# Opposition Brief — Bell v. Thompson

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1972%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 831

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1972%3A2. Public record. Not legal advice.