Opposition Brief — Bell v. Thompson

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No. 09-1373 C (-'f Cc ‘ cir i

IN THE

Supreme Court of the Gunited States

RICKY BELI., WARDEN,

Petitioner,

GGREGORY THOMPSON,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF IN OPPOSITION

DANA CC, HANSEN CHAVIS

(Counsel of Record)

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

8O0 S. Gay Street

Suite 2400

Knoxville, TN 37929-9714

(865) 637-7979

dana hansen@fd.org

—— -: ——

Counsel for Kespondent

ctv dics lisa Beck! siete tee

CAPITAL CASE

QUESTIONS PRESENTED

1. Whether the court of appeals correctly con-

cluded that the Tennessee Supreme Court unrea-

sonably apphed Ford v. Wainwright, 477 U.S. 399

(1986), when it disregarded evidence of Thompson’s

delusions and long history of severe mental illness as

“irrelevant” and failed to conduct a hearing before

ruling Thompson competent to be executed.

2. Whether the court of appeals correctly con-

cluded that promulgation of Tennessee Supreme

Court Rule 39, which demonstrated that the district

court misinterpreted state law at the time it dis-

missed habeas claims as procedurally barred in a

capital case, was an extraordinary circumstance

warranting relief under Rule 60(bX6).

3. Whether the certificate of appealability allowed

the court of appeals to consider fully the question

whether to grant relief under Rule 60(b)(6).

il

TABLE OF CONTENTS

Page

QUESTION PRUIGIIN Toi oinsccisscccacestvessvvsesanvessssnnsavys i

CT Pe ee Tc ancisasizserscansseneccrseapetancauicteariaaal l

Far BA sinssv nde cxnddn etna sceaenuecucnvewecsoaneesassanoe 2

INTRODUCTION ....... inbred puandieed een Tadeenaen 2

SLA 0 BO ERIN T sbadeeuacaccgeversevnvaprietenvore ligaeeuesneresavarsaerees 5

A Thompson’s Competency To Be

eI e. saceccccndsapiinsdus ee eekerieasosecases el eueiee 5

B Thompson’s Rule 60(b) Motion..................... 13

REASONS FOR DENYING THE PETITION ........ 17

I. THIS COURT SHOULD NOT REVIEW

THE COURT OF APPEALS’ DECISION

ON THOMPSON’S FORD CLAIM............... 17

A. The Decision Below Is Interlocutory,

Fact-Bound, Does Not Implicate Any

Conflict In The Lower Courts, And

Has No Significance Beyond This

CARD vr ssseudnenssvusennsnnissesueaacia materia aaa 17

B. The Decision Below Is Correct On

The Merits ......... Rr ener SAL Ses i Paee’ 20

I]. THE COURT OF APPEALS’ RULE 60(B)

DECISION PRESENTS NO ISSUE WAR-

RANTING THIS COURT'S REVIEW .......... 27

A. The Rule 60(b) Decision Does Not

Implicate Any Conflict In The Lower

Courts, Is Fact-Bound, And Has No

Significance Beyond This Case............... at

TABLE OF CONTENTS

(continued)

Page

B. The Rule 60(b) Decision Is Correct

OUR Me PE ooo scsnasccccoessctorssceaccocss: 29

ITT. THE COURT OF APPEALS DID NOT

EXCEED THE SCOPE OF THE CER-

TIFICATE OF APPEALABILITY................ 34

Ce POON PRUE IEN oss acencrndnessses coven Se Rar ma 37

1V

TABLE OF AUTHORITIES

Page(s)

CASES

Abdur’Rahman v. Bell,

ee ceed 0 COGN COT OG) asad vn ccrvsccseicadsscccccees 30

Abdur’ Rahman v. Bell,

No. 96-0380, 2008 WL 2002572

CR, NE EI Fg BD on cacnncscccicccwinvosucternconsecs 28

Adams v. Holland,

etd FF aoe ret CGE Clie. BOOS) oo ccccccseccscccccceccesccenes 15

Baldwin v. Reese,

a ae. Be TOD oc cvscvcesesvasns Perea ne Me hee seer? 33

Bell v. Thompson,

Bre, Pe I on ccncescnsccvoceccevercasccosnncnases 12,16

Bhd. of Locomotive Firemen &

Enginemen v. Bangor & Aroostook

Rt... Co.,

Pr ts UE 8 NED vicecencasccccassccsncancessncevoxsscunusspaa 18

Cornwell v. Bradshaw,

GE Foe oe CED CP, BODO) o.oo cons ccccccccscveccsecens 36

Ex Parte Royall,

Oe ee Fe cd aiid cnacswensasusvecisecescnepesneneennas ae

Ford v. Wainwright,

DTT UF Fo UID) oacccvccecvescvececcccceness sovaeaes passim

Gonzalez v. Crosby,

Te ees ee ED ne vvsaccnsenscsnckenvedsccnvicenens passim

Hamilton-Brown Shoe Co. v. Wolf Bros.

& Co.,

ee a ose cx vncevnaeccénavavexonhecvavenoainens 1%

Kimmelman v. Morrison,

BE 8 Ws SIE 0 IT ibn caconcebacdccessavedvsesavdceensceueeni 34

Vv

TABLE OF AUTHORITIES

(continued)

Paype(s)

McQueen v. Scroggy,

99 F.3d 1302 (6th Cir. 1996)........................ 15, 30

Miller-El v, Cockrell,

ee As GE POND ec vnnenccvcensacnssnecsecvavecevedususvaees 34

Monge v. California,

Be Bites FEE CRO ovicvevccscsvecesosceses: dalncdatonvevanastanee

O'Sullivan v. Boerckel,

NE PU UIE vs evenvsse<snssvendesonavsduiveevsessonecese 14

Panetti v. Quarterman,

Ee EP EE Pre nsicesesscccecencsvasvenvaxsosses passim

Stringer v. Black,

SF Ee OND ov vccsecasaccnccnevecesvceresvesnssshcccsncen ther

Thompson v. State,

134 5.W.3d 168 (Tenn. 2004)...............0..... passim

United States v. Shipp,

589 F.3d 1084 (10th Cir. 2009).......................... 35

Va. Military Inst. v. United States,

Re | 18

Van Tran v. State,

6 S.W.3d 257 (Tenn. 1999)........................2.06. 6, 23

Villot v. Varner,

Ge Wee Ree Cade GAP, BOOS), . occesvcccnsecsvcccscoscosesss OO

Williams v. Taylor,

SR MP iy GE WD onc siescn caphadsnvaseonsscesseneces .. 20, 26

STATUTES

Se ere MEN Vids, dara pa dscevacdessveunsddyseaschadsovavecoes 3, 33

’

Vi

TABLE OF AUTHORITIES

(continued)

Pape(s)

RULES AND OTHER AUTHORITIES

In re: Order Establishing Rule 39,

Kules of the Supreme Court of

‘Tennessee:

Exhaustion of Remedies (Tenn. June

Mls MIRED éncccccciveusskesos toe cass ae

PADD, SIG. BR. BO occsesess. ; 28, 29

ae oe et eT) 36

No. 09-1373

IN THE

Supreme Court of the Ginited States

RICKY BELL, WARDEN,

Petitioner,

(JREGORY ‘THOMPSON,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BREEF IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la

62a) is reported at 580 F.3d 423. The opinion of the

court of appeals denying rehearing and rehearing en

banc (Pet. App. 179a-80a) is unreported. The memo-

randum opinion and order of the district court re-

garding Thompson’s Ford claim (Pet. App. 66a-155a

and Pet. App. 156a-57a, respectively) are unre-

ported. The memorandum order of the district court

regarding 'Thompson’s Rule 60(b) motion (Pet. App.

158a-73a) is unreported. The opinion of the Tennes-

see Supreme Court is reported at 134 5.W.3d 168.

JURISDICTION

The court of appeals entered judgment on Sep

tember 11, 2009, and denied rehearing and rehear

ing en banc on January 12, 2010. On April 7, 2010,

Justice Stevens extended the time within which to

file a petition for a writ of certiorari to and including

May 5, 2010. On May 7, 2010, Justice Stevens fur

ther extended the time to file the petition to and in-

cluding May 10, 2010, and the petition was filed on

that date. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

INTRODUCTION

The petition presents no question warranting this

Court’s review. The petition does not identify any

conflict in the lower courts over any of the questions

presented. And although the State asserts that the

decision below conflicts with this Court’s decisions,

that assertion falls of its own weight, as the State

acknowledges that the facts and law of the case dif-

fer from those involved in this Court’s decisions.

The decision below is also highly fact-bound and

has little effect beyond this case. The competency-to-

be-executed claim at issue in the first question pre-

sented was adjudicated in state court before this

Court’s decision in Panetti v. Quarterman, 551 U.S.

930 (2007), which will be the relevant standard for

future cases. The decision of the court of appeals to

afford relief under Rule 60(bX6) of the Federal Rules

of Civil Procedure at issue in the second question

presented involves the application of a single state’s

procedural rule under the unique circumstances of

this case, where the adoption of that rule confirmed

that the district court’s prior decision dismissing ha-

3

beas claims as procedurally barred was erroneous at

the time it was issued. And the third question pre-

sented involves the scope of the certificate of appeal-

ability (COA) and the particular factual circum-

stances under which it was issued below. None of

these narrow and fact-bound questions warrants re-

view.

The decision below also remands the case for fur-

ther proceedings, rendering the petition interlocu

tory and premature. Those proceedings in the dis-

trict court may very well either alter the nature of

the questions presented or render the State’s argu-

ments moot altogether. For example, if the district

court affords relief on Thompson’s previously (and

wrongly) barred ineffective-assistance claims, the

competency-to-be-executed claim will become moot.

There is thus no warrant for this Court’s review at

this time.

{ven if error-correction of a fact-bound decision of

limited significance that does not implicate any con

flict in the lower courts could warrant review, the

court of appeals faithfully applied this Court’s deci

sions and reached the correct result on the facts pre-

sented, and so there is no error to correct. This

Court squarely rejected the State’s contention that

Ford v. Wainwright, 477 U.S. 399 (1986), does not

constitute “clearly established law” under the Anti-

terrorism and Effective Death Penalty Act (AE DPA),

28 U.S.C. § 2254, in Panetti. And the Tennessee Su

preme Court violated the clearly established law in

Ford in precisely the same way as the lower court in

Panetti. Specifically, it relied on Thompson’s mere

uwureness of the execution and the State’s reason for

it when Ford requires an examination into his ra-

tional understanding. The Tennessee Supreme

Court also excluded evidence of Thompson’s delu-

sions and history of mental illness, which Ford

clearly makes relevant to the inquiry, and it failed to

hold the hearing required by Ford after Thompson

made a substantial threshold showing of incompe-

tency.

The decision below also correctly afforded

Thompson the opportunity to pursue certain ineffec

tive-assistance claims in federal court for the first

time. In adopting its Rule 39, the Tennessee Su

preme Court confirmed that the district court erred

at the time it issued its decision in dismissing those

claims as procedurally barred. Although develop

ment of the law over time is common and does not

typically constitute an “extraordinary” circumstance

sufficient to reopen a judgment under Rule 60(b\6)

of the Federal Rules of Civil Procedure, a state su

preme court’s confirmation of the fact that a federal

court, at the time it issued its decision, misapplied

state law in barring constitutional claims in a capital

case is both rare and extraordinary. Thompson also

acted diligently in pursuing those claims, and could

not have sought Rule 60(b\6) relief earlier, as the

State suggests, because then-controiling circuit court

precedent would have deemed a motion to reopen a

judgment to be a successive habeas petition.

Finally, the State’s claim that the court of ap-

peals exceeded the scope of the COA misses the

mark. The court of appeals granted a COA on the

question “whether the Tennessee Supreme Court’s

enactment of Tenn. S. Ct. R. 39 is an extraordinary

circumstance sufficient to warrant’ re-opening

Thompson’s original § 2254 petition,” Pet. App. 65a

(emphasis added), a question that, as this Court al-

ready held in Gonzalez v. Crosby, 545 U.S. 524

(2005), logically encompasses the question whether

the habeas petitioner acted diligently in seeking re-

lief. The State’s cramped and contrary reading

would render the court of appeals’ decision to grant

the COA an academic exercise and its later decision

an advisory opinion.

For these reasons, certiorari: should be denied.

STATEMENT

Thompson suffers from schizophrenia, and he is

both delusional and psychotic. He was charged with

first-degree murder in 1985 in Coffee County, Ten-

nessee. Thompson’s counsel failed to adequately in-

vestigate the issue of his mental illness. At trial, his

counsel conceded guilt, called no witnesses, and pre-

sented no proof. The jury found Thompson guilty of

first-degree murder, a capital crime. The jury im-

posed the death penalty, and the trial court sen

tenced Thompson to death.

A. Thompson’s Competency To Be Executed

1. On January 21, 2004, the State moved to set

Thompson’s execution date. Thompson opposed the

motion on the ground that he was incompetent to be

executed. The Tennessee Supreme Court set an exe-

cution date, but remanded the case to the trial court

to evaluate Thompson’s competency claim.

2. In Ford v. Wainwright, 477 US. 399 (1986),

this Court held that “the Eighth Amendment prohib

its a State from carrying out a sentence of death

6

upon @ prisoner who is insane.” fd. at 409-10. The

Tennessee Supreme Court responded by adopting a

substantive state-law standard for competency, as

well as the procedures by which a prisoner sentenced

to death can assert a claim of incompetency. See

Van Tran v. State, 6 S.W.3d 257 (Tenn. 1999). Un-

der that standard, a prisoner is not competent to be

executed if he “lacks the mental capacity to under

stand the fact of the impeding execution and the rea-

son for it.” Id. at 266 (emphasis added). The state

requires a prisoner asserting that he is incompetent

to be executed to file a petition in the state trial

court “clearly set{ting] forth the facts alleged to sup-

port the claim that execution should be stayed due to

oresent mental incompetence,” and attaching “affi-

davits, records or other evidence supporting the fac-

tual allegations of mental incompetence.” Jd. at 267.

If the prisoner “makels| a threshold showing that

he ...1s presently incompetent,” the court must hold

a hearing at which the prisoner “shall be allowed to

present all evidence material and relevant to the is-

sue of competency.” Id. at 269, 271.

3. On March 1, 2004, in accordance with Van

Tran, Thompson filed a petition seeking a hearing on

his competency to be executed. He provided eizhteen

exhibits documenting his severe mental illness

throughout his years in custody and his present in-

competency to be executed. The exhibits included (1)

portions of Thompson’s prison mental-health re-

cords; (2) affidavits from three mental-health profes-

sionals who had recently evaluated Thompson; and

(4) documents revealing that the State had previ-

ously considered him incompetent and sought ap

pointment of a conservator to oversee his affairs.

a. The medical records Thompson submitted

showed that he had been diagnosed in prison as

“schizophrenic, paranoid type” and as having “bipo-

lar affective disorder.” Pet. App. 4a. The records

also documented ‘Thompson’s “mood swings,” the fact

that he hears voices, and that he has repeatedly en-

gaged in acts of self-harm, including “swallowing

poison, cutting his wrists and arms, and burning his

hand and face.” Id. These records also cataloged

Thompson's severe and pervasive delusions, includ-

ing his beliefs that he is God and in control of the

world, J.A. 06-5744, at 1111-12, that he will get out

of prison because “Big Bird is on his side,” td. at

1120, or because he is a wealthy songwriter, id. at

1063, and that the woman he was convicted of mur

dering is an employee at the prison special-needs fa

ciity where he + housed, id. at 1124-25.

b. Thompson also submitted reports from three

mental-health professionals who evaluated him in

the months preceding the petition. The first report

was from Dr. Rabun, a forensic psychiatrist. Dr.

Rabun reviewed Thompson’s medical records and

trial transcripts, and interviewed him twice. Those

interviews showed that Thompson has been hearing

voices since at least the time of his conviction, and

that the voices diminish when he takes his antipsy

chotic medication. Pet. App. 5a. Thompson related a

number of his delusions to Dr. Kabun, including that

he is a famous songwriter who has “written many of

the songs heard on the radio”; that he has “buried a

large stash of money, gold bars, and a ‘Grammy

Award’ near” a church in Georpia; and that he is a

jieutenant in the Navy and his conviction will be

4

overturned once his Navy records are discovered. Id

at 5a-6a; see also J.A. 06-5744, at 439-42.

When asked by Dr. Rabun, Thompson acmitted

that he had killed a woman, but explained at length

that his work in the Navy would result in his convic-

tion being overturned and that his “one million dol-

lars, the ‘Grammy Award,’ and the ‘pold bars,’ bur

ied near a church in Georgia” were “mitigators,”

which, if presented to the court, would make him a

“free man.” J.A. 06-5744, at 442-43, 447. And while

‘Thompson indicated that he had been sentenced to

death, Dr. Rabun explained that “he holds the delu-

sional perception that he will not be executed” be-

cause of the “mitigation” evidence in his favor. Id. at

44%. Thompson also told Dr. Rabun that execution

by electrocution will not kill him. As Thompson ex-

plained to Dr. Rabun, “I am used to being shocked,

every time I touch my TV, | get shocked, |and| when

I went to a chiropractor in 1982, he twisted my neck,

and it felt like a shock.” Jd.

sased on his interviews with Thompson and re

view of Thompson’s medical records, Dr. Rabun di

agnosed ‘Thompson as suffering from “Schizophrenia,

Undifferentiated Type, Continuous” and concluded

that “Thomson Jacks the mental capacity to under-

stand the fact of the impending execution and the

reason for it.” J.A. 06-5744, at 444, 449 (emphasis

added)

The second report came from Dr. Woods, a psy

chiatrist who interviewed Thompson for three hours

and reviewed his medical records and trial testi-

mony. dJ.A. 06-5744, at 462. Dr. Woods noted that

“even after being found competent to control his own

2

psychiatric treatment, and being compliant with

lhis}] treatment, Mr. Thompson remains so frossly

psychotic that only the most superficial interrogation

would not only reveal his profound psychosis, but his

current incompetency.” Jd.

Dr. Woods’ interview with Thompson revealed

that Thompson “believes that he can not die, and

there will be a two year period in which he will stay

alive, even if he were executed,” after which point “a

decision will be made whether he will go to Hawaii

or Gangster’s Paradise.” J.A. 06-5744, at 463, 466

Thompson aiso expressed some of the same delusions

as he had to Dr. Rabun, including that he cannot die

from electrocution and that he will be exonerated by

a military tribunal because of his Navy records. /d

Based on the interview with Thompson and review of

his records, Dr. Woods concluded that Thompson suf-

fers from schizophrenia that “is severe and ongoing”

and that he “is currently incompetent to be exe-

cuted.” Id. at 462.

The third report came from Dr. Sultan, a clinical

psychologist, who conducted eleven psychological ex

aminations of Thompson from 1998 until 2004. Pet.

App. 7a; J.A. 06-5744, at 485. Dr. Sultan reported

that Thompson has suffered from schizophrenia

since at least early adulthood and that he “has ex-

perienced the delusions, hallucinations, disorganized

thinking, and disorganized speech and behavior”

characteristic of schizophrenia. J.A. 06-5744, at 4&5.

Dr. Sultan observed that, without his medication,

Thompson is “floridly psychotic .... unaware of his

surroundings” and “the reason for his incarceration,

the sentence he has received, or the fact of impend

LO

ing execution.” Jd. at 486.) Dr. Sultan concluded

that, in an unmedicated state, Thompson is not com-

petent to be executed because he “clearly d[oes] not

understand that the State [iJs seeking to execute

him or that his death would be the consequence of

such an execution.” /d. Even with medication, Dr.

Sultan reported that Thompson suffered from the

delusions described by Drs. Rabun and Woods, and

on this basis Dr. Sultan concluded that Thompson

“lacks the capacity to understand the fact of his

scheduled execution or the reason for it.” Id. at 487.

c. In addition to his medical records and the three

psychiatric reports, Thompson provided the trial

court with evidence that, in 2001, the State sought to

appoint a conservator to make medical decisions for

Thompson, effectively conceding his incompetence.

In its papers, the State argued that Thompson suf-

fers from “a long history of Bipolar Disorder and

psychotic symptoms,” that his “illness is chronic and

fluctuating in nature” and that he is “incapable of

rational thought” and “has minimal insight into the

presence of his illness.” J.A. 06-5744, at 721. The

State asked that a conservator be appointed to over-

see Thompson’s medical and psychiatric treatment,

including the use of forced medication. J/d. at 722.

The conservator was appointed, and conservatorship

continued until October 2003, when it was termi

nated because Thompson began voluntarily taking

his medication.

4. In response to the petition, the State did not

dispute the facts just described, nor did it present

any evidence to counter Thompson’s evidence of in-

competency. Instead, the State contended that the

1]

evidence, even if taken as true, did not establish that

Thompson was unaware of the fact of his execution

or the reason for it. J.A. 06-5744, at 524.

5. Three days after Thompson filed his petition

and eighteen exhibits, the trial court denied the peti-

tion without holding a hearing. Pet. App. 8a; J.A.

06-5744, at © 30-63. In a three-page order, the trial

court ruled tnat Thompson is “aware of the fact of

his impending execution and the reason for it,” and

that he was not entitled to a hearing to develop his

incompetency claim. J.A. 06-5744, at 561-6%.

6. The Tennessee Supreme Court aifirmed, con-

cluding that “|wlJhile Thompson’s petition and sup

porting exhibits establish that he is mentally ill,

these filings do not raise a penuine issue regarding

[his] competency” sufficient to warrant a hearing.

Thompson v. State, 134 S.W.3d 168, 183 (Tenn.

2004). In the court’s view, competency only required

Thompson to be “aware of the fact of his .. . impend-

ing execution and the reason for it.” Jd. at 184. In

finding ‘Thompson competent, the court rejected evi-

dence of his delusions and history of mental illness

as “irrelevant” to his claim. /d. at 177.

Justice Birch dissented in part, concluding that

Thompson was entitled to a hearing on his compe-

tency claim. Thompson, 134 5.W.3d at 185. In his

view, Thompson’s “voluminous evidence of mental

illness dating back at least eighteen years” and re-

ports from “three highly qualified experts” explain-

ing that Thompson “suffer|ls] from severe, ongoing

schizophren., and currently ‘lacks the mental ca-

pacity to understand the fact of the impending exe-

cution and the reason for it” satisfied the threshold

12

showing sufficient to warrant a hearing. Jd. at 1&5-

86 (emphasis added). Justice Birch observed that

the majority had elevated the “threshold showing”

into a requirement of “conclusive proof.” Id.

7. On June 14, 2004, Thompson filed a federal

habeas petition asserting that he was not competent

to be executed. The case was stayed pending resolu-

tion of other proceedings, which culminated in Bell vu.

Thompson, 545 U.S. 794, 813-14 (2005).!

When the district court returned to the petition

in 2005, Thompson’s mental health had further dete

riorated. The district court lifted the stay of execu-

tion to allow the State to set a new execution date,

which would also allow Thompson to present his

changed mental-health circumstances to the Tennes-

see Supreme Court. Pet. App. 10a. The state court

again denied his claim, and Thompsen returned to

the federal district court. On May 4, 2006, the dis-

trict court dismissed Thompson’s habeas petition but

issued a certificate of appealability. /d. at lla-12a.

Petitioner filed a timely appeal.

4%. The court of appeals reversed. It concluded

that the Tennessee Supreme Court unreasonably

applied Ford when it rejected evidence of Thomp-

son’s severe delusions and documented history of

mental illness as “irrelevant” to his competency

''The State’s prior appeal to this Court concerned the propriety

of the court of appeals’ sua sponte decision to withhold its maa-

date without alerting the parties and its decision to issue an

amended opinion after this Court declined to review the initial

panel opinion and after the State commenced further proceed-

ings in state court. It has no bearing on the issues involved at

this stage

13

claim. Pet. App. 19a. Ili further concluded that

“[rlegardless of whether Thompson’s incompetency

petition should be granted, his evidence has at least

created a genuine issue about his competency, and

therefore warrants an evidentiary hearing.” Jd. at

20a. The court of appeals accordingly remanded the

case to the district court to hold a hearing on

Thompson’s competency to be executed.

B. Tho.apson’s Rule 60(b) Motion

1. In his original federal habeas petition, Thom-

son asserted that his counsel had been ineffective in

failing to present evidence of his mental health at

trial and sentencing. Pet. App. 12a. Thompson had

raised this and three other ineffective-assistance

claims in post-conviction proceedings in the state

trial court, and had sought appellate review of them

in the Tennessee Court of Criminal Appeals. But he

had not sought discretionary review of these claims

in the Tennessee Supreme Court, instead filing a

federal habeas petition.

2. In February 2000, the district court dismissed

Thompson’s habeas petition, rejecting the four inef-

fective-assistance claims as procedurally barred be-

cause Thompson had failed to seek discretionary re-

view of them in the Tennessee Supreme Court.

Thompson requested a certificate of appealability on

the procedurally barred claims, but it was denied.

See Docket 00-5516, 5/24/00 Application for a COA.

3. In June 2001, after the district court dismissed

Thompson’s habeas petition but while his other

claims were pending in the court of appeals, the

Tennessee Supreme Court promulgated Rule 39,

which provides, in relevant part, t . t:

14

[A] litigant shall not be required to petition

for rehearing or to file an application for

permission to appeal to the Supreme Court

of Tennessee following an adverse decision of

the Court of Criminal Appeals in order to be

deemed to have exhausted all available state

remedies respecting a claim of error. Kather,

when the claim has been presented to the

Court of Criminal Appeals or the Supreme

Court, and relief has been denied, the liti-

vant shall be deemed to have exhausted all

available state remedies available for that

claim.

The Tennessee Supreme Court promulgated Rule

39 in response to this Court’s decision in O'Sullivan

v. Boerckel, 526 U.S. 838 (1999). In O'Sullivan, this

Court held that exhaustion of state remedies under

AEDPA “requirel[s) state prisoners to file petitions

for discretionary review when that review is part of

the ordinary appetlate review procedure in the

State.” Id. at 847. The Court recognized that some

states might have rules providing that a particular

remedy is not available and concluded that “nothing

in the exhaustion doctrine requirels| federal courts

to ignore a state law or rule providing that a piven

procedure is not available.” /d. at 847-48. Rule 39 is

precisely that sort of rule.

When it enacted Rule 39, the Tennessee Supreme

Court expressly stated that it was not changing the

law, but merely clarifying that it had never required

an application for discretionary relief from the state

supreme court for habeas-exhaustion purposes:

We recognize that criminal and _ post-

conviction relief litigants have routinely peti-

tioned this Court for permission to appeal

upon the Court of Criminal Appeals’ denial

of relief in order to exhaust all available

state remedies for purposes of federal habeas

corpus litigation. In order to clarify that de-

nial of relief by the Court of Criminal Ap

peals shall constitute exhaustion of state

remedies for federal habeas corpus purposes,

we hereby |adopt} Rule 39.

See In re: Order Establishing Rule 39, Rules of the

Supreme Court of Tennessee: Exhaustion of Reme-

dies (Tenn. June 28, 2001) (quoted in Adams v. Hol

land, 330 F.3d 398, 405 (6th Cir. 2003)) (emphasis

added). The advisory committee notes to the Ten-

nessee Rules of Appellate Procedure also confirm

that Rule 39 “works no change” in the rules govern-

ing appeal to the Tennessee Supreme Court. See

Adams, 330 F.3d at 405. Accordingly, the adoption

of Rule 39 confirmed that the district court’s decision

dismissing Thompson’s claims as_ procedurally

barred was erroneous even at the time it was issued.

4. Thompson promptly notified the court of ap-

peals of the issuance of Kule 39 and the district

court’s error in dismissing his ineffective-assistance

claims as procedurally defaulted. See Docket 00-

5516, 8/1/01 Docket Entry. Thompson did not (and

could not) immediately seek Rule 60(bX6) relief in

the district court, because controlling circuit court

authority at that time would have deemed such a

motion to be a successive habeas petition. See

McQueen v. Scroggy, 99 F.3d 1302, 1335 (6th Cir.

16

1996). The court of appeals initially affirmed dis

missal of Thompson’s habeas petition in January

2003. It later amended its ruling, and this Court re

versed. Thompson, 545 U.S. at 796

5. Six weeks after the case was remanded to the

district court, Thompson filed a motion under Fed-

eral Rule of Civil Procedure 60(b), explaining that

Rule 39 presented an extraordinary circumstance

warranting reopening of his habeas petition. Pet.

App. 13a. White the district court acknowledged

that Rule 39 “shows the error of thle] Court’s previ

ous procedural default ruling,” id. at 165a, it denied

the motion to reopen, concluding that Rule 39 was

not “an extraordinary circumstance” and_ that

Thompson’s motion had not been filed within a “rea

sonable time,” 1d. at 166a. The district court de

clined to issue a certificate of appealability on the

claim. Id. at 172a.

6. Thompson sought a certificate of appealability

in the court of appeals on the Ruie 39 issue, asking

the court of appeals to certify whether he had pre

sented extraordinary circumstances warranting Rule

60(b) relief and whether the Rule 60(b) motion had

been filed in a reasonable time. Pet. App. 183a-84a.

The court of appeals issued a certificate of appeal-

ability on the following question: “whether the ‘Ten-

nessee Supreme Court’s enactment of Tenn. S. Ct. R.

39 1s an extraordinary circumstance sufficient to

warrant re-opening Thompson’s original § 2254 peti

tion.” Id. at 65a.

7. The court of appeals consolidated Thompson's

Rule 60(b) appeal with his appeal on his competency-

to-be-executed claim. Pet. App. 13a-l14a. The court

17

of appeals held that promulgation of ‘Tennessee Su-

preme Court Rule 39 was an extraordinary circum

stance, because it confirmed that the district court’s

prior decision dismissing the ineffective-assistance

claims as procedurally barred was always incorrect

as a matter of law. The court also noted that

Thompson had promptly brought the matter to its

attention, and held that the reasons for any delay in

filing a Rule 60(b) motion were “understandable”

given the unique circumstances of the case and did

not “detract from the extraordinary circumstance re

flected in the promulgation of [Rule] 39.” /d. at 35a-

36a. Accordingly, the court of appeals remanded

with instructions for the district court to consider

the ineffective-assistance claims for the first time.

REASONS FOR DENYING THE PETITION

I. THIS COURT SHOULD NOT REVIEW

THE COURT OF APPEALS’ DECISION

ON THOMPSON’S FORD CLAIM

A. The Decision Below Is Interlocu-

tory, Fact-Bound, Does Not Impli-

cate Any Conflict In The Lower

Courts, And Has No Significance

Beyond This Case

The narrow decision of the court of appeals re

mandinp the case for a hearing on Thompson's com-

petency to be executed does not warrant this Court’s

review. The claim arises in an interlocutory posture

and may be mooted on remand. The decision does

not conflict with any decision of this Court or any

lower court, and, in any event, it is both fact-bound

and of limited Gf any) significance beyond the facts

of this case.

1. The competency claim is not presently ripe for

this Court’s review. After concluding that the Ten

nessee Supreme Court had unreasonably applied

Ford v. Wainwright, 477 U.S. 399 (1986), the court of

appeals remanded the cuse to the district court to

“decide the merits of [Thompson’s] incompetency

claim de novo” Pet. App. 2la. The Ford claim thus

arises in an interlocutory posture, which “alone fur

nishels} sufficient ground” to deny the petition for

certiorari. Hamilton-Brown Shoe Co. v. Wolf Bros. &

C’'o., 240 U.S. 251, 258 (1916). This Court “generally

awaitls| final judgment in the lower courts before

exercising [its] certiorari: jurisdiction.” Va. Military

Inst. v. United States, 508 U.S. 946, 946 (1993)

(Scalia, J., respecting denial of certiorari) And

where a “Court of Appeals remand|s] the case, it is

not yet ripe for review by this Court.” Bhd. of Loco

motive Firemen & Enginemen v. Bangor & Aroostook

RR. Co., 389 U.S. 327, 328 (1967) (per curiam)

This case iilustrates the reasons for that pruden

tial rule. In remanding the case, the court of appeals

directed the district court to “first rule on the merits

of Thompson's remaining ineflective assistance

claims” and “only address the incompetency question

if [the district court] rejects the ineffective assistance

claims.” Pet. App. 37a-38a (emphases added).? Ac

This sequence makes pood sense for two reasons. First, the

district court's erroneous interpretation of state exhaustion law

categorically prevented Thompson from presenting his ineflec

tive-assistance claims in any federal forum for over ten years

While nothing can cure that delay, expeditious consideration by

the district court at least wall not further extend it. Second, it

conserves judicial resources. {if the district court rules in

Thompson's favor on one or more of the inettective ASSISTANCE

19

cordingly, if the district court grants one or more of

Thompson’s claims of ineffective assistance of coun-

sel, the State’s Ford argument could become moot.

And even if the district court rejects Thompson’s in-

effective-assistance claims and holds a competency

hearing, the State’s argument could still prove moot

if the district court concludes that Thompson is com-

petent to be executed. On the other hand, if the dis

trict court concludes that Thompson is not compe

tent to be executed, the State may then pursue ave-

nues of appropriate appellate relief, including ulti-

imately a petition for certiorari to this Court. Review

at this time is thus premature and unwarranted.

2. The court of appeals’ decision is also of limited

applicability and, accordingly, does not raise an im-

portant question warranting this Court’s review.

The State contends that the court of appeals misread

Ford in remanding the case for a hearing on the

competency claim. Even if that were true (and it is

not, as explained below), it is irrelevant beyond this

case because this Court’s decision in Panetti v. Quar

terman, 551 U.S. 930 (2007), which further explains

the tenets of Ford, guides all state-court decisions

since Panettt was issued in 2007. Since a capital

prisoner cannot even raise the claim that he is in-

competent to be executed until the state sets an exe-

cution date, virtually all of the relevant state-court

decisions involved in other capital cases will post-

date Panetti and thus be adjudicated under that

standard.

claims and concludes that he is entitled to further proceedings

in state court, that decision could obviate the need for a compe

tency hearing.

20)

3. Additionally, review is unwarranted because

the court of appeals’ decision is not in conflict with

any decision of this Court or any court of appeals.

Indeed, the State does not identify any conflict in the

lower courts over the question presented. That alone

warrants denyinp review.

Instead, the State contends that the decision be

low conflicts with Williams vo. Taylor, 529 US. 362

(2000), because Williams defines “clearly estab-

lished” federal law under AEDPA, and the State ar

pues that Ford does not contain any clearly estab

lished federal law. But that contention is meriit'ess.

Although Willtams describes AEDPA’s require

ments, the decision below arises on entirely different

facts, involves distinct legal issues, and does not con-

flict with Williams. On the contrary, as the State

concedes elsewhere, it is ford (not Williams) that

sets forth both the substantive Eighth Amendment

standard prohibiting execution of the “insane” and

Lhe guinimum procedures a state must provide to

pive effect to the substantive prohibition. Ford, 477

U.S. at 409-10; see also id. at 424, 426 (Powell, J.,

concurring). And this Court has already held that

ford constitutes “clearly established federal law”

under AKDPA. See, e.g., Panettt, 551 U.S. at 949.

The State’s attempt to manufacture a conflict with

Williams thus fails

is. The Decision Below Is Correct On

The Merits

1. ‘The State’s principal position is not that any of

the traditional factors warranting this Court’s re-

view are satisfied here, but that the court of appeals

simply erred in remanding the case for a hearing on

2]

Thompson’s Ford claim. That is not a sufficient ba-

sis for certiorari review. But even if it were, the de-

cision below is correct on the merits. The court of

appeals correctly determined that the Tennessee Su-

preme Court unreasonably applied clearly estab-

lished federal law, specifically Mord, when it rejected

Thompson’s competency claim without a hearing and

refused to consider evidence of his delusions and his-

tory of mental illness.

In Ford, this Court held that “the Eighth

Amendment prohibits a State from carrying out a

sentence of death upon a prisoner who is insane.”

477 U.S. at 409-10. Once a prisoner “makes a sub-

stantial threshold showing of insanity,” he is entitled

to a “fair hearing” on his competency claim. J/d. at

424, 426 (Powell, J., concurring). As this Court rec

ognized in Panetti, Mord is the clearly established

law under which competency-to-be-executed claims

arising under AERDPA must be evaluated. See Pa

nettt, 551 U.S. at 948.

2. Panetti also explains that it is error under Ford

for a state to reject a petitioner’s delusions and his-

tory of mental illness as cateporically “irrelevant” to

the competency claim and to fail to hold a hearing

when the prisoner carnes his threshold burden.

With reyard to the delusions and history of men-

tal illness, Panetti explains that “ijt is... error to

derive from ford, and the substantive standard for

imcompetency its opinions broadly identify, a strict

test for competency that treats delusional behefs as

irrelevant once the prisoner is aware the State has

identified the link between his crime and the pun-

isniment to be inflicted,” 551 U.S. at 960. Applica-

22

tion of such a categorical standard would allow for

execution even where the State’s interest in, for ex-

ample, retribution, is not served because the “pris-

oner’s mental state is so distorted by a mental illness

that his awareness of the crime and punishment has

litthe or no relation to the understanding of those

concepts shared by the community as a whole.” Td.

at 95-59. Ford thus prohibits states from using a

standard that “automatically forecloses” inquiry into

incompetency once the court has found that the pris-

oner “can identify the stated reason for his execu-

tion.” Id. at 959.

Panettt also explains that under Ford, once the

prisoner makes a threshold showing of incompe-

tency, he is entitled to certain procedures, including

a hearing. 551 U.S. at 948. The failure to provide

those procedures is a violation of the clearly estab-

lished federal law in Ford. See id. at 948.

4. Based on the foregoing, the Tennessee Su-

preme Court unreasonably applied ford when it de-

med Thompson’s competency claim without a hear-

ing.

a. The standard the Tennessee Supreme Court

used in Thompson’s case was an unreasonable appli-

cation of Ford. The state court said that ‘Thompson

“need only understand or be aware of the fact of his

impending execution and the reason for it” to be

dcemed competent, and that evidence of delusions

and a history of mental illness were “irrelevant” once

those two prongs were established. Thompson, 134

S.W.3d at 183 (emphasis added). But by excluding

evidence of Thompson’s delusions and history of

mental illness, the Tennessee Supreme Court made

23

the same categorical mistake as the lower court in

Panetti. In particular, excluding that evidence

wrongly equates fleeting factual awareness of the

execution and the reason for it with rational under-

standing. But “fa] prisoners awareness of the

State’s rationale for an execution is not the same as

a rational understanding of it.” Panetti, 551 U.S. at

959.

Indeed, the decision below differs from the Ten-

nessee Supreme Court’s own decision in Van Tran,

where it held that “under Tennessee law a prisoner

is not competent to be executed if the prisoner lacks

the mental capacity to understand the fact of the

impending execution and the reason for it.” 6

S.W.3d at 266 (emphasis added). By replacing the

word “understand” with the phrase “understand or

be aware of,” the Tennessee Supreme Court unrea

sonably applied not only Ford but Van Tran itself

hb. The error of the Tennessee Supreme Court is

compounded ‘by the fact that the court denied the

claim without a hearing. Thompson provided the

state court with copious documentation of his long

history of mental illness, including prison medical

records, three psychiatric reports, and records show-

ing that the State had previously found him incom-

petent and sought a conservator. Two of the expert

affidavits Thompson submitted specifically con-

cluded that he does not understand the fact of the

execution and the reason for it. Pet. App. 6a-6a. Ac

cordingly, as the court of appeals recognized, “[t)he

evidence Thompson submitted was undoubtedly a

Thus, evenif Van Tran is an appropriate application of ford,

the Tennessee Supreme Court failed to apply it correctly here

24

‘substantial threshold showing, and therefore an

evidentiary hearing should have been held.” Jd. at

20a.

The need for a hearing here is all the more clear

when this case is compared to Panettt. This Court

explained there that its “independent review of the

record,” which consisted of “a letter and a declara-

tion from two individuals, a psychologist and a law

professor, who had interviewed petitioner [once] on

death row,” and “references to the extensive evidence

of mental dysfunction considered in earlier legal pro

ceedings,” “verified” that petitioner “had made a

‘substantial threshold showing of insanity.” Panetti,

551 U.S. at 938, 950. If the record in Panetti was

sufficient to satisfy the substantial threshold show-

ing, the reeord here easily clears the same hurdle.

By denying Thompson’s request for a hearing after

he satisfied the threshold showing, the state court

applied Ford’s procedural mandate in an unreason

able manner.

c. The State argues that the Tennessee Supreme

Court’s determination was not unreasonable because

Thompson’s delusions “do not ‘preventl}) him from

comprehending the reasons for the penalty or its im

plications’ or undermine his fundamental apprecia-

tion of the connection between crime and punish-

ment.” Pet. 28-29 (quoting Ford, 477 U.S. at 417)

(emphases added). But that assertion only repeats

ur

the error of the Tennessee Supreme Court. “There

is, in short, much in the record to support the con-

clusion that petitioner suffers from severe delu

sions.” Panettt, 551 U.S. at 956. Among other

things, those delusions lead Thompson to believe

20

that he will be exonerated through a military tribu-

nal. He also believes that the State’s means of exe

cuting him (electrocution) will not work, either be-

cause he can withstand electrocution, or because he

will po to Hawai or “Gangster’s Paradise.” These

are not mere “unorthodox beliefs” about what

Thompson thinks will happen after he dies. Thomp-

son, 134 S.W.3d at 183. ‘To the contrary, they are

manifestations of Thompson’s “psychotic disorder”

and prevent him from understanding that the State

intends to execute him because he was convicted of

murder. Panettt, 551 U.S. at 960. The overwhelm-

ing evidence in the record demonstrates that

Thompson’s gross delusions “put an awareness of a

link between a crime and a punishment in a context

so far removed from reality that the punishment can

serve no proper purpose.” Panetti, 551 U.S. at 960.

The court of appeals’ decision to remand for a hear-

ing is thus correct on the merits.

4. a. The State contends that Ford did not set

forth any substantive standard for competency and

thus “logic dictates that the Tennessee Supreme

Court could not have unreasonably applied it in

Shompson’s} case.” Pet. 27. As already described,

that does not call into question the court of appeals’

determination that the Tennessee Supreme Court

unreasonably applied Justice’s Powell’s controlling

procedural opinion in Ford by concluding that

Thompson did not even make a substantial threshold

showing. Even if it did, the State errs in contending

that until this Court sets forth a precise substantive

standard for determining competency to be executed,

there is no “clearly established law” by which to re-

view the competency determination by the Tennes-

20

see Supreme Court.

To begin, Panetti already refutes this assertion.

There this Court explained that Ford “constitutes

‘clearly established law’ for purposes of § 2254.” 551

U.S. at 949. Justice Powell’s concurrence “sets the

minimum procedures a State must provide to a pris-

oner raising a Ford-based competency claim,” id. at

949, and the majority provides that the Eighth

Amendment “places a substantive restriction on the

State’s power to take the life of an insane prisoner,”

id. at 957 (quoting Ford, 477 U.S. at 405).

Nor was it necessary to await Panetti in order to

decide that, under Ford, “the EKighth Amendment

prohibits a State from carrying out a sentence of

death upon a prisoner who is insane.” Ford, 477

U.S. at 409-10. This substantive constitutional re-

striction provides a clear mandate to the States to

ensure they do not execute those rendered incompe-

tent by reason of mental illness, regardless of how

the State chooses to define the precise competency

standard. It is well established that “[rlules of law

may be sufficiently clear for habeas purposes even

when they are expressed in terms of a generalized

standard rather than as a bright-line rule.” Wil-

liams, 529 U.S. at 382. The State’s selection of a

competency standard is thus clearly bounded by the

Kighth Amendment as clearly established under

Ford.

b. The State objects (Pet. 27) to the court of ap

peals’ reference to Panetti, arguing that Panett: does

“not qualify as ‘clearly established Federal law’ with

respect to” this case because it post-dated the ‘Ten-

ane ct ‘ ek ht - ry. - ae .

nessee Supreme Court’s ruling on Thompson’s com-

apr

hu

petency hearing. This is a red herring. The court of

appeals did not say that Panetti constitutes the

clearly established law governing the case; on the

contrary, it relied on Ford. Pet. App. 15a. Neverthe-

less, as described above, Panett: (another AE DPA

case) is relevant because it describes Ford in a way

that conclusively establishes the Tennessee Supreme

Court’s unreasonable application of Ford itself.

Accordingly, the Court should deny review on the

Ford claim.

It. THE COURT OF APPEALS’ RULE 60(B)

DECISION PRESENTS NO ISSUE WAR-

RANTING THIS COURT'S REVIEW

A. The Rule 60(b) Decision Does Not

Implicate Any Conflict In The

Lower Courts, Is Fact-Bound, And

Has No Significance Beyond This

Case

There is also no reason for this Court to review

the court of appeals’ conclusion that promulgation of

Tennessee Supreme Court Rule 39 constitutes, as

applied here, an “extraordinary circumstance” justi

fying relief under Federal Rule of Civil Procedure

60(b\(6). That decision does not conflict with any de

cision of this Court or implicate any conflict in the

court of appeals. It also both turns on a narrow

state-law issue with linyted applicability to other

cases and involves a_fact-specific determination

about Thompson’s diligence in pressing his claim,

and does not warrant review.

!. The question whether Tennessee Supreme

Court Rule 39 forms the basis for Rule 60(b)(6) rehet

28

from an erroneously dismissed habeas claim has,

perhaps literally, no applicability outside the facts of

this case. Kesearch by the undersigned supyests

that Thompson may very well be the only habeas pe

titioner currently maintaining a Rule 60(b)(6) motior:

based on the issuance of Rule 39 in federal court én

Tennessee. In one other case, the court granted the

motion to reopen under Rule 60(bX6) and the

movant’s claims have since been resolved. See Ab-

durlTtahman v. Bell, No. 96-0380, available at 2008

WI, 2002572 (M.D. Tenn. May 7, 2008). And

Thompson 1s likely to be the last. Rule 39 was

promulgated over nine years ago, and it is thus diffi

cult to imagine a Rule 60(bX6) motion filed on the

basis of Rule 39 and satisfying the diligence re

quirement at this point. Review is unwarranted to

address a lepal issue with no application beyond this

case.

2. Nor is there any reason to review the fact

bound determination of the court of appeals that the

particular facts of this case satisfy Rule 60(b)’s “ex

traordinary circumstances” test. Like the decision

concerning Rule 39 itself, the question whether

Thompson satisfied the Rule 60(b)(6) requirement of

“extraordinary circumstances” is a ftact-bound in

quiry that presents no compelling legal question.

Pet. App. 33a. As the court of appeals explained,

such decisions are made on a “case-by-case inquiry

that requires the trial court to intensively balance

numerous factors.” [d. This Court need not concern

itself with such a fact-bound claim. See Sup. Ct. K.

10

3. The court of appeals’ ruling also does not con

29

flict with any decision of this Court or any other

lower court. Indeed, the State does not even attempt

to assert that the court’s decision remanding Thomp-

son’s ineffective-assistance claims conflicts with the

decision of any other lower court.

To be sure, the State contends that the court of

appeals’ decision conflicts with this Court’s decision

in Gonzalez v. Crosby, 545 U.S. 524 (2005), but it

plainly does not. As described further below, Gon

zalez addressed different circumstances and does not

remotely control the resolution of this case. The

State simply objects to the manner in which the

court of appeals applied Gonzalez to the facts of this

case, which is no reason for the court’s review. See

Sup. Ct. R. 10 (“A petition for a writ of certiorari is

rarely granted when the asserted error consists

of...misapplication of a properly stated rule of

law.”). And, unlike Gonzalez, which involved a fed-

eral-law basis for reopening a judgment, the decision

below does not have national ramifications or indeed

any ramifications beyond this case.

B. The Rule 60(b) Decision Is Correct

On The Merits

Even if error-correction were a valid basis for

seeking this Court’s review, certiorari would be in-

appropriate here because the court of appeals

reached the correct result

1. Thompson was wrongly deprived of the oppor-

tunity to pursue four ineflective-assistance claims

when the district court found those claims proce

durally barred after ‘Thompson did not seek disere

tionary review in the ‘Tennessee Supreme Court.

The Tennessee Supreme Court’s promulpation of

30

Rule 39 made the district court’s error apparent and,

as the court of appeals recognized, constituted an

“extraordinary circumstance” warranting reopening

of Thompson's capital habeas petition under Rule

60(b6) to reinstate his never-considered ineffective

assistance claims. Absent that remand, ‘Thompson

would be categorically (and erroneously) barred from

ever presenting those claims in a federal forum

2. Additionally, relief is appropriate because

Thompson was diligent in pursuing his claims. The

State erroneously contends (Pet. 34) that Thompson

“waited” four years before seeking relief on the basis

of Rule 39. The Tennessee Supreme Court promul

gated Rule 39 on June 28, 2001, while Thompson's

habeas case was pending in the court of appeals. Ii

nal briefs had already been filed in the case, so

Thompson notified the court of appeals by filing a

notice of supplemental authority on August 1, 2001,

just one month after Rule 39 was adopted. In issu

ing its opinion on January 9, 2005, the court of ap

peals did not address Thompson's notice.

At that point, Thompson could not have sought

Rule 60(0b)\(6) relief in the district Court, because cir

cuit court precedent categorically treated Rule 60(b)

motions as second or successive habeas petitions

See McQueen v. Scroggy, 99 F.3d 13802, 1335 (6th Cir

1996), overruled by Abdur’Rahman v. Bell, 392 b.3d

174 (6th Cir. 2004) (en banc). The en bane court in

Abdur'Rahman reversed McQueen inp December

2004, holding that Rule 600b) motions were not sec

ond or successive petitions. By that point, Thomp

son and the State were litigating related claims on

appeal. Once that appeal was complete and jurisdic

3]

tion was returned to the district court in January

2006, Thompson promptly filed the present Rule

60(b) motion. Thompson thus pressed the Rule 39

issue diligently throughout the proceeding:

4. Contrary to the State’s argument (Pet. 31-37)

(Gionzalez 1s not in tension with the court of appeal:

conclusion that Thompson established extraordinary

circumstances In Gronzalez, the district court dis

missed petitioner's habeas petition as time-barred

under AK DPA, but, after the judgment became final

the Supreme Court interpreted a related provision of

AKDPA in a way that would have rendered the pet:

tion timely. ‘The petitioner sought relief under Rule

60(b)6), but this Court concluded that he had not

demonstrated “extraordinary circumstances” wat

ranting’ relief because: (1) the district courts ruling

was correct when it was issued; and (2) petitioner

had not been diligent in pressing his claim. Gon

zalez, 545 US. at 536-37. In the Court's view, thes

two factors militated apainst a finding of “extraordi

nary circumstance|s] justifying reliuet trom the judg

ment in petitioner's case.” Id

a. Gonzale. is prounded in the notion that the law

is constantly evolving, and it would disserve tinality

and efficient court administration to allow a litigant

to set aside a ruling that was correct at the time it

was issued simply because there is a ibsequent

chanpe in the law. 545 U.S. at 536. Accordingly, be

cause “[thhe District Court's interpretation was by all

appearances correct under the Eleventh Circuit

then prevailing interpretation” of the Latutle, it wa

hardly extraordinary that sub equently alter pet

rOonern s i i ‘ VA i Tid) ovr grey pending thy { ( rt

rived at a diflerent interpretation.” Ja

In contrast with Gonzalez, the present case doe

not involve a change in the law, but rather a clarifi

cation by the Tennessee Supreme Court about the

tate of the law asit had been since 1967 he clari

fication made it unmistakably clear that the district

court's decision dismissing Thompson's inettective

assistance claims for failure to seek discretionary re

view was a legally erroneous: Interpretation ol Pen

nessee state law at the time the decision was issued

lt 1s indeed the rare and extraordinary case where a

itate’s highest court confirms that a tederal district

court misinterpreted state law in dismissing

habeas claims as procedurally barred

b. The State also overlooks the tact that Gonzal

concerned a change in the federal courts interpreta

tion of a tederal statute, and thus did not implicate

the important considerations of comity and tederal

ism that are in abundance when looking at the intr

|

Cate inte rplay of state and federal chnemes of pro)

conviction rehef. Here, in contrast, Thompson ha

been barred trom raising these clain lor ten yea)

because of an incorrect federal court decision mist

terpreting’ a provision OF stale exhaustion law er

iminy to correct th error, and ce lining t rive

Premacy to the Late view of tt OWn IAW, Upset tri

Drees pDALAaANnce Detiweel Late ind ftederal « I

vt I AR DPA exhaust Ih re UIrement ire Da

i j { Lit I ' {

t ibl é |

{ ul I 1 { I "

33

Specifically, AEDPA requires a state prisoner

wishing to seek federal habeas review to exhaust

available remedies in state court. 28 U.S.C.

§ 2254(b\ 1A) This “rule of comity” has been a

fundamental part of federal habeas review since it

was first announced in Fw Parte Royall, 117 U.S.

241, 252 (1886), in part because it “givles] the State

the opportunity to pass upon and correct alleged vio-

lations of its prisoners’ federal rights.” Baldwin v.

Reese, 541 U.S. 27, 29 (2004) (internal quotation

marks omitted).

If comity and federalism are served by a require-

ment that state prisoners exhaust their habeas

claims in state court betore proceeding to tederal

court, then those interests are actively disserved

when a federal court declines to give effect to the

state’s laws defining exhaustion. See Stringer vo

Black, 503 U.S. 222, 235 (1992) (“It would be a

strange rule of federalism that ignores the view of

the highest court of a State as to the meaning of its

own law.”). In this way, Rule 89 constitutes an ex-

traordinary circumstance justifying relief under Rule

60(b6) in Thompson’s case.

4. The State’s additional assertion that its inter

est in finality has been impinged does not transform

this question into one warranting review. Indeed,

finality considerations weigh in favor of Thompson,

not the State, in these narrow circumstances. As

this Court has noted, the death penalty is “unique in

both its severity and its finality.” Monge v. Caltfor

nia, 524 U.S. 721, 7382 (1998) Unternal quotation

marks omitted). Thompson should be permitted to

assert claims that he received ineffective assistance

‘44

during! the proceedings that led to his death sentence

and, thus, that he was deprived of the “fundamental

npht of criminal defendants|, which] assures the

fairness, and thus the legitimacy, of our adversary

process.” Kimmelman v. Morrison, 477 US. 365, 374

(19#6)

Ini these unique—indeed, — extraordinary

arcumstances, the court of appeals’ decision to re-

mand this case for consideration of the ineffective-

assistance Claims was correct and does not warrant

POV 100 WW

Hi. ‘THE COURT OF APPEALS DID NOT EX-

CREED THE SCOPE OF THE CERTIFI-

CATE OF APPEALABILITY

The court of appeals concluded that Thompson

was entitled under Rule 60(b) to have the district

court consider his inefflective-assistance claims in

part because Thompson presented those claims in a

tamnely fashion. The State now contends that that

question was beyond the scope of the court of ap

peals’ yumsdiction. ‘This fact-bound argument does

not warrant review and is without merit.

1. ‘This question amounts to nothing more than a

fact bound claim about the wording of the COA and,

accordingly, it does not warrant this Court’s review.

The State does not aryvue that the COA was issued

under the wrong legal standard or otherwise pre-

sents an assue of national importance, as was the

ease in’ Miller-fl vo. Cockrell, 537 US. 322 (2003).

Kven af the State were correct that the court of ap-

peals exceeded the scope of the COA, the State is

seeking nothing more than error-correction, which is

no reason to grant review.

That conelusion is particularly obvious here be

cause this is a problem of the State’s own making. If

the 6tate were concerned about the scope of the

COA, it could have broupht that to the attention of

the court <! . seals. The court, in turn, could have

amended or expanded the COA or otherwise clarified

that the timeliness question was properly before it.

See, eg., United States v. Shipp, 549 F.3d 1084, 1087

(JOth Cir. 2009); Villot v. Varner, 373 F.3d 327, 337

n.13 (3d Cir. 2004). Instead, the State failed even to

alert the panel to this asserted issue in its briefing.

Z. In any event, the timeliness question is within

the scope of the COA. The court of appeals granted

the COA on the question “whether the Tennessee

Supreme Court’s enactment of Tenn. 5. Ct. R. 39 is

an extraordinary circumstance sufficient to warrant

reopening Thompson’s original § 2254 petition.”

Pet. App. 65a (emphasis added). As this Court rec-

opnmized in Gonzalez, tie question whether a habeas

petitioner has been diligent in pursuing relief is sub-

sumed within the question whether he has demon-

strated an extraordinary cirecumstance warranting

relief under Rule 60(b)(6). See 545 ULS. at 537-39

(“|Petitioner’s| lack of diligence confirms” that there

is no “extraordinary circumstance justifying relief

from the judgment in petitioner's case.”). The court

of appeals likewise recognized the nested nature of

the timeliness question, noting: “Although the Fed

eral Kules do not mandate the specific time by which

the motion must be filed, a movant’s lack of diligence

can detract from the extraordinariness of the cir

cumstance.” Pet. App. 35a.

Indeed, the State’s contrary view would have

36

rendered the COA the court of appeals did issue an

academic endeavor. If the State were correct that

the court of appeals had no jurisdiction to consider

whether Thompson acted diligently, it necessarily

follows that the court of appeals would have had no

jurisdiction to award relief, because even if adoption

of Rule 89 were extraordinary, the court had no au

thority to determine whether Thompson acted dili-

gently and was thus entitled to relief. The State’s

view thus renders the entire appeal an exercise in

the issuance of an advisory opinion. There is no

warrant for reading the COA to deprive jurisdiction

from the very court that issued it.

4. Finally, even if there were any doubt whether

the diligence question was fairly included within the

COA, it is not unreasonable “to read [a] COA as in-

cluding” both the certified question and a “closely re-

lated” issue. Cornwell v. Bradshaw, 559 F.3d 39%,

412 (6th Cir. 2000). A helpful analogy is to this

Court’s consideration of issues within a question

presented, in which “|t]he statement of any question

presented is deemed to comprise every subsidiary

question fairly included therein.” Sup. Ct. R. 14.1(a).

The question of Thompson’s diligence in pressing his

Claims is plainly a “subsidiary question” within the

“extraordinary circumstances” inquiry. See Gon-

zalez, 645 U.S. at 537-39.

37

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorart Should be denied.

Respectfully submitted,

DANA C. HANSEN CHAVIS

(Counsel of Record)

FEDERAL DEFENDER SERVICES

OF EASTERN ‘TENNESSEE, INC.

800 S. Gay Street

Suite 2400

Knoxville, TN 37929-9714

($65) 637-7979

dana_hansen@fd ory

July 12, 2010