Opposition Brief — Carl G. Lindsey, Petitioner v. Ohio

No. 25-5534

In the Supreme Court of the United States

___________________________________

CARL LINDSEY,

Petitioner,

v.

OHIO,

Respondent.

___________________________________

ON PETITION FOR WRIT OF CERTIORARI TO

THE OHIO COURT OF APPEALS, TWELFTH DISTRICT

___________________________________

BRIEF IN OPPOSITION

___________________________________

DAVE YOST

Attorney General of Ohio

MATHURA J. SRIDHARAN*

Ohio Solicitor General

*Counsel of Record

JANA M. BOSCH

Deputy Solicitor General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

614.466.8980

Mathura.Sridharan@OhioAGO.gov

Counsel for Respondent

State of Ohio

CAPITAL CASE – NO EXECUTION DATE SET

QUESTION PRESENTED

Well over twenty-five years ago, an Ohio jury convicted Carl Lindsey of

aggravated murder. An Ohio court sentenced him to death. After exhausting other

procedures, Lindsey filed a second petition for postconviction relief in the Ohio courts,

claiming ineligibility for a death sentence because of Fetal Alcohol Spectrum

Disorder. See Atkins v. Virginia, 536 U.S. 304 (2002). His claim was based on the

same evidence he had used for his first postconviction petition. The state courts

dismissed his petition for failing to overcome a state procedural bar. Against this

backdrop, Lindsey’s petition presents one question:

Does this Court have jurisdiction to review the state court’s opinion dismissing a

second postconviction petition on independent and adequate state-law grounds?

i

LIST OF PARTIES

The Petitioner is Carl Lindsey, an inmate at the Chillicothe Correctional Institution.

The Respondent is the State of Ohio.

ii

LIST OF DIRECTLY RELATED PROCEEDINGS

The Petitioner’s list of directly related proceedings omits the following cases:

1. State v. Lindsey, No. 2004-1657, 104 Ohio St. 3d 1460 (discretionary review

declined on January 26, 2005).

2. State v. Lindsey, Nos. 97-2015 & 97-2064 (Ohio Ct. Comm. Pls. Brown

Cnty.) (sentence entered September 16, 1997; post-conviction proceedings

ongoing).

iii

TABLE OF CONTENTS

Page

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

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

LIST OF DIRECTLY RELATED PROCEEDINGS ..................................................... iii

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

TABLE OF AUTHORITIES .......................................................................................... v

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

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

STATEMENT ................................................................................................................. 2

REASONS FOR DENYING THE WRIT ....................................................................... 6

I.

The decision below rests on independent and adequate state-law

grounds. .......................................................................................................... 6

II.

The Twelfth District’s decision is consistent with settled precedent and

there is no circuit split regarding Lindsey’s question presented. .............. 12

III.

This case provides a poor vehicle to consider the question presented. ..... 14

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

iv

TABLE OF AUTHORITIES

Cases

Page(s)

Atkins v. Virginia,

536 U.S. 304 (2002) ............................................................................................ 1, 12

Balentine v. Texas,

566 U.S. 904 (2012) ................................................................................................ 11

Beard v. Kindler,

558 U.S. 53 (2009) .................................................................................................... 9

Berry v. Mississippi,

552 U.S. 1007 (2007) .............................................................................................. 11

Brewer v. Quarterman,

550 U.S. 286 (2007) ................................................................................................ 13

Brown v. Thaler,

684 F.3d 482 (5th Cir. 2012) .................................................................................. 15

City of Austin v. Reagan Nat’l Adver. of Austin, LLC,

596 U.S. 61 (2022) .................................................................................................. 14

Cruz v. Arizona,

598 U.S. 17 (2023) .......................................................................................... 6, 9, 11

Dailey v. Florida,

143 S. Ct. 272 (2022) .............................................................................................. 11

Flanagan v. Nevada,

581 U.S. 1008 (2017) .............................................................................................. 11

Glossip v. Oklahoma,

604 U.S. 226 (2025) .............................................................................................. 6, 7

Hayburn’s Case,

2 U.S. 409 (1792) ...................................................................................................... 6

Herb v. Pitcairn,

324 U.S. 117 (1945) .............................................................................................. 6, 7

Lee v. Kemna,

534 U.S. 362 (2002) ........................................................................................ 6, 9, 10

v

Lindsey v. Jenkins,

No. 21-3745, 2022 WL 20854727(6th Cir. Dec. 1, 2022) ......................................... 4

Lindsey v. Warden, Chillicothe Corr. Inst.,

No. 1:03-cv-702, 2020 WL 7769816 (S.D. Ohio Dec. 30, 2020) ............................... 3

Michigan v. Long,

463 U.S. 1032 (1983) ............................................................................................ 6, 7

State v. Gawron,

No. 24-BE-0013, 2024 WL 4509120 (Ohio Ct. App. Oct. 10, 2024) ...................... 10

State v. Johnson,

173 Ohio St. 3d 592 (Ohio Ct. App. 2024)........................................................ 10, 11

State v. Lindsey,

104 Ohio St. 3d 1460 (2005) ..................................................................................... 4

State v. Lindsey,

99 Ohio St. 3d 1453 (2003) ....................................................................................... 3

State v. Lindsey,

No. CA2003-07-010, 2004 WL 1877734 (Ohio Ct. App. Aug. 23,

2004)...................................................................................................................... 3, 4

State v. Mack,

No. CR-2023-0284, 2024 WL 5181581 (Ala. Crim. App. Dec. 20,

2024)........................................................................................................................ 13

State v. Martini,

160 N.J. 248 (1999) ................................................................................................. 13

State v. Nix,

No. 24AP-557, 2025 WL 720206 (Ohio Ct. App. Mar. 6, 2025)............................. 10

State v. Williams,

No. CA2025-05-036, 2025 WL 3078886 (Ohio Ct. App. Nov. 3, 2025).................... 9

Stojetz v. Shoop,

586 U.S. 1196 (2019) .............................................................................................. 11

Thomas v. State,

138 Nev. 359 (2022) ................................................................................................ 14

Statutes and Rules

28 U.S.C. §1254 .............................................................................................................. 2

vi

28 U.S.C. §2244 ............................................................................................................ 10

Alaska Stat. §12.55.155 ............................................................................................... 14

Ariz. R. Crim. P. 32.2 ................................................................................................... 10

N.D. Cent. Code §29-32.1-09 ....................................................................................... 10

Ohio Rev. Code §2953.23 ................................................................................... 5, 7, 8, 9

Other Authorities

Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental

Disorders (5th ed. 2013) ......................................................................................... 13

vii

INTRODUCTION

Carl Lindsey’s petition purports to be about intellectual disability and

eligibility for execution, but his loss follows from the application of a state procedural

bar. Ohio law prevents petitioners from bringing a second petition for postconviction

relief based on facts already known at the time of the first petition. Here, the core

question is whether this Court has jurisdiction to review the state court’s application

of a state procedural bar on Lindsey’s second petition for postconviction relief. The

answer is “no.” This Court has long held that it has no jurisdiction to review a state

court’s decision that rests on state grounds independent of the federal question and

adequate to support the judgment.

Lindsey’s petition fails to recognize the

independent and adequate state procedural bar. Instead, he asks this Court to pass

on constitutional arguments that the lower courts did not address and that have

nothing to do with the procedural bar. For that reason alone, this Court should deny

certiorari.

In any event, Lindsey’s substantive arguments do not warrant this Court’s

review. Lindsey argues that the holding of Atkins v. Virginia should have prevented

sentencing him to death because he has Fetal Alcohol Spectrum Disorder. 536 U.S.

304 (2002). But he cannot show any relevant split among the lower courts, circuit

courts or otherwise. And by his own framing, his argument for a new Atkins-identical

rule specific to those with Fetal Alcohol Spectrum Disorder would be unnecessary

repetition of already established rules. Finally, the case presents a bad vehicle for

Lindsey’s questions presented. Such issues have not percolated in the lower courts

1

because Atkins’s progeny do not ask courts to analyze the types of categorical bars to

execution Lindsey now requests.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. §1254(1).

STATEMENT

1. Over twenty-five years ago, in the middle of a winter night, Carl Lindsey

and a group of conspirators met at “Slammers Bar” to discuss a murder. Pet.App.A92. Joy Hoop expressed a desire to have her husband, “Whitey” Hoop, killed. Id.

Lindsey, who was romantically involved with Joy, volunteered to murder Whitey.

Pet.App.A-93. Joy gave Lindsey a gun and said she wanted the murder done at once.

Id. Lindsey took the gun and left the bar. Pet.App.A-92. Shortly after, he shot

Whitey twice—once in his car and once in the parking lot. Id.

Investigators immediately suspected Lindsey of the crime. One officer found

Lindsey washing blood out of his clothes not long after the murder. Id. Whitey’s

wallet was empty, but Lindsey’s was uncharacteristically full despite being long out

of work. Id. And Police later found Lindsey’s pickup truck covered in blood. Id.

2. The State charged Lindsey with several crimes, including two counts of

aggravated murder with death specifications. Id.

The State presented a variety of evidence against Lindsey and called several

witnesses to testify. Pet.App.A-93–94. It also presented considerable physical and

forensic evidence. For example, lab testing showed that bloodstains from Lindsey’s

“jacket, jeans, boot, truck console, steering-wheel cover, driver’s seat, driver’s-side

door, and door handle” were all “consistent with Whitey’s blood.” Pet.App.A-92. So

2

too was a bloodstain on the pistol that police recovered at the trailer where Lindsey

was washing his bloody clothes—the same gun that matched the shell casings left at

the murder scene. Id. Testing further revealed gunshot residue on Lindsey’s hands.

Lindsey v. Warden, Chillicothe Corr. Inst., No. 1:03-cv-702, 2020 WL 7769816, *12

(S.D. Ohio Dec. 30, 2020).

The jury found Lindsey guilty. Pet.App.A-92 And after a penalty phase, the

jury recommended death and the trial court accepted that recommendation. Id.

3. Lindsey first challenged his conviction and sentence on direct appeal in Ohio

state courts. The Ohio Supreme Court affirmed both the jury’s verdict and the death

sentence. Pet.App.A-99.

After exhausting his direct appeals in Ohio, Lindsey filed his first petition for

postconviction relief. Pet.App.A-2. The trial court denied that petition, and the Ohio

appellate court affirmed that decision, finding Lindsey’s postconviction evidence

insignificant. Id. The Supreme Court of Ohio denied jurisdiction. State v. Lindsey,

99 Ohio St. 3d 1453 (2003).

A year later, Lindsey sought leave from the trial court to file a motion for a

new trial. He pointed to testimony in Joy Hoop’s trial that implied Lindsey did not

act alone and required Hoop’s assistance to “shoot [Whitey] a second time in the

head.” State v. Lindsey, No. CA2003-07-010, 2004 WL 1877734, *2 (Ohio Ct. App.

Aug. 23, 2004) (alteration in original). According to Lindsey, this contradicted his

conviction since it was likely the jury would have reached a different verdict had it

considered the testimony from Hoop’s trial. Id. at *2–3. The trial court disagreed,

3

denying Lindsey’s motion, and the appellate court again affirmed because there was

“no reasonable doubt regarding appellant’s guilt, even considering the new evidence.”

Id. at *3. The Supreme Court of Ohio again denied review. State v. Lindsey, 104

Ohio St. 3d 1460 (2005).

Lindsey proceeded to federal court, filing a habeas petition in 2003. After more

than 17 years and three amended petitions, the District Court rejected all of Lindsey’s

habeas claims. Pet.App.A-3–4. And when Lindsey appealed this rejection, the Sixth

Circuit denied his request by declining to issue Lindsey a certificate of appealability.

Lindsey v. Jenkins, No. 21-3745, 2022 WL 20854727(6th Cir. Dec. 1, 2022).

4. In the proceedings below, Lindsey attempted another collateral attack, filing

an untimely second petition for postconviction relief. Pet.App.A-4. Relevant here, he

argued that he had “newly discovered evidence” related to a potential Fetal Alcohol

Spectrum Disorder diagnosis and that his prior counsel failed to properly investigate

whether he had the disorder. Id.

The trial court dismissed the petition. Id. First, it held his claims barred by

res judicata. Id. Second, it found that he failed to show he was “unavoidably prevented” from discovering the facts underlying his claims. Id. Third, it determined

that he failed to show a constitutional error at trial or sentencing. Id. Finally, it

found that he had failed to show no reasonable fact finder would have found him

guilty of murder or imposed the death sentence even if a constitutional error had

occurred at trial. Pet.App.A-4–5.

4

Lindsey appealed that dismissal, and the Ohio appellate court reversed and

remanded. It instructed the trial court to first answer the “threshold question” of

“whether Lindsey had ever satisfied the jurisdictional requirements to bring an untimely, second or successive petition for [postconviction relief].” Pet.App.A-5; see Ohio

Rev. Code §2953.23(A)(1).

On remand, the trial court found Lindsey had not satisfied the jurisdictional

requirements. Pet.App.A-5. That court found Lindsey failed to show he was “unavoidably prevented from discovery of the facts which support his claim of constitutional errors.” Pet.App.A-20. This was because the evidence for a Fetal Alcohol Spectrum Disorder diagnosis stemmed from the same affidavits filed in his first petition

for postconviction relief. Id. And “the materials in support of the first petition were

replete with reference to alcohol abuse in his family.” Id. Those first-petition materials noted that Lindsey’s mother “was an alcoholic who drank excessively during her

pregnancy” with Lindsey. Id. Indeed, the trial court held that “the claim of severe

alcohol abuse in [Lindsey]’s family (especially in his mother) during pregnancy and

childhood is not new and was discovered before his first petition.” Id. (emphasis

added).

Lindsey again appealed. The Ohio Twelfth District affirmed. It agreed the

evidence “used to establish Lindsey’s FASD diagnosis was based primarily on the

affidavits Lindsey used to support his original position for PCR that was filed with

the trial court over 25 years ago.” Pet.App.A-10. In the Twelfth District’s opinion,

the record is “chock full of references to the troubles that Lindsey’s family had with

5

alcohol,” including “reports that Lindsey’s mother drank heavily while she was pregnant with Lindsey.” Id. The Ohio Supreme Court denied jurisdiction for appeal.

Pet.App.A-22.

Lindsey petitioned this Court for a writ of certiorari.

REASONS FOR DENYING THE WRIT

The Court should deny the petition for a writ of certiorari for at least three

reasons. First, Lindsey’s question presented asks this Court to intervene in a state

decision that rests on independent and adequate state-law grounds. Second, the

Twelfth District’s holdings align with settled law and there is no relevant circuit split.

Third, this case provides a poor vehicle to consider Lindsey’s question presented.

I.

The decision below rests on independent and adequate state-law

grounds.

This Court is the final word on the meaning and application of federal law, but it

leaves matters of state law to the state high courts. Michigan v. Long, 463 U.S. 1032,

1041 (1983). For that reason, “[t]his Court will not take up a question of federal law

presented in a case ‘if the decision of the state court rests on a state-law ground that

is independent of the federal question and adequate to support the judgment.’”

Glossip v. Oklahoma, 604 U.S. 226, 242 (2025) (quoting Cruz v. Arizona, 598 U.S. 17,

25 (2023)) (brackets omitted); Lee v. Kemna, 534 U.S. 362, 375 (2002). This rule is

jurisdictional.

Id.

It flows from the limits on federal courts’ Article III power

prohibiting federal courts from “render[ing] an advisory opinion.” Herb v. Pitcairn,

324 U.S. 117, 126 (1945); see also Hayburn’s Case, 2 U.S. 409 (1792). If the state court

below would produce the “same judgment” for state-law reasons regardless of this

6

Court’s correction on federal law, this Court’s intervention would “amount to nothing

more than an advisory opinion.” Herb, 324 U.S. at 126. Under this rule, reviewing a

state court decision based on state law is exceedingly rare.

The state court decision rejecting Lindsey’s claim rested on independent and

adequate state-law grounds.

Independent State-Law Grounds. A state-court decision is independent when

it rests on a state-law rationale alone sufficient to support the outcome. Glossip, 604

U.S. at 242. Generally, citations to state law reveal that the decision rests on that

law, especially when citations to federal law are lacking. See Long, 463 U.S. at 1043.

And even when a state court cites federal precedent as persuasive authority, it can

explain “that the federal cases are being used only for the purpose of guidance, and

do not themselves compel the result that the court has reached.” Id. at 1041.

The state court’s ruling on Lindsey’s first assignment of error rested on

independent state-law grounds.

Lindsey argued he met the jurisdictional

requirements of Ohio law for filing a second petition for postconviction relief. See

Ohio Rev. Code §2953.23(A)(1).

The statute requires two elements.

First, the

petitioner must show either that he was “unavoidably prevented from discovery of

the facts upon which the petitioner must rely to present the claim for relief,” or that

this Court “recognized a new federal or state right that applies retroactively to

persons in the petitioner’s situation, and the petition asserts a claim based on that

right.” Ohio Rev. Code §2953.23(A)(1)(a). Second, a petitioner challenging a death

sentence must show by clear and convincing evidence that, “but for constitutional

7

error at the sentencing hearing, no reasonable factfinder would have found the

petitioner eligible for the death sentence.” Ohio Rev. Code §2953.23(A)(1)(b).

Lindsey failed to meet the required elements. The trial court found the evidence

Lindsey presented for his potential Fetal Alcohol Spectrum Disorder diagnosis was

not “newly discovered evidence.” Pet.App.A-10. The Twelfth District agreed, finding

the evidence “was based primarily on the affidavits Lindsey used to support his

original petition for PCR that was filed with the trial court over 25 years ago.” Id.

Nor could Lindsey “show that any delay in discovering the facts undergirding the

petition was incapable of being avoided or evaded” because the affidavits he relied on

in this second petition for postconviction relief were the same affidavits he had used

in his first petition. Pet.App.A-10 (quotation omitted).

In overruling Lindsey’s first assignment of error below, therefore, the Twelfth

District looked exclusively at state law. It relied on an Ohio procedural statute. It

applied Ohio precedent interpreting that statute. And it made its decision based

solely on the record of the Ohio trial court.

The Twelfth District’s decision to overrule Lindsey’s second assignment of error

also rested on state-law grounds independent of federal law. Lindsey argued that the

second postconviction trial court failed to analyze under Ohio law “whether the

evidence he presented to establish his FASD diagnosis could have caused a

reasonable factfinder to find him ineligible for the death sentence.” Pet.App.A-11;

Ohio Rev. Code §2953.23(A)(1)(b). The trial court held that Lindsey “failed to show

by clear and convincing evidence that the reasonable fact finder would not have found

8

him guilty anyway and would not have recommended the death penalty.” Id. In

support, it noted the overwhelming evidence supporting Lindsey’s guilt and sentence

at trial. Pet.App.A-11–12.

In sum, the holdings of both the trial and lower appellate courts rested squarely

on state law: they held that Lindsey failed to meet state-law standards for filing

another state-law postconviction petition.

Adequate State-Law Grounds. The Twelfth District’s holdings also relied on

adequate state-law grounds. Whether a state procedural ruling is adequate “is itself

a question of federal law.” Beard v. Kindler, 558 U.S. 53, 60 (2009). This Court has

repeatedly held that if the state procedural rule is “firmly established and regularly

followed,” it will be adequate to “foreclose review of a federal claim.” Lee, 534 U.S. at

376. Only in “exceptional cases” will the state-law grounds fail this test. Cruz, 598

U.S. at 32.

For example, “where a state-court judgment rests on a novel and

unforeseeable state-court procedural decision lacking fair or substantial support in

prior state law,” the decision will not be “adequate” to avoid federal review. Id. Or

said another way, a state high court’s act may be “essentially arbitrary” when it

creates a novel interpretation of its own procedural rule that is “the opposite of firmly

established and regularly followed.” Id. at 26, 28.

Lindsey’s second petition centered on the same well-established jurisdictional

question that every untimely, second, or successive petition in Ohio must face.

Indeed, the Ohio courts regularly rely on the statutory provision at issue here to reject

repetitive or untimely petitions for postconviction relief. See, e.g., State v. Williams,

9

No. CA2025-05-036, 2025 WL 3078886, *2 (Ohio Ct. App. Nov. 3, 2025); State v. Nix,

No. 24AP-557, 2025 WL 720206, *2 (Ohio Ct. App. Mar. 6, 2025); State v. Gawron,

No. 24-BE-0013, 2024 WL 4509120, *2 (Ohio Ct. App. Oct. 10, 2024). Statutes barring

second or successive petitions for postconviction relief except in certain circumstances

are a standard procedural rule used throughout this Nation’s criminal and civil

procedural rules. See, e.g., 28 U.S.C. §2244(b)(2); Ariz. R. Crim. P. 32.2; N.D. Cent.

Code §29-32.1-09.

Nothing in the record suggests that the lower court’s application of the procedural

bar was novel or aberrant.

See Pet.App.A-10.

The Twelfth District applied

established Ohio Supreme Court precedent interpreting the statute and found that

Lindsey failed to show he was “previously unaware of the evidence” supporting his

second petition and could not have reasonably discovered it sooner. Id. (citing State

v. Johnson, 173 Ohio St. 3d 592, 597 (Ohio Ct. App. 2024). It reached this conclusion

by pointing out that Lindsey’s first petition included the same affidavits Lindsey now

relied upon in his second petition. Pet.App.A-10. And his contention regarding his

mother’s alcoholic tendencies were clear from the prior record, which indicated she

drank heavily while pregnant with Lindsey.

Id.

Because that evidence was

undoubtedly available before he filed his first petition, Lindsey’s second petition could

not overcome Ohio’s “regularly followed” jurisdictional bar against second petitions

based on long-known facts. See Lee, 534 U.S. at 376. The Twelfth District’s holding

was therefore adequate.

10

The same is true of the Twelfth District’s holding that Lindsey failed to show the

factfinder would not have sentenced him to death but for some constitutional wrong.

It is “firmly established” and “regularly followed” in Ohio that a complainant must

show the constitutional error at trial was the “but for” cause of his conviction or

sentence; otherwise the Ohio courts lack subject matter jurisdiction to “adjudicate …

a second petition.” See Johnson, 173 Ohio St. 3d at 595. But the constitutional wrong

Lindsey sought to assert was unclear.

Pet.App.A-11.

And extensive evidence

supported Lindsey’s guilt and sentence. Id. For those reasons, the Twelfth District

found Lindsey could not meet his burden under the statute.

Further, this Court’s rare exceptions do not apply in this case. The Twelfth

District’s judgment about state procedure was not “essentially arbitrary,” Cruz, 598

U.S. at 26 (quotation omitted), because it was applying an established Ohio

procedural bar that Ohio courts frequently apply to deny jurisdiction in the same

circumstances. Indeed, this Court has routinely declined to review decisions applying

the same or similar procedural bars. See Stojetz v. Shoop, 586 U.S. 1196 (2019) (Br.

in Opp. at https://perma.cc/VDC8-GZBU); see also, e.g., Dailey v. Florida, 143 S. Ct.

272 (Mem) (2022) (Br. in Opp. at 2022 WL 3213292); Flanagan v. Nevada, 581 U.S.

1008 (2017) (Br. in Opp. at 2017 WL 1756937); Balentine v. Texas, 566 U.S. 904 (2012)

(Br. in Opp. at 2011 WL 8831191); Berry v. Mississippi, 552 U.S. 1007 (2007) (Br. in

Opp. at 2007 WL 3196735). Nor was the Twelfth District’s judgment “merely a device

to prevent a review of the other federal ground of the judgment.” Cruz, 598 U.S. at

26 (quotation and alteration omitted). There were no other federal grounds for the

11

court to avoid. Other than Lindsey’s “not specific” claim of constitutional error below,

App.Pet.A-11, he did not raise any federal constitutional claims until his current

petition to this Court.

*

*

*

The decision below rested on independent and adequate state-law grounds, which

is an ordinary procedural bar on repetitive postconviction petitions. This Court’s

independent-and-adequate-state-grounds doctrine forecloses review of Lindsey’s

federal questions presented here.

II.

The Twelfth District’s decision is consistent with settled precedent

and there is no circuit split regarding Lindsey’s question presented.

Even without the independent and adequate state grounds doctrine, this case is a

poor candidate for certiorari because it implicates no circuit split. Lindsey presents

a question about applying Atkins v. Virginia, 536 U.S. 304 (2002), to people with Fetal

Alcohol Spectrum Disorder. But the courts below did not pass on the issue because

they stopped after finding a procedural bar. For that reason, it is difficult to imagine

how the Twelfth District’s decision could have placed itself among the constellation

of decisions dealing with Atkins—indeed, Lindsey’s petition does not attempt to

explain how it does.

Even if the courts below had commented on Atkins, there is no relevant circuit

split. Lindsey claims that “courts have treated FASD inconsistently,” Pet.16, but his

examples do not bear that out. He cites some courts that mentioned how “FASD can

mitigate criminal behavior,” and he cites others that note the “double-edged” nature

of such mitigation evidence—that it could make jurors believe the defendant to be an

12

uncontrollable threat. Id. That is no sign of disagreement among the lower courts in

applying Atkins. In fact, courts routinely note that some mitigating evidence has

potential to blow back on the defendant. See, e.g., Brewer v. Quarterman, 550 U.S.

286, 293 (2007); State v. Mack, No. CR-2023-0284, 2024 WL 5181581, *27 (Ala. Crim.

App. Dec. 20, 2024) (McCool, J., dissenting); State v. Martini, 160 N.J. 248, 287 (1999)

(Handler, J., dissenting).

Moreover, whether evidence is wholly mitigating has

nothing to do with Lindsey’s question presented, which is about ineligibility for the

death penalty based on mental disability, not the separate issue of offering mitigation

evidence to avoid a death sentence in the first place.

What is more, Lindsey offers a convincing argument for why no circuit split over

Fetal Alcohol Spectrum Disorder will ever arise in this context. According to Lindsey,

mental impairments from Fetal Alcohol Spectrum Disorder “are materially

indistinguishable from those constituting intellectual disability.” Pet.6. He also

posits that, “as defined in the DSM-5, FASD is identical to [Intellectual Disability],

except for confirmation of prenatal exposure to alcohol.” Pet.18 (quotation omitted)

(emphasis and alteration in original). If that is true, then someone with Fetal Alcohol

Spectrum Disorder would necessarily also have an intellectual disability. Indeed, the

DSM-5 classifies fetal alcohol exposure as a “specifier” that can attach to diagnoses

like intellectual disability. Am. Psychiatric Ass’n, Diagnostic & Statistical Manual

of Mental Disorders 33 (5th ed. 2013). That explains why Lindsey can point to no

case holding that eligibility for execution “depend[s] on [convicts’] disabilities’

13

etiology.” Pet.24. Instead, a court faced squarely with the question Lindsey offers

now would just apply Atkins and its progeny.

III.

This case provides a poor vehicle to consider the question presented.

Even if review were not blocked by the independent-and-adequate state-law

grounds doctrine, and even if it were possible for the circuits to split on how to apply

Atkins to Fetal Alcohol Spectrum Disorder, this case would still be a poor vehicle for

review. The claims Lindsey presents have not percolated in the lower courts—

including the court below in this case. This Court is a court of “final review, not first

view,” City of Austin v. Reagan Nat’l Adver. of Austin, LLC, 596 U.S. 61, 76 (2022)

(quotation omitted), and taking up a question not briefed or decided below would be

strange.

Further, none of the cases Lindsey cites demonstrate any area of dispute that has

percolated and could aid this Court’s review. Instead, his cases tend to show that

courts are applying Atkins without difficulty to all kinds of situations like this one.

Lindsey raises an Ohio Supreme Court opinion to show that Ohio uses a “flexible

approach” as opposed to “rigid definitional rules” for categorizing intellectual

disability. Pet.15. That approach sounds similar to what Lindsey is asking for—

treating intellectual disability due to Fetal Alcohol Spectrum Disorder similarly to

intellectual disability from other causes. Next, Lindsey refers to two States that

recognize that Fetal Alcohol Spectrum Disorder can mitigate criminal behavior. See

Alaska Stat. §12.55.155(d)(20)(A); Thomas v. State, 138 Nev. 359, 365–67 (2022).

Nothing there points to any disagreement for this Court to resolve, as any aspect of

the defendant or the crime could be argued as a mitigating factor. Finally, Lindsey

14

cites a number of Fifth Circuit decisions that describe evidence of Fetal Alcohol

Spectrum Disorder as “double-edged.” See, e.g., Brown v. Thaler, 684 F.3d 482, 499

(5th Cir. 2012). As mentioned above, that characterization is true of mitigation

evidence sometimes—but that has nothing to do with whether courts disagree on

categorical rules about eligibility for execution. In sum, if a latent circuit split is

waiting in the wings, Lindsey has failed to show discussion of any relevant issue in

the lower courts. That should discourage this Court from taking up the question.

CONCLUSION

This Court should deny the petition for certiorari.

Respectfully submitted,

DAVE YOST

Attorney General of Ohio

/s/ Mathura J. Sridharan

MATHURA J. SRIDHARAN*

Ohio Solicitor General

*Counsel of Record

JANA M. BOSCH

Deputy Solicitor General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

614.466.8980

Mathura.Sridharan@OhioAGO.gov

Counsel for Respondent

State of Ohio

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