In the Supreme Court of the United States

Transcription

1 NO In the Supreme Court of the United States VINCENT SIMS and MICHAEL SAMPLE, Petitioners, v. TENNESSEE, Respondent. On Petition for Writ of Certiorari to the Court of Criminal Appeals of Tennessee RESPONDENT S BRIEF IN OPPOSITION HERBERT H. SLATERY III Attorney General & Reporter State of Tennessee ANDRÉE S. BLUMSTEIN Solicitor General NICHOLAS W. SPANGLER Assistant Attorney General Counsel of Record P.O. Box Nashville, Tennessee Phone: (615) Fax: (615) Nick.Spangler@ag.tn.gov Counsel for Respondent Becker Gallagher Cincinnati, OH Washington, D.C

2 i CAPITAL CASE QUESTION PRESENTED Must this Court s decision in Hall v. Florida be applied retroactively on collateral review?

3 ii TABLE OF CONTENTS QUESTION PRESENTED... TABLE OF AUTHORITIES... OPINIONS BELOW... 1 JURISDICTIONAL STATEMENT... 1 CONSTITUTIONAL PROVISIONS AND STATUTES... 2 STATEMENT OF THE CASE... 3 REASONS FOR DENYING THE WRIT I. THIS COURT LACKS JURISDICTION TO REVIEW THE STATE COURT S DECISION THAT THE PETITIONER DID NOT MEET THE STATE STATUTORY CRITERIA FOR REOPENING POST-CONVICTION PROCEEDINGS II. THESE CASES ARE POOR VEHICLES TO CONSIDER THE IMPORT OF HALL, BECAUSE UNLIKE HALL, THE PETITIONERS HAVE SHOWN AN EXTRAORDINARY LACK OF DILIGENCE IN PURSUING THEIR CLAIMS i iv

4 III. iii NO COURT HAS HELD THAT HALL MUST APPLY RETROACTIVELY ON COLLATERAL REVIEW WITHOUT REGARD TO PRIOR OPPORTUNITY FOR PRESENTING COMPREHENSIVE EVIDENCE OF INTELLECTUAL FUNCTIONING UNDER ATKINS, AND THERE IS NO REASON TO EXTEND HALL SO FAR A. The Petitioners Overstate the Disparate Outcomes in Cases Addressing Hall s Application to Collateral Proceedings without Regard to the Procedural Distinctions between Those Cases and Theirs B. The State Court Correctly Declined to Hold that Hall Announced a New Constitutional Rule Requiring Retroactive Application on Collateral Review CONCLUSION... 27

5 iv TABLE OF AUTHORITIES CASES Atkins v. Virginia, 536 U.S. 304 (2002)... passim Black v. Bell, 664 F.3d 81 (6th Cir. 2011) Bradshaw v. Richey, 546 U.S. 74 (2005) Brumfield v. Cain, 744 F.3d 918 (5th Cir. 2014) Brumfield v. Cain, 135 S. Ct (2015) Bush v. State, 428 S.W.3d 1 (Tenn. 2014) Coleman v. State, No. 31, 1984 Tenn. Crim. App. LEXIS 2883 (June 28, 1984) Coleman v. State, 341 S.W.3d 221 (Tenn. 2011)... 7, 9, 19, 20 Coleman v. Thompson, 501 U.S. 722 (1991) Gideon v. Wainright, 372 U.S. 335 (1963)... 25, 26 Goodwin v. Missouri, 135 S. Ct. 780 (2014)... 18, 27 Goodwin v. State, 191 S.W.3d 20 (Mo. 2006)... 18

6 v Goodwin v. Steele, 814 F.3d 901 (8th Cir. 2014)... 18, 19 Goodwin v. Steele, 135 S. Ct. 780 (2014) Greene v. Fisher, 565 U.S. 34 (2011) Griffith v. Kentucky, 479 U.S. 314 (1987) Hall v. Florida, 134 S. Ct (2014)... passim Hall v. State, 109 So. 3d 704 (Fla. 2012) In re Henry, 757 F.3d 1151 (11th Cir. 2014)... 24, 25 Howell v. State, 151 S.W.3d 450 (Tenn. 2004) Keen v. State, 398 S.W.3d 594 (Tenn. 2012)... 7 McKay v. State, No. 25, 1989 Tenn. Crim. App. LEXIS 153 (Mar. 1, 1989) McKay v. State, No. 02C CR-00059, 1994 Tenn. Crim. App. LEXIS 701 (Oct. 19, 1994) Montgomery v. Louisiana, 136 S. Ct. 718 (2016)... passim

7 vi Oats v. State, 181 So. 3d 457 (Fla. 2015) O Dell v. Netherland, 521 U.S. 151 (1997) Pennsylvania v. Finley, 481 U.S. 551 (1987) Penry v. Lynaugh, 492 U.S. 302 (1989) Reeves v. State, No. CR , 2016 Ala. Crim. App. LEXIS 37 (June 10, 2016) Saffle v. Parks, 494 U.S. 484 (1990) Sample v. Carpenter, No SHL-dkv, 2014 U.S. Dist. LEXIS (W.D. Tenn. Oct. 20, 2014) Sample v. State, No. 02C CR-00062, 1995 Tenn. Crim. App. LEXIS 115 (Feb. 15, 1995) Sample v. State, Nos. 02C CR-00131, 02C CR , 1996 Tenn. Crim. App. LEXIS 597 (Sep. 30, 1996) Sample v. State, No. W CCA-R3-PC, 2001 Tenn. Crim. App. LEXIS 33 (Jan. 17, 2001), reversed by 82 S.W.3d at 279 (Tenn. Aug. 2, 2002) Sample v. State, 82 S.W.3d 267 (Tenn. 2002)... 10

8 vii Sample v. State, No. W CCA-R3-PD, 2010 Tenn. Crim. App. LEXIS 487 (June 15, 2010) Sample v. Tennessee, 470 U.S (1985) Schriro v. Summerlin, 542 U.S. 348 (2004) Sims v. Carpenter, No STA-cgc, 2015 U.S. Dist. LEXIS (W.D. Tenn. Aug. 28, 2015)... 6, 7 Sims v. State, No. W CCA-R3-PD, 2011 Tenn. Crim. App. LEXIS 70 (Jan. 28, 2011)... 4, 6, 20 Sims v. State, No. W SC-R11-PD, 2011 Tenn. LEXIS 849 (Aug. 31, 2011)... 6 Sims v. State, No. W CCA-R28-PD, 2014 Tenn. Crim. App. LEXIS 1179 (Feb. 5, 2014)... 8 Sims v. State, No. W SC-R11-PD, 2014 Tenn. LEXIS 454 (May 28, 2014)... 8 Sims v. State, No. W CCA-R3-PD, 2014 Tenn. Crim. App. LEXIS 1151 (Dec. 23, 2014)... 7, 8, 9 Sims v. State, No. W SC-R11-PD, 2015 Tenn. LEXIS 450 (May 18, 2015)... 9

9 viii Sims v. State, No. W CCA-R28-PD, 2016 Tenn. Crim. App. LEXIS 613 (Jan. 28, 2016).. 1, 4, 6, 9 Sims v. State, No. W SC-R11-PD, 2016 Tenn. LEXIS 365 (May 6, 2016)... 1, 9 Sims v. Tennessee, 534 U.S. 956 (2001)... 3 Simmons v. South Carolina, 512 U.S. 154 (1994) Smith v. Schriro, 813 F.3d 1175 (9th Cir. 2016) State v. Coleman, 619 S.W.2d 112 (Tenn. 1981) State v. McKay, 680 S.W.2d 447 (Tenn. 1984) State v. McKay, No. 02C CR-00175, 1996 Tenn. Crim. App. LEXIS 460 (July 26, 1996)... 10, 11 State v. Sample, 680 S.W.2d 447 (Tenn. 1984) State v. Sims, 45 S.W.3d 1 (Tenn. 2001)... 3 Teague v. Lane, 489 U.S. 288 (1989) Tyler v. Cain, 533 U.S. 656 (2001)... 21

10 ix Van Tran v. Colson, 764 F.3d 594 (6th Cir. 2014)... 19, 20 Van Tran v. State, 66 S.W.3d 790 (Tenn. 2001) Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) Welch v. United States, 136 S. Ct (2016) White v. Commonwealth, 500 S.W.3d 208 (Ky. 2016) Whorton v. Bockting, 549 U.S. 406 (2007)... 25, 26 Williams v. Mitchell, 792 F.3d 606 (6th Cir. 2015) CONSTITUTION U.S. Const. amend. VI U.S. Const. amend. VIII... 2, 12, 15, 22 STATUTES AND RULES 28 U.S.C U.S.C , 11, 14 Tenn. Code Ann (a)... 2 Tenn. Code Ann (a)(1)... 9, 11, 15 Tenn. Code Ann Sup. Ct. R

11 1 OPINIONS BELOW The order of the Tennessee Supreme Court denying petitioner Sims application for permission to appeal is unreported but available at Sims v. State, No. W SC-R11-PD, 2016 Tenn. LEXIS 365 (May 6, 2016). (Pet. App. at 2a.) The decision of the Tennessee Court of Criminal Appeals (Pet. App. at 3a) affirming the denial of his motion to reopen state post-conviction proceedings (Pet. App. at 31a) is also unreported but is available at Sims v. State, No. W CCA-R28- PD, 2016 Tenn. Crim. App. LEXIS 613 (Jan. 28, 2016). The order of the Tennessee Supreme Court denying petitioner Sample s application for permission to appeal is unreported. (Pet. App. at 55a.) The decision of the Court of Criminal Appeals (Pet. App. at 56a) affirming the denial of his motion to reopen state postconviction proceedings (Pet. App. at 78a) is also unreported. JURISDICTIONAL STATEMENT The Supreme Court of Tennessee denied Sims application for permission to appeal on May 6, (Pet. App. at 2a.) Justice Kagan extended his time for filing a petition for writ of certiorari until October 3, The Supreme Court of Tennessee denied Sample s application for permission to appeal on May 9, (Pet. App. at 55a.) Justice Kagan extended his time for filing a petition for writ of certiorari until October 6, Pursuant to Sup. Ct. R. 12.4, the petitioners filed a joint application for certiorari on October 3, They invoke this Court s jurisdiction under 28 U.S.C (Pet. App. at 4.)

12 2 CONSTITUTIONAL PROVISIONS AND STATUTES The Eighth Amendment to the United States Constitution prohibits the infliction of cruel and unusual punishments.... Tenn. Code Ann (a) authorizes the reopening of post-conviction proceedings only under the following circumstances: (1) The claim in the motion is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required. The motion must be filed within one (1) year of the ruling of the highest state appellate court or the United States Supreme Court establishing a constitutional right that was not recognized as existing at the time of trial; or (2) The claim in the motion is based upon new scientific evidence establishing that the petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or (3) The claim asserted in the motion seeks relief from a sentence that was enhanced because of a previous conviction and the conviction in the case in which the claim is asserted was not a guilty plea with an agreed sentence, and the previous conviction has subsequently been held to be invalid, in which case the motion must be filed within one (1) year of the finality of the

13 3 ruling holding the previous conviction to be invalid; and (4) It appears that the facts underlying the claim, if true, would establish by clear and convincing evidence that the petitioner is entitled to have the conviction set aside or the sentence reduced. Petitioner Sims STATEMENT OF THE CASE In 1998, a Shelby County jury convicted Sims of first-degree premeditated murder and especially aggravated burglary for the shooting death of Forrest Smith in his home. State v. Sims, 45 S.W.3d 1, 5 (Tenn. 2001). The jury imposed a capital sentence for the murder conviction based on the following four aggravating factors: (1) the petitioner was previously convicted of one or more felonies with statutory elements that involve the use of violence; (2) the murder was especially heinous, atrocious, or cruel; (3) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the petitioner or another; and (4) the murder was committed during the commission of a burglary or theft. Id. at 7. The petitioner received a consecutive 25-year sentence for the burglary conviction. Id. at 5. The Supreme Court of Tennessee affirmed the petitioner s convictions and sentences on direct appeal, noting that [t]he record does not reveal that Sims had any mental, emotional, or physical disabilities at the time of the crime. Id. at 5, 19. This Court denied the petitioner s request for further review. Sims v. Tennessee, 534 U.S. 956 (2001).

14 4 In 2001, the petitioner filed a pro se application for post-conviction relief, followed by an amendment with the assistance of appointed counsel. Sims v. State, No. W CCA-R3-PD, 2011 Tenn. Crim. App. LEXIS 70, at *9 (Jan. 28, 2011). He did not raise an intellectual disability claim in those pleadings. Id. at ; see also Sims, 2016 Tenn. Crim. App. LEXIS 613, at *2. He did however, offer the following evidence about his intelligence during the post-conviction hearing: Dr. Pamela Auble, a clinical neuropsychologist, evaluated the Petitioner in July 2002 and April 2003 and provided a report of her findings dated August 20, Dr. Auble testified regarding her findings during the post-conviction hearing on September 17, In evaluating the Petitioner, Dr. Auble interviewed him, administered testing, and reviewed numerous records. These records included the transcript of testimony of other witnesses during the post-conviction hearing, school records, medical records, the Tennessee Supreme Court s opinion on direct appeal, the Petitioner s pre-sentence report, and a timeline. In both her report and during her testimony, Dr. Auble discussed the Petitioner s family history, medical history, educational history, achievement testing, history of alcohol and drug abuse, criminal history, and employment history. Dr. Auble administered the Wechsler Adult Intelligence Scale III test (WAIS III) to the Petitioner. The Petitioner received a verbal I.Q.

15 5 score of 72, a performance I.Q. score of 81, and a full scale I.Q. score of 75. In her report, Dr. Auble stated: Mr. Sims s Full Scale IQ of 75 would not meet current legal criteria for [intellectual disability] as defined by the Tennessee statute on [intellectual disability] (TCA ). The Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition, Text Revision) states that mild [intellectual disability] can be diagnosed with Full Scale Wechsler IQ s as high as 75 if there are concurrent adaptive deficits because there is a measurement error of five points on the scale. From the DSM IV, deficits in at least two of ten areas of adaptive functioning are required (communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety). Mr. Sims language deficits, his impaired verbal memory, his limited verbal knowledge and reasoning, and his mental rigidity raise the possibility of deficits in several of these areas (for example, communication, social/interpersonal, self-direction). During the post-conviction hearing, Dr. Auble also testified that the standard for intellectual disability pursuant to Tennessee statute differed from the standard set forth in other sources.

16 6 The Petitioner was also evaluated by Dr. George Woods, a neuropsychiatrist. Dr. Woods interviewed the Petitioner, administered testing, and reviewed many of the same records reviewed by Dr. Auble. Dr. Woods did not administer I.Q. testing but relied upon the results obtained by Dr. Auble. Dr. Woods testified during post-conviction proceedings on September 17 and November 5, He stated that although the Petitioner s I.Q. score of 75 did not meet the legal standards of intellectual disability, the score fell within the range of intellectual disability set forth by the American Association of Mental Retardation and the Diagnostic and Statistical Manual. Dr. Woods also stated that the Petitioner had brain impairments that were greater than what a 75 IQ could predict. Sims, 2016 Tenn. Crim. App. LEXIS 613, at *2-5; see also Sims, 2011 Tenn. Crim. App. LEXIS 70, at *88. The Court of Criminal Appeals affirmed the denial of post-conviction relief, and the Supreme Court of Tennessee denied further review. Sims, 2011 Tenn. Crim. App. LEXIS 70, at *204; Sims v. State, No. W SC-R11-PD, 2011 Tenn. LEXIS 849 (Aug. 31, 2011). In 2011, the petitioner filed an application for a writ of habeas corpus under 28 U.S.C in the United States District Court for the Western District of Tennessee, followed by amended pleadings, which asserted for the first time a claim of intellectual disability. See Sims v. Carpenter, No STA-cgc, 2015 U.S. Dist. LEXIS , at *6 (W.D. Tenn. Aug.

17 7 28, 2015). Those proceedings are pending in the district court. In 2012, petitioner Sims filed a motion to reopen post-conviction proceedings, alleging that he is intellectually disabled and ineligible for the death penalty. Sims v. State, No. W CCA-R3-PD, 2014 Tenn. Crim. App. LEXIS 1151, at *11 (Dec. 23, 2014). He also argued that the Tennessee Supreme Court s decision in Coleman v. State, 341 S.W.3d 221 (Tenn. 2011), 1 established a new constitutional right that was not recognized at the time of his trial. Sims, 2014 Tenn. Crim. App. LEXIS 1151, at *11. In support of his motion, the petitioner attached an affidavit from Dr. Auble, which recounted her previous evaluation with an updated assessment of the petitioner s adaptive deficits. Id. at * While reopening proceedings were pending, the Tennessee Supreme Court issued an opinion in Keen v. State, 398 S.W.3d 594, 597 (Tenn. 2012), clarifying that Coleman did not establish a new rule of constitutional law requiring retroactive application. Accordingly, the petitioner amended his motion to reopen to add a request for a writ of error coram nobis. Sims, 2014 Tenn. Crim. App. LEXIS 1151, at *14. The trial court denied all claims, citing Keen s rejection of Coleman as a basis for reopening postconviction proceedings. Id. at *15. Regarding the 1 Coleman held that experts [formulating an opinion about a defendant s I.Q.] may bring to bear and utilize reliable practices, methods, standards, and data that are relevant in their particular fields, including consideration of standard error of measurement, the Flynn Effect, and the practice effect. Id. at 242 n.55.

18 8 request for coram nobis relief, the trial court found that Dr. Auble s report was cumulative to proof from the initial post-conviction proceedings, noting the previous testimony about the clinical practice of applying the standard error of measurement and the Flynn Effect and the expert opinions about the effect of these concepts on the assessments of the petitioner s overall intellectual functioning. Id. Accordingly, the trial court found that the standard error of measurement and the Flynn Effect were part of the neuropsychological parlance and practice at the time of the post-conviction hearing and that both experts had expressed an opinion about the petitioner s I.Q. in light of these factors and an opinion indicating that the petitioner likely suffered from adaptive deficits. Id. at * Accordingly, the trial court concluded that the evidence cited by the petitioner to show his intellectual disability was available to him at the time of his initial post-conviction hearing. Id. at *16. The Court of Criminal Appeals denied the petitioner s application to appeal the denial of his motion to reopen. Sims v. State, No. W CCA-R28-PD, 2014 Tenn. Crim. App. LEXIS 1179, at *6 (Feb. 5, 2014). The Supreme Court of Tennessee also denied review. Sims v. State, No. W SC-R11-PD, 2014 Tenn. LEXIS 454 (May 28, 2014). In a separate appeal, the Court of Criminal Appeals affirmed the denial of coram nobis relief. Sims, 2014 Tenn. Crim. App. LEXIS 1151, at *36. The court acknowledged this Court s intervening opinion in Hall v. Florida, 134 S. Ct (2014), noting that unlike Hall, the [p]etitioner has not been precluded during his original trial or during post-conviction proceedings from presenting evidence, other than his raw I.Q. test

19 9 scores, to establish that his functional intelligence quotient when he committed the murder was 70 or below. Id. at * The court further reaffirmed that the information in Dr. Auble s affidavit was available for presentation prior to Coleman. Nothing prevented the Petitioner from presenting during post-conviction proceedings relevant and competent evidence, other than his raw I.Q. test scores, to prove that his functional intelligence quotient when the crime was committed was seventy (70) or below. Id. at *33. The Supreme Court of Tennessee denied further review. Sims v. State, No. W SC- R11-PD, 2015 Tenn. LEXIS 450 (May 18, 2015). In 2015, the petitioner filed another motion to reopen post-conviction proceedings, contending that Hall created a new rule of constitutional law requiring retroactive application for the purposes of Tenn. Code Ann (a)(1). Sims, 2016 Tenn. Crim. App. LEXIS 613, at *11. He attached another affidavit from Dr. Auble, similar to the one attached to his 2012 motion to reopen. Id. at *11. The trial court denied the motion, and the Court of Criminal Appeals denied permission to appeal, concluding that Hall did not announce a new rule of constitutional law, and even if it did, that it did not apply retroactively. Id. at *22. The court also noted that Tennessee was not listed in Hall as one of the nine states that mandate a strict I.Q. score cutoff at 70. Id. at *19. The Supreme Court of Tennessee also denied review. Sims, 2016 Tenn. LEXIS 365.

20 10 Petitioner Sample A Shelby County jury convicted Sample and his codefendant, Larry McKay, of two counts of first-degree felony murder for the 1981 shooting deaths of Benjamin Cooke and Steve Jones during the perpetration of armed robbery. State v. McKay, 680 S.W.2d 447, 448 (Tenn. 1984). The jury imposed two capital sentences based on the following three aggravating factors: (1) that the petitioner created a great risk of death to two or more persons other than the victims who were murdered; (2) that he committed the murders to avoid, interfere with, or prevent a lawful arrest or prosecution; and (3) that the murders were committed in the course of committing a felony. See Sample v. State, 82 S.W.3d 267, 269 (Tenn. 2002). The Supreme Court of Tennessee affirmed the petitioner s convictions and sentences and denied rehearing. State v. McKay, 680 S.W.2d 447, 453 (Tenn. 1984); State v. Sample, 680 S.W.2d 447 (Tenn. 1984). This Court denied further review. Sample v. Tennessee, 470 U.S (1985). The petitioner filed numerous unsuccessful petitions for state collateral relief, none of which included a claim of intellectually disability. See McKay v. State, No. 25, 1989 Tenn. Crim. App. LEXIS 153, at *6 (Mar. 1, 1989), perm. app. denied (Tenn. July 3, 1989); McKay v. State, No. 02C CR-00059, 1994 Tenn. Crim. App. LEXIS 701, at *5 (Oct. 19, 1994), perm. app. denied (Tenn. Jan. 30, 1995); Sample v. State, No. 02C CR-00062, 1995 Tenn. Crim. App. LEXIS 115, at *16 (Feb. 15, 1995), perm. app. denied (Tenn. Jan. 27, 1997); State v. McKay, No. 02C CR-00175, 1996 Tenn. Crim. App.

21 11 LEXIS 460, at *5 (July 26, 1996), perm. app. denied (Tenn. Dec. 2, 1996); Sample v. State, Nos. 02C CR-00131, 02C CR-00139, 1996 Tenn. Crim. App. LEXIS 597, at *45 (Sep. 30, 1996), perm. app. denied (Tenn. Jan. 27, 1997); Sample v. State, No. W CCA-R3-PC, 2001 Tenn. Crim. App. LEXIS 33, at *42 (Jan. 17, 2001), reversed by 82 S.W.3d at 279 (Tenn. Aug. 2, 2002); Sample v. State, No. W CCA-R3-PD, 2010 Tenn. Crim. App. LEXIS 487, at *57 (June 15, 2010), perm. app. denied (Tenn. Nov. 12, 2010). In 2011, the petitioner filed an application for a writ of habeas corpus under 28 U.S.C in the United States District Court for the Western District of Tennessee, followed by an amended pleading, neither of which included a claim of intellectual disability. See Sample v. Carpenter, No SHL-dkv, 2014 U.S. Dist. LEXIS , at *9 (W.D. Tenn. Oct. 20, 2014). In 2014, he filed a motion to amend his petition to include an intellectual-disability claim and a motion to stay federal proceedings to allow exhaustion of that claim in state court. Id. at *1. This was the first time the petitioner had asserted an intellectual disability claim during the 30 years since his conviction. The district court granted both motions, and federal proceedings remain stayed. Id. at * On August 13, 2014, the petitioner filed a motion to reopen post-conviction proceedings, contending that Hall created a new rule of constitutional law requiring retroactive application for the purposes of Tenn. Code Ann (a)(1). (Pet. App. at 58a.) The trial court denied the motion, and the Court of Criminal Appeals denied permission to appeal, concluding that

22 12 Hall did not announce a new rule of constitutional law, and even if it did, that it did not apply retroactively. (Pet. App. at 68a-69a.) The court also noted that Tennessee was not listed in Hall as one of the nine states that mandate a strict I.Q. score cutoff at 70. (Pet. App. at 66a.) The Supreme Court of Tennessee also denied review. (Pet. App. at 55a.) REASONS FOR DENYING THE WRIT I. THIS COURT LACKS JURISDICTION TO REVIEW THE STATE COURT S DECISION THAT THE PETITIONER DID NOT MEET THE STATE STATUTORY CRITERIA FOR REOPENING POST-CONVICTION PROCEEDINGS. It is well established that [t]his Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991). In the context of direct review of a state court judgment, the independent and adequate state ground doctrine is jurisdictional. Id. Moreover, principles of comity require federal courts to defer to a state s judgment on issues of state law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ( [A] state court s interpretation of state law... binds a federal court.... ). The state court s decisions here are not rulings on the merits of the petitioners Eighth Amendment claims. Rather, they are procedural rulings about the statutory limitations on collateral review under Tennessee s post-conviction framework. This Court

23 13 lacks jurisdiction to review the State court s decisions about those limitations, including the state court s conclusion that the holding in Hall did not qualify for retroactive application under Tenn. Code Ann , which provides: [A] new rule of constitutional criminal law is announced if the result is not dictated by precedent existing at the time the petitioner s conviction became final and application of the rule was susceptible to debate among reasonable minds. A new rule of constitutional criminal law shall not be applied retroactively in a postconviction proceeding unless the new rule places primary, private individual conduct beyond the power of the criminal law-making authority to proscribe or requires the observance of fairness safeguards that are implicit in the concept of ordered liberty. Tennessee courts have recognized that the retroactivity standard in the above statute is similar to the federal standard from Teague v. Lane, 489 U.S. 288, 307 (1989). See Bush v. State, 428 S.W.3d 1, (Tenn. 2014). But neither Teague nor its exceptions are constitutionally compelled. Montgomery v. Louisiana, 136 S. Ct. 718, 739 (2016) (Scalia J., dissenting). Indeed, states have no constitutional duty to provide post-conviction relief procedures. Pennsylvania v. Finley, 481 U.S. 551, (1987). And state courts are only constitutionally compelled to apply the law that existed at the time a defendant s conviction and sentence became final. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987); see also Greene v. Fisher, 565 U.S. 34, 45 (2011) (holding that relief under

24 14 28 U.S.C is available only upon a state court s unreasonable application of United States Supreme Court authority that existed at the time of the state court s decision). Thus, this Court has no jurisdiction to decide that Tennessee by way of its interpretation of state post-conviction statutes placed an impermissible limitation on a state collateral review process that is not constitutionally compelled. To be sure, Montgomery holds that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. 136 S. Ct. at 729. But as discussed further below, the application of Hall s holding would not control the outcome of the petitioner s cases. Thus, Montgomery does not answer the jurisdictional problem here. II. THESE CASES ARE POOR VEHICLES TO CONSIDER THE IMPORT OF HALL, BECAUSE UNLIKE HALL, THE PETITIONERS HAVE SHOWN AN EXTRAORDINARY LACK OF DILIGENCE IN PURSUING THEIR CLAIMS. Hall received a new intellectual-disability hearing because, by operation of the Florida courts rigid interpretation of that state s intellectual-disability statute, he had been denied a fair opportunity to present evidence beyond his raw I.Q. scores. Hall, 134 S. Ct Notably, Hall s intellectual-disability claim under Atkins v. Virginia, 536 U.S. 304, 321 (2002), was timely under Florida s collateral review procedures. Hall v. State, 109 So. 3d 704, 707 (Fla. 2012). The petitioners here were never denied a fair

25 15 opportunity to present comprehensive evidence of their intellectual functioning. They simply made no diligent effort to pursue Atkins claims under Tennessee s generous collateral review procedures. 2 Petitioner Sims could have raised the claim while his initial postconviction petition was still being litigated. Petitioner Sample could have reopened post-conviction proceedings within a year of either Van Tran or Atkins. See Tenn. Code. Ann (a)(1). Hall simply does not apply here because it does not address whether a petitioner s complete lack of diligence in pursuing a constitutional claim may preclude consideration of that claim under state law. Thus, these cases are poor vehicles for considering the import or retroactivity of Hall. III. NO COURT HAS HELD THAT HALL MUST APPLY RETROACTIVELY ON COLLATERAL REVIEW WITHOUT REGARD TO PRIOR OPPORTUNITY FOR PRESENTING COMPREHENSIVE EVIDENCE OF INTELLECTUAL FUNCTIONING UNDER ATKINS, AND THERE IS NO REASON TO EXTEND HALL SO FAR. The petitioners cases differ fundamentally from those cited in support of certiorari, including Hall 2 Atkins was preceded by the Tennessee Supreme Court s holding in Van Tran v. State, 66 S.W.3d 790, , 812 (Tenn. 2001), that it violated the Eighth Amendment to impose capital punishment on the intellectually disabled. Thus, the petitioners window of opportunity for pursuing intellectual-disability claims in state court also preceded Atkins.

26 16 itself. They do not identify a single decision applying Hall to require a state to litigate an intellectualdisability claim that was raised for the first time after Hall was decided. This is because Hall did not create a new unfettered right to either a hearing or relief from a capital sentence for those with an I.Q. score within a certain range irrespective of prior opportunity for presenting evidence of intellectual disability. To be sure, some courts have cited Hall to allow new hearings on Atkins claims that were properly presented on collateral review. But the petitioners never properly presented Atkins claims under Tennessee s postconviction framework. Thus, their cases fall outside the purview of both Hall and the decisions applying it on collateral review. A. The Petitioners Overstate the Disparate Outcomes in Cases Addressing Hall s Application to Collateral Proceedings without Regard to the Procedural Distinctions between Those Cases and Theirs. Referencing the contemporaneous petition in Payne v. Tennessee, No , the petitioners rely on several decisions, 3 including Hall, which applied Hall s holding in a collateral review posture. (Payne App. at ) The petitioners offer these and other federal decisions as evidence of an overwhelming consensus... against Tennessee s approach to the question of Hall s 3 The petitioners cite Oats v. State, 181 So. 3d 457, 459 n.1 (Fla. 2015), White v. Commonwealth, 500 S.W.3d 208, 215 (Ky. 2016), and Reeves v. State, No. CR , 2016 Ala. Crim. App. LEXIS 37, at *21-24 (June 10, 2016). (Payne App. at 18.)

27 17 retroactivity. (Payne App. at 17.) But none of these cases stands for the proposition suggested by the petitioners that Hall announced a new constitutional rule requiring universal application on collateral review without regard to prior opportunity for presenting comprehensive evidence of intellectual functioning. And there are no disparate outcomes arising from that proposition because no court to respondent s knowledge has adopted it. Like the petitioners here, Hall s, Oats, White s, and Reeves sentences were affirmed on direct review before this Court decided Atkins, and so their Atkins claims necessarily arose as a matter of first impression during collateral review. But unlike the petitioners here, Hall, Oats, White, and Reeves timely pursued Atkins claims under the collateral review laws of their respective states. Indeed, Atkins rather than Hall supplied the retroactive rule opening the door for collateral review of Oats, White s, and Reeves claims. It should come as no surprise that the state courts in those cases applied Hall s evidentiary holding to first-instance Atkins claims in the collateral appeal pipeline, especially since those states were among the four in addition to Florida that Hall identified as retaining a strict IQ cutoff of 70. Hall, 134 S. Ct. at Similarly, this Court s collateral application of Hall in Brumfield v. Cain, 135 S. Ct. 2269, 2278 (2015), arose from a pre-atkins sentence followed by a timely collateral challenge based on Atkins. See Brumfield v. Cain, 744 F.3d 918, 921 (5th Cir. 2014). And in turn,

28 18 the three circuit courts of appeals decisions 4 cited by the petitioners involved Hall s application to pre-atkins sentences timely and necessarily challenged in collateral proceedings following Atkins. The principle common to the cases above is simple: Petitioners with pre-atkins sentences who diligently pursued collateral relief under Atkins but who confronted a state evidentiary ruling in conflict with Hall deserved a fair opportunity to present all relevant evidence to support their claims. But that principle is inapposite here, where both petitioners waited about a decade after Atkins to assert their intellectual disability for the first time. Moreover, this Court s denial of certiorari in Goodwin v. Steele, 135 S. Ct. 780 (2014) and Goodwin v. Missouri, 135 S. Ct. 780 (2014), is not so much a disparate outcome on the application of Hall as it is an indication of this Court s reluctance to apply Hall, without limitation, to every Atkins claim raised in any collateral proceeding. Like the petitioners, Goodwin s sentence preceded Atkins. Goodwin v. Steele, 814 F.3d 901, 902 (8th Cir. 2014). Unlike the petitioners though, Goodwin timely pursued an Atkins claim during initial state collateral proceedings, in which he confronted an evidentiary ruling arguably afoul of the later opinion in Hall. Goodwin v. State, 191 S.W.3d 20, (Mo. 2006) (holding that an IQ score within the five-point margin 4 The petitioners cite Williams v. Mitchell, 792 F.3d 606, (6th Cir. 2015), Webster v. Daniels, 784 F.3d 1123, 1132 (7th Cir. 2015), and Smith v. Schriro, 813 F.3d 1175, 1178 (9th Cir. 2016). (Payne App. at 19.)

29 19 of error for the Wechsler scale of sub-average intellectual functioning was inadequate to raise a triable issue of fact. ). Goodwin also exhausted his federal habeas remedies before Hall was decided. Goodwin, 814 F.3d at 902. After Hall, Goodwin unsuccessfully sought to benefit from its retroactive application by requesting stays of execution in state and federal court. Id. at This Court denied certiorari, implicitly refusing to apply Hall as a basis for revisiting final collateral judgements. The petitioners procedural histories resemble Goodwin s more than any other case cited in their joint petition. But two important differences distinguish the petitioners cases from Goodwin s and provide even greater support for denying certiorari. First, the petitioners waited about a decade after Atkins to assert intellectual-disability claims for the first time. In turn, they have no viable argument comparable to Goodwin s or Hall s that they were denied a fair opportunity to present comprehensive evidence of their alleged disability. Hall, 134 S. Ct. at Second, both petitioners federal habeas petitions raise Atkins/Hall claims and remain pending. Given the Sixth Circuit s view about the retroactive application of Coleman s holding to cases on federal habeas review, it is at least foreseeable that the petitioners will have the opportunity to litigate their Atkins claims in federal court, 5 without having to overcome the federal bar on successive petitions faced by Goodwin. See Van Tran 5 The respondent makes no concession here about the applicability of procedural defenses or about the merits of the petitioners pending habeas claims.

30 20 v. Colson, 764 F.3d 594, 617 (6th Cir. 2014) (citing Black v. Bell, 664 F.3d 81, 92 (6th Cir. 2011)). The petitioners incorrectly suggest that claims under Atkins would have been futile because Howell v. State, 151 S.W.3d 450 (Tenn. 2004), created a brightline cutoff for claims of intellectual disability at an unadjusted IQ score of 70 or below. (Pet. App. at 5.) But Howell was not decided until 2004, well after the petitioners undeniable window for presenting their Atkins claims with supporting evidence. And the Coleman decision demonstrates that Howell did not create an insurmountable hurdle to presenting comprehensive evidence of intellectual disability. Coleman s capital sentence was affirmed in State v. Coleman, 619 S.W.2d 112, 116 (Tenn. 1981). His initial post-conviction bid concluded before Atkins was decided. See Coleman v. State, No. 31, 1984 Tenn. Crim. App. LEXIS 2883 (June 28, 1984), perm. app. denied (Tenn. Oct. 29, 1984). But in 2002, Coleman filed a motion to reopen based on Atkins, and that motion paved the way to a decision ultimately allowing him to present comprehensive evidence of his intellectual disability, in accord with Hall. See Coleman, 341 S.W.3d at 224, 258. Following Atkins, the petitioners and Coleman were similarly situated. But while Sims presented evidence about his intellect during initial collateral proceedings, he failed to pair that evidence with an actual Atkins claim. See Sims, 2011 Tenn. Crim. App. LEXIS 70, at * And until 2014, Sample had never presented any claim or evidence based on Atkins. Hall simply does not apply to the petitioners here because it does not address whether an Atkins claim may be

31 21 summarily denied during successive state collateral proceedings after the claimant failed to avail himself of the fair opportunity to present the claim during earlier collateral proceedings. See Hall, 134 S. Ct. at Any disparity between the outcomes of other capital inmates cases and the petitioners is as much a product of the petitioners comparative lack of diligence as anything. B. The State Court Correctly Declined to Hold that Hall Announced a New Constitutional Rule Requiring Retroactive Application on Collateral Review. The evidentiary rule in Hall does not apply universally to every collateral review context in which an Atkins claim might be asserted. In Tyler v. Cain, 533 U.S. 656, 663 (2001), this Court held that even a new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive. Nothing in Hall indicates that the Court intended it to apply retroactively to all Atkins claims raised in a collateral posture. In Montgomery v. Louisiana, 136 S. Ct. 718, 729 (2016), this Court recently explained the category of new substantive rule[s] of constitutional law that must be given retroactive effect: Substantive rules, then, set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State s power to impose. It follows that when a State enforces a proscription or penalty barred by the Constitution, the resulting

32 22 conviction or sentence is, by definition, unlawful. Procedural rules, in contrast, are designed to enhance the accuracy of a conviction or sentence by regulating the manner of determining the defendant s culpability. Schriro[ v. Summerlin, 542 U.S. 348, 353, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004)]; Teague[ v. Lane, 489 U.S. 288, 313, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) (plurality opinion)]. Those rules merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise. Schriro, supra, at 352. Even where procedural error has infected a trial, the resulting conviction or sentence may still be accurate; and, by extension, the defendant s continued confinement may still be lawful. For this reason, a trial conducted under a procedure found to be unconstitutional in a later case does not, as a general matter, have the automatic consequence of invalidating a defendant s conviction or sentence. Id. at This Court recognized that retroactive application is appropriate when the possibility of a valid result does not exist where a substantive rule has eliminated a State s power to proscribe the defendant s conduct or impose a given punishment. Id. at 730; see also Welch v. United States, 136 S. Ct. 1257, 1266 (2016) ( [T]he Court has adopted certain rules that regulate capital sentencing procedures in order to enforce the substantive guarantees of the Eighth Amendment. The consistent position has been that those rules are procedural, even though their ultimate source is substantive. ). The change in the law accomplished by Hall does not render any sentence by

33 23 definition, unlawful. Id. at 730. Hall merely raise[s] the possibility that someone found not to be intellectually disabled could be determined to be intellectually disabled. Id. Moreover, Hall did not announce a new rule protecting any new class apart from the rule announced in and class protected by Atkins. While Atkins [left] to the States the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences, Hall notes that Atkins itself acknowledges the inherent error in IQ testing. Hall, 134 S. Ct. at Indeed, Atkins twice cited definitions of intellectual disability which, by their express terms, rejected a strict IQ test score cutoff at 70. Id. (citing Atkins, 536 U.S. at 308, n.3, 309 n.5.) In Hall, the Court further observed: Atkins itself not only cited clinical definitions for intellectual disability but also noted that the States standards, on which the Court based its own conclusion, conformed to those definitions. In the words of Atkins, those persons who meet the clinical definitions of intellectual disability by definition... have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. Id., at 318, 122 S. Ct. 2242, 153 L. Ed. 2d 335. Thus, they bear diminish[ed]... personal culpability. Ibid. The clinical definitions of intellectual disability, which take into account that IQ

34 24 scores represent a range, not a fixed number, were a fundamental premise of Atkins. Hall, 134 S. Ct. at 1999 (emphasis added). Hall merely held that Florida s rule misconstrues the Court s statements in Atkins that intellectually dis-ability is characterized by an IQ of approximately 70. Id. at Thus, Hall did not announce a new rule insofar as the result was dictated by Atkins. In re Henry, 757 F.3d 1151, 1165 (11th Cir. 2014) (Martin, J., dissenting). The petitioners rely on Penry v. Lynaugh, 492 U.S. 302, 330 (1989), which held that retroactivity applies to rules prohibiting a certain category of punishment for a class of defendants because of their status or offense. (Pet. App. at 18.) But Penry does not apply here because Hall merely concerns procedures for ensuring that states do not execute members of an already protected group. Henry, 757 F.3d at Hall made clear that the class affected by its holding those with an intellectual disability is identical to the class protected by Atkins. See Hall, 134 S. Ct. at Hall did not expand this already protected class. It only limited Florida s power to define the class where the Florida courts interpretation of a state statute did not protect the intellectually disabled as already understood in Atkins. See Hall, 134 S. Ct. at 1986; accord Henry, 757 F.3d at And even if Hall expanded the class of individuals described in Atkins, it did not categorically place them beyond the power of the state to execute. Henry, 757 F.3d at Instead, Hall created a procedural requirement that those with IQ test scores within the test s standard of error would have [a fair] opportunity to otherwise show

35 25 intellectual disability. Id. Thus, Hall guaranteed only a chance to present evidence, not ultimate relief or categorical disqualification from capital punishment. Id. Finally, Hall did not create the sort of watershed rule of criminal procedure ordinarily subject to retroactive application. In Saffle v. Parks, 494 U.S. 484, 495 (1990), this Court pointed to Gideon v. Wainright, 372 U.S. 335 (1963), and its recognition of the Sixth Amendment right to appointed counsel in a felony trial as the usually cited example of a retroactively applicable watershed rule[] of criminal procedure. To qualify as a watershed rule[] of criminal procedure, the rule must be necessary to prevent an impermissibly large risk of an inaccurate conviction, and it must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. Whorton v. Bockting, 549 U.S. 406, 418 (2007) (quoting Schriro v. Summerlin, 542 U.S. 348, 356 (2004)). As the Court explained in Whorton: This exception is extremely narrow, Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). We have observed that it is unlikely that any such rules ha[ve] yet to emerge, ibid. (quoting Tyler v. Cain, 533 U.S. 656, 667, n.7, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001); internal quotation marks omitted); see also O Dell v. Netherland, 521 U.S. 151, 157, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997); Graham, supra, at 478, 113 S.Ct. 892; Teague, supra, at 313, 109 S.Ct (plurality opinion). And in the years since Teague, we have rejected every claim that a new rule satisfied the

36 26 requirements for watershed status. See, e.g., Summerlin, supra (rejecting retroactivity for Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)); Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) (rejecting retroactivity for Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988)); O Dell, supra (rejecting retroactivity for Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994)); Gilmore v. Taylor, 508 U.S. 333, 113 S.Ct. 2112, 124 L.Ed.2d 306 (1993) (rejecting retroactivity for a new rule relating to jury instructions on homicide); Sawyer v. Smith, 497 U.S. 227, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (rejecting retroactivity for Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)). Id. at Unlike the sweeping rule of Gideon,... the narrow right... that [Hall] affords to defendants in a limited class of capital cases has hardly altered our understanding of the bedrock procedural elements essential to the fairness of a [capital sentencing] proceeding. Cf. O Dell v. Netherland, 521 U.S. 151, 167 (1997) (quotations omitted) (rejecting the retroactive application of Simmons v. South Carolina, 512 U.S. 154, 167 (1994), which required that a capital defendant be allowed to inform his sentencing jury that he is parole-ineligible if the prosecution argues that he presents a future danger). Because Hall did not announce a watershed rule comparable to Gideon, it does not require retroactive application or provide an

37 27 avenue for reconsidering final state collateral judgments. See Goodwin v. Missouri, 135 S. Ct CONCLUSION The petition for writ of certiorari should be denied. Respectfully submitted, HERBERT H. SLATERY III Attorney General & Reporter ANDRÉE S. BLUMSTEIN Solicitor General NICHOLAS W. SPANGLER Assistant Attorney General Counsel of Record P.O. Box Nashville, Tennessee Phone: (615) Fax: (615) Counsel for Respondent