Petition for Writ of Certiorari — Byron Lewis Black, Petitioner v. Tennessee
Supreme Court briefAug 1, 2025
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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
________________
APPENDIX TO 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
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RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0203p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IN RE: BYRON LEWIS BLACK,
Movant.
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>
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No. 25-5677
On Motion for Leave to File a Second or Successive Habeas Corpus Petition.
United States District Court for the Middle District of Tennessee at Nashville.
No. 3:00-cv-00764—Eli J. Richardson, District Judge.
Decided and Filed: August 1, 2025
Before: BOGGS, GRIFFIN, and DAVIS, Circuit Judges.
_________________
COUNSEL
ON MOTION FOR AUTHORIZATION TO FILE A SECOND OR SUCCESSIVE
HABEAS CORPUS PETITION: Byron Lewis Black, Nashville, Tennessee, pro se. ON
CORRECTED MOTION FOR AUTHORIZATION TO FILE A SECOND OR
SUCCESSIVE HABEAS CORPUS PETITION, ON MOTION TO REMAND, ON
MOTION FOR STAY OF EXECUTION, and REPLY: Kelley J. Henry, Amy D. Harwell,
Marshall A. Jensen, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee,
for Movant. ON RESPONSE: John H. Bledsoe, Sarah J. Stone, OFFICE OF THE
TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Respondent.
_________________
ORDER
_________________
The district court transferred to this court the numerically second 28 U.S.C. § 2254
habeas corpus petition filed by Byron Lewis Black, a prisoner on Tennessee’s death row, for
treatment as a motion for authorization to file a “second or successive” § 2254 petition under
28 U.S.C. § 2244(b). See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam). Black has
filed a motion to remand, arguing that his petition was improperly transferred.
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In 1989, Black was convicted for the murders of his girlfriend and her two daughters and
sentenced to death for one murder and life imprisonment for the other two murders. The
Tennessee Supreme Court affirmed Black’s convictions and sentences. State v. Black, 815
S.W.2d 166 (Tenn. 1991). His state-postconviction action was unsuccessful, see Black v. State,
No. 01C01-9709-CR-00422, 1999 WL 195299 (Tenn. Crim. App. Apr. 8, 1999), as was his
motion to reopen that proceeding, Black v. State, No. M2004-01345-CCA-R3-PD, 2005 WL
2662577 (Tenn. Crim. App. Oct. 19, 2005).
Black filed his first § 2254 habeas petition in 2000, arguing that he was intellectually
disabled and that the Eighth Amendment barred application of the death penalty to him, a claim
that he has continued to pursue up to the present day. See Black v. Carpenter, 866 F.3d 734, 737
(6th Cir. 2017). After the district court denied relief, we remanded for the limited purpose of
considering Black’s “mental retardation” claim in light of Atkins v. Virginia, 536 U.S. 304
(2002). The district court on remand concluded that Black could not establish an intellectual
disability by a preponderance of the evidence under Atkins, and we affirmed. Black, 866 F.3d at
750. The Supreme Court denied Black’s certiorari application. Black v. Mays, 584 U.S. 1015
(2018).
After the State moved to set an execution date in 2019, Black raised the issue of his
competency to be executed under Tennessee case authority. An execution date was set and then
stayed on two occasions, once based on the COVID pandemic and subsequently on changes to
the Tennessee statutes governing intellectual-disability claims. Finally, in March 2025, the
Tennessee Supreme Court set Black’s execution date for August 5, 2025. On July 8, 2025, that
court affirmed the denial of Black’s latest state postconviction petition, which urged that he was
incompetent to be executed under the common-law criteria for “idiocy.” See Black v. State, No.
M2000-00641-SC-DPE-CD, 2025 WL 1927568 (Tenn. July 8, 2025).
Black filed his current § 2254 petition on July 18, purportedly relating “solely to [his]
competency to be executed under Ford v. Wainwright, 477 U.S. 399 (1986).” Marshalling the
evidence he has submitted in support of his mental-retardation and intellectual-disability claims
during the last quarter-century, he contends that he meets the criteria for “idiocy” at common law
and is incompetent to be executed. Black maintains that the Supreme Court held in Ford that
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“idiots” and “lunatics” are incompetent to be executed. And citing Panetti v. Quarterman, 551
U.S. 930 (2007), he argues that his petition does not qualify as second or successive for purposes
of 28 U.S.C. § 2244(b)’s restrictions because his “idiocy” claim did not ripen until his execution
date was set.
The respondent countered that Black’s new petition must be transferred to this court for
treatment as a motion for authorization to file a second or successive petition under 28 U.S.C.
§ 2244(b), arguing that he is merely rehashing his mental-retardation or intellectual-disability
claim per Atkins rather than actually contending that he is incompetent to be executed per Ford
and its progeny.
The district court agreed with the respondent, reasoning that although Ford held that the
Eighth Amendment barred execution of the “insane,” that decision left open the standards for
applying this prohibition. Tracing the development of the standards of the prohibition in Panetti
and Madison v. Alabama, 586 U.S. 265 (2019), the district court emphasized that “the critical
question [in the competency-to-be-executed analysis] is whether a prisoner’s mental state is so
distorted by mental illness that he lacks a rational understanding of the State’s rationale for [his]
execution.” (quoting Madison, 586 U.S. at 269). The district court reasoned that Black’s claim
is not based on Ford because it does not turn on whether he can rationally understand the reasons
for his death sentence per Madison. Thus, the district court ultimately concluded that Black’s
petition requires authorization from this court under § 2244(b), and it transferred the case to this
court for that purpose under In re Sims, 111 F.3d at 47.
We may authorize the filing of a second or successive habeas petition only if the
applicant makes a prima facie showing that the proposed petition contains a new claim that relies
on either (A) “a new rule of constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable” or (B) new facts that “could not have been
discovered previously through the exercise of due diligence” and that, “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(b)(2), (b)(3)(C). But “[a] claim
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presented in a second or successive habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1).
Black has filed a motion to remand, arguing that his latest habeas petition does not
qualify as “second or successive” at all, at least not for § 2244(b) purposes, and that
authorization from this court is thus unnecessary. “[A] petition is not second or successive when
it raises a claim that was unripe for review when the first habeas petition was filed.” In re
Tibbetts, 869 F.3d 403, 406 (6th Cir. 2017) (order) (citing Panetti, 551 U.S. at 945–47). “A
claim is unripe when ‘the events giving rise to the claim had not yet occurred.’” Id. (quoting In
re Jones, 652 F.3d 603, 605 (6th Cir. 2010)). Black argues that his claim is based on his
competency to be executed and that under Panetti such a claim requires examination of his
“current mental state,” an analysis that can be undertaken only close in time to his execution
date. He insists that the district court misconstrued his “idiocy” claim, arguing that, even if his
brain damage was caused early in life, “its full effects were not apparent until decades later.”
And he contends that his “idiocy” claim has always been a question of competency.
We agree with the district court and disagree with Black. “[A]ny claim that has already
been adjudicated in a previous petition must be dismissed.” Franklin v. Jenkins, 839 F.3d 465,
473 (6th Cir. 2016) (citing 28 U.S.C. § 2244(b)(1)).
And “[a]ny claim that has not been
adjudicated must also be dismissed unless ‘it relies on either a new and retroactive rule of
constitutional law or new facts showing a high probability of actual innocence.’” Id. (quoting
Gonzalez v. Crosby, 545 U.S. 524, 529 (2005)).
In his prior § 2254 habeas petition, Black asserted that he was incompetent to be executed
under Ford. See Black v. Bell, 181 F. Supp. 2d 832, 882 (M.D. Tenn. 2001). The district court
determined that the claim was not ripe for decision and dismissed it. Id. at 882–83. Black now
seeks to revisit that claim, arguing that he satisfies the criteria for common-law idiocy and
therefore is incompetent to be executed.
In Ford, the Supreme Court held that “the Eighth Amendment’s ban on cruel and unusual
punishments precludes executing a prisoner who has ‘lost his sanity’ after sentencing.”
Madison, 586 U.S. at 268 (quoting Ford, 477 U.S. at 406). Later, however, the Supreme Court
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explained that when determining which prisoners cannot be executed under the Eighth
Amendment, the “critical question is whether a ‘prisoner’s mental state is so distorted by a
mental illness’ that he lacks a ‘rational understanding’ of ‘the State’s rationale for [his]
execution.’”
Id. at 269 (alteration in original) (quoting Panetti, 551 U.S. at 958–59).
In
Madison, the Supreme Court recognized that the Eighth Amendment may bar execution for
someone suffering from dementia but not for someone suffering from memory loss and
emphasized that “[w]hat matters is whether a person has the ‘rational understanding’ Panetti
requires—not whether he has any particular memory or any particular mental illness.” Id. at 275.
Relying on a variety of centuries-old treatises, Black submits that common-law idiocy is
characterized by “significant deficit of intellectual capacity,” an “inability to manage [one’s]
own affairs,” “the presence of ‘unsound memory,’” and “brain malformation,” though “not
[being] devoid of reason or intellect.”
Similarly, the American Association on Mental
Retardation and the American Psychiatric Association adopted standards for determining
intellectual disability that “required both ‘subaverage intellectual functioning’ and ‘significant
limitations in adaptive skills such as communication, self-care, and self-direction that became
manifest before age 18.’” Shoop v. Hill, 586 U.S. 45, 49 (2019) (per curiam) (quoting Atkins,
536 U.S. at 318). Indeed, Black refers to Atkins to establish criteria that satisfy his interpretation
of common-law idiocy.
Contrary to his assertions, Black does not currently raise a Ford claim, effectively
arguing only that he belongs to a class of individuals (those with “idiocy”) who could not be
executed under common law. As explained previously, that is not the controlling standard. See
Madison, 586 U.S. at 275. Panetti explicitly clarified the “scope” of Ford “by focusing on
whether a prisoner can ‘reach a rational understanding of the reason for [his] execution.”’ Id. at
268 (alteration in original) (quoting Panetti, 551 U.S. at 958). And although Black points to
evidence of his progressive dementia, he does not make an argument in his habeas petition that
his mental condition is such that he cannot rationally understand the reason for the State’s
punishment. As explained above, Black instead argues that his claim should be construed as a
Ford-based claim because “historical analysis conclusively shows that the ‘idiocy’ standard that
existed at common law . . . offered substantive protection to individuals outside of Panetti’s
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ambit.” That argument runs headlong into binding precedent, specifically the Supreme Court’s
holding in Madison that “the Panetti Court set out the appropriate ‘standard for competency.’”
586 U.S. at 269 (emphasis added) (quoting Panetti, 551 U.S. at 957); id. at 276 (“[R]ational
understanding of the State’s reasons for resorting to punishment . . . is the Panetti standard’s
singular focus.”); id. at 277 (“[T]he sole inquiry for the court remains whether the prisoner can
rationally understand the reasons for his death sentence.”). Black’s petition does not address that
“critical question.”1
At bottom, Black’s alleged Ford claim is, as the district court observed, “masquerading
as a claim of incompetency” under Atkins based on the same arguments advanced in his first
habeas petition. See Black, 866 F.3d at 737 (“In 2000, Black filed a federal habeas petition in
which he raised various claims including a claim that his mental retardation precluded the
imposition of the death penalty.”). That is, Black alleges he is categorically ineligible for
execution based on the common law understanding of “idiocy” and is therefore ineligible to
receive the death penalty. For the reasons explained above, and elaborated on in the district
court’s opinion, Ford-based claims cannot be categorical; they must instead be based on an
argument that the petitioner is incompetent at the time of execution and therefore ineligible for
execution—not necessarily ineligible to receive the death penalty when sentenced. This court
affirmed the district court’s denial of Black’s prior § 2254 habeas petition on a nearly identical
claim. Id. at 750. And because the claim was raised previously, it cannot be considered newly
“ripe” so as to render his latest § 2254 petition non-successive for § 2244(b) purposes. See In re
Tibbets, 869 F.3d at 406. Instead, because Black has raised his current claim in a prior § 2254
habeas petition, it is subject to dismissal. 28 U.S.C. § 2244(b)(1). And because it is effectively
an “old” claim, we need not address whether § 2244(b)(2)’s gatekeeping provision applies. See
In re Hill, 81 F.4th 560, 569 (6th Cir. 2023) (en banc), cert. denied, 144 S. Ct. 2531 (2024).
1
Black’s petition likely omits any argument under the controlling Panetti standard because such an
argument almost certainly could not have succeeded. Black’s own expert who “was hired ‘for a mental health
evaluation to assess [Mr. Black’s] competency to be executed,’” (Exhibit 15, Vol. VI, 778), concluded that Black
demonstrated a rational understanding of the reason for his execution. See Black v. State, No. M2000-00641-SCDPE-CD, 2025 WL 1927568, at *8 (Tenn. July 8, 2025) (“Mr. Black’s own expert . . . found him likely competent
to be executed under the Panetti standard.”). And when interviewed regarding his understanding of his legal
circumstances, Black correctly identified his execution date, understood that he would be “put to death” on that date,
and stated that he was “given the death sentence for the murder of the youngest victim.” (Exhibit 10, Vol. I, 110).
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Black also moved for a stay of execution. “[A] stay of execution is an equitable remedy.”
Hill v. McDonough, 547 U.S. 573, 584 (2006). We consider the following factors in deciding
whether to stay an execution:
(1) whether there is a likelihood he will succeed on the merits of the appeal;
(2) whether there is a likelihood he will suffer irreparable harm absent a stay;
(3) whether the stay will cause substantial harm to others; and
(4) whether the injunction would serve the public interest.
Workman v. Bell, 484 F.3d 837, 839 (6th Cir. 2007). For the reasons explained above,
and detailed in the district court’s opinion, Black has not demonstrated a likelihood of success on
the merits. Although he will undeniably suffer irreparable harm, the other three factors weigh in
favor of denying the stay. See Hill, 547 U.S. at 584 (emphasizing the state’s “strong interest in
enforcing its criminal judgments [including death-penalty executions] without undue interference
from the federal courts”).
Finally, in a last-minute motion for leave to file a second or successive habeas petition,
Black argues in the alternative to the above that, even if we construe his claim as second or
successive, he satisfies the requirements of § 2244(b)(2)(B) on the basis that the worsening of his
intellectual disability is “of a recent onset” and could not have been known at the time of earlier
proceedings. We deny Black’s motion.
As stated above, this court “may authorize the filing of a second or successive application
only if it determines that the application makes a prima facie showing that the application
satisfies” one of two alternative statutory requirements. 28 U.S.C. § 2244(b)(3)(C). Black relies
on the second of two alternatives in his motion, asserting that “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(b)(2)(B)(ii). A prima
facie showing requires the presentation of “sufficient allegations of fact together with some
documentation that would ‘warrant a fuller exploration by the district court.’” In re Lott, 366
F.3d 431, 433 (6th Cir. 2004) (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir.
1997)).
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Black has not made the requisite showing. To the extent that Black submits that he is
ineligible for the death penalty under the Ford exception, his argument fails as a matter of law
for the reasons already discussed above—Black’s purportedly new evidence makes no showing
that he does not have a rational understanding of the State’s reasons for his execution. Insofar as
Black is pressing to relitigate his Atkins claim, we hold that his purportedly new evidence does
not “warrant a fuller exploration by the district court,” ibid., because his “idiocy” claim is based
on the same operative facts offered in his first habeas petition in support of his intellectual
disability claim. See Black, 866 F.3d at 750 (rejecting Black’s Atkins claim and holding that
“Black cannot show that he has significantly subaverage general intellectual functioning that
manifested before Black turned eighteen”).
For these reasons, we DENY Black’s motion to remand, we DENY authorization to file a
second or successive § 2254 petition, and we DENY Black’s motion for a stay of execution.
ENTERED BY ORDER OF THE COURT
Kelly L. Stephens, Clerk
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IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BYRON LEWIS BLACK,
Petitioner,
v.
KENNETH NELSEN, WARDEN,
RIVERBEND MAXIMUM SECURITY
INSTITUTION
Respondent.
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No. 3:00-cv-00764
NOs
JUDGE RICHARDSON
ORDER
Pending before the Court is Petitioner’s “Petition for Writ of Habeas Corpus” (Doc. No.
176, “Petition”) as well as Petitioner’s “Application For A Stay of Execution” (Doc. No. 177,
“Application for Stay”). Respondent filed an “Answer to Petition For Writ of Habeas Corpus”
(Doc. No. 185, “Answer”) in opposition to the Petition, as well as “Respondent’s Response to
Petitioner’s Motion For Stay Of Execution” (Doc. No. 186, “Response”) in opposition to the
Application for Stay. Petitioner thereafter filed a “Reply to Respondent’s Answer to Petition For
Writ of Habeas Corpus & To Respondent’s Response To Motion For Stay of Execution” (Doc.
No. 188, “Reply”).
For the reasons stated herein, the Court finds that the Petition is a “second or successive”
petition and therefore must be transferred to the United States Court of Appeals for the Sixth
Circuit for a determination of whether Petitioner shall receive permission to proceed with the
Petition.
PROCEDURAL HISTORY
The procedural history in this death penalty case is lengthy. It is recounted well in the
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recent Tennessee Supreme Court order (“Order”), 1 Black v. State, No. M2000-00641-SC-DPECD, 2025 WL 1927568 (Tenn. July 8, 2025), that was issued shortly before the filing of the
Petition:
Over thirty-six years ago, the defendant, Byron Lewis Black, was convicted
of the March 1988 triple murders of his girlfriend, Angela Clay, age 29, and her
two daughters, Latoya, age 9, and Lakeisha, age 6. Mr. Black received consecutive
life sentences for the murders of Angela Clay and Latoya Clay, and he was
sentenced to death for the murder of Lakeisha Clay based on six aggravating
circumstances found by the jury. On direct appeal, this Court affirmed Mr. Black’s
convictions and sentences. State v. Black, 815 S.W.2d 166 (Tenn. 1991), reh’g
denied (Tenn. Sept. 3, 1991).
In 1992, Mr. Black sought state post-conviction relief. After a hearing, the
post-conviction court denied relief. The Tennessee Court of Criminal Appeals
affirmed the post-conviction court’s judgment, and this court denied Mr. Black’s
application for permission to appeal. Black v. State, No. 01C01-9709-CR-00422,
1999 WL 195299 (Tenn. Crim. App. Apr. 8, 1999), perm. app. denied (Tenn. Sept.
13, 1999), cert. denied, Black v. Tennessee, 528 U.S. 1192 (2000).
Mr. Black’s extensive efforts to establish that he was intellectually disabled
at the time of the crime began in August 2000, when he filed a petition for writ of
habeas corpus in the United States District Court for the Middle District of
Tennessee. See Black v. Bell, 181 F.Supp.2d 832, 839 (M.D. Tenn. 2001). Among
other claims, the petition argued that Mr. Black was “mentally retarded” (now
“intellectually disabled”). The district court granted the State’s motion for summary
judgment and dismissed the petition. Id. at 883.
Mr. Black appealed the district court’s ruling to the United States Court of
Appeals for the Sixth Circuit. However, in this time frame, this Court issued its
opinion in Van Tran v. State, 66 S.W.3d 790 (Tenn. 2001), holding as a matter of
first impression that the execution of a “mentally retarded” person violates the
Eighth Amendment to the United States Constitution and Article I, section 16 of
the Tennessee Constitution. Significantly, Van Tran further held that retroactive
application of this new rule was warranted for cases on collateral review.
Approximately six months later, on June 20, 2002, the United States Supreme Court
held that the execution of “mentally retarded” persons violates the Eighth
Amendment to the United States Constitution. Atkins v. Virginia, 536 U.S. 304
(2002).
The Sixth Circuit held the appeal in abeyance while Mr. Black pursued a
motion to reopen his state post-conviction proceedings seeking to establish his
1
The Order is found on the docket of this case at Docket No. 176-4.
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ineligibility for the death penalty based on the “mental retardation” categorical
exclusion announced in Van Tran and Atkins. After an evidentiary hearing, the state
post-conviction court found that Mr. Black was not “mentally retarded.” The
Tennessee Court of Criminal Appeals affirmed, and this Court denied Mr. Black’s
application for permission to appeal. Black v. State, No. M2004-01345-CCA-R3PD, 2005 WL 2662577 (Tenn. Crim. App. Oct. 19, 2005), perm. app. denied (Tenn.
Feb. 21, 2006), cert. denied, Black v. Tennessee, 549 U.S. 852 (2006).
The Sixth Circuit then remanded the case to the federal district court for the
limited purpose of reconsidering Mr. Black’s “mental retardation” claim in light of
Atkins. In April 2008, the federal district court dismissed Mr. Black’s Atkins claims,
and the case returned to the Sixth Circuit in a consolidated appeal.
During the pendency of the Sixth Circuit appeal, this Court released its
decision in Coleman v. State, 341 S.W.3d 221 (Tenn. 2011), which clarified
Tennessee’s intellectual disability statute. The Sixth Circuit affirmed the district
court in part; however, the panel again remanded the case for further proceedings
related to the impact of Coleman. Black v. Bell, 664 F.3d 81 (6th Cir. 2011), reh’g
denied (6th Cir. Jan. 4, 2012). On this second remand, the federal district court
concluded that Mr. Black failed to carry his burden of demonstrating intellectual
disability (formerly “mental retardation”) by a preponderance of the evidence.
Black v. Colson, No. 3:00–0764, 2013 WL 230664 (M.D. Tenn. Jan. 22, 2013),
aff’d sub nom., Black v. Carpenter, 866 F.3d 734 (6th Cir. 2017), reh’g en banc
denied (6th Cir. Oct. 27, 2017), cert. denied sub nom., Black v. Mays, 584 U.S. 1015
(2018). The Sixth Circuit affirmed that decision, agreeing with the district court that
Mr. Black had not proved by a preponderance of the evidence that he had
significantly subaverage general intellectual functioning as evidence by an I.Q.
score of 70 or below. Black v. Carpenter, 866 F.3d at 744–50. Notably, the Sixth
Circuit evaluated Mr. Black’s intellectual disability claim in light of this Court’s
decision in Coleman as well as the United States Supreme Court’s then-recent
guidance on intellectual disability determinations in Moore v. Texas, 581 U.S. 1
(2017), Brumfield v. Cain, 576 U.S. 305 (2015), Hall v. Florida, 572 U.S. 701
(2014).
Upon the conclusion of the standard three-tier appeals process, on
September 20, 2019, the State filed a motion to set an execution date for Mr. Black
in accordance with Tennessee Supreme Court Rule 12(4). In response to the
motion, Mr. Black raised the issue of his competency to be executed and requested
a hearing pursuant to Van Tran v. State, 6 S.W.2d 237 (Tenn. 1999). See Tenn. Sup.
Ct. R. 12(4)(A).
On February 24, 2020, this Court granted the State’s motion to set an
execution date for Mr. Black and established deadlines for proceedings to consider
Mr. Black’s claim that he is not competent to be executed, citing Van Tran v. State,
6 S.W.3d at 267-68, State v. Irick, 320 S.W.3d 284 (Tenn. 2010), and Madison v.
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Alabama, 586 U.S. 265 (2019). Upon the motion of Mr. Black, the Court reset the
execution for April 8, 2021; however, the Court ultimately stayed the execution due
to the COVID-19 pandemic.
In 2021, the Tennessee General Assembly amended Tennessee’s
intellectual disability statute. See Act of April 26, 2021, ch. 399, 2021 Tenn. Pub.
Acts, https://perma.cc/CKC7-HVRD (codified at Tenn. Code Ann. § 39-13203(g)). Relevant here, the revisions established a procedure authorizing certain
death-row inmates to raise an intellectual disability claim by filing an appropriate
motion with the trial court; however, the amended statute prohibited such a motion
for any inmate whose intellectual disability claim had been “previously adjudicated
on the merits.” See id. at §2 (codified at Tenn. Code Ann. § 39-13-203(g)). On June
3, 2021, pursuant to the revised statute, Mr. Black filed a “Motion to Declare
Defendant Intellectually Disabled,” again seeking categorical exclusion from the
death penalty. After reviewing the procedural history of the case, the trial court
denied the motion, finding that Mr. Black’s intellectual disability claim had been
previously adjudicated on the merits. The Tennessee Court of Criminal Appeals
affirmed. Black v. State, No. M2022-00423-CCA-R3-PD, 2023 WL 3843397
( Tenn. Crim. App. June 6, 2023), no perm. app. filed.
During this time, this Court lifted the previous stay of execution and reset
Mr. Black’s execution for August 18, 2022. However, in April 2022, Tennessee
Governor Bill Lee granted a temporary reprieve to death-row inmate, Oscar
Franklin Smith, and subsequently paused all executions, including the scheduled
execution of Mr. Black.
Tennessee resumed executions in 2025, adopting a revised single-drug
protocol utilizing pentobarbital. By order dated March 3, 2025, this Court reset Mr.
Black’s execution for August 5, 2025, with corresponding deadlines for
proceedings to consider Mr. Black’s competency-to-be-executed claim, including
(per Van Tran) an initial determination by the trial court of whether Mr. Black had
made the requisite threshold showing to warrant a competency hearing.
On May 29, 2025, Mr. Black filed a petition in the Circuit Court for
Davidson County, Tennessee, to be declared incompetent to be executed under
common law principles prohibiting execution of the “non compos mentis.” The
petition identified three experts, whose recent reports were among the exhibits
attached to the petition. The State filed a response to the petition, asserting that the
allegations “raise no doubt about [Mr. Black’s] present competency,” and
emphasizing that Mr. Black’s own expert found him competent to be executed
under the prevailing competency standard. The State asked the trial court to
summarily dismiss the petition because Mr. Black failed to make the threshold
showing required by Van Tran.
On June 5, 2025, the trial court entered a “Memorandum and Order”
concluding that Mr. Black’s petition and attachments failed to make the requisite
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threshold showing of a genuine disputed issue regarding Mr. Black’s present
competency to be executed necessary to warrant an evidentiary hearing. Mr. Black
now appeals.
Black v. State, 2025 WL 1927568, at *1-4 (Tenn. July 8, 2025) (footnotes omitted). The Order
resolved that appeal, affirming the trial court’s decision. 2 Ten days later, on July 18, 2025,
Petitioner filed his Petition in this Court, seeking the kind of relief that the Tennessee Supreme
Court had denied via its Order. Specifically, Petitioner requests that this Court: 1) declare that Mr.
Black is presently incompetent to be executed; 2) issue a stay of execution; 3) order Respondent
to file with this Court the record of state court proceedings; 3 4) order an evidentiary hearing; and
5) grant other relief as law and justice require. (Doc. No. 176 at 77). 4
FORD-BASED CLAIMS
In his Answer and Response, Respondent asserts that the Petition must be transferred to
the Sixth Circuit because (according to Respondent) 5 the Petition is a “second or successive”
habeas corpus petition, in which case it is currently not within this Court’s jurisdiction and must
2
The state trial court assessed Mr. Black’s incompetency claim under the below-described Panetti standard
and “declined to consider Mr. Black’s assertion of incompetency to be executed under the common law
‘idiocy’ principle [advanced by Mr. Black] for ‘want of jurisdiction.’” (Doc. No. 176-4 at 10). The
Tennessee Supreme Court found that the “trial court properly declined to consider Mr. Black’s common
law idiocy argument because it fell outside the scope of the order remanding the case” (Id. at 12). Further,
the Tennessee Supreme Court stated, “To the extent Mr. Black is arguing for a new categorical exclusion
from execution that is distinct from incompetency under the Panetti standard . . . he had ample opportunities
to raise that argument at an earlier stage.” (Id. at 12). The Tennessee Supreme Court further elaborated, “to
the extent Mr. Black is asking this Court to reconsider the standard for competency to be executed, he offers
no compelling reason for us to adopt a standard that differs from longstanding precedent from this Court
and the United States Supreme Court. We respectfully decline to do so.” (Id. at 12).
3
Respondent has since done that on his own initiative. (Doc. Nos. 182, 183).
4
When citing to a page in a document filed by one of the parties, the Court endeavors to cite to the page
number (denoted by “Page __ of __”) added by the Clerk’s Office as part of the pagination process
associated with Electronic Case Filing if such page number differs from the page number originally
provided by the author/filer of the document.
5
(Doc. No. 185 at 3, 9; Doc. No. 186 at 2, 4, 8, 9).
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be transferred (along with the Application for Stay) to the Sixth Circuit. See In re Sims, 111 F.3d
45, 47 (6th Cir. 1997) (“[W]hen a second or successive petition for habeas corpus relief . . . is filed
in the district court without . . . authorization [to do so] from this court, the district court shall
transfer the document to this court pursuant to 28 U.S.C. § 1631.”).
To determine whether the Petition constitutes a “second or successive” petition (an issue
the Court at times herein calls the “‘second or successive’ issue”), for reasons discussed below it
is important to understand what constitutes a “Ford-based claim” 6 under current Supreme Court
jurisprudence. The Court therefore will analyze the three main Supreme Court cases discussing
such claims, 7 namely Ford v. Wainwright, 477 U.S. 399 (1986), Panetti v. Quarterman, 551 U.S.
930 (2007), and Madison v. Alabama, 586 U.S. 265 (2019). So doing, the Court arrives at the
following conclusion: for purposes of rules that apply only to Ford-based claims, a Ford-based
claim refers only to a claim analyzed under the below-discussed Panetti standard, which prohibits
“the execution of a prisoner whose mental illness prevents him from ‘rational[ly] understanding’
why the State seeks to impose that punishment.” Madison v. Alabama, 586 U.S. 265, 267 (2019)
6
To describe the kind of claim the Court is talking about here, the Supreme Court has used the terms “Ford
claim,” “Ford-based incompetency claim,” and “Ford-based competency claim.” Panetti v. Quarterman,
551 U.S. 930, 942, 943, 949 (2007). The Court herein generally uses “Ford-based claim” because that term
strikes the Court as being the most precise and neither overinclusive nor underinclusive in its suggestion as
to the specific nature and scope of the claim as it is now conceived by the Supreme Court. The Court is not
the first district court in this circuit to use that term. See, e.g., Jackon v. Shoop, No. 2:18-CV-215, 2018 WL
3462509, at *3 (S.D. Ohio July 17, 2018). The Court notes, however, that as indicated by the Supreme
Court’s terminology in Panetti, a Ford-based claim is an incompetency claim; the claim is that the Eighth
Amendment prohibits the execution of the petitioner due specifically to the petitioner’s alleged
incompetency to be executed.
An additional point about terminology: as indicated by the Supreme Court’s terminology in Panetti, the
term “competency claim” can be used interchangeably with “incompetency claim” (or “claim of
incompetency”).
7
The discussion herein may go beyond what is, strictly speaking, necessary to decide the “second or
successive” issue, particularly insofar as the discussion delves in great detail into the rationale(s) that at
various times have been given for a prohibition (under the Eighth Amendment or at common law) of the
execution of what Ford called “the insane.”
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(citing Panetti v. Quarterman, 551 U.S. 930, 959 (2007)) (brackets in original). The upshot—
which is quite relevant to the “second or successive” issue—is that if a claim does not assert that
the petitioner can satisfy this particular standard, then the claim (irrespective of whether it is some
kind of incompetency claim) is not a Ford-based claim.
Ford
In Ford v. Wainwright, 477 U.S. 399 (1986) the Supreme Court held that the “Eighth
Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is
insane.” 8 Ford, 477 U.S. at 409-10. Justice Marshall’s plurality opinion invoked the common law
to ascertain “those modes or acts of punishment that had been considered cruel and unusual at the
time that the Bill of Rights was adopted,” in order to define the scope of the Eighth Amendment’s
protections. 9 Id. at 405. Surveying the common law, Justice Marshall found that the legal principle
prohibiting the execution of the insane was clearly stated, but that the rationales for such a principle
were grounded in a broad variety of historical, moral, and legal sources. He wrote:
As is often true of common-law principles, see O. Holmes, The Common Law 5
(1881), the reasons for the rule are less sure and less uniform than the rule itself.
One explanation is that the execution of an insane person simply offends humanity,
Coke 6; another, that it provides no example to others and thus contributes nothing
to whatever deterrence value is intended to be served by capital punishment. Ibid.
Other commentators postulate religious underpinnings: that it is uncharitable to
dispatch an offender “into another world, when he is not of a capacity to fit himself
for it,” Hawles 477. It is also said that execution serves no purpose in these cases
8
This quote is from Justice Marshall’s opinion, which, being merely a plurality opinion, could not suffice
by itself to be a holding of the Court. As discussed below, however, it is properly deemed a holding of the
Court because it came from a part of the plurality opinion that Justice Powell joined in his concurring
opinion.
9
It should be noted that in addition to canvassing common law sources, Justice Marshall stated that “the
Eighth Amendment’s proscriptions are not limited to those practices condemned by the common law in
1789.” Ford, 477 U.S. at 406. He also opined that “evolving standards of decency that mark the progress
of a maturing society” should inform the scope of the Eighth Amendment and wrote, “In addition to
considering the barbarous methods generally outlawed in the 18th century, therefore, this Court takes into
account objective evidence of contemporary values before determining whether a particular punishment
comports with the fundamental human dignity that the Amendment protects.” Ford, 477 U.S. at 406
(quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).
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because madness is its own punishment: furiosus solo furore punitur. Blackstone *
395. More recent commentators opine that the community's quest for
“retribution”—the need to offset a criminal act by a punishment of equivalent
“moral quality”—is not served by execution of an insane person, which has a
“lesser value” than that of the crime for which he is to be punished. Hazard &
Louisell, Death, the State, and the Insane: Stay of Execution, 9 UCLA L.Rev. 381,
387 (1962). Unanimity of rationale, therefore, we do not find. “But whatever the
reason of the law is, it is plain the law is so.” Hawles 477. We know of virtually no
authority condoning the execution of the insane at English common law.
Id. at 407-8. These rationales are clearly diverse, ranging from the view that “madness is its own
punishment,” to the view that execution of an insane person “simply offends humanity,” to the
perceived lack of retributive force that would accompany the execution of “an insane person.” Id.
at 407-8. Justice Marshall also referred to Blackstone’s statement, “[I]diots and lunatics are not
chargeable for their own acts, if committed when under these incapacities: no, not even for treason
itself.” Ford, 477 U.S. at 406 (quoting 4. W. Blackstone, Commentaries *24-*25) (alteration
original). It is clear from the plurality opinion, therefore, that the uniform legal principle
prohibiting the execution of the insane was grounded in various different rationales reflected in
common law sources.
In discussing the Eighth Amendment’s prohibition on executing the insane, Justice
Marshall further wrote:
The various reasons put forth in support of the common-law restriction have
no less logical, moral, and practical force than they did when first voiced. For today,
no less than before, we may seriously question the retributive value of executing a
person who has no comprehension of why he has been singled out and stripped of
his fundamental right to life. See Note, The Eighth Amendment and the Execution
of the Presently Incompetent, 32 Stan. L. Rev. 765, 777, n. 58 (1980). Similarly,
the natural abhorrence civilized societies feel at killing one who has no capacity to
come to grips with his own conscience or deity is still vivid today. And the intuition
that such an execution simply offends humanity is evidently shared across this
Nation. Faced with such widespread evidence of a restriction upon sovereign
power, this Court is compelled to conclude that the Eighth Amendment prohibits a
State from carrying out a sentence of death upon a prisoner who is insane. Whether
its aim be to protect the condemned from fear and pain without comfort of
understanding, or to protect the dignity of society itself from the barbarity of
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exacting mindless vengeance, the restriction finds enforcement in the Eighth
Amendment.
Id. at 409-10. Justice Marshall’s opinion clearly recognized that there were “various reasons”
found at common law for this prohibition, although it did not clearly opine as to which of these
rationales, if any, was worthy of recognition as the basis for the Eighth Amendment prohibition.
And it appears that in making his assessment that the prohibition should be read into the Eighth
Amendment, Justice Marshall also considered the then-prevailing attitude towards executing the
insane. Id. at 408-409 (focusing on the “intuition” that these executions “offend humanity” because
no “State in the Union permit[ted] the execution of the insane” at the time the opinion was
authored). Concluding the plurality opinion, Justice Marshall wrote, “Today we have explicitly
recognized in our law a principle that has long resided there. It is no less abhorrent today than it
has been for centuries to exact in penance the life of one whose mental illness prevents him from
comprehending the reasons for the penalty or its implications.” Id. at 417. Therefore, although
Justice Marshall cited various rationales as supporting the prohibition of executing the “insane,”
he ultimately did not (i) clearly identify which one(s) of these rationales he was relying on, or (ii)
describe their relative weight, via-a-vis one another, in supporting the prohibition.
Justice Powell wrote a concurring opinion in Ford, which as noted below is the
“controlling” opinion because the Court’s holding in Ford consisted only of those (non-dictum)
points on which the plurality opinion and Justice Powell’s opinion agreed. 10 In his concurring
opinion, Justice Powell focused specifically on the “differing theories” that underpinned “the
ancient prohibition on [the] execution of the insane.” Ford, 477 U.S. at 419 (Powell, J.,
10
Justice Marshall’s plurality opinion alone did not suffice to announce any holding. The holding of Ford
instead has to be derived by looking at Justice Powell’s concurring opinion. See Thompson v. Bell, 580 F.3d
423, 434 (6th Cir. 2009) (“Powell's concurrence, needed to create a majority, became the controlling opinion
in Ford . . . .”).
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concurring). Analyzing these various theories, Justice Powell found that they “d[id] not provide a
common answer when it comes to defining the mental awareness required by the Eighth
Amendment as a prerequisite to a defendant’s execution.” Id. Justice Powell then walked through
several of the rationales at common law prohibiting execution of the “insane,” which included: (1)
the preservation of the defendant’s ability to make arguments on his own behalf, (2) the concern
expressed by Coke that the execution of a “mad man” was “such a miserable spectacle … of
extream [sic] inhumanity and cruelty” that it “can be no example to others,” and (3) the principle
announced by Hawles that it is “against christian charity to send a great offender quick … into
another world, when he is not of a capacity to fit himself for it.” Id. at 419-20 (citations omitted).
Justice Powell largely dismissed this first justification, finding it “ha[d] slight merit today.”
Id. at 420. In so doing, he stated that modern practices include more extensive review of
convictions and sentences than did the common law, and that the modern right to the effective
assistance of counsel at trial and on appeal are “guarantees . . . far broader than those enjoyed by
criminal defendants at common law.” Id. at 420. He further added that execution at common law
“often followed fairly quickly after trial,” so in effect “incompetence at the time of execution was
linked as a practical matter with incompetence at the trial itself.” Id. at 420-21.
Justice Powell then moved on to focus specifically on two rationales that he considered
compelling. The first rationale was that the “more general concern of the common law” dating
back to (at least) Lord Coke in the early 17th century, was “that executions of the insane are simply
cruel.” Id. at 421. Justice Powell opined that this rationale “retain[ed] its vitality” into present
times. 11 Id. The second rationale, which he described as a key underpinning of the Eighth
11
It is admittedly unclear whether the third justification listed above (that such executions were “against
christian charity”) was subsumed into this broader rationale that these executions are “simply cruel.”
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Amendment’s prohibition on executions of “insane” persons, related to the extent to which such
executions would serve the retributive purposes of criminal sanctions. He wrote that “one of the
death penalty’s critical justifications, its retributive force, depends on the defendant’s awareness
of the penalty’s existence and purpose” and that “it remains true that executions of the insane both
impose a uniquely cruel penalty and are inconsistent with one of the chief purposes of executions
generally.” Id. at 421. Justice Powell therefore seemingly identified as persuasive these two
rationales reflected in the common law sources.
Justice Powell then used these rationales to identify a standard that in his view “define[d]
the kind of mental deficiency that should trigger the Eighth Amendment prohibition” which he
thought necessary to define. Id. at 422. To that effect, he stated that:
If the defendant perceives the connection between his crime and his punishment,
the retributive goal of the criminal law is satisfied. And only if the defendant is
aware that his death is approaching can he prepare himself for his passing.
Accordingly, I would hold that the Eight Amendment forbids the execution only of
those who are unaware of the punishment they are about to suffer and why they are
to suffer it.
Id. at 422. 12 This standard thereby appeared to cabin the rationales supporting the Eighth
Amendment prohibition on executing “insane” persons to those previously endorsed by Justice
Powell, and it simultaneously restricted the prohibition to a particular category of persons, i.e.,
those “unaware of the punishment they are about to suffer and why they are to suffer it.” Id. at
422. And as further discussed below, Justice Powell noted that Ford left unresolved the issue of
what it meant to be “insane” for purposes of Ford’s holding that the Eighth Amendment prohibited
the execution of the “insane.” See id. at 418.
12
It appears that Justice Powell’s concern that an executed person have the ability to “prepare himself for
his passing” was necessary to avoid executions that are “cruel,” which was his first rationale, even if this
concern seems reminiscent of Hawles’ separate justification that “christian charity” requires that no one be
sent by execution “into another world, when he is not of a capacity to fit himself for it.” Id. at 419.
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To summarize, although the plurality and Powell opinions in Ford together clearly
established that the Eighth Amendment prohibited the execution of the “insane,” they left some
uncertainty regarding the underpinnings and scope of this prohibition.
Panetti
In Panetti v. Quarterman, 551 U.S. 930 (2007), in a majority opinion authored by Justice
Kennedy, the Supreme Court first held that a Ford-based claim is not “second or successive” if it
is brought when the claim is first ripe. See Panetti, 551 U.S. at 947. Notably, as Respondent
recognizes, the Sixth Circuit has interpreted Panetti to say also that a Ford-based claim becomes
ripe only once an execution date is set. (Doc. No. 185 at 8-9) (citing In re Hill, 81 F.4th 560, 568
n.6 (2023)). 13
The majority in Panetti then addressed a second issue, namely whether the Fifth Circuit
below had erred in preventing the petitioner from seeking to establish incompetency specifically
via “a showing that his mental illness obstructs a rational understanding of the State's reason for
his execution.” Panetti, 551 U.S. at 956. In answering that question in the affirmative, the majority
illuminated the holding in Ford and provided additional instruction regarding the contours of a
Ford-based claim. Justice Kennedy stated that “[t]he opinions in Ford, it must be acknowledged,
did not set forth a precise standard for competency” and then conducted an examination of those
opinions. Panetti, 551 U.S. at 957. In so doing, he explained that “[w]riting for four Justices,
Justice Marshall concluded by indicating that the Eighth Amendment prohibits execution of “‘one
whose mental illness prevents him from comprehending the reasons for the penalty or its
implications’” and “Justice Powell, in his separate opinion, asserted that the Eighth Amendment
Petitioner certainly agrees that Panetti held that a Ford-based claim becomes ripe only once an execution
date is set. (Doc. No. 176 at 16-17). The Court does not see where Panetti expressed such a black-andwhite rule, but the Sixth Circuit cited Panetti in announcing such a rule, so the Court recognizes it as the
law.
13
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‘forbids the execution only of those who are unaware of the punishment they are about to suffer
and why they are to suffer it.’” Id. at 957 (quoting Ford, 477 U.S. at 417, 422). Justice Kennedy
then conducted an analysis examining primarily how Justice Marshall arrived at his conclusion.
Justice Kennedy referenced the following passage from Ford as the “foundation for th[e]
principle” that the Constitution places a substantive restriction on the state’s power to execute an
insane prisoner: 14
“[T]oday, no less than before, we may seriously question the retributive
value of executing a person who has no comprehension of why he has been singled
out and stripped of his fundamental right to life .... Similarly, the natural abhorrence
civilized societies feel at killing one who has no capacity to come to grips with his
own conscience or deity is still vivid today. And the intuition that such an execution
simply offends humanity is evidently shared across this Nation. Faced with such
widespread evidence of a restriction upon sovereign power, this Court is compelled
to conclude that the Eighth Amendment prohibits a State from carrying out a
sentence of death upon a prisoner who is insane.”
Id. at 957 (quoting Ford, 477 U.S. at 409-10). He then acknowledged the various rationales
underpinning this prohibition mentioned by Justice Marshall in Ford, writing:
Explaining the prohibition against executing a prisoner who has lost his sanity,
Justice Marshall in the controlling portion of his opinion set forth various rationales,
including recognition that “the execution of an insane person simply offends
humanity,” that it “provides no example to others,” that “it is uncharitable to
dispatch an offender into another world, when he is not of a capacity to fit himself
for it,”; that “madness is its own punishment,” and that executing an insane person
serves no retributive purpose.
Id. at 958 (citations omitted). Justice Kennedy then focused in on the last of these listed rationales:
Considering the last—whether retribution is served—it might be said that capital
punishment is imposed because it has the potential to make the offender recognize
at last the gravity of his crime and to allow the community as a whole . . . to affirm
its own judgment that the culpability of the prisoner is so serious that the ultimate
penalty must be sought and imposed.
14
Justice Kennedy noted that Justice Powell joined the part of the opinion that produced the quoted
language, and accordingly found that it constituted a “majority” opinion (capable, then, of announcing a
holding, i.e., precedent).
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Id. at 958. In so finding, Justice Kennedy ultimately found that “[a] prisoner’s awareness of the
State’s rationale for an execution is not the same as a rational understanding of it. Ford does not
foreclose inquiry into the latter.” Id. at 959.
Panetti therefore implied that the numerous common law rationales underpinning the
prohibition on the execution of the “insane” remained relevant when determining the proper scope
of Ford-based claims asserting an Eighth Amendment prohibition of petitioners’ executions. Id.
(“[U]nder a similar logic the other rationales [the rationales unrelated to effectuate the retributive
purpose of criminal sanctions] set forth by Ford fail to align with the distinctions drawn by the
Court of Appeals.”). 15 However, despite the various rationales still apparently at play, Justice
Kennedy seemed to focus in on the above-referenced statements of Justices Marshall and Powell
in their respective Ford opinions. 16
Madison
In Madison v. Alabama, 586 U.S. 265 (2019), in a majority opinion authored by Justice
Kagan, the Supreme Court ultimately announced the standard hinted at in Panetti 17 and also
15
It is important to note the context of the decision in Panetti. In essence, the Fifth Circuit had furnished a
test from its reading of Ford that stated that “competency is determined by whether a prisoner is aware that
he is going to be executed and why he is going to be executed.” Id. at 956 (quotations and citations omitted).
The majority in Panetti found this test “too restrictive” because under the rationales embraced by the
majority, execution of a petitioner is impermissible unless the petitioner has a “rational understanding”—
and not just an “aware[ness]” of the reason for his execution. Id.at 956-58.
16
The Court is referring here to the statements from Ford that Justice Kennedy identified as follows: (i)
“Justice Marshall[’s] . . . indicat[ion] that the Eighth Amendment prohibits execution of ‘one whose mental
illness prevents him from comprehending the reasons for the penalty or its implications’”; and (ii) “Justice
Powell[’s] . . . assert[ion] that the Eighth Amendment ‘forbids the execution only of those who are unaware
of the punishment they are about to suffer and why they are to suffer it.’” Panetti, 551 U.S. at 957 (quoting
Ford, 477 U.S. at 417, 422).
Although this Court is not necessarily convinced that Panetti in fact announced any “standard,” Madison
interpreted that case as providing one (which it then called the Panetti standard). The so-called Panetti
standard—which is actually a test specifically for determining the success of a Ford-based claim—asks
“whether a prisoner’s mental state is so distorted by a mental illness that he lacks a rational understanding
of the State’s rationale for his execution.” Madison, 586 U.S. at 269 (quotations omitted). The Court is
17
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identified the rationales that actually support the substance of that standard. 18 Regarding the
Panetti standard, Justice Kagan wrote that in the analysis of Ford-based claims, “the critical
question is whether a prisoner’s mental state is so distorted by a mental illness that he lacks a
rational understanding of the State’s rationale for [his] execution.” Madison, 586 U.S. at 269
(internal quotation marks omitted) (brackets original). In discussing how the Supreme Court
arrived at this test in Panetti, Justice Kagan explained:
Ford, the Court now noted, had not provided specific criteria [for the
appropriate standard of competency]. But Ford had explored what lay behind the
Eighth Amendment’s prohibition, highlighting that the execution of a prisoner who
cannot comprehend the reasons for his punishment offends moral values and serves
no retributive purpose. Those principles, the Panetti Court explained, indicate how
to identify prisoners whom the State may not execute.
Madison, 586 U.S. at 269 (internal quotation marks and citations omitted). From this discussion,
it is clear that the various rationales (for prohibiting executions of the insane) found at common
law and discussed in Ford had been whittled down to just two: 1) such executions’ offending of
moral values and 2) the failure of such executions to achieve a retributive purpose. It is not clear
whether the other rationales mentioned in the plurality opinion in Ford (such as, for example,
furiosus solo furore punitur, or the purported common law prohibition on executing “idiots”)
somehow were folded into or reflected in these rationales or whether they were disregarded
bound by Madison’s interpretation of Panetti as having announced the standard in advance of Madison
stating the standard; therefore, the Court uses “Panetti standard” to refer to the test for Ford-based claims
that, according to Justice Kagan’s majority opinion in Madison, Panetti announced.
In this Court’s view, what Panetti actually did do was find that (as previously discussed) the Fifth Circuit’s
standard for Ford-based claims was too restrictive under the opinions in Ford. That is not the same as
Panetti announcing a comprehensive standard of its own. But again, the Court refers to this as the “Panetti
standard,” rather than as the “Madison standard” as the Court is tempted to do.
18
The Court reiterates that the Supreme Court in Madison identified Panetti as having created such a
standard. Therefore, although the Court continues to refer to this standard as the “Panetti standard” it makes
clear that it, in its view, was Madison that genuinely announced such a standard.
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altogether. Nevertheless, Madison made clear that these two rationales (referred to herein as the
“offense to morality” and “no retributive purpose” rationales) were the ones that supported the
Panetti standard. 19
At various places in Madison, Justice Kagan further identified these two rationales as
underpinning the Panetti standard. First, she discussed the question of whether failure to remember
committing a crime was enough, on its own, to “prevent a State from executing a prisoner[.]” Id.
at 276. She opined that the application of the Panetti standard demonstrated that it was not. In
explaining why, Justice Kagan wrote:
The same answer follows from the core justifications Panetti offered for framing
its Eighth Amendment test as it did. Echoing Ford, Panetti reasoned that execution
has no retributive value when a prisoner cannot appreciate the meaning of a
community’s judgment. But as just explained, a person who can no longer
remember a crime may yet recognize the retributive message society intends to
convey with a death sentence. Similarly, Ford and Panetti stated that it “offends
humanity” to execute a person so wracked by mental illness that he cannot
comprehend the meaning and purpose of the punishment. But that offense to
morality must be much less when a person's mental disorder causes nothing more
than an episodic memory loss. Moral values do not exempt the simply forgetful
from punishment, whatever the neurological reason for their lack of recall.
Id. at 276-77. Justice Kagan thus again emphasized the “offense to morality” and “no retributive
purpose” rationales in explaining how the Panetti standard operated to produce the answer that the
state was not prevented from executing a prisoner merely because the prisoner could not remember
19
True, Justice Kagan had the following to say about the Supreme Court’s discussion in Ford finding that
the Eighth Amendment prohibited executing prisoners who have “lost their sanity”: “Surveying both the
common law and state statutes, the Court found a uniform practice against taking the life of such a prisoner.
Among the reasons for that time-honored bar, the Court explained, was a moral ‘intuition’ that ‘killing one
who has no capacity’ to understand his crime or punishment ‘simply offends humanity.’” Madison, 586
U.S. at 268 (quoting Ford, 477 U.S. at 407, 409) (emphasis added). This represents an acknowledgment
that there were reasons, in addition to the “offense to morality” rationale and the “no retributive purpose”
rationale, that underpinned the Supreme Court’s conclusion in Ford about the Eighth Amendment
prohibition of the execution of the insane. However, Justice Kagan, in explaining Panetti, illustrates that
Panetti picked “[t]hose principles” to identify prisoners that the state may not execute. Id. at 269. As such,
the Court is bound by Madison’s interpretation of Panetti, and the apparent “whittling down” of the
rationales from those originally announced in Ford to that of “offense to morality” and “no retributive
purpose.”
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committing his capital offense. This clearly marks an indication that the Madison Court read
Panetti as focusing on these two rationales.
Second, Justice Kagan discussed the question of whether the Eight Amendment prohibited
the execution of an inmate suffering from dementia (as opposed to a “delusional disorder,”
something perhaps more associated with “insanity” than is something like dementia). Justice
Kagan found that the content of the Panetti standard revealed the answer to that question: an inmate
suffering from dementia would be afforded the protections of the Eighth Amendment only if he
was unable to rationally understand why the State was seeking execution. In explaining this
conclusion, Justice Kagan wrote:
[H]ere too, the key justifications Ford and Panetti offered for the Eighth
Amendment's bar confirm our conclusion about its reach. As described above,
those decisions stated that an execution lacks retributive purpose when a mentally
ill prisoner cannot understand the societal judgment underlying his sentence.
See Panetti, 551 U.S. at 958–959, 127 S. Ct. 2842; Ford, 477 U.S. at 409, 106 S.Ct.
2595; supra, at –––– – ––––. And they indicated that an execution offends morality
in the same circumstance. See 551 U.S. at 958, 960, 127 S.Ct. 2842; 477 U.S. at
409, 106 S.Ct. 2595; supra, at –––– – ––––. Both rationales for the constitutional
bar thus hinge (just as the Panetti standard deriving from them does) on the
prisoner's ‘[in]comprehension of why he has been singled out’ to die. 477 U.S. at
409, 106 S.Ct. 2595.
Madison, 586 U.S. at 278-79 (brackets original). Again, this discussion clearly indicates that the
majority in Madison read Panetti as focusing on the “offense to morality” and “no retributive
purpose” rationales. Further, the use of “both rationales” implies that these two rationales are the
only two remaining rationales underpinning the “constitutional bar” as well as the “Panetti
standard.” Id.
Summary of the “Rationale” Discussions in Ford, Panetti, and Madison
In summary, this Court finds that, although Ford originally discussed multiple potential
rationales found at common law for prohibiting the execution of the “insane”, the Supreme Court
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has culled the rationales supporting what ultimately became the Panetti standard to just two: the
“offense to morality” rationale and the “no retributive purpose” rationale. This Court finds that in
so doing, the Supreme Court has limited Ford-based claims to those that are supported by both of
the remaining rationales underpinning the Panetti standard. The result is that the scope of Fordbased claims is now clearly defined, in a manner consistent with those rationales, via the Panetti
standard.
Scope of the Panetti Standard
The answer to the second question posed in Madison is telling as to how the Supreme Court
conceived the scope of the Panetti standard. As previously discussed, “the second question raised
[in Madison was] whether Panetti permit[ted] executing Madison merely because he suffer[ed]
from dementia, rather than psychotic delusions.” Id. at 274. The core of this question went to
whether the Panetti standard applied to dementia, or whether instead it was cabined to the
“psychotic delusions” that affected the prisoner in Panetti itself. Justice Kagan wrote that:
Panetti has already answered the question. Its standard focuses on whether a mental
disorder has had a particular effect: an inability to rationally understand why the
State is seeking execution. Conversely, that standard has no interest in establishing
any precise cause: psychosis or dementia, delusions or overall cognitive decline are
all the same under Panetti, so long as they produce the requisite lack of
comprehension.
Id. at 278 (citations omitted) (emphasis original). Justice Kagan went on to explain that “most
important[ly], Panetti framed its test, as just described, in a way utterly indifferent to a prisoner’s
specific mental illness. The Panetti standard concerns, once again, not the diagnosis of such illness,
but a consequence—to wit, the prisoner’s inability to rationally understand his punishment.” Id. at
278 (emphasis added).
Clearly, then, the Panetti standard encompasses all “mental illness” with which a prisoner
could be afflicted. Madison clearly states that the specific type of illness or a particular diagnosis
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is not what is important; rather, what matters is only the effect of that illness on the prisoner—the
requisite lack of comprehension of the reason for the prisoner’s execution. Therefore, this Court
finds that there simply is no room under Madison for treating Ford-based claims as protecting a
separate and distinct category of persons (such as common law “idiots”). A claim based on a
prisoner falling within a group of persons would sidestep the Panetti standard, which has nothing
to do with whether a person falls into a particular category of individuals (or, for that matter, has
a particular cause for the kinds of mental issues that Madison recognized brought persons within
the scope of “the insane”). And because Panetti is the standard for all Ford-based claims, a claim
that sidesteps the Panetti standard is not a Ford-based claim. And, relatedly, such a claim would
not effectuate the second rationale for the Panetti standard, because such a claim could exempt a
petitioner from execution—based merely and solely on his being a particular kind of person—
entirely irrespective (and without asking the question) of whether his execution would serve no
retributive purpose.
Conclusion
Ultimately, the Court in Madison made clear, even if not explicitly, that, for Ford-based
claims, the category of defendants protected from execution by the Eighth Amendment contains
only those defendants that cannot reach a rational understanding of the reason for their executions.
The Supreme Court practically said as much at the start of its opinion in Madison, where Justice
Kagan wrote:
The resulting rule, now stated as a matter of constitutional law, held a category of
defendants defined by their mental state incompetent to be executed. The Court
clarified the scope of that category in Panetti v. Quarterman by focusing on
whether a prisoner can reach a rational understanding of the reason for [his]
execution.
Madison, 586 U.S. at 268 (citations and quotations omitted).
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For a Ford-based claim, the “sole inquiry” is whether that prisoner can rationally
understand the reasons for their execution. Madison, 586 U.S. at 277. This Court therefore finds
that the Panetti standard necessarily applies to all Ford-based claims and that a Ford-based claim
purportedly separate and distinct from one subject to the Panetti standard is neither anticipated nor
allowed by the Supreme Court after Madison. 20
ANALYSIS OF SECOND OR SUCCESSIVE ISSUE
Having painstakingly explained what a Ford-based claim is and is not, the Court next
addresses the crucial issue that, as explained below, turns primarily on whether Petitioner’s claim
is a Ford-based claim: the “second or successive” issue.
I.
Legal Standards Governing Transfer of Habeas Corpus Cases from the District
Court to the Court of Appeals.
Another district court in this circuit, in part by extensively quoting a Sixth Circuit opinion,
provided the following helpful summary of the law and procedure regarding the conditional
requirement to transfer habeas corpus cases to the Court of Appeals:
“Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), ‘a
state prisoner always gets one chance to bring a federal habeas challenge to his
conviction.’ ” In re Hill, 81 F.4th 560, 567 (6th Cir. 2023) (quoting Banister v.
Davis, 140 S. Ct. 1698, 1704 (2020)). “But after that, the road gets rockier.” Id.
“For petitions filed after the first one – ‘second or successive’ petitions in the
20
The Court notes that in Petitioner’s Reply, he argues that:
The inquiry is not whether Panetti may conceivably protect “idiots.” The query is whether
our existing constitutional protections are consistent with the original meaning of the
Eighth Amendment at the time of the Founding. Mr. Black’s historical analysis
conclusively shows that “idiocy” standard that existed at common law was not only
different from the Panetti standard but offered substantive protection to individuals outside
of Panetti’s ambit.
(Doc. No. 188 at 35-36).
Without further commenting on this argument, the Court will note that (as discussed herein), the “second
or successive” issue is a threshold issue, and that issue does not turn on whether our existing constitutional
protections are consistent with the original meaning of the Eighth Amendment at the time of the Founding.
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language of the statute – applicants must overcome strict limits before federal
courts will permit them to seek habeas relief.” In re Stansell, 828 F.3d 412, 413
(6th Cir. 2016) (citing 28 U.S.C. § 2244(b)(3)(A)). “To file a second or successive
application in a district court, a prisoner must first obtain leave from the court of
appeals based on a ‘prima facie showing’ that his petition satisfies the statute's
gatekeeping requirements.” Banister, 140 S. Ct. at 1704 (citing 28 U.S.C. §
2244(b)(3)(C), (b)(1) and (b)(2)); see also Magwood v. Patterson, 561 U.S. 320,
330-31 (2010); Rule 9 of the Rules Governing Section 2254 Cases in the United
States District Courts (“Before presenting a second or successive petition, the
petitioner must obtain an order from the appropriate court of appeals authorizing
the district court to consider the petition as required by 28 U.S.C. § 2244(b)(3) and
(4).”).
This District Court lacks jurisdiction to consider a “second or successive”
petition filed without authorization and must transfer such a petition to the Court of
Appeals for the Sixth Circuit for consideration. Franklin v. Jenkins, 839 F.3d 465,
475 (6th Cir. 2016); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam); 28
U.S.C. § 1631. The Sixth Circuit may authorize the district court to consider a
successive petition only if petitioner makes the prima facie showing required in the
statute. 28 U.S.C. § 2244(b)(3). The determination of whether a habeas application
is second or successive, however, is committed to the district court in the first
instance. In re Smith, 690 F.3d 809, 810 (6th Cir. 2012).
The Sixth Circuit recently provided a “roadmap” for determining whether a
petition is second or successive. In re Hill, 81 F.4th at 569 (6th Cir. August 25,
2023). The [Sixth Circuit] said:
So first, we ask, is the second petition challenging a new judgment
or an old judgment? See Magwood, 561 U.S. at 330-33, 130 S. Ct.
2788; In re Caldwell, 917 F.3d 891, 893 (6th Cir. 2019); In re
Stansell, 828 F.3d 412, 415 (6th Cir. 2016); King v. Morgan, 807
F.3d 154, 157 (6th Cir. 2015).
If it’s a new judgment, then the petition is not “second or
successive,” and we turn to the merits of the petition. See King, 807
F.3d at 157. If it’s the old judgment that the petitioner challenged in
his first petition, we next ask, is the claim presented an old claim or
a new claim? See In re Wogenstahl, 902 F.3d 621, 627 (6th Cir.
2018). If it’s an old claim—that is, one that was presented in the first
petition—then it’s a “second or successive” petition that must be
dismissed under § 2244(b)(1). If it’s a new claim, we ask whether it
was either unripe or ruled unexhausted at the time of the first habeas
filing. If so, then the petition isn’t “second or successive.” See id. at
627. If not, under the guidance we have from the Supreme Court,
the petition is “second or successive,” and the claim must meet the
gatekeeping provisions under § 2244(b)(2)(B) to survive.
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Although a mouthful, we can sum it up this way: When a
second-in-time petition raises a new claim purporting to question the
previously challenged judgment, the new claim was neither unripe
nor unexhausted the first go-around, and the petitioner nevertheless
failed to raise the claim, it is “second or successive.” See In re Coley,
871 F.3d 455, 457-58 (6th Cir. 2017).
In re Hill, 81 F.4th at 569.
Sevilla v. Shoop, No. 2:23-CV-3297, 2023 WL 7018975, at *2–3 (S.D. Ohio Oct. 25, 2023).
Notably, a petitioner is challenging an “old” judgment within the meaning of the above
analytical framework if he “is challenging the same judgment he challenged in his first petition
[rather than] a different judgment.” In re Hill, 81 F.4th at 570.
II.
Analysis of Whether Petitioner’s Case Must Be Transferred to the Sixth Circuit as
Second or Successive.
As indicated above, the Court must determine at the outset whether Petitioner is
challenging an “old” judgment or a “new” judgment. In re Hill, 81 F.4th at 569. Petitioner is plainly
challenging an old judgment because he is challenging the same judgment he challenged in his
first petition (Doc. No. 8, “First Petition”), namely the state-court judgment imposing his death
sentence.
Next, the Court must ask whether Petitioner is raising an old claim or a new claim. Id. at
569. To answer that question, the Court must “define the claim at issue.” Id. at 570. In broadest
strokes, the claim is that Petitioner is “incompetent to be executed.” (Doc. No. 176 at 14). (See
also, e.g., id. at 77) (praying that the Court “[d]eclare [only] that [Petitioner] is presently
incompetent to be executed.”). More precisely (and narrowly), the claim is that Petitioner is
incompetent because three premises are true—all of which, the Court notes, need to be true in
order for the claim to have merit if indeed it can even be entertained.
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The first premise is that (according to Petitioner), the Eighth Amendment incorporates
common law prohibitions of execution that existed at the time that the Eighth Amendment was
adopted. (Id. at 51) (asserting that “Ford long ago established that common law prohibitions were
incorporated into the Eighth Amendment”); (id. at 46) (asserting that “any punishment that was
barred at the Founding was incorporated into the Eighth Amendment’s protection against cruel
and usual punishment” (citing Ford, 477 U.S. at 405)). 21
The second premise is that the common law prohibited the execution of “idiots.” 22 (Doc.
No. 176 at 53) (asserting that “[a]s explained in Ford, the common law prohibits the execution of
the non compos mentis, which includes both the ‘insane’ and ‘idiots.’”). 23 The third and final
premise is that Petitioner falls within the category of “idiots.” (Doc. No. 176 at 76) (“[Petitioner]
meets the criteria for ‘idiocy’ at common law and is incompetent to be executed.”) (id. at 77)
21
This premise is reflected elsewhere in the Petition as well. (Doc. No. 176 at 48) (asserting that “the Eighth
Amendment codified a pre-existing right” (internal quotation marks omitted)); (id. at 49) (asserting that “to
animate the text of the Eighth Amendment, courts and litigants must examine the common law at the time
of the Founding”); (id. at 52) (stating that “‘[t]here is now little room for doubt that the Eighth Amendment’s
ban on cruel and unusual punishment embraces, at a minimum, those modes or acts of punishment that had
been considered cruel and unusual at the time that the Bill of Rights was adopted.’” (quoting Ford, 477
U.S. at 405)); (id. at 52) (“Although the Framers may have intended the Eighth Amendment to go beyond
the scope of its English counterpart, their use of the language of the English Bill of Rights is convincing
proof that they intended to provide at least the same protection—including the right to be free from
excessive punishments.” (quoting Solem v. Helm, 463 U.S. 277, 286 (1983))).
22
The Court notes that Petitioner’s attorneys, who naturally would have no desire to insult or make fun of
their client, clearly use the terms “idiot[s]” and “idiocy” (the adjectival form of the word “idiot”) in a
legal/technical sense rather than a pejorative or flippant sense, as is denoted by their use of quotation marks
around those terms. The Court herein follows their lead.
23
In at least one place, Petitioner forgoes asserting the first two premises and, essentially in their place,
states a proposition (which, if true, would eliminate the need to separately establish each of the first two
premises): “In Ford v. Wainwright, the Supreme Court expressly held that both ‘idiots’ and ‘lunatics’ were
incompetent to be executed. Ford, 477 U.S. at 406.” (Doc. No. 176 at 45). As noted below, however, this
proposition is simply false.
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(“[Petitioner] has demonstrated that he meets the common law ‘idiocy’ standard and is therefore
incompetent to be executed.”).
Respondent seems to imply that Petitioner’s pending claim is in substance, not one of
incompetency (under any theory of incompetency, be it a Ford-based theory or otherwise), but
rather one of categorical ineligibility for the death penalty under Atkins v. Virginia, 536 U.S. 304
(2002) based on intellectual disability, a claim that Petitioner previously asserted 24 without
success. 25 (Doc. No. 186 at 2) (asserting that Petitioner’s “argument for idiocy mimics his
24
(Doc. No. 176 at 16) (where Petitioner notes the “state court adjudication of his intellectual disability
claim filed pursuant to Atkins”).
25
In Atkins, the Court held that the execution of mentally retarded offenders constituted “cruel and unusual
punishment” prohibited by the Eighth Amendment. Atkins, 536 U.S. at 321. Significantly, however, the
majority opinion in Atkins did not present its rule as one regarding competence; at no point did the majority
refer to mentally retarded offenders as being “incompetent,” lacking the “competency,” etc., to be executed.
Instead of describing “mentally retarded” offenders as a category of offenders who are incompetent (or
lacking the competency) to be executed, the majority referred to mentally retarded offenders as a category
of offenders “ineligible” for the death penalty. See Atkins, 536 U.S. at 320 (“The reduced capacity of
mentally retarded offenders provides a second justification for a categorical rule making such offenders
ineligible for the death penalty.”). The Supreme Court has since then referred to an Atkins claim as a claim
of ineligibility for the death penalty. See, e.g., Schriro v. Smith, 546 U.S. 6, 6 (2005) (referring to a claim
the petitioner previously could have made (but did not make) under Atkins as a claim that “he was mentally
retarded [and] that his mental retardation made him ineligible for the death penalty.”).
The Sixth Circuit has since done likewise. See, e.g., Hill v. Shoop, 11 F.4th 373, 434 n.18 (6th Cir. 2021)
(“conclu[ding] that Hill is intellectually disabled and thus ineligible for execution under Atkins”); Hill v.
Anderson, 300 F.3d 679, 682 (6th Cir. 2002) (characterizing the issue on an Atkins claim as “whether [the]
particular claimant is retarded and ineligible for death.”). Cases like these do not refer to the petitioner
therein as being incompetent (or lacking competence) to be executed; to the extent that they refer to
competence or lack thereof, it is merely to note that being “intellectually disabled” (or, synonymously,
having “intellectual disability”) does not mean that the petitioner had been incompetent to stand trial. See
Hill, 11 F.4th at 434 n.18. The cases tend not to note additionally that having intellectual disability does not
necessarily mean that the petitioner is incompetent to be executed (as opposed to ineligible for the death
penalty), but some case certainly seem to imply this.
In short, a claim under Atkins is a claim that the offender who received a death sentence falls into a
category of persons ineligible for the death penalty from the outset. In an Atkins claim, of course, the
category was defined (using now outdated terminology) as “mentally retarded” offenders, but that is not
the only such category. See, e.g., Miller v. Alabama, 567 U.S. 460, 466 n.1 (2012) (“Jackson was ineligible
for the death penalty under Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L.Ed.2d 702 (1988)
(plurality opinion), which held that capital punishment of offenders under the age of 16 violates the Eighth
Amendment.”).
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argument in support of his rejected intellectual disability claim.”). The two kinds of claims are
distinct; the latter kind of claim is not a claim of incompetency, and still less could it be a claim of
incompetency based specifically on “idiocy,” as Petitioner acknowledges. (Doc. No. 176 at 38)
(asserting that “the common law conception of ‘idiocy’ differs greatly from our modern conception
of intellectual disability.”). Were Petitioner’s current claim properly treated as a claim of
categorical ineligibility based on intellectual disability, merely masquerading as a claim of
incompetency, that would independently support Respondent’s “second or successive” argument
in particular ways the Court forgoes discussing herein. But to Petitioner’s benefit, the Court treats
the claim in the Petition as if it is indeed a claim of incompetency. 26
Nevertheless, the Court must treat Petitioner’s incompetency claim for what it is. That is,
the Court must recognize the kind of incompetency claim that it is (and is not). It is a claim based
Notably and thankfully, as indicated in the above quote from the Order from the Tennessee Supreme
Court, the terminology of “mentally retarded criminals” used in Atkins has since been replaced with the
terminology of offenders “with intellectual disability.” See Hall v. Florida, 572 U.S. 701, 708 (2014) (citing
Atkins for the proposition that under the Eight Amendment, “persons with intellectual disability may not be
executed.”); id. at 704 (“Previous opinions of this Court have employed the term ‘mental retardation.’ This
opinion uses the term ‘intellectual disability’ to describe the identical phenomenon.”). Also notably, Hall
addressed the question of “how intellectual disability must be defined in order to implement . . . the holding
of Atkins.” Id. at 709. Herein, the Court need not address that question.
A final point about terminology. Herein, when reference is made to competency or incompetency without
specification of the kind of competency to which reference is made, the reference is to (in)competency to
be executed rather than (in)competency to stand trial.
26
If Respondent is correct that Petitioner’s claim “mimics” his prior Atkins claim, (Doc. No. 186 at 2), that
does not necessarily negate that Petitioner’s claim is a genuine claim of incompetency in the sense that it is
based on an argument (be it persuasive or unpersuasive) for why the Eighth Amendment prohibits his
execution on the grounds of incompetency in particular. As noted herein, the Court assumes for present
purposes that the Petitioner does present such a claim. Nevertheless, to the extent that Petitioner’s claim
(even if treated as a genuine, not to say persuasive, claim of incompetency) resembles an Atkins claim, such
resemblance still could potentially hurt Petitioner’s position on the “second or successive” issue—and in
fact it does. As discussed herein, in key respects, his current claim does resemble an Atkins claim (rather
than a Ford-based claim), and this resemblance indeed is telling as to why he does not prevail on the “second
or successive” issue—more specifically, why his petition cannot avoid “second or successive” status based
on the purported applicability of the special ripeness rule that exists for Ford-based claims but not for claims
like an Atkins claim.
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on Petitioner being a particular kind of person—an “idiot”—i.e., falling into a particular category
of persons (“idiots”). Even assuming arguendo (as the Court has done herein) that this is a claim
of incompetency to be executed rather than a claim of ineligibility for the death sentence, 27 the
27
In arguing that the Eighth Amendment categorically prohibits the execution of “idiots,” Petitioner does
not necessarily persuade the Court that such a prohibition would properly be perceived as a prohibition on
execution based on incompetency rather than a prohibition on a death sentence based on ineligibility for the
death penalty. As the Court hopes it has made clear, the two are not the same thing, and the Court does not
see where Petitioner establishes (or even truly attempts to explain) that the common law prohibition of the
execution of “idiots”—which as noted is central to Petitioner’s claim—was based on “idiots” being deemed
incompetent to be executed rather than ineligible for the death penalty. Take, for example, the following
portion of the Petition:
In Ford v. Wainwright, the Supreme Court expressly held that both “idiots” and
“lunatics” were incompetent to be executed. Ford, 477 U.S. at 406. The Supreme Court
again affirmed that such a protection exists in Penry v. Lynaugh. Penry v. Lynaugh, 492
U.S. 302, 331 (1989) (“It was well settled at common law that ‘idiots,’ together with
‘lunatics,’ were not subject to punishment for criminal acts committed under those
incapacities.”).
(Doc. No. 176 at 45-46). The second sentence actually suggests, if anything, that any such prohibition was
based on ineligibility for the death sentence (and indeed ineligibility for any criminal sanctions). As for the
first sentence, it is inaccurate in multiple respects.
First, Ford did not hold (and certainly did not “expressly” hold) that “idiots” (or, for that matter,
“lunatics”) were incompetent to be executed. Ford mentions “idiots” (or any version of that word) only
once, in the plurality opinion. There, the plurality merely mentioned that Blackstone had commented that
“[I]diots and lunatics are not chargeable for their own acts, if committed when under these incapacities.”
See Ford, 477 U.S. at 406 (brackets in original). As previously mentioned, the plurality opinion alone, of
course, by itself does not suffice to announce any holding. The holding of Ford instead has to be derived
by looking at Justice Powell’s concurring opinion. See Thompson v. Bell, 580 F.3d 423, 434 (6th Cir. 2009)
(“Powell's concurrence, needed to create a majority, became the controlling opinion in Ford . . . .”). And
Powell’s concurrence says nothing about the Eighth Amendment categorically prohibiting the execution of
“idiots.” What it does say, consistent with the plurality opinion, is that “the practice of executing the insane
is barred by our own Constitution.” 477 U.S. at 418 (Powell, J., concurring). And thus, the Sixth Circuit
has stated the holding of Ford as follows (quoting words from Part II of the plurality opinion, which Justice
Powell joined): “[T]he Eighth Amendment prohibits a State from carrying out a sentence of death upon a
prisoner who is insane.” Thompson, 580 F.3d at 434 (quoting Ford, 477 U.S. at 409–10) (brackets in
original). But it is by no means clear from Ford that for purposes of this rule, an offender is automatically
included within the category of “insane” merely because the offender qualifies as an “idiot.” To the contrary,
Justice Powell noted that the holding left open the issue of what it meant to be “insane” for purposes of this
rule and that on this issue, he and the plurality “differ[ed] substantially.” Ford, 477 U.S. at 418. And indeed
not even the plurality itself defined “insanity.” See Panetti, 551 U.S. at 939 (Thomas, J., concurring) (“The
four-Justice plurality in Ford did not define insanity”). And although the two differing views (of Justice
Powell and the plurality) were similar in an important respect, see Madison, 586 U.S. at 290, they did not
converge in a way establishing that to be an “idiot” was necessarily to be “insane” for purposes of Ford’s
incompetency rule.
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claim is not a Ford-based claim. That is because, as indicated above, by now such a claim turns
on “whether the prisoner can [as of the time of the scheduled execution] rationally understand the
reasons for his death sentence.” Madison v. Alabama, 586 U.S. 265, 277 (2019). Such a claim has
absolutely nothing to do with whether the petitioner fits into a particular category of persons, let
alone a particular category of persons that is defined by immutable characteristics present at birth
or shortly thereafter—which, according to Petitioner, is true for “idiots.” (See Doc. No. 176 at 62).
So, Petitioner’s claim is not a Ford-based claim, 28 which is highly relevant to the analysis
below. But it is a new claim because Petitioner plainly has not previously presented his instant
novel incompetency claim. So the Court next asks “whether [the claim] was either unripe or ruled
unexhausted at the time of the first habeas filing.” In re Hill, 81 F.4th at 569.
The time of Petitioner’s first habeas filing was April 16, 2001. 29 (Doc. No. 8). As discussed
above, Petitioner’s current incompetency claim—unlike a Ford-based claim—is one based on
Petitioner being a kind of person (an “idiot”) who by Petitioner’s own definition has personal
Second, even if it were true that the Court should accept the Ford plurality’s single reference to “idiot[s],”
made by quoting Blackstone, as a holding that the Eighth Amendment prohibits the execution of someone
who is an “idiot,” as indicated above, that would not support the notion that the prohibition is based
specifically on incompetency to be executed rather than ineligibility for the death sentence.
But as noted above, the Court nevertheless assumes for present purposes that the categorical prohibition
Petitioner asserts via his claim is a prohibition based on incompetency in particular.
28
One might ask why the Petition did not assert a Ford-based claim, given that such a claim clearly would
now be ripe and yet not second or successive and is, of course, a well-established (and perhaps the only
cognizable) kind of incompetency claim. Although the Court need not and does not provide an answer, the
answer may be that for reasons to which Respondent alludes (but the Court forgoes discussing herein),
Petitioner may face daunting obstacles to establishing such a claim.
29
Given the history of Petitioner’s filings of habeas corpus petitions in this Court, the Court could imagine
an argument for why the time of Petitioner’s first habeas filing, for purposes of the above-quoted rule from
In re Hill, could be deemed to be later. But that actually would hurt Petitioner’s position on the “second or
successive” issue because it would mean that his current incompetency claim would have had more time to
become ripe and thereby make the current Petition second or successive.
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characteristics that are present at birth or very early in life. (Doc. No. 176 at 62). And it strikes the
Court as 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. The Court agrees with Respondent that there is no reason why a petitioner
could not bring such a claim “much sooner than when an execution date is scheduled.” (Doc. No.
185 at 21) (“It is also readily apparent that, due to the early onset and permanence of idiocy
(however defined), any purported claim for sentencing relief based on idiocy could and should be
raised much sooner than when an execution date is scheduled.”). The Court further agrees with the
following from Respondent regarding Petitioner’s claim in particular:
A ready review of the facts presented by [Petitioner] to support his new
idiocy claim confirms that it is not newly ripened, as those facts existed at the time
of his first habeas corpus petition. Indeed, he offered the same proof in support of
his rejected intellectual disability claim. Black first relies on various intelligence
quotient (I.Q.) tests conducted over a span of many years to support his new claim
of idiocy. (D.E. 176, PageID# 1484-1486, 1533.) He relied on those same test
results during his prior habeas corpus proceedings to support his intellectual
disability claim. Black, 866 F.3d at 738. Black also relies on facts about his
childhood, his poor performance in school, and various facts concerning his
overarching assertion that he “has always been incapable of managing his own
affairs.” (D.E. 176, PageID# 1486-1490, 1534-35.) He offered the same evidence
in this Court to support his intellectual disability claim. Black, 2013 WL 230664,
at *15- *19.
Black does rely upon new evidence to show that he has moderate dementia.
(D.E. 176, PageID# 1481-82, 1516.) But dementia is already a relevant
consideration in a true Ford claim, which Black does not advance in this Court. See
Madison, 586 U.S. at 275 (“[A] person suffering from dementia may be unable to
rationally understand the reasons for his sentence; if so, the Eighth Amendment
does not allow his execution.”).
Black failed to raise an idiocy claim in his first habeas corpus petition, when
he fully litigated an intellectual disability claim under the same proof. He could and
should have raised this claim at that time. For that reason, his idiocy claim is not
newly ripened, and the petition is second or successive under 28 U.S.C. § 2244(b).
(Doc. No. 185 at 23).
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In the Court’s view, Petitioner does not challenge Respondent’s factual recitation of the
evidence purportedly supporting Petitioner’s current claim that was also available at the time of
the First Petition. Petitioner instead does two things. First, he asserts that “Respondent’s assertion
that proof supporting Mr. Black’s idiocy claim ‘emerge[d] long before the filing of a first habeas
corpus petition’ is false” (Doc. No. 188 at 10) (alteration in original). To support this assertion, he
writes:
Mr. Black put forth new evidence to support his “idiocy” claim that was
not, and could not have been, presented to support an intellectual disability claim.
This new evidence comes from evaluations conducted in 2025 and includes Mr.
Black’s diagnosis of moderate dementia and brain atrophy. R. 183-17,
PageID#2653 (Martell); id., PageID#2684-89 (Gur). His new diagnoses of
dementia and progressive erosion of brain tissue could only be presented now
because they did not exist previously and were not diagnosed until his most recent
2025 evaluations.
(Id. at 9-10). This argument by Petitioner is a red herring. The 2025 evaluations support a claim of
recent changes to Petitioner’s mental or intellectual capacity, and thus could conceivably support
a Ford-based claim. But as noted, by Petitioner’s own reckoning, “idiocy” is defined by
characteristics present at or shortly after birth. So evidence of recent changes with respect to
Petitioner (an elderly man) is irrelevant to the claim that he is an “idiot.”
Second, Petitioner challenges Respondent’s conclusion that (because evidence to support
a claim of “idiocy” was available at the time of filing the First Petition) Petitioner’s current claim
could and should have been brought earlier. In Petitioner’s view, essentially, even if evidence to
support a claim of “idiocy” was available at the time of Petitioner’s First Petition, that is irrelevant
because the claim was categorically unripe for roughly another 24 years (until his execution date
was set). Petitioner claims in effect that his current claim was categorically unripe when his First
Petition was filed because it is an incompetency claim and “[t]he Supreme Court has repeatedly
ruled that a competency to be executed claim is not ripe until execution is imminent.” (Doc. No.
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176 at 37) (citing Panetti, 551 U.S. at 947; Martinez-Villareal, 523 U.S. at 643). But neither cited
case supports the quoted proposition. A review of the cited pages reveals that neither case
addressed whether an incompetency claim that (like Petitioner’s current claim) is not a Ford-based
claim is unripe until execution has been scheduled (or is otherwise imminent). Instead, they
addressed the ripeness only of a claim of incompetency that is a Ford-based claim in particular. It
is telling that the Petition itself in places refers specifically to “Ford claim[s]” (rather than
incompetency claims of all kinds) as being the subject of the ripeness rule upon which Petitioner
relies. (Doc. No. 176 at 14-15).
It is true that Ford-based claims are unripe until an execution date is set. But there is every
reason to believe that an incompetency claim like Petitioner’s (again, treating it as an
incompetency claim even though it is actually not easily distinguishable from a claim of
ineligibility for the death penalty) is covered not by the rule of ripeness governing Ford-based
claims but rather by the normal rules of ripeness, the application of which favors Respondent’s
conclusion that the claim was ripe at the time the First Petition was filed. To begin with, the
language of the ripeness rule from Panetti on which Petitioner relies refers only to Ford-based
claims, and not to just any claim that a petitioner can convince a court to treat as a claim of
incompetency for execution rather than ineligibility for the death penalty. Panetti, 551 U.S. at 947
(“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.”). Additionally, the rationale for Panetti’s
ripeness rule is closely tied to the specific nature of Ford-based claims. Respondent accurately
explains that rationale:
A true Ford claim that a capital defendant “has ‘lost his sanity’ after
sentencing,” Madison, 586 U.S. at 268, does not ripen until execution is imminent
because “mental competency is subject to variance over time.” Cooey v. Strickland,
479 F.3d 412, 423 (6th Cir. 2007) (quoting Alley v. Little, 186 Fed. Appx. 604, 607
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(6th Cir. Jun 24, 2006)). “It is indeed possible that last-minute first-instance Ford
petitioners could be justified by a change in a defendant’s mental health.” Id.
(quoting Alley, 186 Fed. Appx. at 607).
(Doc. No. 185 at 21). 30 This rationale does not apply at all to the kind of incompetency claim
presented in the Petition, as Respondent (adopting a view of “idiocy” that is consistent with
Petitioner’s view) cogently explains and as the Court has suggested above:
[A] “last-minute first-instance” capital defendant raising an idiocy claim will never
be justified in doing so because the claim would have ripened long before execution
became imminent. Id. “Idiocy was understood as ‘a defect of understanding from
the moment of birth,’ in contrast to lunacy, which was ‘a partial derangement of
intellectual faculties, the senses returning at uncertain intervals.’” Penry, 492 U.S.
at 331 (quoting 1 W. Hawkins, Plea of the Crown, 2 n.2 (7th ed. 1795)). “There
was no one definition of idiocy at common law, but the term ‘idiot’ was generally
used to describe persons who had a total lack of reason or understanding, or an
inability to distinguish between good and evil.” Id. at 331-32. “[T]he old common
law notion of ‘idiocy’” placed an “emphasis on a permanent, congenital mental
deficiency.” Id. at 332.
(Id. at 21-22). For these reasons, Panetti’s special ripeness rule for Ford-based claims is simply
inapplicable to Petitioner’s current claim, even assuming arguendo that (for whatever reason) it is
properly considered a claim of incompetency to be executed rather than a claim of ineligibility to
receive the death penalty in the first place. 31
In summary, the Court concludes that Petitioner’s (novel kind of) incompetency claim was
not unripe at the time of Petitioner’s first habeas filing. Therefore, the Court determines that the
30
In case the Court has not already made this clear, it notes that Madison left no doubt that loss of “sanity”
for purposes of a Ford-based claim is broad enough to include situations involving not just things like
delusion-inducing psychosis, but also “mental illness,” “mental disorder,” and “psychological dysfunction”
writ large. Madison 586 U.S. at 278. Relatedly, and as noted above, Madison made clear that for purposes
of a Ford-based claim, what matters is not the specific cause of the petitioner’s mental disorder, but rather
whether it has the effect of preventing the petitioner from “reach[ing] a rational understanding of why the
State wants to execute him.” Id. at 266.
31
The Court does wonder why a claim based on personal characteristics present from birth or soon thereafter
would not be one for ineligibility for the death penalty in the first place, rather than a claim of incompetency
to be executed at the time of execution. But the Court need not resolve that question at this time.
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petition is “‘second or successive,’ and the claim must [be transferred to the Sixth Circuit and there
must] meet the gatekeeping provisions under § 2244(b)(2)(B) to survive.” 32 In re Hill, 81 F.4th at
569.
CONCLUSION
For the reasons stated above, the Court concludes that the Petition (Doc. No. 176) is a
second or successive petition under 28 U.S.C. § 2244. Accordingly, the Clerk shall transfer this
case to the United States Court of Appeals for the Sixth Circuit. 33
IT IS SO ORDERED.
___________________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE
32
Alternatively, the claim could survive without meeting those “gatekeeping provisions” if the Sixth Circuit
were to disagree with this Court’s determination that the Petition is “second or successive.”
33
The Sixth Circuit sometimes refers to transfers based on a petition being second or successive, as transfers
of the petition, i.e., the document that is the petition. E.g., In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (“[W]e
hold that when a prisoner has sought § 2244(b)(3) permission from the district court, or when a second or
successive petition for habeas corpus relief or § 2255 motion is filed in the district court without §
2244(b)(3) authorization from this court, the district court shall transfer the document to this court pursuant
to 28 U.S.C. § 1631.”).
Other times, the Sixth Circuit refers to transfers being of the “case.” See Tyler v. Anderson, 749 F.3d 499,
508 (6th Cir. 2014) (stating that because the pending petition was appropriately deemed second or
successive, “the proper course was for the district court to transfer the case to this court for certification.”).
The Court follows the latter practice, believing that it more fully reflects that the district court lacks
jurisdiction over any aspect of the case and the fact that motions to stay execution—and not just petitions—
surely should be deemed to be among whatever it is that is transferred to the Sixth Circuit. Here, the
Application For Stay (Doc. No. 177) thus is transferred to the Sixth Circuit as part of the case; for its part,
the Court takes no action on it at this time based on the Court’s conclusion herein that it lacks jurisdiction
over this case due to the Petition being, in the Court’s view, a second or successive petition.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
BYRON LEWIS BLACK,
)
)
)
)
)
)
)
)
)
)
)
)
Petitioner,
v.
KENNETH NELSEN, Warden,
Riverbend Maximum Security
Institution,
Respondent.
No. 3:00-cv-00764
CAPITAL CASE
EXECUTION DATE:
AUGUST 5, 2025
PETITION FOR WRIT OF HABEAS CORPUS
i
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TABLE OF CONTENTS
TABLE OF CONTENTS………………………………………………….ii
TABLE OF AUTHORITIES……………………………………………...v
I.
INTRODUCTION…………………………………………………..1
II.
JURISDICITON/VENUE…………………………………………6
III.
PARTIES…………………………………………………………….7
IV.
PROCEDURAL BACKGROUND………………………………..8
V.
FACTS……………………………………………………………….9
A.
Mr. Black Suffers from progressive debilitating
dementia…………………………………………………………..…9
B.
Mr.
Black
suffers
from
an
intellectual
disability……………………………………………………………10
VI.
1.
Evidence of sub-average intellectual functioning
2.
Evidence of Adaptive Deficits……………………..12
3.
Evidence of onset during the developmental period
C.
Mr. Black is unable to manage his affairs………………14
D.
Mr. Black suffers from brain damage and brain atrophy
Procedural Defenses………………………………………………20
VII. Standard of Review/applicability of the AEDPA……………..24
A.
Standard for claims adjudicated on the merits in state
court………………………………………………………….27
ii
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B.
C.
D.
Standard for claims presented to the state court that
were not adjudicated on the merits.……………………..29
Mr. Black’s claim is not subject to Section 2254(d)
because the state courts “respectfully declined” to
consider the merits of the claim.………………………….31
In the alternative, even if Mr. Black’s claims are subject
to Section 2254(d), the state courts unreasonably applied
clearly established federal law……………………………31
1.
Clearly established federal law bars the execution
of “idiots.”……………………………………………………32
2.
Clearly established federal law states that
incompetence is not limited to insanity.…………………34
3.
Binding Supreme Court precedent mandates that
courts must examine the history and tradition at the
time of the Founding to determine the scope
constitutional rights.………………………………………35
VIII. Constitutional Claim for Relief…………………………………40
A.
Applicable Law……………………………………………...40
1.
Characteristics of “idiocy” at common law……….42
2.
An inability to manage one’s own affairs…………43
3.
Unsound Memory……………………………………50
4.
Brain Malformation…………………………………52
5.
At common law, the protection of idiots was not
confined to solely profoundly disabled individuals.……54
iii
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B.
Mr. Black meets the criteria for “idiocy” at common
law.…………………………………………………………...60
IX.
Conclusion…………………………………………………………64
iv
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TABLE OF AUTHORITIES
Pages
Cases
Andrew v. White, 145 S. Ct. 75 (2025)………………………………..27,37
Atkins v. Virginia, 536 US 304 (2002)…………………………..3,53,58,59
Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450 (6th Cir.
2015)………………………………………………………...…………29,30,31
Bevereley’s Case, (1598) 76 E.R. 1118(K.B.)……………………………..49
Bies v. Sheldon, 775 F.3d 386 (6th Cir. 2014)…………………………..30
Black v. Bell, 664 F.3d 81 (6th Cir. 2011)………………………………….3
Black v. Carpenter, 866 F.3d 734 (6th Cir. 2017)…………………………8
Black v. State, No. M2004-01345-CCA-R3PD, 2005 WL 2662577 (Tenn.
Crim. App. Oct. 19, 2005)…………………………………………………8,13
Black v. State, No. M2000-00641-SC-DPE-CD, 2025 WL 1927568
(Tenn. July 8, 2025)………………………………………………………….33
Black v. State, No. 01C01-9709-CR-00422, 1999 WL 195299 (Tenn.
Crim. App. Apr. 8, 1999)……………………………………………………..8
New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022)
……………………………………………….……………………………..35,36
v
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Brumfield v. Cain, 576 U.S. 305 (2015)… ………………………………28
Chew v. Bank of Baltimore, 14 Md. 299 (Md. Ct. App. 1859)……..….39
Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. of the
L. v. Martinez, 561 U.S. 661 (2010)……………………………………….11
Coleman v. State, 341 S.W.3d 221 (Tenn. 2011)……………………….3,12
Cone v. Bell, 556 U.S. 449 (2009)…………………………………………29
Crawford v. Washington, 541 U.S. 36 (2004)………………………...36, 59
District of Columbia v. Heller, 554 U.S. 570 (2008)………………….35,36
Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022)...……35,36
Erlinger v. United States, 602 U.S. 821 (2024)………………………….36
Fisher v. Brown, 1 Tyl. 387, 1802 WL 745 (Vt. 1802)……..…….………48
Ex Parte Cramner, (1806) 33 E.R. 168………………………..……….43,46
Ford v. Georgia, 498 U.S. 411 (1991)………………………………..…….26
Ford v. Wainwright, 477 U.S. 399 (1986)…………………………...passim
Foster v. Means, 17 S.C. Eq. 569 (S.C. App. Eq. 1844)…………………..47
Franklin v. New York, 145 S. Ct. 831 (2025)……………………….…….58
Gray v. Netherland, 518 U.S. 152 (1996)…………………………………24
Hall v. Florida, 572 U.S. 701 (2014)………………………………………13
Harrington v. Richter, 562 U.S. 86 (2011)…………………………….27,29
vi
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Miller–El v. Cockrell, 537 U.S. 322 (2003)………………………………28
Hill v. Mitchell, 842 F.3d 910 (6th Cir. 2016)…………………………….30
Hill v. Shoop, 144 S. Ct. 2531 (2024)…………………………………….…1
Hughbanks
v.
2
Hudson,
F.4th
527
(6th
Cir.
2021)……………………...…………………………………………………...30
In re Barker, 2 Johns Ch. 232, 1816 WL 1112 (N.Y. Ch.
1816)…………………………………………………………...…………..50,56
In re Emswiler, 11 Ohio Dec. 10, 1900 WL 1262 (Ohio Prob.
1900)……………..……………………………………………………………56
In re Hanks, 3 Johns. Ch. 567, 1818 WL 1768 (N.Y. Ch. 1818)………40
In re Hill, 81 F.4th 560 (6th Cir. 2023)…………………………………….1
In re Lindsley, 10 A. 549 (N.J. Ch. 1887)………………………………….50
In
re
Mason,
1
Barb.
436,
1847
WL
4122,
(N.Y.
S.
Ct.
1847)…………………………………………………………………..42,46, 56
In re Morgan, 7 Paige Ch. 236, 1838 WL 2811
(N.Y. Ch. 1838)………………………………………………………………47
James v. Kentucky, 466 U.S. 341 (1984)…………………………………26
Johnson v. Williams, 568 U.S. 289 (2013)………………………………29
vii
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L’Amoureux v. Crosby, 2 Paige Ch. 422, 1831 WL 2894
(N.Y. Ch. 1831)………………………………………………………….……42
Lange v. California, 594 U.S. 295 (2021)…………………………………36
Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024)……………….36
Madison v. Alabama, 586 U.S. 265 (2019) ………………………………34
Maslonka
v.
Hoffner,
900
F.3d
269
(6th
Cir.
2018)……………….……..…………………………………………………...30
Millison v. Nicholson, 1 N.C. 612 (N.C. Super. Ct. L. & Eq. 1804)
………………………………………………………………………………….50
Moore v. Texas, 581 U.S. 1 (2017)……………………………………13, 60
Nat’l Ass’n for Advancement of Colored People v. State of Ala. ex rel.
Patterson, 357 U.S. 449 (1958)………………………………………….…26
Nat’l Republican Senatorial Comm. v. Fed. Election Comm’n, 117 F.4th
389 (6th Cir. 2024)……………………………………………………….…..37
New Hampshire v. Maine, 532 U.S. 742 (2001)………………………….11
Panetti v. Quarterman, 551 U.S. 930 (2007)………………………..passim
Pegram v. Herdrich, 530 U.S. 211 2000)…………………………..……..11
Penington v. Thompson, 5 Del. Ch. 328 (Del. Ch. 1880)…………..……47
Pennsylvania v. Schneider, 59 Pa. 328 (Pa. 1915)……………………….57
viii
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Penry v. Lynaugh, 492 U.S. 302 (1989)……………………………...33,59
Person v. Warren, 14 Barb. 488, 1852 WL 4762
(N.Y. S. Ct. 1852)…………………………………………………………….41
Ramos v. Louisiana, 590 U.S. 83 (2020)………………………….......36,37
Rice v. White, 660 F.3d 242 (6th Cir. 2011)……………………………….28
Roberts v. State, 3 Ga. 310 (Ga. 1847)…………………………………….57
Robinson v. Howes, 663 F.3d 819 (6th Cir. 2011)………………………..29
Sibley v. McCord, 173 S.W.3d 416 (Tenn. Ct. App. 2004)………………11
Solem v. Helm, 463 U.S. 277 (1983)……………………………………….35
State v. Black, 815 S.W.2d 166 (Tenn. 1991)………………………………8
State v. Black, No. 88-S-1479 (Davidson Cnty Crim. Ct.
June 5, 2025)…………………………………………………………………31
State v. Crow, 1 Ohio Dec. Reprint 586, 1853 WL 3649, (Ohio Com. Pl.
1853)………………………………………………………………………......48
Stewart v. Martinez-Villareal, 523 U.S. 637 (1998)………………………2
Stewart’s Ex’rs v. Lispenard, 26 Wend. 255, 1841 WL 3916
(N.Y. 1841)……………………………………………………………………39
Stubbs v. Houston, 33 Ala. 555 (Ala. 1859)……………………………….50
Taylor v. Riojas, 592 U.S. 7 (2020)…………………………………….......37
ix
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Timbs v. Indiana, 586 U.S. 146 (2019)……………………………………35
United States v. Jones, 565 U.S. 400 (2012)……………………….……..37
United States v. Rahimi, 602 U.S. 680 (2024)……………………..…….36
United States v. Williams, 113 F.4th 637 (6th Cir. 2024)………………36
Van Tran v. State, 6 S.W.3d 257 (Tenn. 1999)………………….…8,24,26
Yarborough v. Alvarado, 541 U.S. 652 (2004)……………….…….…….38
Constitution
U.S. Const. art. I § 9…………………………………………………….……1
U.S. Const. art. III……………………………………………………….……1
U.S. Const. amend. VIII……………………………………………….……..1
U.S. Const. amend. XIV …………………………………………………….1
Statutes
28 U.S.C. § 2201………………………………………………………………1
28 U.S.C. § 2241 …………………………………………………………1,4,6
28 U.S.C. § 2254……………………………………………………….passim
28 U.S.C. § 2244……………………………………………...………………..1
28 U.S.C. § 1331………………………………………………………...……..6
Education for All Handicapped Children Act, Pub. L. No. 94-142,
89 Stat. 773…………………………………………………………….……..14
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Other Authorities
Douglas G Altman & J Martin Bland, Standard deviations and
standard errors, 331 British Med. J. 903 (Oct. 15,
2005)…………………………………………………………………………..59
William Blackstone, 1 Commentaries on the Laws of England,
(1826)…………………………………………………………………….passim
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)………………………………49,50,52
Michael Clemente, A Reassessment of Common Law Protections for
“Idiots”, 124 YALE L.J. 2746 (2015)………………………………………56
Edward Coke, 1 Institutes of the Laws of England (1633)….........passim
George D. Collinson, Treatise on the Law Concerning Idiots, Lunatics,
and Other Person Non Compotes Mentis (1812) ………………..42,44,46
Anthony Fitzherbert, La Novelle Natura Brevium (1534)…………53,54
S. Sheldon Glueck, Mental Disorder and the Criminal Law (1925)…..55
Matthew Hale, 1 History of Pleas of the Crown (1736)………….passim
Anthony Highmore, Treatise on the Law of Idiocy and Lunacy
(1822) ………………………………………………………………….40,41,46
Simon Jarrett, Those They Called Idiots (2020)…………………….42,44
Ellis Lewis, An Abridgement of the Criminal Law of the United States
(1847)………………………………………………………………………….43
John Locke, Essay on Human Understanding (1824)…………..……..41
xi
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Margaret McGlynn, Idiots, Lunatics, and the Royal Prerogative in
Early Tudor England 26 J. LEGAL HIST. 1–24 (April
2005)………………..…………………………………………………………50
Natalie Novick Brown, et al., A proposed model standard for forensic
assessment of Fetal Alcohol Spectrum Disorders 38 J. OF PSYCH. & L
383 (2010).…………………………………………………………………….23
J.A. Paris & J.S.M. Fonblanque, Medical Jurisprudence (1823)……...52
Issac Ray, Treatise on the Medical Jurisprudence of Insanity
(1838)....……………………………………………………………………….57
Thomas W. Powell, Analysis of American Law 550 (1878)……………..49
Francis Wharton & Moreton Stille, Wharton and Stille’s Medical
Jurisprudence (1905)………………………………………………….passim
Andrea Zevenbergen, Assessment and Treatment of Fetal Alcohol
Syndrome in Children and Adolescents 13 J. DEV. & PHYSICAL
DISABILITIES 123 (2001)………………….…..……………………………..23
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Petitioner Byron Black, pursuant to all rights available under
Article I § 9 and Article III of the United States Constitution, the Eighth,
and Fourteenth Amendments to the United States Constitution, and 28
U.S.C. § 2201, and 28 U.S.C. § 2241 et. seq., including 28 U.S.C. §§ 2241
& 2254, respectfully moves this Court for a writ of habeas corpus
declaring he is incompetent to be executed.
I.
INTRODUCTION
This is a second in time, non-successive petition for a writ of habeas
corpus that relates solely to Mr. Black’s competency to be executed under
Ford v. Wainwright, 477 U.S. 399 (1986). “[T]he Supreme Court has said
that not all petitions filed second in time are second or successive. And
when a numerically second petition is not second or successive, it isn’t
subject to the restrictions of 28 U.S.C. § 2244(b).” In re Hill, 81 F.4th 560,
568 (6th Cir. 2023), cert. denied sub nom. Hill v. Shoop, 144 S. Ct. 2531
(2024) (citations omitted). A petitioner filing a second or successive
habeas corpus petition must first move in the appropriate court of
appeals to issue an order authorizing the district court to consider the
petition. See 28 U.S.C. § 2244(b)(3)(A). When a petitioner files a second
in time, non-successive habeas petition based on a Ford claim, Ҥ 2244(b)
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restrictions simply do not apply.” Stewart v. Martinez-Villareal, 523 U.S.
637, 642 (1998). The second-in-time habeas petition may be filed in the
appropriate district court without authorization from the court of
appeals. It is well-established that habeas petitions based on Ford claims
are not successive because they typically do not become ripe until an
execution date is set. See Panetti v. Quarterman, 551 U.S. 930, 947 (2007)
(“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.”)
Mr. Black first brought this Court a habeas petition in 2000. R. 1,
Pro Se, Initial, Unamended Petition. 1 He amended his initial pro se
petition in 2001. R. 8, Amended Petition. At that time, Mr. Black raised
a claim that he was incompetent to be executed (id. at 44), but, following
governing precedent, this Court determined that that claim was not yet
ripe. R. 82, Memorandum at 71–72. In 2007, Mr. Black returned to this
1 For the ease of the parties and the Court and in light of Mr. Black’s impending
execution date, Mr. Black is filing the state court technical record as his exhibit 1 to
this petition. All citations in this petition to the state court record will, accordingly,
be marked with the pagination of the state court technical record. Citations to the
Record in this case will be designated “R.”
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Court following the state court adjudication of his intellectual disability
claim filed pursuant to Atkins v. Virginia, 536 US 304 (2002). R. 97
Remand; R. 98, Amendment to Petition for Writ of Habeas Corpus. This
Court, again, dismissed Mr. Black’s petition. R. 128 at PageID#618. The
Sixth Circuit reversed and remanded for further consideration. R. 134,
Remand; Black v. Bell, 664 F.3d 81, 97-100 (6th Cir. 2011). This Court,
finding itself constrained by the scope of the remand, did not consider Mr.
Black’s proof of his intellectual disability presented for the first time in
federal court. R. 161 at PageID#961 (“This Court subsequently
considered Petitioner’s request to introduce new evidence, and denied the
request based on the language of the Sixth Circuit’s opinion directing the
Court to ‘review the record based on the standard set out in Coleman . .
.’”) (citing R. 150, at PageID#742).
On March 3, 2025, the Tennessee Supreme Court set Mr. Black’s
execution for August 5, 2025. At the time of that setting, Mr. Black’s
incompetency to be executed claim—previously dismissed by this Court—
became ripe. Martinez-Villareal, 523 U.S. at 643 (finding that an
incompetency to be executed claim was “unquestionably ripe” upon the
setting of an execution date); Panetti, 551 U.S. at 945 (holding that a Ford
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claim filed after an execution date is set is not second-or-successive under
the meaning of 28 U.S.C. 2241); see also, TR at 1 (Order of the Tennessee
Supreme Court (setting execution date and ordering Mr. Black to file his
“petition alleging incompetency to be executed in the trial court . . .”)).
On May 29, 2025, Mr. Black filed his petition alleging his
incompetency to be executed in state court. TR at 28-54 (Petition). The
state trial court denied his petition without a hearing on June 6, 2025.
TR at 768-84 (Order). Mr. Black appealed the trial court’s denial of
process to the Tennessee Supreme Court on June 9, 2025. TR at 787-88
(Notice of Appeal); Ex. 2, Appellate Brief. The Tennessee Supreme Court
affirmed the trial court’s denial of a hearing on July 8, 2025. Ex. 3, Order.
Because Mr. Black has exhausted all state remedies for his
incompetency to be executed claim, his claim is now ripe for review in
this Court. This petition does not constitute a second or successive
petition for a writ of habeas corpus under the governing law. Panetti, 551
U.S. at 945 (“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
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as that claim is ripe.”). “AEDPA’s concern for finality, moreover, is not
implicated, for under none of the possible approaches would federal
courts be able to resolve a prisoner’s Ford claim before execution is
imminent.” Id. at 945. As such, the filing of this writ of habeas corpus in
the district court is appropriate and the matter should not be transferred
to the United States Court of Appeals for the Sixth Circuit, as it does not
constitute a successive habeas petition.
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II.
JURISDICTION/VENUE
This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 2241(a),
and 2254(a). Venue is proper in the Middle District of Tennessee. 28
U.S.C. § 2241(d).
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III. PARTIES
Petitioner Byron Black is an inmate of the Tennessee Department
of Corrections (TDOC). Mr. Black’s TDOC number is 00126220. The
TDOC currently houses Mr. Black in Unit 2, Riverbend Maximum
Security Institution (RMSI), 7475 Cockrill Bend Industrial Road,
Nashville, Tennessee, 37209.
Respondent, Kenneth Nelsen, is the RMSI Warden and an agent of
the state. Warden Nelsen’s address is Riverbend Maximum Security
Institution, 7475 Cockrill Bend Industrial Road, Nashville, Tennessee,
37209.
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IV.
PROCEDURAL BACKGROUND
Mr. Black was convicted and sentenced to death in 1989. On direct
appeal, a divided Tennessee Supreme Court affirmed his convictions and
sentences. State v. Black, 815 S.W.2d 166, 170 (Tenn. 1991). Mr. Black
exhausted the standard, three-tier appellate review process. Black v.
Carpenter, 866 F.3d 734 (6th Cir. 2017); Black v. State, No. M2004-01345CCA-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.3d at 170. On March 3, 2025, the Tennessee
Supreme Court set Mr. Black’s execution for August 5, 2025. Pursuant to
the procedures outlined in Van Tran v. State, 6 S.W.3d 257 (Tenn. 1999),
the Tennessee Supreme Court remanded Mr. Black’s case to the trial
court to determine his competency to be executed.
On June 5, 2025, the Tennessee trial court entered a memorandum
and order denying relief. The Tennessee Supreme Court denied Mr.
Black relief on July 8, 2025.2
2 Mr. Black field a petition for certiorari on July 16, 2025, seeking review of this
judgment.
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V.
FACTS
Mr. Black has dementia, is intellectually disabled, and suffers from
profound brain damage. The combination of these conditions results in
severely limited intellectual capacity, significant memory loss, and an
inability to manage his own affairs.
A.
Mr. Black
dementia.
suffers
from
progressive,
debilitating
Dr. Dan Martell diagnosed Mr. Black with moderate dementia with
severe impairment of executive function. TR 63 (Martell 2025). He did so
because of Mr. Black’s dismal performance on the Dementia Rating
Scale-2, a test “that measures multiple cognitive functions associated
with dementia.” Id. Those standardized scores place Mr. Black’s
functionality in the bottom 3–5% of others his age and, notably, show that
he has deficits that “affect his functional independence and decisionmaking capacity.” Id.
Mr. Black’s neurocognitive deficits also result in “a substantial loss
in his ability to find words to express himself.” TR 64 (Martell 2025). In
2019, when Dr. Martell first assessed Mr. Black, “he was severely
impaired in this area” and fewer than one in 1,000 individuals performed
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worse. Id., see also TR 532 (Martell 2020). Currently, Mr. Black’s
expressive language capabilities are “profoundly disabled” and fewer
than one in 10,000 individuals performed worse than Mr. Black in this
area. Id. Further, Mr. Black’s “higher order cognitive abilities required
for reasoning, problem solving, and abstract thinking have also
diminished significantly.” Id. Mr. Black’s dementia is progressive,
causing significant impairments in memory, verbal fluency, and
executive functioning. TR 63 (Martell 2025); TR 528–29 (Martell 2020).
Dr. Martell’s neuropsychological testing is confirmed by his clinical
assessment and that of Dr. Lea Ann Baecht. TR 111–12 (Baecht 2025)
(diagnosing Major Neurocognitive Disorder).
B.
Mr. Black suffers from an intellectual disability.
As the State stipulated in 2022, Mr. Black is intellectually disabled.
Mr. Black meets all three prongs of the diagnosis. “Because these experts
have concluded Petitioner does, in fact, meet the criteria for a diagnosis
of intellectual disability, the State stipulates that Petitioner would be
found intellectually disabled were a hearing conducted.” TR 517 (State’s
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Response).3 The record supports the State’s stipulation. Numerous
experts have concluded that he meets the criteria for intellectual
disability. TR 520–44 (Martell 2020); TR 428–39 (Martell 2021); TR 56–
68 (Martell 2025); TR 110–112 (Baecht 2025); TR 440–59 (Greenspan
2008); TR 460–74 (Tasse 2008); TR 475–500 (Grant 2001); TR 501–08
(Globus 2001); TR 509–11 (Globus 2004). Notably, the State’s expert who
previously testified that Mr. Black was not intellectually disabled
revisited her opinion and subsequently concluded that under current
legal and diagnostic criteria, Mr. Black is intellectually disabled. TR 557–
563 (Vaught 2022).
Intellectual disability “is a disorder with onset during the
developmental period that includes both intellectual and adaptive
functioning deficits in conceptual, social, and practical domains.”
3 Precedent is clear that such a factual stipulation is binding on the parties. Christian
Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. of the L. v. Martinez, 561 U.S.
661, 677 (2010) (A party is “bound by the factual stipulations it submits.”). The
doctrine of judicial estoppel prohibits the State from now disputing Mr. Black’s
intellectual disability. Sibley v. McCord, 173 S.W.3d 416, 419 (Tenn. Ct. App. 2004)
(“The doctrine of judicial estoppel prevents a litigant who has taken a position in one
judicial proceeding from taking a contradictory position in another.”). “This rule,
known as judicial estoppel, ‘generally prevents a party from prevailing in one phase
of a case on an argument and then relying on a contradictory argument to prevail in
another phase.’” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Pegram
v. Herdrich, 530 U.S. 211, 227, n.8 (2000)).
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Diagnostic and Statistical Manual of Mental Disorders (5th ed. Text Rev.
2022, p. 37). An individual with intellectual disability must meet the
following three criteria:
A. Deficits in intellectual functions, such as reasoning,
problem solving, planning, abstract thinking, judgment,
academic learning, and learning from experience,
confirmed by both clinical assessment and individualized,
standardized intelligence testing.
B. Deficits in adaptive functioning that result in failure to
meet developmental and socio-cultural standards for
personal independence and social responsibility. Without
ongoing support, the adaptive deficits limit functioning in
one or more activities of daily life, such as communication,
social participation, and independent living, across
multiple environments, such as home, school, work, and
community,
C. Onset of intellectual and adaptive deficits during the
developmental period.
Id. As discussed below, Mr. Black meets these three criteria.
1.
Mr.
Evidence of sub-average intellectual functioning
Black
exhibits
significantly
subaverage
intellectual
functioning. Throughout his life, intelligence testing has consistently
shown Mr. Black’s intelligence to be in the intellectually disabled range.
Below are the results of all individually administered, psychometrically
valid IQ tests that Mr. Black has taken. See e.g., TR 564–65 (Blair 1993);
TR 566–70 (van Eys 2001); TR 428–39 (Martell 2021). The chart below
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also includes adjusted scores based on the standard error of
measurement and the Flynn Effect, as required by prevailing standards.
Hall v. Florida, 572 U.S. 701, 723 (2014) (instructing courts to take into
consideration the standard error of measurement in evaluating
intellectual disabilities); Coleman v. State, 341 S.W.3d 221, 242 n.55
(Tenn. 2011) (applying the Flynn Effect and holding “scores must be
correspondingly adjusted downward” due to test obsolescence). 4
Year
(expert)
1993
(Blair)
1997
(Auble)
2001
(Grant)
2001
Test
Full
Scale IQ
WAIS-R
73
SEM
(Score
range)
+/- 5
Flynn
Adjusted
IQ
67
WAIS-R
76
+/- 5
70
StanfordBinet-4th ed.
WAIS-III
57
+/- 2.5
52
69
+/- 3
67
These precedents post-date the Tennessee courts’ rejection of Mr. Black’s
intellectual disability claim. Hall is of particular relevance to the Court of Criminal
Appeals decision in Mr. Black’s case that held that an IQ score of 70 was a “brightline cutoff,” a ruling plainly repudiated by Hall. Black v. State, No. M2004-01345CCA-R3PD, 2005 WL 2662577, at *12 (Tenn. Crim. App. Oct. 19, 2005). Similarly,
the Court of Criminal Appeals’ reliance upon Mr. Black’s adaptive strengths such as
being employed, caring for an automobile, or generally getting along well with others
has also been rejected by a subsequent Supreme Court decision. Compare Id. at *15
with Moore v. Texas, 581 U.S. 1, 15 (2017) (mandating that courts examine adaptive
deficits, not adaptive strengths). Thus, while the State may claim that Mr. Black
failed to demonstrate that he is intellectually disabled, it is beyond dispute that the
Tennessee courts’ adjudication of Mr. Black’s claim was unreliable for reasons
elucidated by the Supreme Court in Hall and Moore.
4
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(Van Eys)
2021
(Martell)
WAIS-IV
67
+/- 3
63
Mr. Black’s IQ test scores have consistently demonstrated that his
intelligence is in the intellectually disabled range. In fact, the scores show
remarkable congruence over time and exhibit significantly subaverage
intellectual functioning. All the scores above indicate an IQ at least two
standard deviations below the mean and, as such, satisfy prong one of an
intellectual disability diagnosis.
2.
Evidence of Adaptive Deficits
Mr. Black exhibits deficits in adaptive functioning in multiple
domains. In the conceptual domain, which includes skills such as
language, math, money, and self-direction, Mr. Black exhibits marked
deficits. TR 534–44 (Martell 2020). Academically, Mr. Black was held
back and required to repeat the second grade. 5 TR 571–72 (School
5 Mr. Black attended underperforming, segregated schools. Black, 2005 WL 2662577,
at *2. His education predated federal legislation such as the Education for All
Handicapped Children Act, assuring “free and appropriate education” to all students.
TR 453 (Greenspan 2008); Education for All Handicapped Children Act, Pub. L. No.
94-142, 89 Stat. 773, 775. In prior proceedings, his teacher admitted “I would never
let a student get a bad grade.” TR 453 (Greenspan 2008). The fact that Mr. Black was
held back in such an environment is telling.
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Records). Neuropsychological testing indicates that Mr. Black’s abilities
in math fall in the 2nd percentile and his reading abilities in the 4th
percentile. TR 527 (Martell 2020). Put differently, 98% of the population
exhibits stronger performance in math and 96% of the population
exhibits better reading skills. Id.
Early indications of Mr. Black’s deficits in the conceptual domain
are confirmed by individuals that knew him as a child. For example,
Rossi Turner grew up with Mr. Black, attended the same school, and
lived on the same street. TR 573–576 (Turner Decl.). Turner recounts
that when neighborhood children played simple games, Mr. Black
struggled to understand how to play the game and consistently was the
first child to lose because he could not grasp the concept of the game or
its rules. Id. at 575 (Turner Decl.); TR 537–38 (Martell 2020). Dr.
Martell’s recent testing confirms that Mr. Black has “severe impairment
in applying reasoning and decision-making to real-world situations.” TR
62 (Martell 2025). These deficits make him “[u]nable to make sound,
independent decisions.” Id.
Across the decades of evaluations, neuropsychological testing
consistently shows sharp deficits in memory, word finding, verbal
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expression, and attention. TR 56–68 (Martell 2025); TR 520–44 (Martell
2020); TR 475–500 (Grant 2001); TR 577–78 (Auble 2008). Dr. Martell’s
recent assessment shows that these deficits have only worsened with
time and age. TR 63–65 (Martell 2025).
In the social domain, Mr. Black exhibits deficits indicative of
intellectual disability. Several informants note that Mr. Black is
unsuitably familiar with strangers, smiles inappropriately, and fails to
maintain customary distance in social interactions. TR 537–39 (Martell
2020); see also TR 567 (van Eys 2001) at 2; TR 579–580 (Alderman Decl.).
Likewise, informants from Mr. Black’s childhood remember that in
addition to failing to “catch on” to games, he missed social cues and had
few close friends. TR 537–39 (Martell 2020).
Finally, Mr. Black’s deficits in the practical domain are the most
severe. Mr. Black never lived independently, even after marrying and
fathering a child. TR 582 (Corley Decl.); TR 456 (Greenspan 2008). His
ex-wife described him as “childish” and reliant on family members for
financial support. TR 539 (Martell 2020). Mr. Black could not perform
simple tasks such as assuming responsibility to take care of his son,
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cooking, or operating a washing machine. TR 492–93 (Grant 2001); TR
583-4 (Whitney Decl.).
Mr. Black never had a checking account and neuropsychological
testing shows deficits in money management. TR 539–40 (Martell 2020);
TR 61 (Martell 2025). Mr. Black’s money management scores acquired by
Dr. Martell in 2025 are “extremely low” and “[i]ndicate[] severe difficulty
with financial management.” Id. Scores at this level low indicate that an
individual is at “high risk” or “not safe” to manage money independently.
Id.
Childhood informants recall Mr. Black consistently forgot to do his
limited chores as a child. Rossi Turner recalls that it was Mr. Black’s job
to fetch coal and kindling, which he was unable to reliably perform. TR
575 (Turner Decl.). Turner believes that Mr. Black did not fail to do his
chores out of defiance; rather, he forgot his chores and required repeated
instruction about how to do them properly. Id. at 575–76.
In 2008, Dr. Stephen Greenspan, a widely respected expert on
intellectual disability, administered the Vineland-2 retrospectively by
interviewing Mr. Black’s sisters Melba Black Corley and Freda Black
Whitney, as well as his friend Rossi Turner, and his football coach Al
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Harris. TR 440–59 (Greenspan 2008). The Vineland-2 is “the most
widely-used and respected adaptive behavior rating instrument.” Id. at
457. The informants showed remarkable consistency and revealed Mr.
Black’s adaptive functioning measured more than two standard
deviations below the mean. Id. at 457-59.
In short, numerous experts have concluded that Mr. Black exhibits
deficits in adaptive functioning. Their conclusions are confirmed by
empirically validated, psychometrically valid testing.
3.
Mr.
Evidence of onset during the developmental
period
Black’s
intellectual
disability
manifested
during
the
developmental period. Mr. Black’s academic difficulties were evident as
early as the second grade when he was held back due to poor
performance. TR 453 (Greenspan 2008). As discussed above, his friends
and family attest to early, indicative difficulties such as Mr. Black’s
inability to grasp simple childhood games and his inability to recall and
perform his chores. TR 575 (Turner Decl.). His high school football coach
recounts that although Mr. Black exhibited athletic ability, he stood out
as especially slow and was unable to understand and execute offensive
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plays, such that his coach had to create a highly simplified playbook for
him. TR 456–57 (Greenspan 2008) (documenting interview of Al Harris,
Football Coach). Mr. Black was more capable of grasping defense, where
the task at hand was simpler: to run and tackle the ball carrier. Id. The
reports of Drs. Martell, Greenspan, Tasse, Grant, and Vaught (State’s
expert) all support the conclusion that Mr. Black’s impairments
manifested during the developmental period. TR 520–44 (Martell 2020);
TR 440–59 (Greenspan 2008); TR 460–74 (Tasse 2008); TR 475–500
(Grant 2001).
C.
Mr. Black is unable to manage his affairs.
Mr. Black has always been incapable of managing his own affairs.
Prior to his incarceration at age 32, Mr. Black never lived independently,
did not know how to perform basic functions like doing laundry or
cooking, and did not have a checking account. TR 539 (Martell 2020). At
present, Mr. Black’s ability to manage his own affairs has deteriorated
significantly. TR 62 (Martell 2025). Even in the prison, he has an inmate
helper to assist him with tasks like laundry, using the microwave, and
cleaning his cell. Objective neuropsychological testing shows that Mr.
Black cannot safely take care of himself and exhibits severe deficits in
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the areas of health, safety, money management, and problem solving. Id.
at 61–62. He has “marked global impairment in skills necessary for
independent living.” Id. at 62.
Mr. Black’s ability to care for himself and navigate in his limited
world is further compromised by the debilitating effects of progressive
dementia. As a result, 99 out of 100 individuals his age and education
have a better memory. TR 64 (Martell 2025). He struggles to express
himself and less than one in 10,000 individuals have deficits in verbal
fluency as bad as his. Id. His higher order executive functioning and
problem-solving abilities are extremely limited and have deteriorated
significantly in recent years. Id.
D.
Mr. Black suffers from brain damage and brain
atrophy.
In 2001, brain imaging showed significant deficits in Mr. Black’s
overall brain volume, including several regions that were two to three
standard deviations below the mean. TR 95 (Gur 2025). Imaging
conducted in 2022 showed a severe worsening of this condition. Dr. Ruben
Gur describes this decline saying, “several brain regions exhibited
marked volumetric changes.” Id. at 96. Between 2001 and 2022, several
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regions of Mr. Black’s brain declined in volume and exhibit “measurable
regional atrophy.” Id. The imaging also showed a “structural expansion
in fluid-filled and periventricular regions, as when tissue dies, it is
replaced by fluid.” Id. In other words, the existence of more fluid in Mr.
Black’s brain is the result of the death of brain tissue.
The most recent imaging studies demonstrate that Mr. Black’s
brain volume “is 3.49 standard deviation below the normal.” Id. at 94.
The volume reductions “are especially severe in bilateral limbic and
medial temporal regions.” Id. “[B]ilateral hippocampal volume is
profoundly reduced” and is more than four standard deviations below the
mean. Id. These deficits “are likely to impair Mr. Black’s ability to
regulate behavior, integrate emotional and cognitive input, and reason
effectively.” Id. Furthermore, “[t]he extensive damage to hippocampal
and thalamic structures, together with posterior cingulate hypotrophy,
strongly suggests memory impairment, difficulty with orientation, and
compromised ability to learn from prior experience.” Id. The damage to
Mr. Black’s parietal lobe “portend difficulties in integration of
multimodal information and the sense of self-agency,” which “increase
vulnerability to confusion, suggestibility, and confabulation—wherein
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memory gaps may be unintentionally filled with inaccurate information.”
Id. In short, Mr. Black has “profound and widespread volume loss” that
causes significant deficits “across cognitive, emotional, and social
domains.” Id.
Dr. Gur’s conclusions are confirmed by Dr. Martell’s neurocognitive
testing, which also shows a “very significant neurocognitive decline” since
Dr. Martell’s previous evaluation in 2019. TR 63 (Martell 2025). In the
areas of memory and attention, Mr. Black’s “scores have fallen
significantly” and memory testing now indicates that he is in the bottom
first percentile. Id. at 64.
Mr. Black’s brain sustained numerous, significant insults at an
early age that likely compromised his neurocognitive functioning. Mr.
Black “was exposed to neurotoxins in utero and as a small child.” TR 267
(Gur 2001). Dr. Gur concluded that “[e]xposure to these toxins causes
structural damage to the brain, including orbital frontal and temporal
lobes that contribute to attention disorder and motor impairment.” Id. at
268. Both of these exposures have significant neurocognitive effects and
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may account for his deteriorating functioning. 6 See, e.g., id.; TR 400
(Family Interview Memos); TR 425 (Finas Black Test.).
Dr. Gur noted that Mr. Black was “an avid football player at varsity
level and has suffered several head injuries.” TR 268 (Gur 2001); see also
TR 374–395 (VUMC childhood medical records) (documenting head
injury). Based upon the brain imaging studies in 2022, Dr. Gur stated
that “[t]raumatic brain injury is also consistent with several findings of
structural and functional abnormalities, such as decreased metabolism
in the cingulate gyrus and signs of diffuse axonal injury.” TR 98 (Gur
2025). Repeated blows to the head, as Mr. Black sustained, likely play a
role in his neurocognitive decline.
While it is difficult to identify with precision all the sources of Mr.
Black’s numerous neurocognitive problems, his history contains ample
6 Exposure to alcohol in utero causes significant neurocognitive and development
deficits in individuals. Andrea Zevenbergen, Assessment and Treatment of Fetal
Alcohol Syndrome in Children and Adolescents 13 J. DEV. AND PHYSICAL
DISABILITIES 123, 124 (2001). Such exposure can cause neurobehavioral deficits,
delayed speech and language acquisition, and lower intellectual functioning. Id. at
124–25; Natalie Novick Brown, et al., A proposed model standard for forensic
assessment of Fetal Alcohol Spectrum Disorders 38 J. OF PSYCH. & L 383, 389–90
(2010).
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evidence of multiple injuries and exposures that are capable of causing
his deficits.
VI.
PROCEDURAL DEFENSES
Procedural default is an affirmative defense that must be invoked
by the Respondent. Gray v. Netherland, 518 U.S. 152, 165 (1996).
However, Mr. Black anticipates that the State of Tennessee will invoke
the defense of procedural default of this claim, as it did in the state courts.
This argument is unavailing. In the state courts, the State argued that
Mr. Black’s “idiocy” claim was not properly before the courts because it
should have been raised at an earlier time. This argument is wholly
inconsistent with Supreme Court jurisprudence regarding when a
competency to be executed claim should be filed.
The Supreme Court has repeatedly ruled that a competency to be
executed claim is not ripe until execution is imminent. Panetti, 551 U.S.
at 947; Martinez-Villareal, 523 U.S. at 643. Tennessee state law holds
the same. Van Tran, 6 S.W.3d at 267 (“In Tennessee, execution is
imminent only when a prisoner sentenced to death has unsuccessfully
pursued all state and federal remedies for testing the validity and
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correctness of the prisoner’s conviction and sentence and this Court has
set an execution date upon motion of the State Attorney General.”).
The only way to avoid the conclusion that Mr. Black’s claim was
properly before the Tennessee courts is to recast it as something as
something it is not. Contrary to the view of the Tennessee Supreme
Court, nothing in Mr. Black’s petition requested a “new categorical
exclusion from execution.” Black, 2025 WL 1927568, at *9.7 Nor was his
petition an effort “to relitigate his intellectual disability claim.” Id. at *8.
“Idiocy” is, and always has been, a question of competency. The formation
of the legal concept of non compos mentis is in the common law, not to
mention plastered all over Mr. Black’s petition. Furthermore, Mr. Black
has emphasized throughout this litigation that although the definition of
“idiocy” includes low intellectual functioning, the common law conception
of “idiocy” differs greatly from our modern conception of intellectual
disability. As such, any attempt to assert procedural default in this
matter is wholly specious.
7 If anything, the rule Mr. Black asked the Tennessee courts to apply is quite old,
dating back to the early common law.
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Prior to its decision in Black, the Tennessee Supreme Court had
never addressed the scope of common on law rights under its competency
jurisprudence. But in the seminal case of Van Tran v. State, the
Tennessee Supreme Court unambiguously indicated that such rights
existed: “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.” Van Tran,
6 S.W.3d at 265 (emphasis added).
For a state procedural rule to serve as a bar to federal habeas
review, 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.” 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. 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.
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State of Ala. ex rel. Patterson, 357 U.S. 449, 457 (1958)). Thus, any rule
established for the first time in Mr. Black’s case, cannot serve as a
procedural bar to federal habeas review.
VII. STANDARD OF REVIEW/APPLICABILITY OF THE AEDPA
A.
Standard for claims adjudicated on the merits in state
court.
When a state court adjudicates the merits of a petitioner’s claim,
the claim is subject to deferential standards outlined in 28 U.S.C.
§ 2254(d). In those circumstances, an application for a writ of habeas
corpus shall not be granted unless that state court resolution of the claim
“resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C.§ 2254(d)(1). “To show
that a state court unreasonably applied clearly established federal law, a
petitioner must show that the court unreasonably applied the holdings,
as opposed to the dicta, of this Court’s decisions.” Andrew v. White, 145
S. Ct. 75, 80 (2025) (cleaned up). As interpreted, “[a] state court’s
determination that a claim lacks merit precludes federal habeas relief so
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long as ‘fairminded jurists could disagree’ on the correctness of that
decision.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
Section 2254(d)(2) permits a federal court to grant a writ of habeas
corpus where the state court resolution of the claim “resulted in a
decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). Under this provision, “it is not enough for the petitioner to
show some unreasonable determination of fact; rather, the petitioner
must show that the resulting state court decision was ‘based on’ that
unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir.
2011). Furthermore, a state court factual finding is not unreasonable
merely because this Court “would have reached a different conclusion in
the first instance.” Brumfield v. Cain, 576 U.S. 305, 313–14 (2015)
(cleaned up). “[H]owever, ‘[e]ven in the context of federal habeas,
deference does not imply abandonment or abdication of judicial review,’
and ‘does not by definition preclude relief.’” Id. at 314 (quoting Miller–El
v. Cockrell, 537 U.S. 322, 340 (2003)).
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B.
Standard for claims presented to the state court that
were not adjudicated on the merits.
Not all claims exhausted in state court, however, are subject to
AEDPA deference. “The language of 28 U.S.C. § 2254(d) makes it clear
that this provision applies only when a federal claim was ‘adjudicated on
the merits in State court.’” Johnson v. Williams, 568 U.S. 289, 302 (2013).
“Claims that were not ‘adjudicated on the merits in State court
proceedings’ receive the pre-AEDPA standard of review: de novo for
questions of law (including mixed questions of law and fact), and clear
error for questions of fact.” Robinson v. Howes, 663 F.3d 819, 823 (6th
Cir. 2011); see also Cone v. Bell, 556 U.S. 449, 472 (2009).
The presumption that state courts adjudicated a claim on the
merits, “may be overcome when there is reason to think some other
explanation for the state court’s decision is more likely.” Harrington, 562
U.S. at 99–100. For example, a claim is not adjudicated on the merits
when the state court “made a point of not deciding the issue.” Barton v.
Warden, S. Ohio Corr. Facility, 786 F.3d 450, 460 (6th Cir. 2015)
(emphasis original). Nor can an “offhand remark . . . be taken as an
adjudication on the merits.” Id. at 461.
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Furthermore, when the state courts “made clear that they were
applying a procedural bar and thus not considering the merits,” the
requirements of Section 2254(d) likewise do not apply. Id.; Maslonka v.
Hoffner, 900 F.3d 269, 278 (6th Cir. 2018) (reviewing a claim de novo
when the state court “enforced a procedural bar” rather than
“adjudicate[ing] [petitioner’s] claims on the merits”). “When a state court
does not address a claim on the merits, as when it applies a state law
procedural bar, ‘AEDPA deference’ does not apply and we will review the
claim de novo.” Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014); see also
Hughbanks v. Hudson, 2 F.4th 527, 535 (6th Cir. 2021) (applying de novo
review when the state court ruled a claim was procedurally barred and
did not rule on the merits); Hill v. Mitchell, 842 F.3d 910, 938 (6th Cir.
2016) (same).
C.
Mr. Black’s claim is not subject to Section 2254(d)
because the state courts “respectfully declined” to
consider the merits of the claim.
Mr. Black’s claim is not subject to Section 2254(d) because the
Tennessee courts “made a point of not deciding the issue.” Barton, 786
F.3d at 460. The Tennessee Supreme Court did not consider the merits
of Mr. Black’s common law “idiocy” claim and expressly said as much:
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“[T]o the extent Mr. Black is asking this Court to reconsider the standard
for competency to be executed, he offers no compelling reason for us to
adopt a standard that differs from longstanding precedent from this
Court and the United States Supreme Court. We respectfully decline to
do so.”8 This was the sole statement of the Tennessee Supreme Court
regarding the substance of Mr. Black’s “idiocy” claim. It is not a merits
determination and expressly declined to consider the substance of the
claim. As such, the Tennessee courts made a point of not deciding Mr.
Black’s claim and consequently, the strictures of Section 2254(d) do not
apply and de novo review is required. Barton, 786 F.3d at 460.
D.
In the alternative, even if Mr. Black’s claims are subject
to Section 2254(d), the state courts unreasonably
applied clearly established federal law.
Even if this Court holds that Mr. Black’s claim is subject to the
requirements of Section 2254(d), Mr. Black’s claim must be reviewed de
novo because the Tennessee’s court’s resolution of Mr. Black’s claim was
contrary to clearly establish federal law and the state courts
8 The trial court likewise “decline[d] to wade into the asserted common law claim of
‘idiocy.’” State v. Black, No. 88-S-1479, at 14 n.5 (Davidson Cnty Crim. Ct. June 5,
2025) (Memorandum and Order).
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unreasonably applied clearly established Supreme Court precedent. The
Tennessee courts’ resolution of Mr. Black’s claim were unreasonable
applications and/or contrary to clearly established federal law at least
three reasons: 1) Supreme Court precedent clearly establishes that
“idiots” are incompetent to be executed and the failure of the Tennessee
courts to recognize this facet of competency to be executed law was
contrary to clearly established precedent; 2) Clearly established federal
law holds that incompetency is not limited to insanity and the Tennessee
Supreme Court’s decision is fundamentally at odds with this precedent;
3) The Tennessee’s courts failure to engage in any historical analysis of
the common law at the time of the Founding is an unreasonable
application of clearly established federal law.
1.
Clearly established federal law bars the execution
of “idiots.”
In Ford v. Wainwright, the Supreme Court expressly held that both
“idiots” and “lunatics” were incompetent to be executed. Ford, 477 U.S.
at 406. The Supreme Court again affirmed that such a protection exists
in Penry v. Lynaugh. Penry v. Lynaugh, 492 U.S. 302, 331 (1989) (“It was
well settled at common la
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