in 1989 and sentenced to death. State v. Black, 815

S.W.2d 166, 170 (Tenn. 1991). He completed the standard three-tier criminal

appellate process. Black v. Carpenter, 866 F.3d 734 (6th Cir. 2017); Black v. Bell, 664

F.3d 81 (6th Cir. 2011); Black v. State, No. M2004-01345-CCA-R3PD, 2005 WL

2662577 (Tenn. Crim. App. Oct. 19, 2005); Black v. State, No. 01C01-9709-CR-00422,

1999 WL 195299 (Tenn. Crim. App. Apr. 8, 1999); Black, 815 S.W.2d at 170. When

Mr. Black filed his federal amended petition for a writ of habeas corpus in 2001, he

raised a claim under Ford. 1 Consistent with precedent, the district court dismissed

Mr. Black’s Ford claim as unripe.

On March 3, 2025, the Tennessee Supreme Court set Mr. Black’s execution for

August 5, 2025. Pursuant to the Tennessee Supreme Court’s order and the procedures

established in Van Tran v. State, 6 S.W.3d 257 (Tenn. 1999), Mr. Black initiated

competency to be executed proceedings on May 29, 2025, by filing a petition in the

trial court. That court denied relief on June 5. The Tennessee Supreme Court denied

Mr. Black relief on July 8. Mr. Black filed a petition for certiorari and an application

for a stay of execution in this Court on July 15, which remain pending.

The claim, in its entirety, stated: “In violation of the Eighth and Fourteenth

Amendments, Byron Black is not competent to be executed. Ford v. Wainwright, 477

U.S. 399 (1986). Petitioner acknowledges that such [a] claim is not ripe, as execution

is not imminent, but he raises this claim in accordance with the United States

Supreme Court’s decision in Stewart v. Martinez-Villareal, 523 U.S. 637 (1998),

which holds that it is proper to raise the claim in the initial habeas petition and then

to litigate the claim if it ever becomes ripe, i.e., once an execution date is imminent.”

R. 8, p. 44–45.

1

5

On July 18, Mr. Black filed a petition for a writ of habeas corpus in the United

States District Court for the Middle District of Tennessee. App.041. That court ruled

that Mr. Black’s petition constituted a second or successive petition and transferred

the case to the Sixth Circuit Court of Appeals on July 29. App.009. Mr. Black filed a

motion to remand that case to the district court on July 30. On July 31, Mr. Black

filed a motion for leave to file a second or successive petition for a writ of habeas

corpus. 2 The Sixth Circuit denied the motion on August 1, 2025. App. 001.

B. A Brief Recitation of the Common Law

At common law, three categories of individuals were considered incompetent

to be executed: 1) “Idiots;” 2) “Lunatics;” and 3) individuals who were not initially of

unsound mind but who by reason of disease, accident, or other cause lost their

memory and understanding. Edward Coke, 1 Institutes of the Laws of England 247

(1633). 3 An “idiot” “is one that hath had no understanding from his nativity.” William

Blackstone, 1 Commentaries on the Laws of England 302 (1826); see also Leonard

Shelford, Practical Treatise on the Law concerning Lunatics, Idiots and Persons of

Unsound Mind 2 (1833). Thus, “idiots” exhibited deficits in intellectual functioning

from early in life, if not from birth.

Although the common law recognized that idiots’ condition existed from

“nativity,” the law also recognized that individuals could become incompetent and

2 Mr. Black’s motion for authorization of a second or successive petition was filed in

the alternative. Mr. Black’s position was, and remains, that his habeas petition was

not second or successive.

3 Lord Coke recognized a fourth category, not relevant here: “he that by his owne

vicious act for a time depriveth himself of his memory and understanding, as he is

drunken.” Coke, supra, at 247. As Lord Coke went on to explain, those individuals

whose incompetence was the result of their own acts were not exempt from

execution. Id.

6

exhibit similar or identical deficits as “idiots.” Lord Coke wrote that “Hee that by

sicknesse, griefe, or other accident wholly loseth his memorie and understanding” is

non compos mentis. Edward Coke, 1 Institutes of the Laws of England 247 (1633). By

this category, Lord Coke referred to dementia accidentalis vel adventitia. Matthew

Hale, 1 History of Pleas of the Crown 29–30 (1736). This category of incompetency

includes individuals “not born without reason; but, who has lost it from sickness,

grief, or other accident.” Ex Parte Cramner, (1806) 33 E.R. 168, 170 (Ch.).

Although low intellectual functioning is at the core of “idiocy,” the common law

used “unsound memory” or “non-sane memory” interchangeably with “idiocy.” “So

essential is the power of memory to the perfect mind, that in some of our older

statutes the expression ‘unsound memory’ or ‘non-sane memory’ was used to denote

as well an idiot and lunatic as every person incapable of managing his own affairs.”

Joseph Chitty, A Practical Treatise on Medical Jurisprudence, with So Much of

Anatomy, Physiology, and Pathology, and the Practice of Medicine and Surgery as are

Essential to Be Known by Members of Parliament, Lawyers, Coroners, Magistrates,

Officers in the Army and Navy, and Private Gentlemen 329 (1835). One historian

remarked that “[w]hen lawyers discussed idiots and lunatics, they commonly referred

to them in terms of memory; thus an idiot or lunatic was of non sane memoriae.”

Margaret McGlynn, Idiots, Lunatics, and the Royal Prerogative in Early Tudor

England, 26 J. Legal Hist., 1, 7 (April 2005). Accordingly, the common law conception

of “idiocy” was inextricably linked to deficits of memory.

Similarly, the common law held that “idiocy” could be demonstrated through

the existence of brain “malformations.” “Idiotism is generally the result of an original

malformation of the cranium, sometimes in respect of a subsequent thickening, but

7

more frequently in respect to shape; both of which diminish the internal cavity and

consequently lessen the volume or capacity of the brain.” Chitty, supra, at 270. “In

cases of congenital idiotcy [sic] there will not be much difficulty in pronouncing

judgment, for as it arises from malformation of the cerebral organ, the diagnosis must

be adverse to every hope of recovery.” J.A. Paris & J.S.M. Fonblanque, Medical

Jurisprudence 308 (1823). Wharton and Stille’s treatise on medical jurisprudence, for

example, observed that oftentimes evidence of “idiocy” was apparent upon

examination of the brain.

It follows that idiocy is sometimes associated with gross malformations

of the brain—defects never seen in insanity. But these malformations

vary widely, from a slight defect to an almost complete absence of the

organ. In some cases, however, even of a low grade of idiocy and

imbecility, there is no such gross malformation, but mental faculties

have not properly developed; doubtless because of the defects in the finer

elements of the brain-mass, such the nerve cells in the cortex.

Francis Wharton & Moreton Stille, Wharton and Stille’s Medical Jurisprudence 858

(1905). As a result, evidence of such brain malformations was compelling evidence of

“idiocy” at common law.

By the time of the Founding, the common law had expanded the definition of

who was considered incompetent to include individuals who were incapable of

managing their own affairs. William Blackstone, 1 Commentaries on the Laws of

England 304 (1826); George D. Collinson, Treatise on the Law Concerning Idiots,

Lunatics, and Other Person Non Compotes Mentis 58 (1812); Edward Coke, 1

Institutes of the Laws of England 247 (1633); see also Simon Jarrett, Those They

Called Idiots 25 (2020). Founding era common law cases often focused on whether an

individual was capable of “government of himself, and of the management of his goods

and chattels, lands, and affairs.” In re Mason, 1 Barb. 436, 437, 1847 WL 4122, at **1

8

(N.Y. S. Ct. 1847); L’Amoureux v. Crosby, 2 Paige Ch. 422, 427, 1831 WL 2894, at **3

(N.Y. Ch. 1831). Thus, a key indicator of incompetence was whether an individual

was capable of managing his or her own affairs.

In sum, “idiocy” at common law was a condition defined by low intellectual

functioning. Nonetheless, key indicators of “idiocy” included unsound memory, brain

malformations, and the inability to manage one’s own affairs. The common law

conceived of such deficits as part and parcel of “idiocy.” It is consequently historically

inaccurate to reduce “idiocy” solely to intellectual capacity. As the sources above

demonstrate, deficits of memory, the existence of brain malformation, and an

inability to manage one’s own affairs were consider manifestations of “idiocy” and

their existence was utilized to prove “idiocy” at common law.

C. A Brief Recitation of Mr. Black’s Conditions

Mr. Black is intellectually disabled. Six experts have diagnosed him as

suffering from this condition. In 2022, the State of Tennessee stipulated that Mr.

Black was intellectually disabled. The state’s expert from his original Atkins

proceeding re-evaluated her initial opinion and based upon additional clinical data

concluded Mr. Black is intellectual disabled. Necessarily, this diagnosis required

these experts to conclude that the onset of Mr. Black’s condition occurred during the

developmental period. American Psychiatric Association, DSM-5-TR 37 (2022). It was

upon this basis that Mr. Black showed that he had significant intellectual limitations

that were a historical analogue to “idiocy.” Such limitation, however, forms only a

portion of Mr. Black’s claim.

Relying on the common law principles articulated above, Mr. Black

demonstrated his “idiocy” claim through three equally important characteristics of

9

his impaired mental functioning, each of which was recognized in the common law

and precluded his execution: 1) evidence of significant brain “malformations;” 2) a

diagnosis of dementia and profound memory loss; and 3) evidence that Mr. Black’s

ability to manage his own affairs has recently declined.

Mr. Black’s brain damage is the result of numerous insults to his brain that

were inflicted early in life. As his petition recounts, Mr. Black was exposed to alcohol

in utero, suffered lead poisoning as a child, and experienced numerous traumatic

head injuries as a minor. Although these insults occurred in his “nativity,” the

resulting deterioration of his mental functioning did not emerge until much later in

life. Mr. Black first underwent brain imaging studies in 2001. At that time, Dr. Ruben

Gur noted that Mr. Black’s overall brain volume was two and a half standard

deviations below the mean. By 2022, Mr. Black’s overall brain volume was three and

a half standard deviations below the mean. At the present time, Mr. Black has large

pockets of fluid in his cranium, which is indicative of wide-spread tissue death. Mr.

Black’s brain is suffering from pervasive atrophy and is on a deteriorating course

where further atrophy and consequent cognitive limitations will only increase. In

light of these conditions, Mr. Black asserted in his petition that his current brain

damage was evidence of his current “idiocy.”

In 2025, Mr. Black was diagnosed with dementia by Dr. Dan Martell. Dr.

Martell had previously conducted a neuropsychological assessment of Mr. Black in

2019 in relation to his earlier Atkins proceedings. Dr. Martell reevaluated Mr. Black

in 2025 in relation to Mr. Black’s competency to be executed proceedings. Dr. Martell

found that Mr. Black has experienced “a very significant neurocognitive decline.”

Neuropsychological testing indicated that 99 out of 100 individuals Mr. Black’s age

10

and education level have a better memory than him. Mr. Black asserts that his

dementia and severe memory loss is a clear historical analogue to unsound memory

described in the common law.

Mr. Black’s diagnosis of intellectual disability required that experts conclude

that he had deficits in adaptive functioning that manifested in the development

period. American Psychiatric Association, DSM-5-TR 37 (2022). The experts who

diagnosed Mr. Black as intellectually disabled relied on abundant evidence from his

childhood that demonstrated these deficits. For example, Mr. Black was held back in

the second grade, never lived independently prior to his incarceration at age 32, and

did not know how to perform basic household tasks like cooking and doing laundry.

Friends from childhood reported that he could not understand the rules to simple

childhood games like Red Light, Green Light and a Tisket-a-Tasket. In this sense,

Mr. Black has never been capable of managing his own affairs.

Mr. Black’s inability to manage his own affairs, however, has worsened

because of his progressive dementia and deteriorating brain function. Dr. Martell

administered the Independent Living Skills (ILS) to Mr. Black in 2025, which is “a

standardized, performance-based assessment designed to evaluate an individual’s

functional competence and capacity to live independently.” Currently, Mr. Black’s

ability to live independently is measured as “extremely low.” Testing data “reflect

broad and significant impairment in adaptive functioning, especially in the areas

most critical for safe and autonomous living.” “[H]e would be at high risk if left

unsupervised.” He is now “unable to manage his own affairs.” Moreover, Mr. Black’s

“mental condition has deteriorated significantly over the past six years.” Although

Mr. Black has always exhibited an inability to manage his own affairs, his ability to

11

manage such affairs has worsened with the onset of dementia and progressive brain

atrophy. Only a few years ago, Mr. Black was capable of tasks that he is now

incapable of performing.

12

REASONS FOR GRANTING THE WRIT

The Court should grant certiorari to clarify when

a common law “idiocy” claim is ripe.

The Court should grant certiorari in this case because the United States Court

of Appeals for the Sixth Circuit decided “an important issue of federal law that has

not been, but should be, settled by this court.” S. Ct. R. 10(c). Contrary to this Court’s

decision in Panetti v. Quarterman, the courts below held that a common law

competency claim needed to be filed and adjudicated years prior to execution. Because

Panetti’s rule applies with equal force to a common law “idiocy” claim, this Court’s

guidance is needed to clarify the proper procedure for bringing such a claim.

A. Certiorari is warranted to clarify whether an incompetency claim

based upon the common law prohibition on the execution of

“idiots” is subject to the same ripeness analysis as Panetti.

This Court’s competency jurisprudence has uniformly held that a competency

to be executed claim is not ripe until execution is imminent. Panetti, 551 U.S. at 945;

Stewart v. Martinez-Villareal, 523 U.S. 637, 643 (1998). Mr. Black’s case is

indistinguishable from Panetti. Like Mr. Panetti, Mr. Black brought a competency

claim in state court once his execution date was set. Id. at 937–38. Like Mr. Panetti,

Mr. Black previously brought a writ of habeas corpus that was denied. Id. at 937. The

rule that emerged from Panetti could not be clearer: “We conclude, in accord with this

precedent, that Congress did not intend the provisions of AEDPA addressing ‘second

or successive’ petitions to govern a filing in the unusual posture presented here: a

§ 2254 application raising a Ford-based incompetency claim filed as soon as that

claim is ripe.” Id. at 945. As if to emphasize this point, this Court repeated: “The

statutory bar on ‘second or successive’ applications does not apply to a Ford claim

brought in an application filed when the claim is first ripe.” Id. at 947.

13

Despite that clear holding, the courts below concluded that Mr. Black’s

competency to be executed claim needed to be filed at the time of his initial petition.

The district court reasoned that Mr. Black’s claim “is not a Ford-based claim.”

App.035. By this, the courts below meant that Mr. Black’s claim did not fall under

the rubric of Panetti’s rational understanding test. 4 Id. The courts concluded that it

was “virtually impossible that the kinds of characteristics that make an offender an

‘idiot’ could somehow remain unrecognized until the offender is old enough to reach

the federal habeas phase of a capital case.” As such, “there is no reason why a petition

could not bring such a claim much sooner than when an execution date is scheduled.”

App.036 (cleaned up).

The Sixth Circuit recast Mr. Black’s claim as one calling for a categorical

exemption from execution which it believed distinguished it from a “Ford-based

claim.” Having reformulated the common-law claim into the Atkins claim “based on

the same arguments advanced in his first petition,” the court held that the claim

could not be relitigated in a second petition.” App.006.

The problem with these courts’ reasoning is that although Mr. Black’s

intellectual deficits arose in early childhood, the full consequences of Mr. Black’s

conditions, coupled with his recent deterioration in brain functioning, had not

reached their current debilitating state until his execution was imminent. 5 While

4 In Panetti, this Court held “we do not attempt to set down a rule governing all

competency determinations.” Panetti, 551 U.S. at 960–61. This court clearly

contemplated that the conditions giving rise to a competency to be executed claim

are diverse and that Panetti’s standard might be incongruent with the claims

presented in such a case.

5 It is ironic that Respondent convinced the federal courts in previous litigation that

Mr. Black was not intellectually disabled because his intellectual disability did not

14

some of the causes of Mr. Black’s brain damage were incurred in early life, the recent

wide-spread volumetric loss and consequent deficits are an ongoing and worsening

process. Likewise, as an intellectually disabled person, Mr. Black’s deficits in

adaptive functioning were manifest in the developmental period. But with the onset

of dementia, Mr. Black’s ability to manage his own affairs has only worsened. In fact,

in the six years between Dr. Martell’s first evaluation and his most recent evaluation

in April of this year, Mr. Black exhibited a significant decline in his ability to manage

his own affairs and other key areas such as his memory and verbal fluency.

It follows directly from this reality that any competency claim premised on an

inmate’s level of understanding and functioning close in time to execution must occur

close in time to execution. Panetti’s ripeness analysis applies with equal force to an

individual like Mr. Black. The practical implications of the rule announced by the

courts below are also manifest. Mr. Black would have needed to raise his “idiocy”

claim 25 years ago. Such an approach “would require unripe (and, often, factually

unsupported) claims to be raised as a mere formality, to the benefit of no party.”

Panetti, 551 U.S. at 947. In the intervening years, Mr. Black’s memory and

functioning would have further declined and any claim lodged 25 years ago would

bear little resemblance to Mr. Black’s current condition.

It is, moreover, impractical and inconsistent with the principles embodied in

AEDPA to require Mr. Black to engage in the “empty formality” of filing an unripe

claim long before execution when evidence of his competency is incomplete—at best.

manifest in the developmental period and now seeks to ensure Mr. Black’s execution

by contending that his “idiocy” claim was filed too late because his intellectual

disability has always been present. See Black v. Carpenter, 866 F.3d 734, 750 (6th

Cir. 2017).

15

Panetti, 551 U.S. at 946. The courts below reasoned that Mr. Black’s low intellectual

functioning has always been present and therefore his claim was ripe long ago. To

see the fallacy in this reasoning only requires consideration of the facts of Mr. Black’s

case. In 2000 when his first habeas petition was filed, Mr. Black had an intellectual

disability. There was evidence of brain damage but it was not nearly as severe as it

is presently. Mr. Black had deficits in adaptive functioning but his capabilities were

manifestly greater than they are presently—and he did not yet have dementia. Had

he filed when the courts below have determined the claim was ripe, Mr. Black would

have presented a radically incomplete incompetency claim.

Mr. Black’s impairments—which result from conditions that deleteriously

interact synergistically—stem from both conditions that were present since birth or

early age and conditions and effects that developed later in life. Together, these two

classes of impairments (those from nativity and those that only became manifest

recently) impede his intellectual functioning, memory, and ability to manage his own

affairs.

Mr. Black has attempted to draw the appropriate “historical analogue” to his

claim. New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 30 (2022). Mr.

Black’s intellectual disability, which manifested in early life, is a clear analogue to

“idiocy.” His conditions of more recent onset and manifestation, such as his dementia

and progressive brain atrophy, may be more analogous to dementia accidentalis vel

advenitia. This is why Mr. Black discussed and invoked both “idiocy” and dementia

accidentalis vel advenitia in his initial competency petition in state court. At the end

of the day, however, each of these conditions resulted in incompetency for execution.

Ellis Lewis, An Abridgement of the Criminal Law of the United States 601 (1847).

16

Whether we consider Mr. Black an “idiot” from nativity or an individual “not born

without reason; but, who has lost it from sickness, grie, or other accident,” the

common law would not permit his execution. Ex Parte Cramner, (1806) 33 E.R. 168,

170 (Ch.). In this case, it is a distinction without a difference.

There is an inevitable friction when using analogical reasoning necessary to

find a common law historical analogue for modern conditions. This is why the task at

hand is to “identify a well-established and representative historical analogue, not a

historical twin.” Bruen, 597 U.S. at 30 (emphasis original). Even if Mr. Black’s

conditions are “not a dead ringer for historical precursors,” they are “analogous

enough to” show that Mr. Black “can be no example to others.” Id.; Ford, 477 U.S. at

407 (quoting Edward Coke, 3 Institutes of Laws of England 6 (1680)). To “dispatch an

offender ‘into another world, when he is not of a capacity to fit himself for it,’” is

simply an act of “mindless vengeance.” Ford, 477 U.S. at 407 (quoting John Hawles,

Remarks on the Trial of Mr. Charles Bateman 102 1685)).

The Eighth Amendment “codified a pre-existing right.” See District of Columbia

v. Heller, 554 U.S. 570, 592 (2008) (emphasis original); Ford, 477 U.S. at 405; Solem

v. Helm, 463 U.S. 277, 286 (1983). To date, the Court’s competency jurisprudence has

effectively failed to provide meaning to the common law’s prohibition upon the

execution of “idiots.” Although this prohibition “has long resided” in the law, the lower

courts dismissive attitude to Mr. Black’s “idiocy” claim treats the common law as a

quaint relic that courts need not concern themselves with. Ford, 477 U.S. at 417

At common law, an individual’s competency was assessed at each step of the

criminal litigation process. Lord Hale succinctly described this requirement.

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

17

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).6 Furthermore, Lord

Hale’s description of these distinct competency inquiries highlights the error in the

reasoning of the court below. Contrary to the Sixth Circuit’s unexplained assertion,

Order at 6, “idiocy” is not a categorical exemption to execution but rather a form of

incompetency. “Idiocy” is, and always has been, a question of competency. To hold—

as the courts below did—that we need not assess Mr. Black’s “idiocy” close in time to

his execution does a disservice to our common law heritage.

In Ford, Justice Powell observed that “in cases tried at common law execution

often followed fairly quickly after trial, so that incompetence at the time of execution

was linked as a practical matter with incompetence at the trial itself.” Ford, 477 U.S.

at 420–21. The same cannot be said today. Lackey v. Texas, 514 U.S. 1045, 1045 (1995)

(“Such a delay, if it ever occurred, certainly would have been rare in 1789.”) (Stevens,

J., dissenting from the denial of certiorari). The modern three-tier appellate process

ensures that a death sentence will never be carried out immediately after trial.7 In

this sense, any competency to be executed proceeding will not be a “historical twin”

to the proceedings at common law. Bruen, 597 U.S. at 30 (emphasis original).

Nonetheless, the common law mandated an inquiry into competency at each phase,

6 As referenced above, non sane memory was used interchangeably with the multiple

forms of incompetency at common law. Chitty, supra, at 329.

7 Even in cases where defendants forego these appeals, years can pass between trial

and execution. See, e.g., Jo Thomas, McVeigh Ends Appeal of His Death Sentence,

N.Y. TIMES, Dec. 13, 2000, at A18.

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and “if after judgment [a prisoner] becomes of non sane memory, his execution shall

be spared.” Hale, supra, at 34.

Such a claim would not obviate the need for a subsequent competency claim

close in time to execution. If Mr. Black had filed his claim when the lower courts held

was necessary, in the intervening 25 years Mr. Black’s conditions would have

worsened, his deficits would have grown, and his comprehension of his impending

punishment would have diminished. Meanwhile courts would have adjudicated a

claim that was unripe and wasted judicial resources. These facts only reinforce the

logic of Panetti’s ripeness rule and demonstrate its obvious applicability to this case.

This case presents a competency to be executed claim. 8 This Court has clearly

delineated when such a claim is ripe in Panetti. The courts below have deviated from

this clearly established law and erected a regime wholly inconsistent with Panetti.

This approach is impractical and untethered to the statutory purpose of AEDPA.

Panetti, 551 U.S. at 946. As such, this Court’s guidance is required.

8 At every phase of these proceedings, Courts have doubted the sincerity of Mr.

Black’s claim and have implied it is merely an Atkins claim in disguise or some kind

of new categorical exemption. At each phase, Mr. Black has steadfastly maintained

he was asserting a competency claim. In re Omnicare, Inc. Sec. Litig., 769 F.3d 455,

467 (6th Cir. 2014) (Petitioner is “master of [his] complaint, which means that [he]

can choose the forum in which to file and the law under which it wishes to seek

relief.”); Folkes v. Nelsen, 34 F.4th 258, 270 (4th Cir. 2022) (applying this principle

to a habeas petition); Natividad v. Raley, No. CV 22-5061, 2025 WL 1550740, at *7

n.12 (E.D. Pa. May 30, 2025) (“[D]efendants cannot simply characterize a claim

however they prefer.”); Smith v. Bishop, No. 1:19-CV-3275-LKG, 2022 WL

16783306, at *4 (D. Md. Nov. 8, 2022) (Petitioner “is the ‘master of his complaint’

and thus responsible for describing his claims and otherwise crafting the case he

presents to the district court for decision.).

19

CONCLUSION

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

certiorari.

Dated: August 1, 2025

Respectfully submitted,

/s/ Kelley J. Henry

KELLEY J. HENRY*

Supervisory Asst. Federal Public Defender

AMY D. HARWELL

First Asst. Fed. Pub. Defender

Assistant Chief, Capital Habeas Unit

MARSHALL A. JENSEN

SAMANTHA N. BARRY

Asst. Federal Public Defenders

810 Broadway, Suite 200

Nashville, TN 37203

Phone: (615) 736-5047

Fax:

(615) 736-5265

Email: Kelley_Henry@fd.org

*Counsel for Petitioner

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CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of this Response has been served via

the electronic filing system to Assistant Attorneys John Bledsoe and General Sarah

Stone of the Tennessee Attorney General, P.O. Box 20207, Nashville, Tennessee

37202 on this 1st day of August, 2025.

/s/ Kelley J. Henry