Petition for Writ of Certiorari — Robert Keith Woodall, Petitioner v. Kentucky

CAPITAL CASE

No. _________

IN THE SUPREME COURT OF THE UNITED STATES

ROBERT WOODALL

Petitioner,

v.

COMMONWEALTH OF KENTUCKY

Respondent.

____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF KENTUCKY

____________

PETITION FOR A WRIT OF CERTIORARI

____________

Dennis J. Burke (KBA #87278)

Kentucky Dept. of Public Advocacy

2202 Commerce Parkway, Suite D

LaGrange, Kentucky 40031

(502) 564-4819

dennis.burke@ky.gov

(counsel of record)

August 18, 2025

Michael J. O'Hara (KY 52530)

O'HARA, TAYLOR, SLOAN & CASSIDY

25 Town Center Boulevard, Suite 201

Covington, KY 41017

Email: mohara@oharataylor.com

CAPITAL CASE

QUESTION PRESENTED

The Eighth and Fourteenth Amendments forbid the execution of persons with

intellectual disability. Atkins v. Virginia, 536 U.S. 304, 321 (2002). Persons facing

the death penalty, the most severe sentence our society may impose, “must have a

fair opportunity to show that the Constitution prohibits their execution.” Hall v.

Florida, 572 U.S. 701, 724 (2014).

In this case, the trial court presiding over Robert Woodall’s intellectual

disability hearing entered into evidence and considered Mr. Woodall’s records from

a state correctional medical facility, including a pre-trial report written by Richard

Johnson, a Licensed Clinical Psychologist, who evaluated Mr. Woodall and

concluded he is not intellectually disabled – applying a pre-Atkins and pre-Hall

standard that failed to properly consider adaptive functioning skills as required by

Hall. The trial court considered the psychologist’s written report and testimony

without requiring the psychologist to testify and be subject to cross examination at

the evidentiary hearing.

The question presented is, does Kentucky’s postconviction procedure for

determining whether Robert Woodall is intellectually disabled violate Woodall’s

Fourteenth Amendment right to confront and cross-examine witnesses, and his

Eighth Amendment right to heightened standards of reliability in the

determination that death is an appropriate punishment?

i

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

RELATED PROCEEDINGS

Woodall v. Commonwealth, No. 1998-SC-0755-MR, Supreme Court of Kentucky

Judgment entered Jan. 15, 2002 (Opinion on direct appeal affirming

convictions and sentence) Reported at 63 S.W.3d 104 (Ky. 2002).

Woodall v. Commonwealth, No. 2003-SC-475-MR, Supreme Court of

Kentucky, Judgment entered Nov. 23, 2005 (Opinion affirming denial of Ky.

RCr. 11.42 state post-conviction motion.) Available at 2005 WL 3131603 (Ky.

2005).

Woodall v. Commonwealth, No. 2004-SC-0931-MR, Supreme Court of

Kentucky, Judgment entered October 20, 2005 (Opinion affirming denial of

Ky. CR 60.02 state post-conviction motion.) Available at 2005 WL 2674989

(Ky. 2005).

Woodall v. Simpson, 5:06CV-P216-R U. S. District Court, Western District of

Kentucky. Judgment entered on February 24, 2009 ((opinion denying 28

U.S.C. § 2254 petition for habeas corpus relief) Available at 2009 WL 464939

(W.D. Ky. February 24, 2009).

Woodall v. Simpson, 09–5352, 09–5406, Judgment entered July 12, 2012

(Opinion granting habeas petition in part and denying habeas petition in

part) Reported at 685 F.3d 574 (6th Cir. 2012)).

White v. Woodall, 12–794 Decided on April 23, 2014 (reversed and remanding

6th Cir. Opinion) Reported at 572 U.S. 415 (2014).

ii

TABLE OF CONTENTS

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

LIST OF PARTIES ………………………………………………….………………… ii

RELATED PROCEEDINGS ……………………………………….……………….. ii

TABLE OF CONTENTS ……………………………………………………………. iii

INDEX OF APPENDICES …………………………………………………………. iv

TABLE OF AUTHORITIES ………………………………………………………

v

PETITION FOR A WRIT OF CERTIORARI …………………………………... 1

OPINIONS BELOW ………………………………………………………………….. 1

STATEMENT OF JURISDICTION ………………………………………………. 2

CONSTITUTIONAL PROVISIONS ………………………………………………. 3

STATEMENT OF THE CASE ……………………………………………………… 3

REASON FOR GRANTING THE WRIT ………………………………………… 5

CONCLUSION ………………………………………………………………….……. 11

iii

INDEX OF APPENDICES

Decision of the Supreme Court of Kentucky

April 18, 2024 (affirming Caldwell Circuit Court)……………………..…… Appendix A

Order denying Petitioner’s timely petition for rehearing

March 20, 2025…………………………………………………………………… Appendix B

Findings of Fact, Conclusions of Law, and Order, after Remand

May 10, 2022 (denying motion to vacate death sentence due to intellectual

disability) ………………………………………………………………………….. Appendix C

Trial court’s unreported order

April 8, 2022 (granting motion to admit into evidence the report of the non-testifying

expert witness) …………………..………………………………………….…… Appendix D

Related decision of the Supreme Court of Kentucky

June 14, 2018 (reversing and remanding for intellectual disability evidentiary

hearing) ………….......................................................................................... Appendix E

Trial court’s unreported order

March 6, 2017 (denying, without an evidentiary hearing, Woodall’s motion to vacate

death sentence due to his intellectual disability …………………………….. Appendix F

iv

TABLE OF AUTHORITIES

Cases

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

Beck V. Alabama, 447 U.S. 625 (1980) ................................................................................ 10

Bell v. Cone, 535 U.S. 685 (2002); ......................................................................................... 11

Chambers v. Mississippi, 410 U.S. 284 (1973) ..................................................................... 9

Ford v. Wainwright, 477 U.S. 399 (1986) .................................................................... passim

Gagnon v. Scarpelli, 411 U.S. 778 (1973) …………………………………………….…....8

Goldberg v. Kelly, 397 U.S. 254 (1970) …………………………………………………………9

Hall v. Florida, 572 U.S. 701 (2014) ............................................................................ passim

Hill v. Schoop, 11 F.4th 373 (6th Cir. 2021) ........................................................................ 11

Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012) ......................................................... 11

In re Oliver, 333 U.S. 257 (1948) ............................................................................................. 9

Kentucky v. Stincer, 482 U.S. 730 (1987) ............................................................................ 12

Lockett v. Ohio, 438 U.S. 586 (1978) .................................................................................... 10

Mathews v. Eldridge, 424 U.S. 319 (1976) ............................................................................ 6

Moore v. Texas, 581 U.S. 1 (2017) ........................................................................................... 4

Morrissey v. Brewer, 408 U.S. 471 (1972).......................................................................... 6, 8

Turner v. Murray, 476 U.S. 28 (1986) .................................................................................. 10

United States v. Ahmed, 73 F.4th 1363 (11th Cir. 2023) .................................................. 12

United States v. Brown, 879 F.3d 1231 (11th Cir. 2018) ................................................. 12

United States v. Gagnon, 470 U.S. 522 (1985) ................................................................... 12

v

Woodall v. Commonwealth, 563 S.W.3d 1 (Ky. 2018) .................................................... 1, 4

Woodall v. Commonwealth, 63 S.W.3d 104 (2001). ............................................................. 3

Woodall v. Commonwealth, 709 S.W.3d 71 (Ky. 2024) ........................................ 1, 5, 7, 13

Woodall v. Kentucky, 537 U.S. 835 (2002)............................................................................. 3

Woodson v. North Carolina, 428 U.S. 280 (1976) .............................................................. 11

Constitutional Provisions

U.S. Const. amend. VIII ...................................................................................... passim

U.S. Const. amend. XIV ......................................................................................... 3, 5, 9

Statutes

KRS 532.135 ……………………………………………………………………………………..7

vi

PETITION FOR A WRIT OF CERTIORARI

Petitioner Robert Woodall is a death-sentenced inmate.

He respectfully

petitions for a writ of certiorari to review the Opinion and Judgment of the Supreme

Court of Kentucky.

OPINIONS BELOW

The decision of the Supreme Court of Kentucky affirming the trial court’s

denial of Woodall’s motion to vacate his death sentence due to his intellectual

disability, is reported at Woodall v. Commonwealth, 709 S.W.3d 71 (Ky. 2024), and

appears at Appendix A to this petition. The trial court’s unreported Findings of Fact,

Conclusions of Law and Order After Remand (May 10, 2022), appears at Appendix C.

The trial court’s unreported order admitting into evidence the report of the nontestifying government expert witness appears at Appendix D. The decision of the

Supreme Court of Kentucky declaring Kentucky’s statute for determining intellectual

disability [KRS 532.130 (2)] unconstitutional under the Eighth Amendment and

reversing for an evidentiary hearing the trial court’s order denying Woodall’s motion

to vacate his death sentence due to his intellectual disability, is reported at Woodall

v. Commonwealth, 563 S.W.3d 1 (Ky. 2018), and appears at Appendix E. The trial

court’s unreported order denying, without an evidentiary hearing, Woodall’s motion

to vacate the death sentence due to his intellectual disability appears at Appendix F.

1

STATEMENT OF JURISDICTION

The decision of the Supreme Court of Kentucky at issue here was announced

on April 18, 2024. Appendix A. Petitioner’s timely petition for rehearing was denied

on March 20, 2025. Appendix B. By order, Justice Kavanaugh granted an extension

of time to file this petition to and including August 17, 2025, a Sunday, which

extended the time in which to file a timely petition until August 18, 2025. This

Court has jurisdiction pursuant to 28 U.S.C. § 1257(a).

2

CONSTITUTIONAL PROVISIONS

The Eighth Amendment provides: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishment inflicted.”

The Fourteenth Amendment provides in pertinent part: “No State shall ...

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

any person within its jurisdiction the equal protection of the laws.”

STATEMENT OF THE CASE

The facts of this case are set forth in Woodall v. Commonwealth, 63 S.W.3d 104,

114 (Ky. 2001). In short, Mr. Woodall pleaded guilty to murder, kidnapping and rape.

A jury recommended a sentence of death, which the trial court accepted. Woodall

appealed, and the Kentucky Supreme Court affirmed. Woodall v. Commonwealth, 63

S.W.3d 104 (2001). On October 7, 2002, the Supreme Court denied certiorari. Woodall

v. Kentucky, 537 U.S. 835 (2002). After unsuccessful post-conviction litigation in state

court, Mr. Woodall filed a petition for writ of habeas corpus in federal court. While

Woodall’s petition was pending in the Sixth Circuit Court of Appeals, the Supreme

Court decided Hall v. Florida, 572 U.S. 701 (2014). Hall invalidated Kentucky’s

bright-line-70 IQ score as determined by its courts in determining intellectual

disability. Id. at 714. The statute declared unconstitutional provided the only

standard under which Dr. Johnson evaluated Woodall’s intellectual disability in his

underlying trial. Mr. Woodall then moved the Sixth Circuit for a stay and abeyance

for the presentation of his ID claim under a constitutional standard. 6thDkt. 182-1.

3

Over Kentucky’s objection, the Sixth Circuit granted Woodall’s request. 6thDkt. 1881.

On April 9, 2015, Woodall filed his Motion pursuant to Kentucky CR

60.02/60.03 alleging he is intellectually disabled applying Atkins/Hall factors. After

briefing by the parties, the trial court took the case under submission and without

conducting an evidentiary hearing, the trial court entered an order denying Woodall’s

motion on March 6, 2017. Appendix F. On appeal, in Woodall v. Commonwealth, 563

S.W.3d 1 (Ky. 2018), the Supreme Court of Kentucky reversed and remanded for the

trial court to conduct a hearing consistent with its decision and the holdings of the

Supreme Court including Atkins v. Virginia, 536 U.S. 304 (2002), Hall v. Florida, 572

U.S. 701 (2014) and Moore v. Texas, 581 U.S. 1 (2017). Appendix E.

Upon remand, the trial court conducted an Atkins hearing on April 15-16, 2021,

and September 30, 2021. At that hearing, Woodall presented the testimony of his

forensic

neuropsychologist,

Robert

Fabian,

Psy.D.

who

conducted

a

neuropsychological evaluation of Mr. Woodall under the ID standard required by

Hall. Dr. Fabian concluded: “It is my opinion with reasonable degree of psychological

and neuropsychological certainty that Mr. Woodall meets the criteria for an

intellectual disability.”

The Commonwealth presented no testimony or contrary

opinion from any expert who conducted an ID evaluation applying the Hall

standards. Instead, over Woodall’s objection, the trial court granted the

Commonwealth’s motion to admit certain Kentucky Correctional Psychiatric Center

(KCPC) records at the evidentiary hearing, (Order, at Appendix D), including the

4

1998 evaluation by Dr. Johnson who did not testify at the hearing. Indeed, Woodall

was denied the opportunity to cross examine Dr. Johnson, who developed the

psychiatric evaluation of Woodall concluding he is not intellectually disabled under

Kentucky’s pre-Atkins/Hall standards for determining intellectual disability – the

same evaluation that was presented at Woodall’s initial trial. On May 9, 2022, the

trial court, relying in significant part on that 1998 ID evaluation by Dr. Johnson,

denied Woodall’s motion to vacate the death sentence due to intellectual disability.

Order, Appendix C. On appeal, the Supreme Court of Kentucky affirmed. Woodall v.

Commonwealth, 709 S.W.3d 71 (Ky. 2024).

It is from that decision that this writ is taken.

REASON FOR GRANTING THE WRIT

The Eighth and Fourteenth Amendments forbid the execution of persons with

intellectual disability. Atkins v. Virginia, 536 U.S. 304, 321 (2002). And, persons

facing a death sentence, the “most severe” penalty our society may impose, “must

have a fair opportunity to show that the Constitution prohibits their execution.”

Hall v. Florida, 572 U.S. 701, 724 (2014). This Court left “to the State[s] the task of

developing appropriate ways to enforce the constitutional restriction upon [their]

execution of sentences.” Hall 572 U.S., at 719, citing Ford v. Wainwright, 477 U.S.

399, 416-417 (1986). Nevertheless, the procedures developed by the state must

comport with the requirements of due process. Ford, 477 U.S. at 424. (Powell J.

concurring in part and concurring in the judgment).

5

Although due process is a flexible concept, requiring only “such procedural

protections as the particular situation demands.” Ford, 477 U.S. at 425 (citing

Mathews v. Eldridge, 424 U.S. 319, 334 (1976); Morrissey v. Brewer, 408 U.S. 471,

481 (1972) (additional citation omitted), in this instance there are a number of

compelling reasons for this Court to conclude that the right to cross-examine

witnesses at a hearing to determine whether Robert Woodall is intellectually disabled

is required by the fundamental right of due process.

The Supreme Court of Kentucky decided that Robert Woodall did not have a

right to cross-examine the Commonwealth’s key witness, Dr. Johnson, at his

intellectual disability, or Atkins hearing because:

Although Wainwright and Panetti both addressed the procedural

due process requirements of a post-conviction attack on a death

sentence due to insanity, we see no reason why this same analysis

does not apply to a post-conviction attack on a death sentence due

to intellectual disability. The same interests are at stake, and the

determinations made by the trial court are sufficiently similar.

Accordingly, we conclude the trial court was only required to

provide Woodall with an opportunity to be heard in order for his

due process rights to be vindicated.

Woodall V. Commonwealth, 709 S.W.3d 71, 76-80. As explained below, for numerous

reasons, the Kentucky Supreme Court’s decision denied Robert Woodall a fair

opportunity to show that the Constitution prohibits his execution.

First, for Mr. Woodall and petitioners like him, an Atkins proceeding was a

“postconviction” hearing only in the chronological sense because Atkins was decided

in 2002, after Woodall had been convicted and sentenced to death in 1998. If Woodall

had been tried after Atkins was decided (assuming the Kentucky death penalty

6

statute had been applied by Kentucky in a constitutional manner) then the Atkins

hearing would have occurred pre-trial 1. In such a case, evidence regarding Dr.

Johnson’s intellectual disability evaluation would not have been admitted into

evidence unless Johnson testified, and if Johnson had testified, Mr. Woodall would

have cross-examined him at the Atkins hearing. That Woodall could not previously

litigate his substantive constitutional right not to be executed due to intellectual

disability was the fault of the State and is exactly why he should have been provided

with the opportunity to cross-examine Johnson in the post-conviction context. The

Kentucky Supreme Court’s holding produces a profoundly unfair result: everyone

who challenges eligibility for the death penalty under Atkins/Hall standards after

those holdings were rendered, have been and will be constitutionally entitled crossexamine the State’s ID experts. But those whose death sentences are based on an

unconstitutional application of a bright line IQ cutoff, are denied that fundamental

due process right.

Second, while the execution of an intellectually disabled person and the

execution of an insane person are both cruel and unusual punishment in violation of

the Eighth Amendment, the Supreme Court of Kentucky is wrong. An Atkins hearing

and a Ford hearing are different. As Justice Powell explained:

The Eighth Amendment claim at issue can arise only after the

prisoner has been validly convicted of a capital crime and

sentenced to death. Thus, in this case the State has a substantial

and legitimate interest in taking petitioner's life as punishment for

his crime. That interest is not called into question by petitioner's

claim. Rather, the only question raised is not whether, but when,

1

See Kentucky Revised Statute 532.135.

7

his execution may take place. This question is important, but

it is not comparable to the antecedent question whether

petitioner should be executed at all.

Ford, 477 U.S. at 425 (Emphasis added). Ford set a constitutional floor for the amount

of due process required. Because the substantive right under the Eighth Amendment

established in Atkins is more important, greater due process protection is required

than for the substantive right recognized in Ford.

The right to confront and cross-examine witnesses “has long been recognized

as essential to due process.” Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (citing

In re Oliver, 333 U.S. 257, 273 (1948). In In re Oliver, this Court expressly declared

that to deprive an accused of the right to cross-examine the witnesses against him is

a denial of the Fourteenth Amendment's guarantee of due process of law. In re Oliver,

333 U.S.at 257. This Court held: “A person's right to reasonable notice of a charge

against him, and an opportunity to be heard in his defense—a right to his day in

court—are basic in our system of jurisprudence; and these rights include, as a

minimum, a right to examine the witnesses against him, to offer testimony,

and to be represented by counsel.” Id. at 273, (footnote omitted) (emphasis added).

Given that due process provides a right to cross-examine adverse witnesses in a

number of important but less critical situations, including administrative hearings,

e.g., parole revocation

2

3

hearings2; probation revocation hearings3; juvenile

Morrisey v. Brewer, 408 U.S. 471, 489 (1972).

Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973).

8

delinquency proceedings4; and hearings prior to the termination of welfare benefits5,

the Fourteenth Amendment’s due process protection and the Eighth Amendment’s

requirement for heightened reliability in capital proceedings demands at least the

same opportunity for Mr. Woodall to cross examine Dr. Johnson at his Atkins hearing.

Third, the question of whether a person should be executed at all “impos[es]

heightened procedural requirements on capital trials and sentencing procedures”

Ford, 477 U.S., at 425, citing—e.g., Lockett v. Ohio, 438 U.S. 586 (1978) (plurality

opinion); Turner v. Murray, 476 U.S. 28 (1986), Powell J., concurring. See also, Beck

V. Alabama, 447 U.S. 625, 638 (1980). As a plurality of the Court observed in Ford,

“A related flaw in the Florida procedure is the denial of any opportunity to challenge

or impeach the state-appointed psychiatrists' opinions. “[C]ross-examination ... is

beyond any doubt the greatest legal engine ever invented for the discovery of truth.’”

Ford, 477 U.S. at 415, quoting 5 J. Wigmore, Evidence § 1367 (J. Chadbourn rev.

1974). “Death, in its finality, differs more from life imprisonment than a 100-year

prison term differs from one of only a year or two. Because of that qualitative

difference, there is a corresponding difference in the need for reliability in the

determination that death is the appropriate punishment in a specific case.” Woodson

v. North Carolina, 428 U.S. 280, 305 (1976).

Fourth, “it is beyond question that an Atkins hearing is a critical stage of a

criminal proceeding, holding ‘significant consequences for the accused.’” Hill v.

4 In re Gault, 387 U.S. 1, 31-56 (1967)

5

Goldberg v. Kelly, 397 U.S. 254, 270 (1970)

9

Schoop, 11 F.4th 373, 421 (6th Cir. 2021) (Moore, J. dissenting) (citing Bell v. Cone,

535 U.S. 685, 696, (2002); Hooks v. Workman, 689 F.3d 1148, 1184 (10th Cir. 2012)

(“We are hard-pressed to imagine a more ‘significant consequence[ ] for the accused’

than a determination of whether the State has the power to take his life.”)). And the

“Due Process Clause guarantees a defendant's ‘right to be present at any stage of the

criminal proceeding that is critical to its outcome if [the defendant's] presence would

contribute to the fairness of the procedure.’ ” United States v. Brown, 879 F.3d 1231,

1236 (11th Cir. 2018) (quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). “The

right to be present includes the right to confront witnesses too.” United States v.

Ahmed, 73 F.4th 1363, 1376 (11th Cir. 2023) (citing United States v. Gagnon, 470 U.S.

522, 526 (1985)).

Fifth, Mr. Woodall repeatedly objected to the introduction of KCPC records,

and the Report authored by the psychologist Richard Johnson to support the State’s

defense to Mr. Woodall’s intellectual disability evidence, in part because it predated

the new constitutional threshold established in Atkins and Hall, and necessarily

failed to address the intellectual disability standards mandated by this Court. But if

it can be used at all by the trial court in determining intellectual disability, then

providing Mr. Woodall an opportunity to confront Johnson about the Atkins

deficiencies in his report was all the more critical. This is so, because other than

evidence suggesting Woodall wrote a “coherent and logical to the warden,” and had

mostly behaved himself while incarcerated6, Johnson’s pre-Atkins Report and other

6

Appendix A, Woodall, 709 S.W.3d at 84.

10

KCPC records were the only pieces of evidence addressing intellectual disability that

the Commonwealth offered. Dr. Johnson’s report that the trial court admitted and

considered in making his ruling is not at all benign, as the Supreme Court of

Kentucky suggests in rejecting Woodall’s appeal. Appendix A, Woodall, 709 S.W.3d

at 80. The prosecutor, in his brief on appeal, cited to the wording in Johnson’s report

as proof that Johnson had evaluated Woodall’s adaptive functioning before

concluding he was not intellectually disabled. (Brief for the Commonwealth of

Kentucky at 42). That fact is very much in dispute, and cross-examination of Johnson

was the only way of determining the truth regarding whether Johnson evaluated

Woodall’s adaptive functioning at all for purposes of diagnosing intellectual

disability. Due Process requires that Woodall have the opportunity to cross-examine

Johnson once the trial court admitted his report and trial testimony. As a plurality

of the Court in Ford observed:

Cross-examination of the psychiatrists, or perhaps a less formal

equivalent, would contribute markedly to the process of seeking

truth in sanity disputes by bringing to light the bases for each

expert's beliefs, the precise factors underlying those beliefs, any

history of error or caprice of the examiner, any personal bias with

respect to the issue of capital punishment, the expert's degree of

certainty about his or her own conclusions, and the precise

meaning of ambiguous words used in the report.

477 U.S. at 415.

CONCLUSION

For the reasons provided, Robert Woodall’s petition for writ of certiorari

should be granted.

11

Respectfully submitted,

DENNIS J. BURKE

Department of Public Advocacy

2202 Commerce Drive, Suite D

LaGrange, KY 40031

Phone: (502) 222-6682

Fax: (502) 222-3177

(counsel of record)

MICHAEL J. O'HARA

25 Town Center Boulevard, Suite 201

Crestview Hills, Kentucky 41017-0411

email:mohara@oharataylor.com

Phone: (859)331-2000

Fax:(859)578-3365

COUNSEL FOR APPELLANT

12