722 F. App'x 534
6th Cir.2018Background
- Pervis Payne, convicted in Tennessee in 1988 of two counts of first-degree murder and one count of assault with intent to commit murder, was sentenced to death; convictions and sentence were affirmed on direct appeal and by the U.S. Supreme Court in Payne v. Tennessee.
- Payne pursued multiple state and federal post-conviction remedies (post-conviction, coram nobis, §2254 petition, Rule 60(b) motion, testing requests), all dismissed or denied; his initial §2254 was dismissed and that dismissal was affirmed by this court.
- Payne later sought to reopen proceedings arguing intellectual disability ineligibility under Atkins, supported by IQ scores (78 in 1987 and 1996; 74 in 2010); state courts rejected his claims and denied relief.
- In 2017 Payne moved the Sixth Circuit for authorization to file a successive §2254 petition, arguing that Hall v. Florida and Moore v. Texas changed the law governing intellectual-disability determinations and should be applied retroactively to him.
- The court evaluated whether Payne made the prima facie showing required by 28 U.S.C. §2244(b)(2)/(3) that a new rule of constitutional law, made retroactive by the Supreme Court, applies to his case, or whether a newly discovered factual predicate exists.
- The Sixth Circuit denied authorization, concluding Payne failed to show Hall and Moore were new substantive rules the Supreme Court has made retroactive, and noted authority indicating Hall/Moore may simply illustrate Atkins rather than announce new rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Payne may file a successive §2254 based on Hall and Moore | Hall and Moore altered Atkins analysis (IQ margin of error, modern standards) and should be applied retroactively to make Payne ineligible for death | §2244(b) bars successive petitions absent a new rule the Supreme Court has made retroactive; Payne has not shown Hall/Moore are such rules | Denied — Payne failed to show Hall/Moore are new rules the Supreme Court has made retroactive |
| Whether Hall and Moore constitute "new rules" under Teague/Welch | Hall/Moore announced constitutional changes sufficient to be "new rules" | Courts have treated Hall/Moore as procedural clarifications of Atkins, not new substantive rules | Court assumed arguendo but found Payne did not prove retroactivity; cited authority treating them as non-new rules |
| Whether Supreme Court has held Hall/Moore retroactive | Payne argued Supreme Court GVRs and remands reflect retroactive application | GVRs and remands address previously preserved Atkins claims and are not holdings making rules retroactive | Held: No — Supreme Court has not expressly or implicitly made Hall/Moore retroactive within meaning of §2244(b)(2) |
| Constitutional challenge to 28 U.S.C. §2244(b) as applied | If §2244(b) blocks consideration, it is unconstitutional as applied to Payne | §2244(b) has been upheld; Payne cites no authority showing unconstitutionality | Denied — Payne offered no persuasive authority; §2244(b) is constitutional as applied |
Key Cases Cited
- Atkins v. Virginia, 536 U.S. 304 (2002) (Eighth Amendment bars execution of intellectually disabled persons)
- Hall v. Florida, 134 S. Ct. 1986 (2014) (IQ scores must be considered with test error range; additional evidence may be required)
- Moore v. Texas, 137 S. Ct. 1039 (2017) (states cannot rely on outdated medical standards in intellectual-disability determinations)
- Teague v. Lane, 489 U.S. 288 (1989) (framework for retroactivity of new constitutional rules on collateral review)
- Welch v. United States, 136 S. Ct. 1257 (2016) (distinguishes substantive rules from procedural rules for retroactivity)
- Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (procedures for retroactive application of certain substantive rules)
- Tyler v. Cain, 533 U.S. 656 (2001) (a new rule is not retroactive on collateral review unless Supreme Court holds it is)
- Felker v. Turpin, 518 U.S. 651 (1996) (upholding constitutionality of §2244(b) limitations on successive habeas petitions)
- Magwood v. Patterson, 561 U.S. 320 (2010) (standards for successive habeas petitions and what constitutes a new claim)
- Hill v. Anderson, 300 F.3d 679 (6th Cir. 2002) (Atkins applies retroactively)