Opposition Brief — Robert Keith Woodall, Petitioner v. Kentucky

No. 25-5459

In the Supreme Court of the United States

ROBERT WOODALL,

Petitioner,

v.

KENTUCKY,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Kentucky

***CAPITAL CASE***

BRIEF IN OPPOSITION

Office of the Kentucky

Attorney General

1024 Capital Center Drive,

Ste. 200

Frankfort, KY 40601

(502) 696-5300

christopher.henry@ky.gov

*Counsel of Record

October 22, 2025

CHRISTOPHER HENRY*

Director of Capital

Litigation and Assistant

Solicitor General

i

QUESTION PRESENTED

Whether the Kentucky Supreme Court erroneously held that the right to

cross-examine witnesses is inapplicable in the context of a post-conviction hearing

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

ii

TABLE OF CONTENTS

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

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

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

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

STATEMENT OF THE CASE ......................................................................... 3

ARGUMENT ...................................................................................................... 7

I.

Woodall has not raised any compelling reason to

warrant this Court’s review. ................................................... 8

II.

The circuit court’s hearing did not violate

Woodall’s rights. ......................................................................... 9

A.

The circuit court’s hearing did not violate Woodall’s

right to confront the witnesses against him. ....................... 9

B.

Woodall has not shown any violation of his

due-process rights. .................................................................. 12

CONCLUSION ................................................................................................ 15

iii

TABLE OF AUTHORITIES

Cases

Atkins v. Virginia, 536 U.S. 304 (2002) .................................................................. 1, 13

California v. Green, 399 U.S. 149, 157 (1970) ............................................................ 10

City and Cnty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600, 619 (2015) ........... 8

Crawford v. Washington, 541 U.S. 36, 50 (2004)........................................................ 10

Ford v. Wainwright, 477 U.S. 399 (1986) ......................................................... 5, 14, 16

Graham v. Connor, 490 U.S. 386, 393–99 (1989) ....................................................... 12

Hall v. Florida, 572 U.S. 701 (2014) ......................................................................... 1, 3

Hamm v. Smith, No. 24-872 (U.S.) ............................................................................... 7

In re Hill, 715 F.3d 284, 296–97 (11th Cir. 2013) ...................................................... 11

Maryland v. Craig, 497 U.S. 836, 845 (1990) ............................................................. 10

Moore v. Texas, 581 U.S. 1 (2017) ......................................................................... 1, 3, 4

Morrissey v. Brewer, 408 U.S. 471, 481 (1972) ........................................................... 12

Penry v. Lynaugh, 492 U.S. 302, 328 (1989) ............................................................... 11

Raulerson v. Warden, 928 F.3d 987, 991, 1000 (11th Cir. 2019) ............................... 13

Samia v. United States, 599 U.S. 635, 644 (2023) ...................................................... 10

United States v. Burke, 345 F.3d 416, 426 (6th Cir. 2003)......................................... 10

United States v. Coonce, 932 F.3d 623, 641 (8th Cir. 2019) ....................................... 10

White v. Woodall, 572 U.S. 415, 417 (2014) (Woodall I) ............................................... 1

Williams v. New York, 337 U.S. 241 (1949) ................................................................ 10

iv

Woodall v. Commonwealth, 563 S.W.3d 1, 2 (Ky. 2018) (Woodall II).................. 1, 3, 4

Woodall v. Commonwealth, 709 S.W.3d 71, 75 (Ky. 2024) (Woodall III) ...... 1-6, 14-15

Woodall v. Plappert, No. 09-5406 (6th Cir.) ................................................................. 8

Other Authorities

S. Shapiro, et.al., Supreme Court Practice § 5.12(c)(3), p. 5–45 (11th ed. 2019) ........ 8

Sarah A. Stauffer & Sean D. Corey, Sixth Amendment at Trial, 87 Geo. L.J. 1641,

1648 n.2002 (1999) ....................................................................................................... 10

Tejas N. Narechania, Certiorari in the Roberts Court, 67 St. Louis U.L.J. 587, 590

(2023) .............................................................................................................................. 8

Rules

S. Ct. R. 10 ....................................................................................................... 2, 7, 8, 15

Treatises

David L. Faigman, et al., Mental Disorder and Capital Sentencing, 2 Mod. Sci.

Evidence § 8:10 (2024) ................................................................................................. 14

Regulations

28 U.S.C. § 2244 ........................................................................................................... 11

Constitutional Provisions

U. S. Const. amend. VI .................................................................................................. 9

1

INTRODUCTION

Robert Woodall “brutally raped, slashed with a box cutter, and drowned a 16–

year–old high-school student.” White v. Woodall, 572 U.S. 415, 417 (2014) (Woodall

I). “Faced with overwhelming evidence of his guilt, [Woodall] pleaded guilty to capital

murder. He also pleaded guilty to capital kidnaping and first-degree rape, the

statutory aggravating circumstance for the murder.” Id. at 418. For these crimes, he

was sentenced to death. Id. at 417. He now alleges that he is ineligible for execution

due to an intellectual disability.

To that end, Woodall filed a motion arguing that he should be exempt from

execution under Atkins v. Virginia, 536 U.S. 304 (2002), and its progeny. Woodall v.

Commonwealth, 563 S.W.3d 1, 2 (Ky. 2018) (Woodall II). The state trial court initially

denied an evidentiary hearing to develop that claim. Id. On appeal, the Kentucky

Supreme Court examined this Court’s opinions in Moore v. Texas, 581 U.S. 1 (2017),

and Hall v. Florida, 572 U.S. 701 (2014). Woodall II, 563 S.W.3d at 3–6. Ultimately,

Kentucky’s high court determined that an evidentiary hearing was warranted. Id. at

7.

At that proceeding, Woodall presented expert testimony to the effect that he

was intellectually disabled. Woodall v. Commonwealth, 709 S.W.3d 71, 75 (Ky. 2024)

(Woodall III). The Commonwealth did not present an expert—at least, not one who

testified. See id. at 75–76. Instead, the Commonwealth introduced “a report written

by Dr. Richard Johnson, a Licensed Clinical Psychologist, who evaluated Woodall

while he was a patient at [the Kentucky Correctional Psychiatric Center] in 1998.”

2

Id. at 76. The upshot of that report was that Woodall was not intellectually disabled.

See id. at 77. Ultimately, the trial court sided with the Commonwealth—more to the

point, the court determined that Woodall had not proven by a preponderance of the

evidence that he was intellectually disabled. Id. at 76.

Woodall appealed again to the Kentucky Supreme Court. This time, he argued

that introducing Dr. Johnson’s report violated his Due Process and Confrontation

Clause rights under the United States Constitution. Id. at 76 & n.2. The state court—

after conducting a lengthy, well-reasoned analysis—affirmed. Id. at 86. It is from this

opinion that Woodall seeks certiorari.

Although Woodall takes issue with the state high court’s opinion, he can’t point

to any compelling reason justifying this Court’s review under S. Ct. R. 10. And none

are present. For instance, it does not appear that there is any deep-seated

disagreement among lower courts on the rights that a defendant retains in a postconviction intellectual-disability hearing, so there is not a developed body of law for

this Court to draw from. That aside, there is no issue of national significance here,

either.

Regardless, the Kentucky Supreme Court reached the correct conclusion.

Indeed, the state trial court afforded Woodall an opportunity to present proof at an

evidentiary hearing, so there was no due-process violation. And although the right to

confrontation unquestionably applies during the guilt phase of trial, this case

involved an evidentiary hearing arising from a post-conviction motion. That sort of

proceeding is more akin to the penalty phase of trial than the guilt phase, so the

3

Kentucky Supreme Court did not err in determining that there was no violation of

Woodall’s right to confrontation. Given the dearth of authority on these matters and

the fact that the Kentucky Supreme Court’s analysis was well grounded in this

Court’s precedent, there is no compelling reason warranting this Court’s review. So

the Court should deny Woodall’s petition for a writ of certiorari.

STATEMENT OF THE CASE

“In 1998, Robert Keith Woodall was sentenced to death for the kidnapping,

rape, and murder of a teenage girl.” Woodall III, 709 S.W.3d at 74. In 2015, he filed a

motion to vacate his sentence on the ground that he was intellectually disabled. Id.

The trial court granted him funding to hire an expert to support his claim. Woodall

II, 563 S.W.3d at 2. Eventually, Woodall submitted “an expert’s contemporaneous

opinion that [he] is intellectually disabled.” Id. Still, the trial court denied Woodall’s

motion without conducting an evidentiary hearing. Id.

Woodall then appealed to the Kentucky Supreme Court. In its opinion, the

state’s high court analyzed two of this Court’s intellectual-disability opinions at some

length: Hall v. Florida, 572 U.S. 701 (2014), and Moore v. Texas, 581 U.S. 1 (2017).

Woodall II, 563 S.W.3d at 3–6. In the state court’s view, Moore “g[ave] better, but not

much clearer, guidance as to how courts should evaluate this issue.” Id. at 4. Still, the

Kentucky Supreme Court explained that “the prevailing tone” of this Court’s decisions

weighed against making “a determination based solely on IQ score.” Id. In the end,

the court struck down Kentucky’s bright-line statute in favor of a rule that

4

encompassed “prevailing medical standards.” Id. at 6–7. And the court reversed and

remanded for an evidentiary hearing on Woodall’s claim. Id. at 7.

In an opinion concurring in part and dissenting in part, Justice Wright noted

that “the statute the majority overturns as unconstitutional currently complies with

the DSM-5,” which is “published by the American Psychiatric Association.” Id. at 7

(Wright, J., concurring in part and dissenting in part). Justice Wright also noted the

difficulty of trial courts determining what the prevailing medical consensus is at any

given time. See id. And he criticized the majority for rejecting a statutory regime that

complies with “established diagnostic standards” simply because “it may not comply

with future medical or scientific discoveries.” Id.

On remand, the state trial court held a hearing to develop Woodall’s

intellectual-disability claim. Woodall III, 709 S.W.3d at 75. “At that hearing, Woodall

presented extensive testimony from his expert, Dr. John Fabian, a Forensic and

Clinical Psychologist and Neuropsychologist.” Id. Dr. Fabian testified to his view that

Woodall was intellectually disabled. Id. Woodall presented other witnesses, too—his

tenth-grade teacher and a former mitigation specialist on his case. Id.

The Commonwealth did offer an expert opinion, although that expert did not

testify at Woodall’s hearing. More specifically, the Commonwealth presented “a report

written by Dr. Richard Johnson, a Licensed Clinical Psychologist, who evaluated

Woodall while he was a patient at [the Kentucky Correctional Psychiatric Center] in

1998.” Id. at 76. “Dr. Johnson’s report was focused on whether at the time of the

alleged offense as a result of [intellectual disability], Mr. Woodall lacked the

5

substantial capacity either to appreciate the criminality of his conduct or to conform

his conduct to the requirements of the law.” Id. at 77 (internal quotation marks

omitted). Ultimately, Dr. Johnson’s report “concluded that there was not any evidence

of mental retardation (IQ scores of less than 70 and deficits in adaptive behavior

functioning).” Id. (internal quotation marks omitted). Eventually, “the trial court

entered an order finding that Woodall had not proven by the preponderance of the

evidence that he is intellectually disabled.” Id. at 76.

Subsequently, Woodall filed a matter-of-right appeal to the Kentucky Supreme

Court. Id. at 74. Before that court, Woodall argued in part that his inability to cross

examine Dr. Johnson violated his rights under the Due Process and Confrontation

Clauses to the United States Constitution. Id. at 76. At some length, the Kentucky

Supreme Court analyzed whether Woodall had shown a violation of either provision.

Id. at 78–81.

In its due-process analysis, the Kentucky Supreme Court discussed this

Court’s opinion in Ford v. Wainwright, 477 U.S. 399 (1986), a case in which this Court

“addressed the . . . amount of process that is due a criminal defendant in a postconviction challenge to a death sentence . . . at least in a broad way, for claims of

insanity.” Woodall III, 709 S.W.3d at 78. In its analysis of Ford, the state court

examined the opinions of three former members of this Court—Justices O’Connor,

Powell, and Marshall—and determined that “the only process that is necessarily due

to a prisoner challenging his death sentence due to insanity[] is the opportunity to be

heard.” Id. at 79. Because the trial court held a hearing in which Woodall called

6

witnesses, the Kentucky Supreme Court reasoned that that there was no due-process

violation. See id. at 80.

The court reached the same result with respect to the Confrontation Clause.

See id. at 80–81. To put a finer point on it, the court explained that it had not found

any case extending a right to confrontation beyond the guilt phase of trial. Id. at 81.

Ultimately, the Kentucky Supreme Court affirmed the denial of post-conviction relief.

Id. at 86.

Justice Thompson wrote a concurring opinion, joined by two other Justices. Id.

at 86–87 (Thompson, J., concurring). The concurring justices argued that Dr.

Johnson’s “report falls well-behind current medical standards and may have relied

upon outdated approaches.” Id. at 87. Still, they determined that the matter was

harmless error for four reasons:

(a) the nature and amount of objective data collected by Dr. Johnson; (b)

significant evidence of Woodall’s adaptive behavior and functioning

prior to the offense; (c) the inconsistencies in Woodall’s own evidence;

and (d) the skill and patience exhibited by the trial court in analyzing

all the information it had.

Id.

After the Kentucky Supreme Court rendered its opinion, Woodall filed a

petition for rehearing. (Appendix B at 1.) Only one member of the court—Justice

Goodwine—voted in Woodall’s favor. (Id.) Woodall’s petition for certiorari followed

the denial of rehearing.

7

ARGUMENT

The gist of Woodall’s petition is that his inability to cross-examine Dr. Johnson

“violate[d] [his] 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[.]” (Petition at i.) The

Commonwealth’s response encompasses two overarching points. First, Woodall hasn’t

met the standard for certiorari under S. Ct. R. 10. More specifically, he hasn’t pointed

to any deep-seated disagreement among lower courts on this issue, nor has he

identified any reason of national significance supporting review. Instead, Woodall’s

petition simply reargues the merits that he lost below. Standing alone, this is

sufficient for this Court to deny his petition.

Second, the Kentucky Supreme Court’s opinion was correct on the merits.

Indeed, Woodall suffered no Confrontation Clause violation because of the posture of

the case—the right to confrontation is primarily a trial right, and Woodall’s

complaints stem from a post-conviction hearing. Nor was there any due-process

violation. This is so because Woodall was able to present evidence of his purported

intellectual disability at an evidentiary hearing. Because Woodall has not satisfied

the standard for granting certiorari and his claims fail on the merits, this Court

should deny his petition.1

1 Woodall does not argue that the Court should hold this petition and GVR this matter once

it decides Hamm v. Smith, No. 24-872 (U.S.). With good reason. This case and Hamm pose

very different questions related to Atkins. Plus, any delay here might affect the

Commonwealth’s ongoing efforts to lift the stay in the Sixth Circuit matter related to

8

I.

Woodall has not raised any compelling reason to warrant this

Court’s review.

At the outset, the questions presented in Woodall’s petition do not satisfy the

Court’s standard for granting certiorari. Woodall may disagree with the result below,

but “[a] petition for a writ of certiorari will be granted only for compelling reasons.”

S. Ct. R. 10. By extension, “‘error correction . . . is outside the mainstream of the

Court's functions and . . . not among the ‘compelling reasons’ . . . that govern the grant

of certiorari.” S. Shapiro, et.al., Supreme Court Practice § 5.12(c)(3), p. 5–45 (11th ed.

2019). Some “compelling reasons” “include the existence of conflicting decisions on

issues of law among federal courts of appeals, among state courts of last resort, or

between federal courts of appeals and state courts of last resort.” City and Cnty. of

San Francisco, Calif. v. Sheehan, 575 U.S. 600, 619 (2015) (Scalia, J., concurring in

part and dissenting in part) (quoting S. Ct. R. 10). “While much of the Court’s docket

may be understood as uniformity-enforcing (i.e., resolving conflicts among state and

federal appellate courts), a substantial portion of the Court’s docket is dedicated to

cases of importance.” Tejas N. Narechania, Certiorari in the Roberts Court, 67 St.

Louis U.L.J. 587, 590 (2023).

Woodall cannot satisfy the certiorari standard. For instance, he does not cite a

sharp divide in authority on the questions in this case, and it does not appear that

one exists. Indeed, it does not appear that many courts have considered a situation

Woodall’s alleged intellectual disability. Woodall v. Plappert, No. 09-5406 (6th Cir.)

(supplemental briefs filed on Sept. 4, 2025).

9

in which a death-sentenced defendant claims that he was denied the ability to crossexamine a witness in a post-conviction intellectual-disability hearing. So in this

posture, it’s hard to see how this case rises to a level that demands this Court’s review

under S. Ct. R. 10. Woodall has failed to present any compelling reason to grant

certiorari, so this Court should deny his petition.

II.

The circuit court’s hearing did not violate Woodall’s rights.

Regardless, the Kentucky Supreme Court decided the matter correctly. More

specifically, the state court properly determined that this Court’s precedent does not

justify applying the Confrontation Clause to post-conviction intellectual-disability

hearings. Additionally, the state high court was correct in its assessment of the level

of process afforded a defendant in that proceeding. Below, the Commonwealth

addresses Woodall’s confrontation and due-process arguments in turn.

A. The circuit court’s hearing did not violate Woodall’s right to confront

the witnesses against him.

Woodall claims that he was entitled to cross-examine Dr. Johnson under the

Confrontation Clause. But if Woodall were to prevail on his Atkins claim, it would

affect only his sentence. In that way, his post-conviction evidentiary hearing is

similar to the penalty phase of a trial, in which the Confrontation Clause does not

apply. So there was no violation of Woodall’s confrontation right here.

The Sixth Amendment to the United States Constitution states that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him . . . . ” “The central concern of the Confrontation Clause is to

10

ensure the reliability of the evidence against a criminal defendant by subjecting it to

rigorous testing in the context of an adversary proceeding before the trier of fact.”

Maryland v. Craig, 497 U.S. 836, 845 (1990). However, “the Confrontation Clause

applies only to witnesses ‘against the accused.’” Samia v. United States, 599 U.S. 635,

644 (2023) (quoting Crawford v. Washington, 541 U.S. 36, 50 (2004)). After someone

is convicted, of course, that person is no longer “accused.”

Along those same lines, this “Court has repeatedly explained that the right to

confrontation is basically a trial right.” United States v. Burke, 345 F.3d 416, 426 (6th

Cir. 2003) (cleaned up) (collecting cases). Indeed, “it is this literal right to ‘confront’

the witness at the time of trial that forms the core of the values furthered by the

Confrontation Clause.” California v. Green, 399 U.S. 149, 157 (1970) (emphasis

added); see also Crawford, 541 U.S. at 53–54 (noting that the Confrontation Clause

bars admission of “testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify” (emphasis added)).

At least one secondary source confirms this interpretation: “The Confrontation

Clause applies only to that portion of a criminal proceeding that can be classified as

the trial.” Sarah A. Stauffer & Sean D. Corey, Sixth Amendment at Trial, 87 Geo. L.J.

1641, 1648 n.2002 (1999) (collecting cases). Against this background, it makes sense

that “[n]umerous circuits have found that the Confrontation Clause does not apply in

capital sentencing proceedings, citing the Supreme Court’s decision in Williams v.

New York, 337 U.S. 241 (1949).” United States v. Coonce, 932 F.3d 623, 641 (8th Cir.

2019) (citing cases). And if the Confrontation Clause doesn’t apply in capital

11

sentencing proceedings, then it shouldn’t apply in a post-conviction evidentiary

hearing like the one at issue here, either.

That said, consider the posture of Woodall’s claim. If the trial court had been

persuaded that Woodall was intellectually disabled, then it would have invalidated

his sentence only. Put differently, Woodall’s Atkins claim has nothing to do with his

guilt or innocence. See, e.g., In re Hill, 715 F.3d 284, 296–97 (11th Cir. 2013)

(analyzing an Atkins claim under 28 U.S.C. § 2244(b)(2)(B)(ii)). Atkins itself

abrogated Penry v. Lynaugh, 492 U.S. 302, 328 (1989), and a strong undercurrent of

the Penry decision was that a defendant’s intellectual disability served as a

mitigating factor. And, obviously, mitigating evidence is a proper consideration for

the penalty phase of trial. Considering everything, it is evident that a post-conviction

Atkins hearing is analogous to a trial’s sentencing phase, where the Confrontation

Clause does not apply.

For these reasons, the Kentucky Supreme Court reached the right result

regarding Woodall’s Confrontation Clause claim. All things considered, it was proper

for the state court to decline to extend confrontation rights to a post-conviction Atkins

hearing like the one at issue here. And Woodall hasn’t cited any precedent from this

Court casting doubt on that conclusion. In sum, Woodall’s argument under the

Confrontation Clause does not present a compelling reason justifying this Court’s

review.

12

B. Woodall has not shown any violation of his due-process rights.

Woodall also argues that his inability to cross-examine Dr. Johnson deprived

him of his right to due process. But he’s wrong on this point, too. Woodall was afforded

a hearing at which he presented evidence in support of his Atkins claim, and the

Kentucky Supreme Court correctly determined that that proceeding sufficed under

the Due Process Clause.

Start with this Court’s precedent relating to due process. This Court has

recognized that “[d]ue process is flexible and calls for such procedural protections as

the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

Additionally, this “flexibility is in its scope once it has been determined that some

process is due; it is a recognition that not all situations calling for procedural

safeguards call for the same kind of procedure.” Id. And because due process is

malleable, whether a person has been convicted should affect that standard.

At the time of Woodall’s Atkins hearing, he was no longer afforded the

presumption of innocence. Instead, he was before the court as a person who had been

lawfully convicted of the brutal kidnapping, rape, and murder of a 16-year-old girl.

In other words, a person who has been found guilty simply does not have the same

due-process rights as someone who is presumed innocent. To draw an analogy, this

Court has distinguished the standard applicable to pre-conviction and post-conviction

use of force by authorities. See Graham v. Connor, 490 U.S. 386, 393–99 (1989)

(differentiating

the

use-of-force

standards

under

the

Fourth

and

Eighth

Amendments). Suffice it to say that it is not at all unreasonable to distinguish the

13

level of due process afforded inmates pre- and post-conviction. And because a jury

had already convicted Woodall at the time of his intellectual-disability hearing, he

was not entitled to the same due-process rights as a defendant in the guilt phase of

trial.

In any event, the amount of process due a defendant in an intellectualdisability hearing is a matter over which the States have discretion. To illustrate this,

the Commonwealth cites a case arising from the Eleventh Circuit stemming from an

intellectual-disability claim in the death-penalty context. In Raulerson v. Warden, a

death-sentenced defendant argued (under the deferential federal habeas standard)

that his due-process right was violated because Georgia requires a defendant to prove

intellectual disability beyond a reasonable doubt. 928 F.3d 987, 991, 1000 (11th Cir.

2019). The court ultimately rejected that challenge. Id. at 1004. In doing so, the court

explained that Atkins v. Virginia, 536 U.S. 304 (2002), “established only a substantive

Eighth Amendment right for the [intellectually disabled] and established no

minimum procedural due process requirements for bringing that Eighth Amendment

claim.” Id. at 1001 (citation and internal quotation marks omitted). Along those same

lines, one secondary source further elaborates about the proper procedure in the

intellectual-disability context:

A . . . set of unresolved issues after Atkins, Hall and Moore

concerns procedure. State standards of proof vary, with

some requiring defendants to prove intellectual disability

by a preponderance of the evidence, others by clear and

convincing evidence, and others by proof beyond a

reasonable doubt. Also unresolved by the Supreme Court is

14

whether the judge or the jury should make the decision.

Under the Florida law at issue in Hall and the law of many

states, the jury makes the determination at sentencing.

But in other states a judge decides whether the exemption

applies, prior to trial. If the question is one of mixed

question of fact and law—which it may well be given the

intermingling of clinical and normative issues that the

Eighth Amendment raises—then the latter procedure is

certainly permissible.

David L. Faigman, et al., Mental Disorder and Capital Sentencing, 2 Mod. Sci.

Evidence § 8:10 (2024) (footnotes omitted). Again, the Commonwealth relays this

quotation simply to stress the degree of flexibility in the due-process context here.

Against this backdrop, the Kentucky Supreme Court examined this Court’s

precedent—specifically, Ford v. Wainwright, 477 U.S. 399 (1986). Woodall III, 709

S.W.3d at 78–80. In its analysis of Ford, the state court explained that seven

members of this Court “agreed that, at a minimum, a defendant is entitled to the

opportunity to be heard on the issue of whether he is insane.” Id. at 78. And in this

case, “Woodall was . . . permitted to call . . . witnesses in addition to Dr. Fabian and

to cross-examine the witnesses that the Commonwealth called to testify.” Id. at 80.

In these circumstances, the state court determined that there was no due-process

violation. Id. Nothing that Woodall points to in his petition casts doubt on that

straightforward conclusion.

In light of the analysis above, there was no error in the Kentucky Supreme

Court’s opinion. For the sake of completeness, though, the Commonwealth briefly

mentions the three-justice concurring opinion in Woodall III. Even though the

concurring justices found harmless error, they provided several additional reasons to

15

reject Woodall’s Atkins claim. Id. at 86–87 (Thompson, J., concurring). More

specifically, the state court cited:

(a) the nature and amount of objective data collected by Dr.

Johnson; (b) significant evidence of Woodall’s adaptive

behavior and functioning prior to the offense; (c) the

inconsistencies in Woodall’s own evidence; and (d) the skill

and patience exhibited by the trial court in analyzing all

the information it had.

Id. at 87. So even if this Court is ultimately skeptical of the majority opinion, the

Court should find the analysis in the concurring opinion persuasive and determine

that the evidence does not warrant granting certiorari here.

CONCLUSION

For several reasons, the Court should deny Woodall’s petition for a writ of

certiorari. At the outset, this Court should determine that Woodall has not satisfied

the standard under S. Ct. R. 10. More to the point, he hasn’t shown any deep-seated

legal disagreement among lower courts on the matter.

In any event, the Kentucky Supreme Court was right on the merits. Several

lower courts have held that this Court has not extended the right to confrontation to

capital-sentencing proceedings. And this case is a step removed—it arises from a postconviction evidentiary hearing. Woodall’s post-conviction hearing is analogous to the

sentencing phase of trial because an Atkins claim can—at most—invalidate his

sentence. Given that similarity, there is no need for the Court to weigh in here.

Woodall’s due-process argument fares no better. Indeed, the Kentucky

Supreme Court’s analysis made sense. The Woodall III majority likened a post-

16

conviction intellectual-disability hearing to Ford. And, ultimately, the court

concluded that Ford required only an opportunity to be heard. Woodall had that here,

so there wasn’t any violation of his due-process rights.

For these reasons, the Commonwealth respectfully asks this Court to deny

Woodall’s petition for certiorari.

Respectfully submitted,

/s/ Christopher Henry

Director of Capital Litigation and Assistant Solicitor General

Office of the Solicitor General

Criminal Appeals Division

1024 Capital Center Dr., Ste. 200

Frankfort, Kentucky 40601

Phone: 502-696-5342

christopher.henry@ky.gov

Counsel for Respondent

*Counsel of Record