Lead Opinion
OPINION
delivered the opinion of the Court,
This appeal involves a prisoner who was sentenced to death in 1991. Nineteen years later, he filed a petition in the Criminal Court for Shelby County seeking to reopen his post-conviction proceeding on the ground that he possessed new scientific evidence of his actual innocence. His evidence consisted of a newly-obtained I.Q. test score purportedly showing that he could not be executed by virtue of Tenn. Code Ann. § 39-13-208 (2010) because he was intellectually disabled. The trial court declined to hold a hearing and denied the prisoner’s petition. The trial court determined, as a matter of the law, that the prisoner’s newly-obtained I.Q. test score was not new scientific evidence of his actual innocence of the offenses to which he earlier pleaded guilty. The prisoner filed an application for permission to appeal the denial of his petition to reopen in the Court of Criminal Appeals. In addition to asserting that the newly-obtained I.Q. test score was new scientific evidence of his actual innocence, the prisoner asserted that this Court’s decision in Coleman v. State,
I.
Eight-year-old Ashley Nicole Reed was raped and murdered in March 1990. Her body, wrapped in a blanket, was thrown into the Wolf River near Mud Island in Memphis. Shortly thereafter, David Keen, the boyfriend of the child’s mother, confessed that he had thrown the child’s body into the river and gave conflicting statements regarding the rape and murder.
On August 15, 1997, a new jury sentenced Mr. Keen to death. The Court of Criminal Appeals affirmed the sentence. State v. Keen, No. 02C01-9709-CR-00365,
On May 3, 2001, Mr. Keen filed a pro se petition for post-conviction relief in the Criminal Court for Shelby County. The post-conviction court appointed counsel for Mr. Keen, and counsel filed an amended post-conviction petition. Following a hearing, the post-conviction court entered an order on August 2, 2004, denying post-conviction relief. The Court of Criminal Appeals affirmed the post-conviction court, and this Court declined to review the case. Keen v. State, No. W2004-02159-CCA-R3-PD,
In February 2010, Mr. Keen received a score of 67 on the Wechsler Adult Intelligence Test, Fourth Edition (“WAIS-IV”). Based on this new score, Mr. Keen filed a motion in the Criminal Court for Shelby County, seeking to reopen his post-conviction proceedings in accordance with Tenn. Code Ann. § 40-30-117(a)(2) (2006). He asserted that the new I.Q. test score constituted “new scientific evidence” that he was “actually innocent” of the offense of first degree murder.
The trial court heard argument on February 18, 2011, to determine whether to proceed to an evidentiary hearing. In an order filed on March 28, 2011, the trial court concluded that Mr. Keen had “failed to establish by clear and convincing evidence that new scientific evidence exists establishing his actual innocence.” More specifically, the court held that actual innocence under Tenn.Code Ann. § 40-30-117(a)(2) did not encompass ineligibility for the death penalty under TenmCode Ann. § 39-13-203(b).
Mr. Keen filed an application for permission to appeal in accordance with TenmCode Ann. § 40-30-117(c). In addition to arguing that his petition contained a viable basis for reopening his post-conviction proceeding in accordance with TenmCode Ann. § 40-30-117(a)(2), Mr. Keen raised an additional claim that he was entitled to reopen his post-conviction petition based on a new “constitutional right” under Tenn.Code Ann. § 40-30-117(a)(1). He argued that our decision in Coleman v. State,
II.
The issues presented in this case involve questions of statutory interpretation. The construction of a statute and its application to the facts of a particular case present questions of law which we review de novo. State v. Russell,
In 1990, the Tennessee General Assembly decided that intellectually' disabled
This Court previously addressed motions to reopen in Van Tran v. State,
Mr. Van Tran was re-tested in 1999 using the newer third edition of the Wech-sler Adult Intelligence Scale (“WAIS-III”). At that time, the psychologist who administered this test determined that Mr. Van Tran’s full-scale I.Q. was actually 65. In February 2000, Mr. Van Tran filed a motion to reopen his post-conviction proceeding, arguing that this new test result constituted “new scientific evidence” of his actual innocence under Tenn.Code Ann. § 40-30-117(a)(2). The post-conviction court denied his motion, and the Court of Criminal Appeals declined to grant him permission to appeal.
We accepted Mr. Van Tran’s appeal. Following oral argument, we requested the parties to file supplémental briefs addressing the issue of whether executing an intellectually disabled person violated the “cruel and unusual punishments” clauses of the Eighth Amendment to the United States Constitution or Article I, § 16 of the Tennessee Constitution.
We also determined that the holding in Van Tran should apply retroactively. This finding involved a two-part analysis. The first question was whether the “constitutional right” is actually “new.” A constitutional rule is considered “new” when “the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Van Tran v. State,
The following year, the United States Supreme Court overruled its hold
In December 2002, relying on the recent holdings of Van Tran and Atkins as new, retroactive constitutional rules, condemned prisoner Michael Wayne Howell filed a motion to reopen his post-conviction proceeding under Tenn.Code Ann. § 40-30-117(a)(1). Howell v. State,
We also addressed shortcomings in the expert proof Mr. Howell submitted to support his claim that he was intellectually disabled. The psychologist who examined Mr. Howell administered the WAIS-III, as well as the Stanford-Binet Intelligence Test-Fourth Edition and the Comprehensive Test of Nonverbal Intelligence (“CTO-NI”). Although Mr. Howell’s score on the WAIS-III was above 70, his scores on the other tests were below 70. Thereafter, the psychologist prepared an affidavit stating that an I.Q. test score of 70 actually represented “a band or zone of sixty-five to seventy-five.” Howell v. State,
When Mr. Howell’s case reached this Court, we noted that “[w]ithout question,” intellectual disability “is a difficult condition to accurately define” and that “[generally accepted definitions within the scientific community will no doubt be refined as our knowledge in this area advances.” Howell v. State,
With regard to Mr. Howell’s argument that the post-conviction court erred by disregarding the scores from other tests besides the WAIS-III, we noted that the United States Supreme Court had referred to the WAIS-III as “the standard instrument in the United States for assessing intellectual functioning.” Atkins v. Virginia,
there is nothing in the record to indicate that other tests, such as the Stanford-Binet Intelligence Test-Fourth Edition, or the CTONI are not also accurate I.Q. tests. A court may certainly give more weight to one test, but should do so only after fully analyzing and considering all evidence presented.... A review under [the colorable claim standard] would necessarily include giving full and fair consideration to all tests administered to the petitioner.
Howell v. State,
Regrettably, several courts misconstrued our holding in Howell that Tenn. Code Ann. § 39-13-203(a)(1) established a “bright line rule” for determining intellectual disability. They understood this language to mean that courts could consider only raw I.Q. scores. Accordingly, these courts tended to disregard any evidence suggesting that raw scores could paint an inaccurate picture of a defendant’s actual intellectual functioning. See, e.g., Smith v. State, No. E2007-00719-CCA-R3-PD,
The case of Coleman v. State provided us with an opportunity to clarify and reinforce our holding in Howell. We held that “the plain language of Tenn. Code Ann. § 39-13-203(a)(1) does not limit to raw test scores the evidence regarding whether a criminal defendant is a person with intellectual disability.” Coleman v. State,
We then considered the four prior cases in which we had been called on to interpret and apply Tenn.Code Ann. § 39-13-203—State v. Smith,
(1) The public policy of this State, reflected in the considered decision of the Tennessee General Assembly to enact Tenn.Code Ann. § 39-13-203, opposes the execution of persons with intellectual disabilities.
(2) The scope of Tenn.Code Ann. § 39-13-203 is more restrictive than the definition of “intellectual disability” in Tenn. Code Ann. § 33-1-101(16) applicable to the provision of support services to persons with intellectual disabilities.
(3) The Court will give effect to the plain and ordinary meaning of the statute’s language.
(4) The Court will decline to “read in” language into the statute that the General Assembly did not place there.
(5) The Court’s application of the statute may be guided and informed by the clinical standards, criteria, and practices customarily used to assess and diagnose intellectual disability.
(6) In instances where the proper application of the statute is not clear, the Court may confirm its interpretation of the statute by considering its legislative history, prior interpretations of the statute, similar statutes in other jurisdictions, and the clinical standards, criteria, and practices customarily used to assess and diagnose intellectual disability.
Coleman v. State,
While a person’s I.Q. is customarily obtained using standardized intelligence tests, see Van Tran v. State,66 S.W.3d at 795 ; DSM-IV-TR, at 41, the statute does not provide clear direction regarding how a person’s I.Q. should be determined and does not specify any particular test or testing method that should be used. Howell v. State,151 S.W.3d at 459 . In fact, the statute does not even employ the words “test” or “score.”
Coleman v. State,
Therefore, we held that Tenn. Code Ann. § 39-13-203(a)(1) “does not require a ‘functional intelligence quotient test score of seventy (70) or below,’ ” and that “the trial courts may receive and consider any relevant and admissible evidence regarding whether the defendant’s functional I.Q. at the time of the offense was seventy (70) or below.” Coleman v. State,
We also noted in Coleman that the American Association on Intellectual and Developmental Disabilities (“AAIDD”) recognizes ten potential “challenges” to the reliability and validity of I.Q. test scores, including the Flynn effect and the practice effect. Coleman v. State,
Because intelligence tests are indirect rather than direct measures of intelligence, experts in the field recognize that they, like other measures of human functioning, are not “actuarial determination[s],” that these tests cannot measure intelligence with absolute precision and that these tests contain a potential for error. The current consensus is that the standard error of measurement in well-standardized intelligence tests is approximately three to five points.
Coleman v. State,
We take the opportunity to reiterate that, in determining whether a defendant’s functional I.Q. is 70 or below, a trial court should consider all the evidence that is admissible under the rules for expert testimony. See State v. Copeland,
[I]f the trial court determines that professionals who assess a person’s I.Q. customarily consider a particular test’s standard error of measurement, the Flynn Effect, the practice effect, or other factors affecting the accuracy, reliability, or fairness of the instrument or instruments used to assess or measure the defendant’s I.Q., an expert should be permitted to base his or her assessment of the defendant’s “functional intelligence quotient” on a consideration of those factors.11
The case of Smith v. State,
We also held that Mr. Smith was entitled to a new hearing on whether he was intellectually disabled. At his first hearing, a psychologist opined that Mr. Smith was intellectually disabled when he committed the crime. The evidence indicated that Mr. Smith had brain injuries and a history of physical abuse, as well as alcohol and drug abuse. As a teenager, Mr. Smith’s two scores on the Ammons Quick Test indicated an I.Q. of 70 and 84. His contemporaneous WISC test provided a full-scale I.Q. score of 80. Mr. Smith’s 1989 WAIS-R score was 75, and his 2000 and 2002 WAIS-III scores were 77 and 65 respectively. His scores on academic tests were also very low. Smith v. State,
Although the post-conviction court found that Mr. Smith satisfied the second and third prongs of the test for intellectual disability, the court decided that he had not proven that he had an I.Q. of 70 or below before the age of eighteen. Smith v. State,
Having reviewed the legal predicate for claims of intellectual disability under Tenn. Code Ann. § 39-13-203, we now turn to the claims Mr. Keen presents in his motion to reopen his post-conviction proceedings. We will address the claims in statutory order. The first question is whether Coleman v. State announced a new constitutional rule that must be retroactively applied. The second question is whether Mr. Keen’s intellectual disability claim can be heard under the actual innocence prong of the motion-to-reopen statute.
A.
A preliminary issue is whether Mr. Keen’s intellectual disability claim has been properly raised. In a petition for post-conviction relief, a ground for relief is generally deemed waived if the petitioner had an opportunity to raise the issue previously, but failed to do so. Tenn.Code Ann. § 40-30-106(g) (2012).
The statutory prohibition against executing intellectually disabled persons was in effect during both of Mr. Keen’s sentencing hearings, his two appeals, and his initial post-conviction proceeding. However, Mr. Keen did not invoke Tenn.Code Ann. § 39-13-203 in any of these proceedings. If Mr. Keen was indeed ineligible for the death penalty because he was intellectually disabled, then the attorneys representing Mr. Keen “failed to take whatever action was reasonably available to prevent or nullify the harmful effect” of that error. Tenn. R.App. P. 36(a).
However, Mr. Keen’s current appeal comes to us via a motion to reopen his post-conviction proceeding under Tenn. Code Ann. § 40-30-117. A motion to reopen is only available when the petitioner can establish by clear and convincing evidence that either (1) an appellate court has made a final ruling recognizing a new constitutional right that requires retroactive application; (2) new scientific evidence has come to light that establishes the petitioner is “actually innocent of the offense or offenses for which the petitioner was convicted;” or (3) the petitioner’s sentence was enhanced due to a previous conviction which was later found to be invalid. Tenn. Code Ann. § 40-30-117(a).
In Van Tran v. State, we recognized that a motion to reopen is the proper vehicle for a claim that arises after the petitioner’s original post-conviction avenues have been exhausted and that asserts a newly recognized constitutional right, even when the issue was arguably waived. Van Tran v. State,
Like the Tenn.Code Ann. § 40-30-117(a)(1) motion in Van Tran, motions to reopen that assert actual innocence based on new evidence under Tenn.Code Ann. § 40-30-117(a)(2) similarly raise important constitutional due process concerns. These motions thus warrant the same forgiving treatment as motions to reopen
B.
Mr. Keen bases his motion to reopen on two grounds. The first is Tenn. Code Ann. § 40-30-117(a)(1), which applies to claims “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.” Under this statute, the motion must be filed within one year of the ruling that establishes the new constitutional right.
Mr. Keen filed his motion to reopen on August 5, 2010. At first, his motion was based on Tenn.Code Ann. § 40-30-117(a)(2) and alleged that he had acquired “new scientific evidence” that he was “actually innocent” of the death penalty on account of his intellectual disability. The post-conviction court denied his motion on March 28, 2011. Mr. Keen appealed. We released Coleman v. State on April 11, 2011, while Mr. Keen’s case was pending before the Court of Criminal Appeals. In his reply brief filed in the Court of Criminal Appeals, Mr. Keen asserted that Coleman announced a new, retroactive, constitutional rule. Although Mr. Keen’s motion was filed before our holding in Coleman, we find that it was indeed “filed within one (1) year” of that ruling. Tenn.Code Ann. § 40-30-117(a)(1).
We must first determine whether Coleman established “a constitutional right that was not recognized as existing at the time of trial.” Only if Coleman qualifies as a new “constitutional right” will we then consider whether its holding requires “retrospective application.” Mr. Keen argues that Coleman “established] a new retroactive rule for proving an intellectual disability in Tennessee under the Eighth Amendment,” and that he has raised this issue within one year of that ruling.
As we have already noted, our holding in Van Tran — that executing an intellectually disabled person violated the state and federal constitutions-announced a new constitutional right that required retrospective application. Van Tran v. State,
Coleman was quite different from Van Tran. In Coleman, we were not called upon to interpret the constitution. Instead, Coleman concerned the interpretation of Tenn.Code Ann. § 39-13-203, the statute that defined intellectual disability in the context of the death penalty. Coleman supplemented Howell and clarified that “the trial courts may receive and consider any relevant and admissible evidence regarding whether the defendant’s functional I.Q. at the time of the offense was seventy (70) or below.” Coleman v. State,
Because we have determined that Coleman ’s holding, which concerned the interpretation and application of Tenn.Code Ann. § 39-13-203, was not a constitutional ruling, there is no need to inquire whether that holding would qualify as a “new rule.” Nor is there any use in discussing retroactivity.
C.
Having determined that Coleman v. State did not announce a new constitutional right, we now turn to Mr. Keen’s
It is now axiomatic that our role in construing a statute is to “ascertain and give effect to the legislative intent without unduly restricting or expanding a statute’s coverage beyond its intended scope.” State v. Strode,
On their faces, the words “actually” and “innocent” appear clear enough. They denote that the person in question truly did not commit the crime for which they have been convicted. However, the courts have expanded the concept of actual innocence to include the idea that someone could be actually innocent of, i.e., ineligible for, a given sentence. Under this parlance, for example, a minor or an intellectually disabled person can be said to be “actually innocent” of the death penalty, due to their inherent ineligibility for such a sentence. In other words, “actual innocence” has become a legal term of art that implies more than what the words themselves suggest. See Sawyer v. Whitley,
In 1996, Congress undertook to restrict the scope of “actual innocence” for the purpose of federal habeas corpus when it enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under the AEDPA, federal courts must dismiss a second or subsequent habeas corpus petition unless newly discovered evidence establishes, by “clear and convincing evidence,” that “no reasonable factfinder” would have found the applicant “guilty of the offense” or “guilty of the underlying offense.” 28 U.S.C. §§ 2244, 2255 (2006). This language, “guilty of the offense,” has been interpreted by the federal courts to
The year before Congress enacted the AEDPA, the Tennessee General Assembly enacted the Post-Conviction Procedure Act,
This Court has not squarely addressed the meaning of “actually innocent of the offense” in Tenn.Code Ann. § 40-30-117(a)(2), although Justice Barker, joined by Justice Holder, did so in a dissenting opinion in Van Tran. In his dissenting opinion, Justice Barker equated the “actually innocent of the offense” language in Tenn.Code Ann. § 40-30-117(a)(2) with the AEDPA’s new “not guilty of the offense” language. Van Tran v. State,
Justice Barker’s separate opinion cites with favor Judge Richard Posner’s opinion in Hope v. United States, in which Judge Posner found it “highly unlikely that Congress intended the word [‘offense’] to bear a special meaning.” Hope v. United States,
Subsequently, the United States Court of Appeals for the Fifth Circuit adopted' a similar interpretation of the AEDPA’s analogous language. In re Webster,
[T]here is no reason to believe that Congress intended the language “guilty of the offense” to mean “eligible for a death sentence.” Had Congress wanted the provision to cover challenges to a sentence — even if only to a death sentence — it easily could have referenced sentences explicitly in the text, as it did numerous times throughout § 2255. Or if Congress had intended to signal courts to incorporate the old, broad interpretation of actual innocence, it well could have used the words, “actual innocence.” Instead, it elected to couch § 2255(h)(1), as well as § 2244(b)(2)(B)(ii), in the markedly different, unmistakable terms of guilt of the offense. Absent some indication that Congress meant for the language in § 2255(h)(1) not to be taken literally, we decline to interpret it any other way.
In re Webster,
On this point, Mr. Keen raises an additional argument. He insists that the “offense” of which he was convicted and of which he is actually innocent is the “offense” of “capital murder.” While this argument might have traction in other jurisdictions, in Tennessee, there is no separate offense known as “capital murder.”
To reopen post-conviction proceedings under Tenn.Code .Ann. § 40-30-117(a)(2), a petitioner must present scientific evidence that he is “actually innocent of the offense.” Because we cannot apply any “forced or subtle construction” to distort the “natural and ordinary meaning” of the statute’s “clear and unambiguous” language, Eastman Chem. Co. v. Johnson,
Because we have determined that a claim alleging ineligibility for the death penalty does not qualify as an actual innocence claim under Tenn.Code Ann. § 40-30-117(a)(2), it is not necessary that we examine the issue of whether a recently obtained score from a recently renormed I.Q. test, such as the WAIS-IV, constitutes “new scientific evidence” under that subsection.
Mr. Keen asks us to remand his case for a new hearing on intellectual disability, just as we did for Michael Angelo Coleman and Leonard Smith. But Mr. Keen’s circumstances are different. Messrs. Coleman and Smith were able to take advantage of the one-year window for reopening their petitions under Van Tran or Atkins. For whatever reason, Mr. Keen did not avail himself of that opportunity.
We remain committed to the principle that Tennessee has no business executing persons who are intellectually disabled. Our holding today is only that TenmCode Ann. § 40-30-117(a)(l) and (2) do not provide Mr. Keen with a vehicle to assert that he is intellectually disabled. Our decision does not foreclose any other remedy currently available to Mr. Keen. If he is indeed intellectually disabled, this issue deserves to be heard. Likewise, it does not foreclose the ability of the General Assembly to create a procedure that accommodates prisoners on death row whose intellectual disability claims cannot be raised under Tenn.Code Ann. § 40-30-117(a)(l) or (2).
Y.
We have determined that our holding in Coleman v. State did not establish a new constitutional right under Tenn.Code Ann. § 40-30-117(a)(1). Additionally, we have determined that the General Assembly, in crafting TenmCode Ann. § 40-30-117(a)(2), did not intend the words “actually innocent of the offense” to encompass ineligibility for the death penalty under Tenn.Code Ann. § 39-13-203. Therefore, we affirm the judgment of the post-conviction court and the Court of Criminal Appeals denying Mr. Keen’s motion to reopen his post-conviction proceeding. Because Mr. Keen appears to be indigent, the costs of this appeal are assessed to the State of Tennessee.
Notes
. For details of the crime, Mr. Keen’s confession, and the sentencing hearing, see State v.
. The 2010 WAIS-IV test was not the first I.Q. test administered to Mr. Keen. When he was nine years old, he received I.Q. test scores of 83 and 111 on the Wechsler Intelligence Scale for Children ("WISC”). When he was ten years old, he received a score of 76 on the Otis-Lennon School Ability Test ("Otis”) and a score of 80 on the Comprehensive Test of Basic Skills ("CTBS”). At fifteen years of age, he received a score of 82 on the CTBS. One year later, he received a score of 84 on the CTBS. When he took the Wechsler Adult Intelligence Scale, Third Edition ("WAIS-III”) in 2002, Mr. Keen received an I.Q. test score of 73.
. At the sentencing hearing, Mr. Keen presented testimony that, as a young child, he was malnourished, neglected, and frequently emotionally and physically abused. He had been diagnosed with serious depression, attention deficit disorder, and post-traumatic stress disorder with "psychotic-like symptoms.” Mr. Keen presented the sentencing jury with the following statutory and non-statutory mitigating circumstances:
(1) that the defendant has no significant history of criminal behavior; (2) that the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance; (3) that the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform to the requirements of the law was substan*599 tially impaired as a result of mental disease or defect or intoxication which was insufficient to establish a defense to the crime but which substantially affected his judgment; (4) that the defendant was physically abused as a child; (5) that the defendant was sexually abused as a child; (6) that the defendant was abandoned and neglected as a child; (7) that the defendant was emotionally deprived as an infant and during early childhood; (8) that the defendant was deprived of nutrition as a child; (9) that the defendant did not receive continued counseling and psychotherapy for persons who are sexually and physically abused; (10) that the defendant has been diagnosed with attention deficit disorder; (11) that the defendant has been diagnosed as having post-traumatic stress disorder; (12) that the defendant was a productive citizen in our society prior to his arrest; having served our community in the military and been employed; (13) that the defendant acknowledges the seriousness of the crime he has committed and accepts responsibility for his actions; and (14) that the defendant is ashamed of his actions. The trial court also included a "catch-all” instruction to the jury that it could consider any other mitigating circumstances not specifically recited in the charge.
State v. Keen,
. Dr. Victoria Swanson's affidavit stated that Mr. Keen’s WISC score of 111 was inflated due. to the practice effect and that his WISC score of 83 should be adjusted to 76 due to the Flynn effect. Dr. Swanson also opined that Mr. Keen’s WAIS-III score of 76 should be adjusted to 71 due to the Flynn effect and that his WAIS-IV score should be adjusted from 67 to 66 due to the Flynn effect. In addition, Dr. Swanson stated that Mr. Keen’s scores on the Otis and CTBS tests "do not meet the 'gold standard’ required in an Atkins [v. Virginia,
. Act of Apr. 12, 1990, ch. 1038, 1990 Tenn. Pub. Acts 730 (codified as amended at Tenn. Code Ann. § 39-13-203 (2010)). In 2010, the General Assembly amended Tenn.Code Ann. § 39-13-203 by replacing the terms "mentally retarded” and "mental retardation” with "intellectual disability.” Act of Apr. 9, 2010, ch. 734, 2010 Tenn. Pub. Acts 166, 166-67. The General Assembly noted that the former terminology was "increasingly considered to be derogatory and hurtful,” contributed to "negative stereotypes,” and was being abandoned by "states and organizations across the country.” Consistent with the spirit of the 2010 Act, we have removed all references to “retardation” from this opinion.
. U.S. Const. amend. VIII states: "Excessive bail shall not be required, nor excessive fines
. Although Mr. Van Tran's motion to reopen alleged that he had new scientific evidence that he was actually innocent under Tenn. Code Ann. § 40-30-117(a)(2), it was our view that his motion was "more appropriately based on the provisions of [Tenn.Code Ann. § 40-30-117(a)(1)], which provides that 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 trial, if retrospective application of that right is required.’ " Van Tran v. State,
. In State v. Black, we adopted the test for "cruel and unusual punishment” that was announced by the United States Supreme Court in Gregg v. Georgia,
First, does the punishment for the crime conform with contemporary standards of decency? Second, is the punishment grossly disproportionate to the offense? Third, does the punishment go beyond what is necessary to accomplish any legitimate pe-nological objective!?]
State v. Black,
. This definition of "intellectual disability” is currently codified at Tenn.Code Ann. § 33 — 1— 101(16) (2012).
. The "Flynn effect” is the name given to the verified worldwide phenomenon that I.Q. scores, since the beginning of intelligence testing, have tended to rise overall at a rate of 0.3 per year, or three points every decade. When an I.Q. test is created, it is calibrated so that the mean score equals an I.Q. of 100. Over time, as the scores of the general population increase at the rate of the Flynn effect, or three points per decade, the scores become more and more inaccurate in terms of gauging an individual’s I.Q. relative to the general population. To compensate for the Flynn effect, I.Q. tests have to be routinely revised or "renormed” to make them more difficult. Thus, the WAIS gave way to the WAIS-R, which was eventually replaced by the WAIS-III, and now the current WAIS-IV. Under the Flynn effect, a recently-obtained WAIS-IV score will be close to accurate, while a WAIS-III score that was obtained ten years after the test was renormed would need to be reduced by approximately three points to capture the test-taker’s actual I.Q. at the time. See Geraldine W. Young, A More Intelligent and Just Atkins: Adjusting for the Flynn Effect in Capital Determinations of Mental Retardation or Intellectual Disability, 65 Vand. L.Rev. 615, 616, 621, 624-25 (2012); AAIDD Manual, at 37; James R. Flynn, Tethering the Elephant: Capital Cases, IQ, and the Flynn Effect, 12 Psychol. Pub. Pol’y & L. 170, 173-74, 179-81 (2006).
In addition to the consideration of the Flynn effect, the AAIDD and APA stress that I.Q. scores should be considered in light of the standard error of measurement (“SEM”) and the practice effect. SEM posits that I.Q. scores are best understood as a range, to account for the possibility of error in the determination of an I.Q. score, which is a somewhat subjective determination. There is an uncomfortable fit between SEM and Tennessee’s statute, which contains a bright-line cutoff of 70. Nevertheless, consideration of the SEM can aid a trial court as it weighs the various data concerning a particular defendant's mental acuity. The practice effect refers to the fact that people who take multiple I.Q. tests tend to score better over time, so higher scores on later tests may need to be adjusted downward to account for this increase. See AAIDD Manual, at 38; John H. Blume et. al., Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases, 18 Cornell J.L. &
. Fleck Van Tran and Michael Wayne Howell remain on Tennessee's death row. See http://www.tn.gov/correction/deathrowlist. html. Shortly after our holding in Coleman v. State, Michael Angelo Coleman's death sentence was reduced to a life sentence.
. The United States Court of Appeals for the Sixth Circuit analyzed Coleman shortly after its release. Although the panel disagreed on whether Coleman primarily interpreted Atkins or the Tennessee Code, both the majority and the dissent viewed Coleman as a clarification of existing law. The majority characterized Coleman's holding as an “elucidation of the Atkins standard under Tennessee law.” Black v. Bell,
In Coleman v. State[.] ... the Tennessee Supreme Court construed a Tennessee statute prohibiting the execution of [intellectually disabled] defendants under Tennessee law.... Coleman is purely a construction of a state statute that makes only fleeting references to Atkins ....
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.... Coleman decided how a Tennessee state statute should apply to a Tennessee state court opinion [i.e., Van Tran ] decided under the Tennessee state Constitution.
Black v. Bell,
For other cases analyzing whether one of our holdings announced a new constitutional right, see Miller v. State,
. Contrary to Mr. Keen’s arguments, Smith v. State does not support the proposition that Coleman was a new, retroactive, constitutional rule. Mr. Keen suggests that we remanded Leonard Smith’s case under the same "new right” rationale we applied in Van Tran. To the contrary, Coleman and Smith were not like Van Tran. In Van Tran, we recognized a new constitutional right, and then remanded the petitioner’s case for reconsideration of that right. In Coleman and Smith, by contrast, the post-conviction courts had applied an incorrect legal standard to a claim of intellectual disability under Tenn.Code Ann. § 39-13-203. We remanded those cases for reconsideration under the correct standard articulated in Coleman. See Smith v. State,
. The same language occurs in Tenn.Code Ann. § 40-30-102(b)(2) (2012) (concerning "[w]hen prisoners may petition for post-conviction relief”). Act of Apr. 26, 1995, ch. 207, § 1, 1995 Tenn. Pub. Acts 305, 305. Both subsections of the Act were passed simultaneously by the General Assembly. The language is identical. Our analysis applies equally to both statutes.
. Act of Apr. 26, 1995, ch. 207, § 1, 1995 Tenn. Pub. Acts 305, 305.
. Judge Jacques Wiener wrote separately in In re Webster "to emphasize the absurdity of its Kafkaesque result.” If a jury was given the evidence of Mr. Webster’s intellectual disability, Judge Wiener said, "it is virtually guaranteed” that he would be found intellectually disabled. However, "[bjecause Webster seeks to demonstrate only that he is constitutionally ineligible for the death penalty — and not that he is factually innocent of the crime — we must sanction his execution.” Be
. Additional evidence for this conclusion is found in the fact that Tenn.Code Ann. §§ 40-30 — 102(b)(3) and 40-30-117(a)(3) explicitly contemplate an inmate’s attack on an erroneously enhanced "sentence.” This language demonstrates that the General Assembly was fully capable of differentiating between sentences and offenses in the Post-Conviction Procedure Act. We are compelled to conclude that "actually innocent of the offense” means that one was never factually guilty of the crime.
. Several states recognize "capital murder” as a distinct offense. In Arkansas, Kansas and Virginia, "capital murder” is defined by statute as a separate offense with its own distinct elements. See Ark. Code Ann. § 5-10-101 (Lexis Supp.2011); Kan. Stat. Ann. § 21— 5401 (Supp.2011); Va.Code Ann. § 18.2-31 (Supp.2012). Mississippi and Texas recognize "capital‘murder,” but the definition of the offense relies on the separately-enumerated elements of "murder.” See Miss.Code Ann. § 97-3-19 (2006); Tex. Penal Code Ann. § 19.03 (West 2011). By contrast, the term "capital murder" appears nowhere in the Tennessee Code, and, while this Court sometimes speaks of "capital offenses” and "capital sentencing,” we have generally, avoided the phrase "capital murder.”
.First degree murder is:
(1) A premeditated and intentional killing of another;
(2) A killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery,' burglary,. theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child or aircraft piracy; or
(3) A killing of another committed as the result of the unlawful throwing, placing or discharging of a destructive device or bomb.
Tenn.Code Ann. § 39-13-202(a).
Dissenting Opinion
dissenting.
In Van Tran v. State,
We are not persuaded that the execution of [intellectually disabled] criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our “evolving standards of decency,” we therefore conclude that such punishment is excessive and that the Constitution “places a substantive restriction on the State’s power to take the life” of a[n intellectually disabled] offender.
I.
As observed by the majority, this case requires us to interpret Tennessee Code Annotated section 40-30-117 (2006), the statute within the PCPA pursuant to which the Petitioner seeks to reopen his post-conviction proceedings. In my view, the key provision of the statute in this case is section 40-30-117(a)(2), which allows a petitioner to reopen his post-conviction proceedings “based upon new scientific evidence establishing that the petitioner is actually innocent of the offense or offenses for which the petitioner was convicted.”
On August 6, 2010, the Petitioner filed a motion to reopen his post-conviction proceedings in order to assert a claim that he is intellectually disabled and, therefore, ineligible to be executed under Tennessee Code Annotated section 39-13-203, article I, section 16 of the Tennessee Constitution, and the Eighth Amendment to the United States Constitution. In order to prevail on a claim of intellectual disability, the person claiming such disability must satisfy the following criteria: “(1) Significantly subav-erage general intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below; (2) Deficits in adaptive behavior; and (3) The intellectual disability must have been manifested during the developmental period, or by eighteen (18) years of age.” Tenn.Code Ann. § 39-13-203(a). In support of his motion to reopen, the Petitioner offered evidence as to each of these requirements. Initially, he provided documentation demonstrating that in February of 2010, he received a full scale I.Q. score of 67 on the Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”). Further, he submitted an affidavit from a psychologist, who called into question the validity of previous I.Q. test scores — the majority of which fell within the low 70s to low 80s range — and reported that the Petitioner had significant deficits in adaptive behavior which manifested before the age of eighteen. The psychologist also opined that the new WAIS-IV score should be adjusted from 67 to 66 because of the Flynn effect. The Petitioner obtained this information some four years after the Court of Criminal Appeals affirmed the denial of his initial post-conviction petition.
The trial court denied the motion to reopen without an evidentiary hearing,
Preliminarily, I would observe that a fundamental rule of statutory construction is that this Court has “an obligation to interpret statutes in a way that preserves their constitutionality.” Jackson v. Smith,
A.
This Court’s prior decisions have established that a prisoner’s due process rights under the Fourteenth Amendment to the United States Constitution and article I, section 8 of the Tennessee Constitution require a meaningful opportunity to challenge a conviction or sentence in post-conviction proceedings. In Burford v. State,
Applying the same rationale, this Court has held that post-conviction petitioners must be given a meaningful opportunity to present claims of intellectual disability. In Van Tran, for example, this Court held that the petitioner was entitled to relief under Tennessee Code Annotated section 40-30-217(a)(1) (1997), which, like the current version of section 40-30-117(a)(1), allowed post-conviction proceedings to be reopened “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.”
One of the factors distinguishing Bwr-ford and its progeny from the instant case is that the procedural limitation here is not a statute of limitations but rather a statute that defines the circumstances under which a prisoner may reopen his post-conviction proceedings.- In my view, this is not a material distinction. By providing a limited number of avenues for reopening a post-conviction petition, Tennessee Code Annotated section 40-30-117(a) operates as a procedural bar to claims that do not fall within its narrowly defined provisions. There is no rational basis for a distinction between a procedural bar based upon a time limitation for filing and a procedural
Another question is whether the facts presented here qualify as circumstances beyond the Petitioner’s control that prevented him from making his claim at an earlier stage. See Smith,
In this instance, the key piece of evidence in the motion to reopen is the I.Q. test score of 67 from February of 2010. Wfiiile the Petitioner had undergone intelligence testing in the past, this new score provided a significantly stronger indication of intellectual disability than previous tests. When made aware of this score, the Petitioner acted diligently by filing a motion to reopen accompanied by expert testimony calling into question the validity of his earlier I.Q. test scores.
As this Court has previously acknowledged, intellectual disability “is a difficult condition to accurately define,” Howell,
B.
In my opinion, Tennessee Code Annotated section 40-30-117(a)(2) can be reason
In the criminal context, the term “offense” is customarily equated with the term “crime,” both of which refer generally to violations of the penal code. See Black’s Law Dictionary 1186 (9th ed.2009) (defining “offense” as “[a] violation of the law, a crime”); 22 C.J.S. Criminal Law § 3, at 4 (1989) (“The word ‘offense’ is usually used to describe a crime.... The terms ‘crime,’ ‘offense,’ and ‘criminal offense’ are all said to be synonymous, and ordinarily used interchangeably.” (footnote omitted)). Historically, courts and commentators have defined offenses in terms of the essential facts — or elements — needed to impose or increase punishment. See Apprendi v. New Jersey,
This understanding has been confirmed by recent United States Supreme Court cases addressing what constitutes an “offense” in the context of the death penalty. In Ring v. Arizona,
In Sattazahn v. Pennsylvania,
Under Tennessee law, the facts necessary for imposing the death penalty include guilt of first degree murder, as defined by Tennessee Code Annotated section 39-13-202(a) (2010),
The majority narrowly interprets the term “offense” as it is used in Tennessee Code Annotated section 40-30-117(a)(2), rejecting the Petitioner’s argument that he should be permitted to reopen his post-conviction proceedings based upon new scientific evidence showing that he is actually innocent of the offense of “capital murder.” In so doing, the majority observes that Tennessee Code Annotated section 39-13-202 defines first degree murder, whereas the procedures for sentencing a defendant convicted of first degree murder are set
The majority’s conclusion hinges on the assumption that a fact proved at sentencing can never qualify as part of an offense. Consistent with the authorities discussed above, I would prefer to define offenses according to their elements. Because the “aggravating circumstance” requirement set out in Tennessee Code Annotated section 39-13-204(i) constitutes an element of the capital offense and must be proved beyond a reasonable doubt, in my view, murder resulting in the death penalty is a separate offense from murder resulting in life imprisonment. See Sattazahn,
The majority also relies upon several federal cases construing the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Similar to Tennessee Code Annotated section 40-30-117(a)(2), the AEDPA contains provisions that bar claims for habeas corpus relief in “second or successive” petitions unless the petitioner can satisfy certain exceptions, one of which requires newly discovered evidence establishing that “no reasonable factfin-der” would have found the petitioner “guilty of the offense,” see 28 U.S.C. § 2255(h)(1) (2006), or “guilty of the underlying offense,” see id. § 2244(b)(2)(B)(ii). Federal authorities, however, are not as uniformly supportive of the majority’s position as the opinion suggests. In the first federal case cited by the majority, Henderson,
The majority also relies upon In re Dean,
Admittedly, other cases have refused to allow successive habeas petitions asserting sentencing claims, even in death penalty cases. See, e.g., In re Webster,
Unlike the majority, I would hold that the term “offense,” as used in Tennessee Code Annotated section 40-30-117(a)(2), includes all elements of the offense in question, including the “aggravating circumstance” element in capital cases. In my assessment, the term “offense” encompasses murder resulting in the death penalty. This interpretation of the statute comports with the traditional understanding of what constitutes an offense and, of great importance, preserves the constitutionality of the statute 'by avoiding an interpretation that deprives death row inmates of a meaningful opportunity to present claims based upon newly discovered evidence of intellectual disability.
Reading the term “offense” in this manner, the question becomes whether demonstrating intellectual disability establishes actual innocence of the offense of murder resulting in the death penalty. I believe that it does. While intellectual disability does not directly contradict the elements of the offense (including any aggravating circumstances), it is incompatible with the imposition of a death sentence under Tennessee Code Annotated section 39-13-203, as well as our state and federal constitutions, effectively negating the “aggravating circumstance” element of the offense.
II.
In summary, interpreting Tennessee Code Annotated section 40-30-117(a)(2) so as to bar the Petitioner’s intellectual disability claim based upon new evidence conflicts with his right of due process by depriving him of a meaningful opportunity to establish ineligibility for the death sentence. A proper interpretation of the term “offense” in section 40-30-117(a)(2) encompasses all elements of the offense at issue, including the “aggravating circumstance” requirement for the imposition of a death sentence.
It may be that the Petitioner would ultimately be unable to satisfy the statutory requirements for demonstrating intellectual disability; however, to interpret section 40-30-117(a)(2) in a manner that deprives a petitioner of an evidentiary hearing and an adjudication on the merits risks putting to death an intellectually disabled individual in violation of the state and federal constitutions. I would, therefore, remand to the trial court for consideration of the merits of the intellectual disability claim.
. As noted in the majority opinion, the Tennessee General Assembly legislatively prohibited the execution of intellectually disabled persons prior to these decisions. Act of Apr. 12, 1990, ch. 1038, 1990 Tenn. Pub. Acts 730 (codified as amended at Tenn.Code Ann. § 39-13-203 (2010)).
. Because I believe that the Petitioner has satisfied section 40-30-117(a)(2), I would not reach the question of whether he is entitled to reopen his post-conviction proceedings pursuant to section 40-30-117(a)(1) (allowing a petitioner to reopen post-conviction proceedings within one year of "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 PCPA, originally enacted three years after Burford, includes an exception to the statute of limitations for claims seeking relief from a sentence enhanced because of a previous conviction that has subsequently been held invalid. See Tenn.Code Ann. § 40-30-102(b)(3) (2010). The PCPA includes a nearly identical provision allowing petitioners to reopen post-conviction proceedings when a pri- or conviction used to enhance a sentence is
, For the same reasons, I would hold that this new evidence of intellectual disability qualifies as “new scientific evidence” for purposes of Tennessee Code Annotated § 40-30-117(a)(2).
. The majority specifies that its decision does not foreclose any other remedy currently available to the Petitioner, but the opinion does not identify any such remedy. One possibility the Petitioner may pursue is a petition for a writ of error coram nobis. See Tenn. Code Ann. § 40-26-105 (2012). Yet while this Court has recognized a motion to reopen post-conviction proceedings as a proper procedure for bringing an intellectual disability claim, see, e.g., Van Tran,
Another possible avenue for relief is a declaratory judgment action. In West v. Schofield,
. To illustrate, under our sentencing scheme, trial courts may sentence a defendant anywhere within the applicable sentencing range by considering any mitigating or enhancement factors. See generally State v. Bise,
. The Sixth Circuit Court of Appeals has also recognized the fact that in capital cases, the “offense” at issue encompasses any sentencing consideration necessary for imposition of the death penalty. See, e.g., Davis v. Mitchell,
. Tennessee Code Annotated section 39-13-202(a) defines first degree murder as:
(1) A premeditated and intentional killing of another;
(2) A killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child or aircraft piracy; or
(3)A killing of another committed as the result of the unlawful throwing, placing or discharging of a destructive device or bomb.
.The fact that the finding of an aggravating circumstance increases the maximum statutory punishment available distinguishes aggravating circumstances from more routine sentencing considerations, which may enhance a sentence within the applicable range but do not increase the maximum punishment to which a defendant may be subjected. Sentencing considerations within the latter category do not qualify as elements of the offense.
. In fact, the Fifth Circuit had granted Henderson permission to file a successive ha-beas petition in a prior decision. See In re Henderson,
. Notably, in In re Webster, the court specified that it did not mean "to suggest that a prisoner is jurisdictionally barred from seeking successive review where he contests a factual predicate of his capital murder conviction, without which he would have been guilty only of non-capital murder.”
Other federal cases rejecting successive ha-beas petitions in death penalty cases involve claims challenging execution protocol. See, e.g., In rejones,
. In addition, rather than finding that the inclusion of the language "guilty of the underlying offense” was meant to provide a narrower exception than the common law actual innocence exception (as the majority concludes in this case), the court reasoned that the language was included because the AED-PA provisions pertaining to successive petitions, unlike the common law exception, ”appl[y] to all habeas petitions, not just capital habeas petitions.” Id. at 923-24.
. Other federal courts of appeals have recognized but declined to resolve the issue of whether the AEDPA’s provisions on successive habeas petitions bar a claim premised on new evidence establishing ineligibility for the death penalty. See, e.g., Bryan v. Mullin,