Reply Brief — Byron Lewis Black, Petitioner v. Tennessee

CAPITAL CASE

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

No. 25-5262

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

________________

REPLY TO THE BRIEF IN OPPOSITION

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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TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................ ii

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

REPLY ............................................................................................................................ 1

I.

Certiorari is necessary to ensure adherence to this Court’s

unwavering and consistent application of the common law.............................. 1

II.

Mr. Black’s claim is not an Atkins claim................................................. 2

III.

Panetti’s rational understanding standard is protective of the insane

but fails to provide analogue protection for “idiots” .......................................... 5

IV. .. The Court is clear: evolving standards of decency must yield to historical

analogue .............................................................................................................. 6

V.

Mr. Black did not delay: Competency claims only ripen when

execution is imminent ......................................................................................... 7

CONCLUSION............................................................................................................... 7

CERTIFCATE OF SERVICE ........................................................................................ 8

iii

TABLE OF AUTHORITIES

Page

Cases

Atkins v. Virginia, 536 U.S. 304 (2002) .................................................................. 2

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

District of Columbia v. Heller, 554 U.S. 570 (2008) ................................................ 6

Ford v. Wainwright, 477 U.S. 399 (1986). ...................................................... 1,2,5,7

Madison v. Alabama, 586 U.S. 265 (2019) ........................................................... 6,7

New Hampshire v. Maine, 532 U.S. 742 (2001)....................................................... 4

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022) ............... 1, 7

Panetti v. Quarterman, 551 U.S. 930 (2007) .................................................passim

Penry v. Lynaugh, 492 U.S. 302 (1989) ................................................................ 1,3

Religious Technology Center v. Scott, 869 F.2d 1306 (9th Cir.1989) ...................... 5

Russell v. Rolfs, 893 F.2d 1033 (9th Cir. 1990) ....................................................... 4

Stretch v. Watson, 69 A.2d 596 (N.J. Ch. Div. 1949)............................................... 4

Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) ............................................... 7

United States v. McCaskey, 9 F.3d 368 (5th Cir. 1993) .......................................... 4

United States v. Rahimi, 602 U.S. 680 (2024) ........................................................ 7

Constitution

U.S. Const. amend. VIII………………………………………… ................. …….……..1

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REPLY

I.

CERTIORARI IS NECESSARY TO ENSURE ADHERENCE TO THIS COURT’S

UNWAVERING AND CONSISTENT APPLICATION OF THE COMMON LAW.

The crux of the question presented by Mr. Black’s claim goes to the heart of

what this Court has instructed litigants across nearly all areas of its constitutional

jurisprudence. Litigants have repeatedly been instructed to examine the history and

tradition of the country, particularly the common law, to settle important issues of

constitutional law. “[R]eliance on history to inform the meaning of constitutional

text—especially text meant to codify a pre-existing right—is, in our view, more

legitimate.” New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 25 (2022).

It strains credulity to assert that “idiots” were not considered incompetent at

common law, a principle that the State and the lower courts below have failed to

address but have not disputed. Although this Court’s jurisprudence has recognized

that “idiots” were considered incompetent to be executed, it has provided little clarity

about how to protect this right guaranteed since before the Founding, including an

appropriate standard for evaluating “idiots.” Penry v. Lynaugh, 492 U.S. 302, 331

(1989); Ford v. Wainwright, 477 U.S. 399, 406 (1986). If reliance on history is the

most legitimate way to interpret the Constitution, we may not simply disregard the

common’s law prohibition on the execution of “idiots.” The Founders and their

common law brethren certainly did not dismiss this prohibition as a quaint relic.

The specific question in this Petition is when is a competency to be executed

claim ripe. Two reasons, one practical and one historical, counsel in favor of Mr.

Black’s position and demonstrate why certiorari is needed. First, every condemned

inmate’s mental functioning stands to decline during the course of their

incarceration. Panetti v. Quarterman, 551 U.S. 930, 943 (2007) (“All prisoners are at

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risk of deteriorations in their mental state.”). This is true of Mr. Black, whose

intellectual disability is compounded by recent onset dementia and progressive brain

damage. Just as the vicissitudes of mental illness may vary with time, the

characteristics of “idiocy” do as well. In Mr. Black’s case, pre-existing deficits have

now been exacerbated by progressive dementia and brain damage to the degree that

under any common law definition, he now qualifies as an “idiot.” Under the State’s

and the Sixth Circuit’s approach, however, Mr. Black was obligated to present a

competency claim decades prior to execution, well before his dementia and severe

brain malformations existed. Of course, as this Court recognized in Panetti, imposing

a burden on habeas corpus petitioners to be clairvoyant defies rationality; “This

counterintuitive approach would add to the burden imposed on courts, applicants,

and the States, with no clear advantage to any.” Id.

Second, “idiocy” has always been a question of competency. The State’s desire

to treat “idiocy” as something other than a competency claim finds no support in the

common law. The common law recounted in Mr. Black’s papers makes clear that the

law of “idiocy” and “lunacy” is the basis for modern competency law. To treat Mr.

Black’s claim as anything other than a competency claim is a betrayal of that history.

If history and tradition are to animate the meaning of the Eighth Amendment, this

case offers an excellent vehicle to ensure that lower courts respect those doctrines in

interpreting constitutional provisions.

II.

MR. BLACK’S CLAIM IS NOT AN ATKINS CLAIM.

The State variously says that Mr. Black’s claim is “not a Ford claim” and that

it is an attempt “to relitigate” a claim under Atkins v. Virginia, 536 U.S. 304 (2002).

BIO at 18; id. at 15. Throughout these proceedings, however, Mr. Black has taken

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pains to show that “idiocy” and intellectual disability are different and that Mr. Black

is asserting a competency claim. Despite the clarity of Mr. Black’s filings, the State

persistently insists that Mr. Black is claiming nothing more than that he is

intellectually disabled. BIO at 15 (“Black lacks a procedural pathway to litigate

intellectual disability for the umpteenth time.”). The State’s argument is unavailing.

It is true that Mr. Black has been found intellectually disabled by a raft of

experts. And it is true that Mr. Black qualifies as an “idiot”—in part—because of his

life-long intellectual deficits. But the State’s cramped interpretation of the common

law ignores the wealth of historical evidence Mr. Black has presented demonstrating

that the characteristics of “idiocy” were much broader than just low intelligence. As

detailed in the Petition, the common law considered four factors in determining

whether the defendant may not be executed: low intellectual capacity, unsound

memory, brain malformations, and an inability to conduct one’s affairs. 1 Petition at

6–8.

1 The State cites this Court’s decision in Penry v. Lynaugh, 492 U.S. 302 (1989),

discussing a definition of “idiocy,” a definition Mr. Black has thoroughly debunked.

BIO at 18; see App.107-13 (discussing the evolution of the common law after

Anthony Fitzherbert). This Court in Penry did examine “idiocy” as related to low

intellectual functioning, as that was the focus of the Court’s inquiry. But this Court

expressly acknowledged that [t]here was no one definition of idiocy at common law.”

Penry, 492 U.S. at 331. The undisputed description of the full common-law

definitions provided in the Petition demonstrate that characteristics other than low

intellectual functioning formed the basis of the common-law protection. Petition at

6–8. As this Court in Penry did not have the full history of the common law

definitions before it and expressly declined to explore the other “definition[s] of

idiocy at common law,” Penry cannot resolve the issue presented here. See Franklin

v. New York, 145 S. Ct. 831, 831 (2025) (Alito, J., dissenting from the denial of

certiorari) (“Historical research now calls into question Crawford’s understanding of

the relevant common law rules at the time of the adoption of the Sixth

Amendment[.]”).

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The State repeatedly mischaracterizes Mr. Black’s claim as limited to

intellectual disability and ignores the additional factors affecting Mr. Black’s mental

functioning that only recently have emerged. As demonstrated by his pleadings, he

also relies on his dementia and progressive brain damage, each of which are

significant and neither of which are elements of an Atkins claim. More importantly

for this proceeding, these are common law characteristics of “idiocy” that manifest

later in life and often progress for the worse.

The State now claims that because Mr. Black would have “first” met the

common law definition of “idiocy” during childhood, his claim is an Atkins claim. BIO

at 15–16 (arguing that Mr. Black “first supposedly met the common law standard for

idiocy” “early in life”). Yet, for the last several decades the State has defeated Mr.

Black’s intellectual disability claims by arguing Mr. Black’s intellectual deficits did

not manifest in the developmental period. Black v. Carpenter, 866 F.3d 734, 750 (6th

Cir. 2017). The State appears to take whichever position is more convenient for its

litigation. In his Atkins litigation, Mr. Black is not intellectually disabled because he

did not manifest intellectual deficits as child. But in his competency litigation, Mr.

Black has dallied in asserting his claim because his intellectual deficits existed from

“early in life.” BIO at 15. These positions are irreconcilable and intolerable in judicial

proceedings. 2

2 See, e.g., New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (“[J]udicial estoppel

prevents parties from ‘playing fast and loose with the courts’”) (quoting Stretch v.

Watson, 69 A.2d 596, 603 (N.J. Ch. Div. 1949)); United States v. McCaskey, 9 F.3d

368, 378 (5th Cir. 1993) (recognizing that the judicial estoppel doctrine is critical to

prevent parties from “‘playing fast and loose’ with the courts, and prohibit[s them]

from deliberately changing positions according to the exigencies of the moment.”);

Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990) (holding that the doctrine of

judicial estoppel is invoked to prevent a party from changing its position over the

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At end of the day, the state cannot simply characterize Mr. Black’s claim

however it prefers. Mr. Black’s claim is a competency claim—not because he says so—

but because that is what the common law says.

III.

PANETTI’S RATIONAL UNDERSTANDING STANDARD IS PROTECTIVE OF THE

INSANE BUT FAILS TO PROVIDE ANALOGUE PROTECTION FOR “IDIOTS.”

The State argues, that because Ford is grounded in the common law, that

Panetti’s test is sufficient for all incompetency claims—or that “protection under Ford

and its progeny fully encompasses that under the common law.” BIO at 22–23. The

State’s assertion that Panetti provides sufficient constitutional protection is

inconsistent with the Court’s analysis in that case. Panetti did “not attempt to set

down a rule governing all competency determinations.” Panetti, 551 U.S. at 960–61.

The Court recognized that competency is not a one-size-fits-all standard and

explicitly left room for consideration of competency claims that differed in substance

and legal authority from the circumstances in that case.

Despite this Court’s insistence that history and tradition must inform

constitutional analysis, none of this competency jurisprudence provides any

meaningful guidance about how to apply the historical analogue of “idiocy.” Mr.

Black’s point is—and always has been, below—that some common law “idiots” are not

protected by Panetti’s test and that this Court’s jurisprudence of historical analogues

requires courts to formulate and apply appropriate standards to ensure protection

that was in place at the Founding. We cannot simply say Panetti is sufficient when

the common law considered intelligence in a manner that is wholly absent from this

course of judicial proceedings when such positional changes have an adverse impact

on the judicial process”) (quoting Religious Technology Center v. Scott, 869 F.2d

1306, 1311 (9th Cir.1989) (Hall, J., dissenting)).

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Court’s competency jurisprudence. District of Columbia v. Heller, 554 U.S. 570, 634–

35 (2008). (“Constitutional rights are enshrined with the scope they were understood

to have when the people adopted them, whether or not future legislatures or (yes)

even future judges think that scope too broad.”)

The State has, thus, misframed the constitutional inquiry. The inquiry is not

whether Panetti may conceivably protect some “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 the “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. Because the common law afforded more

protection than that which is currently provided by the Panetti standard, Mr. Black’s

claim must be adjudicated in light of the right as protected at the time of the

Founding. “The very enumeration of the right takes out of the hands of government—

even the Third Branch of Government—the power to decide on a case-by-case basis

whether the right is really worth insisting upon.” Heller, 554 U.S. at 634.

IV.

THE COURT IS CLEAR: EVOLVING STANDARDS OF DECENCY MUST YIELD TO

HISTORICAL ANALOGUE

The State makes much of the lacuna of precedent governing the application of

the Eighth Amendment to common law incompetency. BIO at 18 (“Black cannot point

to a single decision . . .”), id., at 19 (“[E]ven if some hypothetical idiocy claim (which

no court has never [sic] recognized) . . .”); id. at 20 (“No court has resolved the idiocy

theory presented.”) However, that few—if any—petitioners have raised such a claim

is unsurprising given the forward-looking focus of competency jurisprudence through

Madison v. Alabama, 586 U.S. 265 (2019). That is, until recently, issues of

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competency were viewed under the lens of the “evolving standards of decency.” Ford,

477 U.S. at 406; Madison, 586 U.S. at 287–88 (Alito, J., dissenting) (discussing the

questions presented). Only in recent years has this Court made clear that the

question in constitutional analysis is the modern analogue to the common law. See

United States v. Rahimi, 602 U.S. 680, 691 (2024); Bruen, 597 U.S. at 22 (2022).

V.

MR. BLACK DID NOT DELAY: COMPETENCY CLAIMS ONLY RIPEN WHEN

EXECUTION IS IMMINENT.

The State repackages its unavailing argument that Mr. Black could have

presented his incompetency claim “decades ago” (BIO at 24) as a reason to deny a

stay. Citing the tired and “well known” argument that capital petitioners might

engage in deliberate sandbagging, the State invokes the adage that last-minute stays

are disfavored. BIO at 24–25. But the fact remains that Mr. Black’s claim is a

competency claim—a claim that cannot be litigated until execution is “imminent.”

The State’s claim that Mr. Black had “thirty-six years to present his new-fangled

theory” (BIO at 25) fails to appreciate the nature of and well-established procedure

for competency claims and the continually deteriorating nature of Mr. Black’s

impairments. Panetti, 551 U.S. at 945; Stewart v. Martinez-Villareal, 523 U.S. 637,

643 (1998). Mr. Black timely brought his claim and the equities weigh in favor of a

stay.

CONCLUSION

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

certiorari.

Dated: August 3, 2025

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Respectfully submitted,

/s/ Kelley J. Henry

KELLEY J. HENRY*

Supervisory Asst. Federal Public Defender

AMY D. HARWELL

First Asst. Fed. Pub. Defender

Assistant Chief, Capital Habeas Unit

MARSHALL A. JENSEN

SAMANTHA N. BARRY

Asst. Federal Public Defenders

810 Broadway, Suite 200

Nashville, TN 37203

Phone: (615) 736-5047

Fax:

(615) 736-526

Email: Kelley_Henry@fd.org

*Counsel for Petitioner

CERTIFICATE OF SERVICE

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

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

of the Tennessee Attorney General, P.O. Box 20207, Nashville, Tennessee 37202 on

this 3rd day of August, 2025.

/s/ Kelley J. Henry