David Keen v. State of Tennessee

David KEEN of Tennessee.

STATE Tennessee, Court of

Supreme

at Jackson. 2012 Session Heard

May University.1

Lipscomb

Dec. Legal Advancing argument Supreme presented 1. Oral the cam- Girls State on Nashville, University (S.C.A.L.E.S.) pus Lipscomb project. Education for Students Tennessee, County, part as a Davidson Swift, L. Kelley Henry and Gretchen Defender, Federal Public Office Tennessee, Nashville, appellant, David Keen. Jr., Cooper,

Robert E. General Attorney the trial court’s petition denial of the Reporter; William E. Solicitor Young, the I.Q. because score test did not General; Dulany Faughn, Deshea Assis- amount scientific evidence of actual in- General, Nashville, Attorney tant Tennes- for the purpose nocence of TenmCode see, appellee, 40-30-117(a)(2) (2006) for the State of Tennessee. Ann. and because

Coleman State did not announce a new OPINION rule of constitutional law under TenmCode 40-30-117(a)(l). §Ann. granted We KOCH, JR., J., C. WILLIAM delivered prisoner’s application for permission ap- Court, opinion of in which peal to phrase address whether the “actu- HOLDER, M. JANICE CORNELIA A. ally of the in innocent offense” TenmCode CLARK, JJ., LEE, and SHARON G. 40-30-117(a)(2) § encompasses ineli- joined. the gibility for death in penalty addition to This involves a who appeal prisoner was actual innocence of underlying the crime sentenced death in to 1991. Nineteen and whether our holding in Coleman v. later, years filed a petition he in the Crimi- State established a new right constitutional Shelby nal County seeking Court for to to applied retroactively under Tenn. reopen post-conviction his proceeding on 40-30-117(a)(l). Code Ann. We hold ground possessed the that he new scienti- that the Tennessee Assembly, General fic evidence of his actual innocence. His when it enacted TenmCode Ann. 40-30- newly-obtained evidence consisted of a I.Q. 117(a)(2), did not intend the phrase for purportedly test score showing he “actually innocent of the offense” to in- could not be executed by virtue Tenn. ineligibility clude for the death Code Ann. 39-13-208 he because disability. because intellectual We also was disabled. court The trial hold that Coleman v. State did estab- declined to a hearing hold and the denied lish a new rule of constitutional law that prisoner’s petition. The trial court deter- applied must be retroactively under Tenn. mined, law, matter as a the 40-30-117(a)(l). Code Ann. According- prisoner’s newly-obtained I.Q. test score ly, judgment we affirm the of the trial was not new scientific evidence of his actu- court the and Court of Appeals Criminal al innocence the offenses to which he prisoner’s the denying petition reopen to pleaded guilty. earlier prisoner The filed post-conviction petition. his for application permission appeal petition denial of his in the I. Appeals.

Court of Criminal In addition to asserting newly-obtained test Eight-year-old Ashley Reed Nicole was score was new scientific of his raped evidence and murdered in March Her innocence, actual the prisoner body, blanket, asserted in wrapped a was thrown this decision in Court’s Coleman v. into the Wolf River near Mud Island (Tenn.2011), thereafter, Shortly an- Memphis. David and, Keen, nounced boyfriend mother, a new constitutional right of the child’s therefore, provided another for re- basis that he confessed had thrown child’s opening petition post-conviction for re- body gave conflicting into river and lief. The Court Criminal en- Appeals regarding rape statements and mur- 29, 2011, tered on affirming an order June der.2 crime, sion, hearing, sentencing For details of confes- Mr. Keen’s and see State v. Following hear post-conviction petition. grand jury indicted Shelby County

A murder, murder entered an degree ing, Mr. for first Keen rape, aggravated perpetration 2, 2004, August denying post- order on it rape, announced that State relief. The Court of Criminal conviction penalty. Mr. Keen the death would seek court, Appeals affirmed the charges to all the plea guilty entered review case. this Court declined Shelby County, for in the Criminal Keen v. No. W2004-02159-CCA- jury case submitted to (Tenn. R3-PD, 1540258, at *53 2006 WL Mr. sentenced Keen sentencing. jury C r degree murder of- for the first m i . twenty years imprisonment fense and February Mr. Keen received rape offense. When the aggravated on Adult Intelli- score of 67 the Wechsler automatically appealed case was (“WAIS-IV”). Test, gence for a Fourth Edition Court, the case new we remanded score, because of errors Keen sentencing hearing on this new Mr. filed Based jury. to the the trial court’s instructions Shelby for motion in the Criminal Court Keen, 729-31, S.W.2d at 735- State v. 926 reopen post-convic- his County, seeking to 36. tion with Tenn. proceedings accordance 40-30-117(a)(2) (2006). § Ann. He Code 1997, 15, jury August

On new sen- I.Q. asserted that the new test score con- Keen to death. The Court of tenced Mr. he stituted “new scientific evidence” that Appeals affirmed the sentence. Criminal Keen, 02C01-9709-CR-00365, “actually State v. No. was innocent” of the offense of 61058, (Tenn.Crim.App. at *23 WL degree argued murder.3 He that he first 1999). 10, likewise af- Feb. This Court “actually was innocent” because Tenn. Keen, firmed sentence. State 39-13-203(b) (2010) prohibit- Code Ann. at 225. S.W.3d penalty persons ed on imposing the intelligence quotient with a functional 3, 2001, pro On Mr. Keen filed a se May Although presented Mr. Keen below. post-conviction relief petition for psychological mitigating issues as several Shelby County. The Criminal Court for sentencing his during circumstances hear- appointed counsel for Keen, ing,4 has asserted that he previously Mr. and counsel filed an amended he Keen, 196, (Tenn.2000) sentencing hearing, pre- 4. Mr. Keen 202-05 and At the Keen, (Tenn. that, 727, child, testimony young he State v. sented 1994). malnourished, neglected, frequently and was emotionally physically abused. He had 3. 2010 WAIS-IV test was not first The diagnosed depression, been with serious at- I.Q. to Keen. When he test administered Mr. disorder, post-traumatic tention deficit I.Q. old, years was he received test nine "psychotic-like symp- with stress disorder on the Wechsler Intelli- scores of and 111 sentencing presented toms.” Mr. Keen ("WISC”). gence for When Scale Children following statutory jury with and non- old, years he he was ten received score of statutory mitigating circumstances: Ability 76 on the Otis-Lennon School Test ("Otis”) significant Comprehen- no and a of 80 on the defendant has score behavior; (2) ("CTBS”). history At fifteen of criminal sive Test of Basic Skills years age, he 82 on the murder was committed while the defendant received score of later, year influence extreme mental One he received a score of was under the CTBS. disturbance; (3) that the ca- When he took the Wechsler or emotional on CTBS. Scale, appreciate Intelligence to pacity Third Edition of the defendant Adult ("WAIS-III”) 2002, wrongfulness to his conduct or conform Mr. Keen received an I.Q. requirements law was substan- test score of 73. to penalty for Keen ineligible the death be- raised an additional claim that he cause he is disabled. Mr. reopen was entitled to his with supported Keen motion petition on a new “constitutional based expert taking an affidavit issue with the right” under Tenn.Code Ann. 40-30- validity of scores he had received on 117(a)(1). argued He that our decision in tests.5 earlier (Tenn. Coleman v. 341 S.W.3d 221 2011), announced a new rule court heard on of constitu argument trial Feb- 2011, 18, tional ruary to determine whether criminal law that required retroac hearing. an proceed evidentiary application. tive The Court of Criminal order on March filed trial Appeals rejected both of Mr. Keen’s court concluded that Mr. Keen “failed claims in an order filed on June clear convincing establish evi- Mr. Keen then filed an application for new dence that scientific evidence exists permission appeal with on establishing his actual innocence.” More August granted 2011. We that appli specifically, court held that actual inno- cation on December cence under 40-30- 117(a)(2) not encompass ineligibility did II. the death under TenmCode Ann. 39-13-203(b). presented The issues in this case involve questions statutory interpreta application per-

Mr. Keen filed an tion. The construction of a statute its appeal mission to in accordance with application to the facts of a 40-30-117(c). particular case § Ann. In TenmCode addi- present questions of law we which review tion arguing petition that his contained Russell, novo. State 312, de a for his 382 S.W.3d reopening post-con- viable basis Marshall, (Tenn.2012); State v. viction 319 proceeding accordance with 40-30-117(a)(2), 558, (Tenn.2010). § Ann. TenmCode Mr. actions; impaired (14) tially as a result of mental his disease and that the defendant is or or defect intoxication which was insuffi- ashamed of his actions. The trial also cient to establish a to the crime defense but included a "catch-all” instruction substantially judgment; affected his jury any that could consider other miti- it (4) physically that was defendant gating specifically circumstances not recit- child; (5) as a abused that defendant charge. ed in the child; (6) sexually was abused that as Keen, State v. 31 S.W.3d at 204-05 & n. 1. neglected and defendant was abandoned as child; (7) that the defendant was emo- 5. Dr. Victoria stated Swanson's affidavit that deprived tionally during and as an infant Mr. Keen’s of 111 WISC was inflated score childhood; (8) early that the defendant was practice to the effect his and that WISC due. child; (9) deprived of nutrition as a that the adjusted score of be 83 should due to defendant did not receive continued coun- Flynn opined Dr. effect. Swanson also seling persons psychotherapy and who that Mr. Keen’s WAIS-III score 76 should abused; (10) sexually physically are and adjusted Flynn to 71 due to the effect and diagnosed that the defendant has been with adjusted his score WAIS-IV should be disorder; (11) deficit attention the de- Flynn from 67 due to 66 to the effect. In diagnosed having post- fendant has been as addition, Dr. Swanson stated that Mr. Keen’s disorder; (12) traumatic stress that the de- scores on the "do Otis CTBS tests productive fendant was a citizen in our 'gold required meet the standard’ in Atkins arrest;

society having prior to his served 2242, Virginia, U.S. [v. S.Ct. community military our in the and been (2002) they (13) hearing” L.Ed.2d 335 never- ] but employed; that the defendant acknowl- WISC, WAIS-III, theless edges the crime "corroborate” his seriousness of the has he accepts responsibility committed and and WAIS-IV scores. III, per on Mr. Tran’s ions were based Van Intelli formance on the Wechsler Adult General Assem- In the Tennessee (“WAIS-R”). gence Scale Revised The intellectually' disabled6 bly decided that higher post-conviction court credited the degree commit first’ murder persons who by psychologist score offered state’s not be executed. Tenn.Code Ann. should petition. Mr. Van and dismissed Tran’s 39-13-203(b). Tenn.Code Ann. 39- of Criminal 13-203(a) Appeals Both the Court disability” in defines “intellectual post-conviction this Court affirmed three-part test. In order to be terms disabled, court’s decision. Van Tran No. person found “(1) 02C01-9803-CR-00078, Significantly must demonstrate: sub- WL 1, 1999); (Tenn.Crim.App. Apr. Van average general functioning intellectual *6 by intelligence quo- evidenced a functional Tran v. (70) (2) below; (I.Q.) seventy tient or Mr. Van Tran was re-tested (3) behavior; adaptive The Deficits third using the newer edition the Wech- must been man- disability intellectual have (“WAIS- Intelligence Adult Scale sler developmental during period, ifested III”). time, psychologist At that who eighteen years age.” by addi- test administered this determined that Mr. 39-13-203(e) tion, pro- actually Van Tran’s full-scale production

vides burden “[t]he February Tran filed a Mr. Van intellectual persuasion demonstrate dis- pro his motion by ability preponderance of the evidence new ceeding, arguing test result upon the The determination defendant. “new scientific evidence” of constituted of whether the defendant had intellectual actual innocence under Tenn.Code Ann. at the time of offense first 40-30-117(a)(2). degree murder shall be made motion, court denied his and the Court of court.” Criminal declined to him Appeals grant previously This Court addressed mo permission appeal. State, v. reopen tions Van Tran 6 accepted appeal. Mr. We Van Tran’s (Tenn.1999). 1995, S.W.3d 257 Following argument, requested oral we petition Tran row inmate Heck Van filed parties supplémental to file briefs address- relief, asserting that he ing issue an intel- executing of whether prohi not executed of the could be because lectually person disabled violated the “cru- executing intellectually on bition disabled punishments” el and unusual clauses of the § persons in Tenn.Code Ann. 39-13- 203(b). Eighth Amendment to the United States hearing At the on Mr. Van Tran’s I, § Article 16 presented Constitution or of the Ten- petition, psychologists two. con State, v. flicting opinions regarding whether Mr. nessee Constitution.7 Van Tran (Tenn.2001). 790, I.Q. was 72. Their 66 opin Van Tran’s 67 or S.W.3d 794 12, 1990, 1038, terminology "increasingly Apr. Act of ch. 1990 was considered to 6. Tenn. hurtful,” (codified derogatory and be contributed to Acts Pub. 730 as amended Tenn. being "negative stereotypes,” was 2010, and aban- (2010)). Code 39-13-203 by organizations and across the doned "states Assembly amended Tenn.Code Ann. General country.” spirit with the Consistent by replacing "mental- 39-13-203 terms Act, we have removed all references to 2010 ly and retarded” "mental retardation” with opinion. “retardation” from this 9, 2010, disability.” Apr. Act "intellectual 734, 166, ch. 2010 Tenn. Pub. Acts 166-67. 7. U.S. Const. amend. VIII states: "Excessive Assembly The General noted that the former required, not nor excessive fines bail shall

601 granted This Mr. Tran’s Court Van We also determined that post-conviction pro holding motion to in Van apply Tran should retroac tively. on the This ceeding prong finding based first Tenn. a two-part involved 40-30-117(a), analysis. The first provides question Code Ann. was whether right” “constitutional actually appellate for relief when an an “new.” A constitutional rule is considered “new” right.”8 nounces a new “constitutional when result “the was by prec not dictated Applying three-prong deter test for existing edent at the time the defendant’s mining particular whether a punishment is conviction became final.” Van Tran v. unusual,”9 “cruel and we held that execut State, 66 S.W.3d at 811 (quoting Teague v. ing disabled persons violated Lane, 288, 301, 489 U.S. 109 S.Ct. decency “the standards of evolving (1989)). Second, 334 L.Ed.2d a new mark the of a progress maturing society.” right constitutional is applied retroactively State, Van Tran v. 66 S.W.3d at Our “materially when it enhances the integrity conclusion was buttressed the fact that reliability finding process fact after the Supreme United States State, the trial.” Van Tran v. 66 S.W.3d upheld mentally the execution of disabled State, at 811 (citing v. Meadows Penry individuals in Lynaugh, U.S. (Tenn.1993)); see also 109 S.Ct. 106. L.Ed.2d 256 §Ann. 40-30-122 (citing (1989), gov sixteen states and the federal the federal standard for retroactivity un ernment passed legislation prohibiting Lane, der Teague U.S. State, the practice. Van Tran v. 1060). standards, Applying S.Ct. these we S.W.3d at 802. We also held such determined that our holding Van Tran “grossly executions disproportionate” were new, was and that it warranted retroactive and served valid penological purpose.” “no State, application. Van Tran v. executing We therefore found that an in at 811. tellectually disabled defendant vio late the state federal constitutions. following year, the United Van Tran v. 66 S.W.3d at Supreme States Court overruled its hold- imposed, punishments right recognized nor cruel unusual constitutional I, trial, inflicted.” Tenn. Const. Art. 16 states existing retrospective at the if appli- " required, that "excessive bail shall not be nor right required.’ cation of that Van Tran v. imposed, excessive fines nor cruel unusu at 811-12. punishments al inflicted.” This has Court held, affirmed, repeatedly capital Black, v. adopted 9. In State we the test for punishment itself does not violate state punishment” "cruel and unusual that was an- Black, and federal constitutions. See v. State by Supreme nounced United Court States 166, (Tenn.1991) (noting 815 S.W.2d 153, 173, Gregg Georgia, in v. 428 U.S. 96 that, rationales, among other the Tennessee 2909, (1976), 49 S.Ct. as L.Ed.2d 859 modi- expressly pun Constitution capital references Jersey Supreme fied the New Court in places). ishment in two Ramseur, 123, 188, State v. 106 N.J. 524 A.2d (1987): Although reopen 8. Mr. Van Tran's motion to First, alleged punishment that he had new scientific evidence does the for the crime actually that he contemporary was innocent under Tenn. conform with standards of 40-30-117(a)(2), Second, decency? gross- Code Ann. our punishment it was view is the Third, ly disproportionate that his was appropriately motion "more offense? provisions punishment go beyond based on Ann. does what [Tenn.Code 40-30-117(a)(1)], necessary any legitimate provides accomplish pe- that the upon nological objective!?] 'claim in motion is based final Black, ruling appellate establishing of an court State v. 815 S.W.2d 189. at who examined psychologist v. disabled. The Atkins ing Penry Lynaugh. v. WAIS-III, 2242, S.Ct. 153 Mr. Howell administered the Virginia, 536 U.S. (2002), Supreme Intelligence well as as Stanford-Binet L.Ed.2d 335 Comprehen- we to the one Edition and the employed analysis an similar Test-Fourth (“CTO- Intelligence and likewise held of Nonverbal used in Van Tran sive Test NI”). on the persons Although disabled Mr. Howell’s score executing punishment was above his scores on the cruel and unusual WAIS-III constituted Thereafter, to the Unit 70. Eighth under the Amendment other tests were below Virgi stating Atkins v. an affidavit psychologist prepared ed States Constitution. nia, 321, 122 actually repre- at S.Ct. 2242. test score of 536 U.S. sixty-five band zone of sented “a recent relying on the December State, seventy-five.” Howell v. new, Atkins holdings of Van Tran and Accordingly, 453. psychologist at rules, condemned retroactive constitutional Mr. level of intellectu- opined that Howell’s Wayne prisoner Howell filed Michael functioning al “within the [intellectual was reopen post-conviction pro- motion to his intelligence.” disability] range of Howell 40-30- ceeding under Tenn.Code State, The post- v. 151 S.W.3d at 453-54. 117(a)(1). State, Howell v. 151 S.W.3d completely court relied on Mr. conviction (Tenn.2004). WAIS-III, ig- raw score on the Howell’s Appeals de- court and Court of Criminal found, tests, nored the without other However, nied we Mr. Howell’s motion. hearing, put Mr. Howell had not forth remanded Mr. Howell’s intellectual disabil- disability. case prima facie of intellectual ity claim to the State, 454-55, Howell v. 151 S.W.3d under “colorable claim” consideration 2(H), §§ Sup.Ct. of Tenn. R. standard reached this When Mr. Howell’s case 6(B)(6) (2012), the “clear and rather than Court, question,” we noted that “[w]ithout Tenn. convincing evidence” standard of disability “is a condi intellectual difficult 40-30-117(a)(4). v. Code Ann. Howell accurately “[gen tion to define” and that State, Mr. Howell’s 460-63. erally accepted definitions within the scien unique: almost position was unusual and community tific will no doubt be refined as “able, he for the first time knowledge advances.” our area ..., ineligibility to claim motion State, Howell S.W.3d at 457. Nev newly- penalty” for the death under the ertheless, we found that Tenn. Code Ann. decisions. decided Van Tran Atkins “perfectly § 39-13-203 was clear and un Howell v. 151 S.W.3d at ambiguous” and that it made “no reference Therefore, facts, very specific under these ... any range of scores above score stringent we “clear applying held that seventy.” Howell convincing” evidence standard noting at 458. After that the Tennessee process violate due notions fundamental a more Assembly adopted General State, 151 at fairness. Howell v. relaxed definition of intellectual 462-63. that in the social services context con scores,10 I.Q. we shortcomings in the tained no reference test We also addressed in Assembly that the General expert sup- Mr. Howell concluded proof submitted different, more port claim he was tended “to have a restrie- 101(16) (2012). disability” This definition of "intellectual currently § 33—1— codified at Tenn.Code Ann. tive, 3638033, in apply standard defendants WL at *40 (Tenn.Crim.App. State, 2010) Sept. Howell v. capital prosecution.” (reluctantly refusing to con- Accordingly, effect); at 458. we found that sider Flynn State, Coleman v. General “intended to Assembly W2007-02767-CCA-R3-PD, create No. 2010 WL bright 16-18, ... a line rule” when it *14, defined at 23 (Tenn.Crim.App. 2010) in disability” “intellectual Tenn.Code Ann. Jan. Howell, (upholding, under 13—208(a)(1) having a “functional trial court’s refusal consider the stan- 39— (I.Q.) of intelligence quotient seventy dard error of measurement Flynn and the State, below.” Howell v. S.W.3d at determining effect in petitioner’s I.Q. 457-58. score); State, Black v. No. M2004-01345- CCA-R3-PD, *14, 2005 WL regard argument With to Mr. Howell’s 2005) (re- Oct. (Tenn.Crim.App. that the court erred dis- jecting Flynn under effect the “bright- regarding the from other tests be- scores Howell). line cutoff” rule of This was an WAIS-III, we sides the noted that Howell, inaccurate reading of in which we Supreme States Court had referred United took pains to say that the trial court “the to WAIS-III as standard instru- “giv[e] should full fair consideration to ment States for assessing United all tests to the petitioner” administered functioning.” Virgi- intellectual Atkins v. “fully analyz[e] should and consider[ ] nia, 5, 122 536 U.S. at 309 n. S.Ct. 2242. all evidence presented” concerning the pe- However, we also found State, I.Q. titioner’s Howell 151 S.W.3d there is record to nothing indicate at 459. tests, that other such as Stanford- Edition, Intelligence Binet Test-Fourth The case of Coleman v. State or the I.Q. CTONI are not also accurate provided opportunity us with an clarify tests. A may certainly give more and reinforce holding our Howell. We test, weight only to one but should do so plain held that “the language of Tenn.Code after fully analyzing and considering 39-13-203(a)(1) does not limit to all A presented.... evidence review un- raw test scores the evidence regarding der colorable claim [the standard] would whether a defendant person criminal is a necessarily giving full fair include with disability.” intellectual Coleman v. consideration to all tests administered to State, 341 S.W.3d at 230. We also recog petitioner. nized that there an “‘imperfect fit’ Howell v. (empha- between community’s the clinical and the added). sis legal system’s view intellectual disabili Regrettably, ty.” courts several miscon Coleman v. 341 S.W.3d at 230 strued our in Howell holding (quoting Psychiatric Ass’n, that Tenn. American Di 39-13-203(a)(1) §Ann. agnostic Code established a and Statistical Manual on Men (4th 2000) “bright line determining rule” for intellec tal Disorders xxxiii ed. text rev. (“DSM-IV-TR”)). disability. addition, tual They understood this lan we noted guage to mean courts could disability* “[t]he consider term ‘intellectual only Accordingly, single raw does scores. these not refer to a disorder or dis disregard any ease, courts heterogeneous tended to evidence but rather to a set of suggesting paint that raw scores could disabilities that affect the level of a per domains,” picture inaccurate son’s functioning of a defendant’s actual in defined and See, e.g., “[p]ersons intellectual functioning. Smith v. with intellectual disabilities State, E2007-00719-CCA-R3-PD, frequently No. psychological have other and 604 Thus, stat- history, prior interpretations of the “the definition

physical disorders.” ute, jurisdic- similar other disability’ a heter statutes embraces of ‘intellectual criteria, tions, standards, and the clinical ranging persons from ogeneous population customarily assess practices and used to persons who totally dependent who are to diagnose disability. of them and intellectual nearly independent.” But all are ability to reduced significantly “have State, S.W.3d at 235^10 v. 341 Coleman independently with function cope and omitted). (footnotes to the regard With State, v. everyday the world.” Coleman scores, I.Q. test we of raw importance 841 S.W.3d at 280-81. that: observed I.Q. customarily ob- person’s cases prior then While

We considered four intelligence interpret using called tained standardized in which we had been on to tests, State, v. §Ann. see Van Tran 66 S.W.3d apply 39-13-203— and (Tenn. DSM-IV-TR, 795; at Smith, at the statute v. 893 S.W.2d 908 State State, 1994); regard- provide does not clear direction Van Tran v. (Tenn.2001); State, person’s I.Q. how a be deter- ing v. S.W.3d should Howell Strode, (Tenn.2004); specify any particu- and not and State mined does v. (Tenn.2007). cases, be testing lar test or method that should From these S.W.3d State, 151 at guid have used. Howell v. S.W.3d gleaned principles” we “six fact, even the statute does not approach ed our to this statute: “test” or employ words “score.” (1) State, The of re- public policy flected in the considered decision of State, v. S.W.3d Coleman enact Assembly Tennessee General Therefore, we held Tenn. 39-13-203, opposes Tenn.Code Ann. 39-13-203(a)(1) not re Ann. “does Code persons with intellectual execution intelligence test quire quotient a ‘functional ” disabilities. (70) below,’ and that seventy score (2) The Ann. 39- scope of Tenn.Code receive may “the trial courts and consider defi- 13-203 more restrictive than the re any relevant and admissible evidence disability” nition of “intellectual in Tenn. whether the defendant’s functional garding 33-1-101(16) applicable Code seventy offense I.Q. at the time of the per- provision support services (70) State, v. or below.” Coleman with intellectual sons disabilities. held at 241. also that the trial We (3) give The will to the effect Court follow required opinion court “is not ordinary the stat- plain meaning and any particular expert” but that the trial ute’s language. give and fair court “must full consideration (4) including the presented, in” to all the evidence The will decline to “read Court I.Q. of all tests results administered language into the statute that Gen- the defendant.” Coleman place Assembly eral did there. added). 242 (emphasis

(5) application of the stat- Court’s may and guided ute informed also noted in Coleman We standards, criteria, practices clinical on Intellectual American Association diagnose used to customarily (“AAIDD”) assess rec- Developmental Disabilities disability. intellectual potential “challenges” ten to the ognizes scores, reliability validity test proper appli- where the instances clear, practice effect and the including Flynn cation of statute is not 341 S.W.3d at interpretation confirm its effect. Coleman may Am. Ass’n on Intellectual legislative (citing 242 n. 55 by considering the statute its Disabilities, Intellectu- Developmental We take the opportunity and to re Disability: Definition, Classification, al that, in determining iterate a whether de (11th Systems Supports 36-41 below, I.Q. fendant’s functional is 70 or a of (“AAIDD Manual”)). ed.2010) In other trial court should consider all the evidence find, words, we held a court that could is admissible under the for rules ex testimony, defen- expert based on that a Copeland, See State v. pert testimony. I.Q. be lower may higher dant’s actual (Tenn.2007); 301-02 Tenn. than what raw test score indicates: 40-30-117(b). Code As we stated intelligence tests indirect Because are in Coleman: than intelli- rather direct measures of the trial court pro- [I]f determines that experts gence, recognize in the field fessionals who assess a person’s I.Q. like other they, measures of human customarily particular consider a test’s functioning, are not “actuarial determi- measurement, standard of error the nation[s],” that tests cannot meas- these Effect, effect, Flynn practice or oth- intelligence precision ure with absolute affecting accuracy, er factors relia- contain potential and that these tests bility, or of The is that fairness the instrument or error. current consensus the standard error of measurement instruments used to assess or measure intelligence well-standardized tests I.Q., the defendant’s an expert should be approximately points. three five permitted to base his or her assessment (alter- of defendant’s “functional intelli- Coleman 341 S.W.3d at 245 (footnotes omitted) gence quotient” on a original) (quot- ation in consideration of 40). Manual, ing AAIDD at those factors.11 (2012); Manual, "Flynn given The effect” is name 624-25 AAIDD at I.Q. 37; phenomenon Flynn, Tethering Elephant: James verified worldwide R. Cases, IQ, scores, intelligence Capital Effect, beginning Flynn since the of 170, 173-74, testing, Psychol. Pol’y have tended rise overall a rate of Pub. & L. (2006). per year, points every 0.3 or three decade. I.Q. created, it When an test is is calibrated so In addition to the consideration I.Q. equals effect, mean an that the score of 100. Flynn I.Q. the AAIDD and APA stress that time, general popu- Over as the of the light scores scores should be considered in effect, (“SEM”) Flynn lation increase at the rate the standard error of measurement decade, I.Q. points per practice posits or three the scores become and the effect. SEM gaug- range, more more inaccurate terms of scores are best understood I.Q. ing general possibility an individual’s relative to the account for the in the error I.Q. score, population. compensate ef- To for the determination an which is a Flynn I.Q. fect, routinely subjective tests have to revised or There somewhat determination. them "renormed” to make more difficult. fit between SEM and Ten- uncomfortable Thus, WAIS-R, statute, gave way bright-line the WAIS to the nessee’s contains a Nevertheless, replaced eventually which was WAIS- of 70. cutoff consideration III, weighs now the Under can current WAIS-IV. the SEM aid a trial court as it effect, Flynn recently-obtained concerning particular defen- WAIS-IV various data accurate, acuity. practice score will be close to while a WAIS- mental effect re- dant's years multiple people III score that was obtained ten after the to the fact that who take fers I.Q. time, renormed need tests tend so test was to be reduced to score better over by approximately points capture may higher three scores on later tests need to be in- adjusted test-taker’s actual at the time. Geral- downward to account for this See Manual, 38; Young, Intelligent John dine W. A and Just See H. More crease. AAIDD al., Adjusting Flynn Capi- et. and Men: Deviations Atkins: Blume Atkins Effect Of tal Determinations Mental Retardation or Clinical Mental Retarda- from Definitions Cases, Disability, Penalty J.L. & Intellectual 65 Vand. L.Rev. tion in Death 18 Cornell 606 State, a contemporaneous provided at 242 n. 55 WISC test

Coleman v. 341 S.W.3d (footnote added). I.Q. full-scale score of 80. Mr. Smith’s 2000 1989 WAIS-R score was and his State,

The case of v. 357 S.W.3d Smith (Tenn.2011) and 77 65 2002 WAIS-III scores were us first presented with our on principles. respectively. to His scores academic tests opportunity apply Coleman ’s us via a State, Smith’s case came to very Leonard were also low. Smith v. relief, a post-conviction for not petition S.W.3d at 350-53. motion to Mr. Smith had been reopen. Although court found felony to murder sentenced death for that Mr. Smith satisfied the second applied that in 1995. Mr. Smith occurred third of the test prongs for intellectual for relief in 1999. Van disability, court had decided he Tran, Atkins, were and Coleman decided proven I.Q. he an or had of 70 way its working

while his case was age eighteen. below before the of Smith through the courts. vacated We State, 357 Significantly, v. S.W.3d at 353. judge presid- sentence. Because the who “testing performed the court stated that sentencing heai’ing ed over Mr. Smith’s age eighteen before the of func- reflects a previously prosecuted Mr. Smith in 85,” IQ tional arguments and that “the during another matter Mr. Smith’s murder margin contrary for of error are case to trial, we pro- found Mr. Smith’s due law of this state and no assistance to right impartial cess to an tribunal had State, State, petitioner.” Smith v. been Smith v. violated.

at 345. 353. We held that “the post-conviction misapplied legal the applicable stan- We also held that Mr. Smith was enti- it arguments dard when ruled that Smith’s hearing tled a new on whether he was regarding margin standard con- error intellectually disabled. At his first hear- cerning intelligence ‘contrary tests were ing, opined Mr. psychologist Smith law this case state and of no assis- intellectually disabled when he com- Therefore, tance’ to Smith.” we remanded mitted the crime. The evidence indicated give Mr. case Smith and the State that Mr. injuries Smith had brain and a opportunity present regard- an history abuse, evidence physical aswell alcohol ing intelligence quotient his functional drug teenager, abuse. As Mr. Quick light Smith’s two scores on the of Coleman.12 Smith v. Ammons I.Q. Test indicated and 84. His I.Q. 689, 695, True, (2009); 70); Pol’y petitioner's Pub. 697-703 LaJua- below Walkerv. Davis, (4th Intelligence Cir.2005) na Testing (remanding arid Atkins: 399 F.3d Appellate Appel- Considerations Courts and Flynn of the consideration effect and stan- Lawyers, J.App. late 301-02, Prac. measurement). & Process light dard error of Ten- (2003); 309-10 see also Thomas strongly-held public policy against nessee's Allen, 749, 753, (11th 607 F.3d 757-58 Cir. disabled, executing this sort 2010) (finding clear no error in a trial court's acutely of information would to a relevant application Flynn effect and the stan- attempting trial court to determine whether measurement); Holladay dard error of v. Al- particular defendant's is 70 below. len, (11th Cir.2009) 555 F.3d 1357-58 (upholding finding Wayne of intellectual 12. Fleck Van Tran and Michael How- Flynn that took into account the effect ell remain on Tennessee's death row. See effect); Branker,

practice http://www.tn.gov/correction/deathrowlist. Cole v. 328 Fed. (4th Cir.2008) (acknowl- Appx. Shortly holding html. after our Coleman edging Flynn practice Angelo effect and the ef- Michael Coleman's death sen- fect, finding adjust but insufficient to them tence was reduced a life sentence. IV. right stitutional that requires retroactive (2) application; new scientific evidence has legal Having predicate reviewed light come to that petition- establishes the Tenn. disability claims of intellectual under “actually er is innocent offense or 39-13-203, turn § Ann. we now Code for which offenses the petitioner was con- presents Keen in his motion the claims Mr. (3) victed;” or petitioner’s sentence was post-conviction to reopen proceedings. his due previous enhanced to a conviction statutory We will the claims in address later was found to be invalid. Tenn. is whether Cole- question order. The first 40-30-117(a). § Code Ann. man v. State announced a new constitu- retroactively ap- tional rule must be State, In Van Tran v. we rec plied. question The Mr. second is whether ognized that a reopen motion to is the disability Keen’s intellectual claim can be proper vehicle for a claim that arises after heard under the actual prong innocence petitioner’s original post-conviction av motion-to-reopen statute. enues have been exhausted that as newly recognized serts a constitutional A. right, even when the was arguably issue preliminary A issue is whether waived. Van Tran v. 66 S.W.3d at Mr. Keen’s intellectual claim has (accepting appeal of a “new scienti properly been raised. In a petition reopen fic evidence” motion to and con relief, ground for relief is verting motion into “new constitu generally petitioner deemed waived if the motion). right” Although tional in nothing opportunity previ an to raise the issue prevents provision statute the waiver ously, to do but failed so. Ann. Tenn.Code § 40-30-106(g) of Tenn.Code Ann. from (2012). § 40-30-106(g) applying reopen, motions to we found in Van Tran that the statutory prohibition exe- against circumstances narrow cuting persons trigger may disabled a motion reopen “raise during in effect both of Mr. Keen’s sen- implications serious constitutional of first his two tencing hearings, appeals, impression,” his so this is free “to ad initial Howev- proceeding. dress these critical issues.” Due to “the er, Mr. did not importance correctly resolving Keen invoke Tenn.Code constitu issues,” any §Ann. proceed- 39-13-203 of these tional we held that “constitutional ings. ineligible rarely If Mr. Keen was by pro indeed issues should be foreclosed Tran v. for the was in- because he cedural technicalities.” Van disabled, Adoption In re tellectually attorneys then at 799 (quoting E.N.R., (Tenn.2001)). representing Mr. Keen to take “failed Tran, Furthermore, as in Van reasonably parties whatever action was available to prevent nullify failed harmful effect” this case the issue of raise 36(a). R.App. that error. P. their Tenn. waiver in briefs.

However, § appeal Mr. Keen’s current Like the Ann. Tenn.Code 40-30- Tran, 117(a)(1) reopen comes motion in Van to us via motion to motions to post-conviction proceeding reopen Tenn. assert actual innocence under based Code Ann. A to re- 40-30-117. motion on new evidence Tenn.Code Ann. under 40-30-117(a)(2) open only similarly important available when the raise petitioner convincing can clear evi- process establish constitutional due concerns. appellate dence that either has motions thus warrant the same for These ruling made a recognizing giving final a new con- treatment as motions to qualifies Only if time of trial.” Coleman rule under new constitutional on a based 40-30-117(a)(1). right” will we then as a “constitutional new “ret- holding requires its consider whether Therefore, the narrowness and light argues Mr. Keen rospective application.” to reopen of motions gravity constitutional 40-30-117(a)(1) new retroac- “established] Coleman Tenn.Code Ann. under proving an intellectual disabil- tive rule for (2), reopen to find that a motion and we ity Eighth Amend- in Tennessee under bringing such vehicle proper ment,” he has raised issue and that claims, that spite in of circumstances year ruling. that has within one that the issue might suggest otherwise been waived. noted, already holding our in we have As executing an Van Tran —that B. and fed- person violated the state disabled bases his motion to re Mr. Keen a new consti- eral constitutions-announced grounds. The first is Tenn. open on two retrospective right required that tutional 40-30-117(a)(1), ap § which Ann. Code State, v. application. Van Tran upon ruling claims a final plies to “based Indeed, holding in Van Tran at 811. our establishing court constitu appellate and was ex- explicitly was constitutional not recognized was as right tional that pressly based on the “cruel unusual trial, retrospective the time of if existing at federal punishments” clauses right required.” application of that Un Angelo constitutions. Michael Cole- state statute, the motion must filed der this among those man and Leonard Smith were year that ruling within one of the estab advantage one-year who win- took right. new lishes the constitutional reopening dow created Van Tran for post-conviction proceedings. reopen on Mr. Keen filed his motion first, 5, At motion August 2010. his was from quite was different Van Coleman § on Tenn.Code Ann. 40-30- based Coleman, we were called Tran. 117(a)(2) acquired that he had alleged upon the constitution. In- interpret he was “ac scientific evidence” that “new stead, interpreta- concerned Coleman on tually innocent” of 39-13-203, tion Ann. of Tenn.Code disability. his intellectual The account of intellectual statute defined his motion on denied in death penalty. the context of the Cole- 28, appealed. Mr. Keen We March and clarified supplemented man Howell April v. on released Coleman State may and con- that “the trial courts receive pending was while Mr. Keen’s case any sider relevant and admissible evidence Appeals. the Court of Criminal before the defendant’s func- regarding whether in the of Crimi reply brief filed I.Q. at the time the offense was tional nal Mr. Keen asserted Appeals, Cole (70) State, v. Coleman seventy or below.” retroactive, new, consti announced a man at We in held Coleman Although rule. Mr. Keen’s motion tutional courts were not limited raw test that the Coleman, holding was filed our before scores, also other fac- but could consider that it indeed “filed within one we find effect, tors, Flynn practice as the such ruling. Ann. year” of that Tenn.Code measurement, effect, standard error of 40-30-117(a)(1). and cultural differences. malingering, State, 242 n. 341 S.W.3d at Coleman We must first determine whether Cole- recognized no new constitu- “a 247. Coleman right established constitutional man only right constitutional existing right. tional recognized that was not Coleman 301, 307, at issue in was the we one 109 S.Ct. 103 L.Ed.2d 334 Meadows v. (1989); already. years announced ten earlier 849 S.W.2d at 751, 755; see also Van Tran.13 Mr. Keen Tenn.Code Ann. 40- cannot piggyback (2012). We also have no need to Coleman on of Van Tran in order top discuss whether Mr. Keen’s claim would be one-year statutory window subject the “clear and convincing evi a constitutional rule that was articulated dence” standard of Ann. 40- ago. over a decade 30-117(a)(4) or, as he argues, “color- Cole Because we have determined able claim” standard Sup.Ct. of Tenn. R. man holding, ’s concerned the inter 6(B)(6) 2(H), §§ we applied pretation application of Tenn.Code Howell 460-63. 39-13-203, § was not a constitutional C. ruling, no inquire there is need to whether that holding qualify as a rule.” “new Having determined that Coleman Nor in any is there use retroact v. State did not discussing a announce new constitu Lane, Teague See v. ivity.14 right, 489 U.S. tional we now turn to Mr. Keen’s 15, 2012) State, Appeals 13. The (finding United States Court of for the that Lane v. 316 analyzed shortly (Tenn.2010) Sixth Circuit Coleman after S.W.3d 555 not did announce a Although panel disagreed its release. on right, new "applied constitutional but well- primarily interpreted whether law”); Coleman Atkins Coury established rules of v. West Code, brooks, majority M2003-01800-CCA-R3-PC, or the both Tennessee No. 2004 the dissent viewed Coleman as a clarification WL (Tenn.Crim.App. at *2-3 Oct. existing majority of The 19, 2004) law. characterized Holland, (finding that v. Dixon 70 holding as an Coleman's “elucidation of the (Tenn.2002), S.W.3d 33 rather than announc Atkins under standard Tennessee law.” Black ing right, a new constitutional clarified exist Bell, 81, 92, 96, Cir.2011) (6th v. 664 F.3d 101 law). ing (remanding disability Black’s intellectual claim to the District U.S. Court for reconsid- Contrary arguments, to Mr. Keen’s Smith Coleman). light Judge Boggs, eration in of support proposition v. State does not dissent, a more offered accurate new, retroactive, assessment: was a Coleman constitution suggests al Mr. Keen rule. that we remanded v. . . . State[.] Coleman the Tennessee Leonard Smith’s case under the same "new Supreme Court construed a Tennessee stat right” applied rationale we in Van Tran. To prohibiting ute the execution of [intellectu contrary, Coleman and Smith were not ally defendants under disabled] Tennessee Tran, recognized like Tran. In Van Van we a purely law.... is Coleman a construction of right, new then constitutional remanded fleeting only state statute that makes ref petitioner’s case for reconsideration erences to Atkins .... Smith, right. In Coleman and con trast, applied courts .... decided how Coleman a Tennessee legal an incorrect standard to claim intel apply state should statute to a Tennessee § lectual under Tenn.Code Ann. 39- [i.e., opinion state court Van decided Tran ] We 13-203. remanded those cases for recon under the Tennessee state Constitution. under sideration the correct standard articu Bell, J., (Boggs, Black v. 664 F.3d at 107-08 State, lated in Coleman. See v. Smith dissenting). 353-54; S.W.3d v. Coleman analyzing For other one cases whether case, however, S.W.3d at 253. In Mr. Keen’s holdings our announced a new constitutional apply right, court did not see v. Miller 746- (Tenn.2001) legal (explaining incorrect standard. As we will soon that State v. Brown, (Tenn.1992) explain, correctly that court 836 S.W.2d 530 did determined that a right, death-sentence-ineligibility cog announce a new constitutional but claim was not law); "simply reiterated” Tennessee Mitchell under nizable Tenn.Code Ann. 40-30- State, M2011-02030-CCA-R3-PC, 117(a)(2) v. properly No. denied Mr. Keen’s mo WL (Tenn.Crim.App. at *2-3 June tion. itself, enforcing just it as it petition his statute grounds reopening for original Corp. Shelby Cnty. we Health Care question written. post-conviction relief. for Co., Nationwide Mut. Ins. result of whether the must decide is (Tenn.2010); Eastman Chem. Co. constitutes test taken WAIS-IV Johnson, 151 at 507. he is “actual- “new evidence” that scientific for offenses” innocent the offense or ly faces, “actually” words On their for purpose he which was convicted enough. They de- appear clear “innocent” Ann. 40-30- claim Tenn.Code under truly did person question that the note 117(a)(2). evidence asserts that Mr. Keen have they the crime for which not commit that he is intellectual- supporting his claim However, have the courts been convicted. ly purpose disabled for the of actual innocence expanded concept 39-13-203(b) to evi- Ann. tantamount be include the that someone could idea “actually that he is innocent” dence for, i.e., of, actually ineligible innocent 40-30- purpose of Tenn.Code parlance, sentence. given Under 117(a)(2). us requires This assertion or an dis- example, minor innocent of “actually phrase construe the “actually person can be said abled §Ann. 40-30- the offense” in Tenn.Code penalty, to their innocent” the death due 117(a)(2).15 ineligibility for such a sentence. inherent words, “actual innocence” has be- In other our is now axiomatic that It legal implies art that more come term of construing a statute is to “ascertain role suggest. the than what words themselves intent give legislative to the effect 336, 333, Sawyer Whitley, v. 505 U.S. See restricting expanding unduly without or 340-41, 2514, 343-47, 120 112 S.Ct. intended beyond its coverage statute’s (1992) (discussing de- 269 how to L.Ed.2d 1, Strode, 9 v. 232 S.W.3d scope.” State is of whether an inmate “innocent termine (Tenn.2007). this, initially To do we focus death”). words, these words giving on the statute’s 1996, light In undertook to restrict ordinary meaning Congress their natural and Med., the scope Inc. of “actual innocence” for statutory of their context. Lee (Tenn. it Beecher, 515, corpus of habeas when purpose 526 federal v. 312 S.W.3d 2010). Effective any subtle enacted the Antiterrorism and avoid “forced or We (“AEDPA”). Penalty extend Death Act Under construction that would limit or AEDPA, courts must dismiss meaning language.” Eastman federal of Johnson, 503, subsequent corpus peti- 507 or habeas 151 S.W.3d second Chem. Co. (Tenn.2004). es- “[Ejvery newly in a statute tion unless discovered evidence word tablishes, by convincing evi- meaning purpose.” “clear presumed to have dence,” Bank, Farmers that “no reasonable factfinder” N.A. v. Tennessee U.S. (Tenn. Co., 381, applicant have of “guilty 386 found Mut. Ins. 277 2009). the underlying clear or statutory language “guilty If the offense” (2006). 2244, §§ unambiguous, apply we the statute’s offense.” U.S.C. offense,” language, has accepted “guilty This plain language its normal and interpreted by the federal courts look no further than been use. We need passed were language Tenn.Code subsections the Act simulta- 15. The same occurs in 40-30-102(b)(2) (2012) (concerning § neously by Assembly. Ann. The lan- the General prisoners may petition post-con- "[w]hen guage analysis applies is identical. Our 1995, 207, 26, relief”). Apr. viction Act of ch. equally to both statutes. 1, 305, Both Pub. Acts Tenn. reflect intent Congress’ that federal habe- a special meaning.” Hope v. United (7th as relief avail States, under these statutes not be Cir.1997). 108 F.3d able to a death challenge sentence—even Judge Posner, Like Justice Barker con- Thaler, sentence. Henderson v. F.3d cluded that the Tennessee General Assem- (5th Webster, Cir.2010); 779-81 In re bly, like Congress, had chosen the word (5th Cir.2010); 605 F.3d In 257-58 re “offense” limit relief to (11th Dean, F.3d 1248-49 Cir. prisoners who could they show that never 2003); States, Hope v. United 108 F.3d actually committed the crime. Van Tran (7th Cir.1997). 119, 120 (Barker, J., at 820-22 dissenting). year Congress before enacted the AEDPA, Assembly the Tennessee General Subsequently, the United States Court enacted the Post-Conviction Procedure Appeals the Fifth adopted' Circuit Act,16 which includes interpretation similar AEDPA’s 40-30-117, the statute mo- governing Webster, analogous language. re tions to reopen proceed- (5th Cir.2010). F.3d The court ings. post-convic- order to held that 40-30-117(a)(2), process tion under is no [T]here reason to believe that Con- inmate must present evidence that he is gress intended language “guilty of “actually innocent the offense of- the offense” to “eligible mean for a fenses” for which he was convicted. death sentence.” Congress Had wanted squarely This Court has not addressed provision challenges cover to a meaning “actually innocent sentence —even if only a death sen- offense” in Tenn.Code Ann. 40-30- easily tence—it could have referenced 117(a)(2), Barker, although joined Justice text, sentences explicitly in the as it did Holder, dissenting Justice did so in a § times throughout numerous 2255. Or opinion in dissenting Van Tran. In his Congress if had intended to signal opinion, equated Justice Barker “actu the old, to incorporate courts the broad in- ally the language innocent of offense” in innocence, terpretation of actual it well 40-30-117(a)(2) § Tenn.Code Ann. with words, have used could the “actual inno- “not the of guilty AEDPA’s new of Instead, cence.” it elected to couch fense” Van language. Tran v. 2255(h)(1), § well as as (cit (Barker, J., dissenting) S.W.3d at 822 2244(b)(2)(B)(ii), § in markedly dif- States, 119, ing Hope v. United 108 F.3d ferent, unmistakable of guilt terms (7th Cir.1997) Greenwalt v. Stew Absent some indication that art, (9th Cir.1997)). 105 F.3d offense. language meant for the Congress in separate Justice Barker’s opinion cites 2255(h)(1) § literally, not to be taken we with Judge opinion favor Richard Posner’s interpret any decline to other way. it States, in Hope v. Judge United Webster, (foot- “highly Posner found it unlikely that Con- In re 605 F.3d at 258-59 omitted).17 gress intended the word to bear appears "capital murder" nowhere in the and, Code, evidence for this conclusion is Additional Tennessee while this Court some- §§ in the Ann. 40- found fact Tenn.Code "capital "capi- speaks offenses” and times of 102(b)(3) 40-30-117(a)(3) explicitly sentencing,” generally, we have avoided 30— tal contemplate an inmate’s attack on an errone- phrase "capital murder.” language ously This enhanced "sentence.” Assembly demonstrates that the General was degree is: 20.First murder fully capable differentiating of between sen- (1) killing premeditated A and intentional tences and offenses Post-Conviction another; of compelled Act. Procedure We are conclude (2) killing another A of committed in the "actually innocent of the offense” means perpetrate any perpetration attempt of or guilty factually of the one never murder, arson, terrorism, degree act first crime. theft, robbery,' burglary,. kidnapping, rape, abuse, aggravated aggravated child child recognize "capital states murder” Several child, rape aggravated rape of Arkansas, neglect, of a Kansas a distinct offense. piracy; or a child aircraft Virginia, "capital murder” is defined (3) killing another as the A committed separate with its statute as offense own throwing, placing or § of the unlawful Ark. Ann. result distinct elements. See Code 5-10- (Lexis discharging device or Supp.2011); §Ann. destructive Kan. Stat. 21— (Supp.2011); § bomb. Va.Code Ann. 18.2-31 39-13-202(a). Mississippi recog- § (Supp.2012). and Texas Tenn.Code Ann. right al innocence of that offense. Intellectual constitutional under Tenn.Code Ann. 40-30-117(a)(1). equate not to actual inno- does Additionally, we have cause cence. Mr. Keen’s cannot be heard determined that the Assembly, General on a motion to under TenmCode crafting TenmCode Ann. 40-30- 40-30-117(a)(2). §Ann. 117(a)(2), did not intend the words “actual ly innocent of the offense” to encompass we have that a Because determined ineligibility for the penalty death under ineligibility claim alleging for the Therefore, 39-13-203. qualify as an inno does actual judgment we affirm the post-convic cence claim under Tenn.Code Ann. 40- 117(a)(2),it is not that we tion court and the necessary Court of Criminal Ap 30 - recently examine the peals denying issue whether a Mr. Keen’s motion to reopen from recently obtained score renormed post-conviction proceeding. Because test, WAIS-IV, such as constitutes appears indigent, Mr. Keen to be the costs “new scientific evidence” under that sub of this are appeal to the State assessed section. Tennessee. us to

Mr. Keen asks remand his case for on hearing disability, new intellectual WADE, C.J., GARY R. filed a dissenting just as Angelo we did for Michael Coleman opinion. and Leonard Smith. But Mr. Keen’s cir- WADE, C.J., different. R. dissenting.

cumstances are Messrs. Cole- GARY man and Smith were able to advan- take Tran v. Van tage one-year reopening window for (Tenn.2001), this Court held that “the under Van Tran or Atkins. petitions their Eighth Amendment to United States reason, For whatever Mr. Keen did not I, § Constitution and article 16 of the Ten- avail that opportunity. himself of nessee prohibit Constitution execution We remain committed to the principle [intellectually individuals be- disabled] that Tennessee has no executing business cause such executions violate evolving persons intellectually who are disabled. of decency standards mark the prog- holding today only Our that TenmCode a maturing society, grossly ress of are 40-30-117(a)(l) §Ann. pro- do not disproportionate, peno- no valid serve vide Mr. Keen with a vehicle to assert that logical purpose in any ease.” The next he is disabled. Our decision year, Supreme the United States any remedy does not foreclose other cur- the same reached conclusion: rently to Mr. in- available Keen. If he is persuaded are not We that the execution disabled, intellectually deed this issue de- [intellectually of criminals will disabled] Likewise, serves to be heard. it does not measurably advance the or the deterrent ability of foreclose the the Assem- General purpose retributive death penalty. bly procedure to create a that accommo- Construing Eighth the applying dates on prisoners death row intel- whose in light “evolving Amendment the of our disability lectual claims cannot be raised decency,” standards of therefore 40-30-117(a)(l) we con- under Ann. Tenn.Code (2). such is punishment clude that excessive or “places the

and that Constitution a sub- Y. power stantive restriction on the State’s We the life” holding intellectually have determined that our in to take of dis- a[n Coleman v. State did not a new establish offender. abled] Constitution, I, of section 16 the Tennessee U.S. Virginia, 536 Atkins v. (2002) Amendment to the United (quot- Eighth and the 153 L.Ed.2d 335 S.Ct. 399, 405, In Wainwright, prevail 477 U.S. order to on ing Ford v. States Constitution. (1986)). L.Ed.2d 335 disability, person the S.Ct. a claim of intellectual decisions is clear: import satisfy The these such must the claiming “(1) individuals executing intellectually disabled Significantly subav- following criteria: and feder- under both state is unlawful erage functioning intellectual general view, my the majori- al In constitutions.1 intelligence quo- by a functional evidenced the Post-Conviction ty’s interpretation of (70) (2) below; (I.Q.) seventy or tient (“PCPA”) unnecessarily de- Act Procedure (3) behavior; adaptive in The Deficits “Petitioner”) (the anof prives David Keen disability must have been man- intellectual prove that is opportunity he adequate during developmental period, or ifested based on ineligible the death by eighteen years age.” not exist either evidence did 39-13-203(a). support In of his post-conviction initial time trial at his reopen, the Petitioner offered motion consequence, I must re- proceeding. requirements. as to each of these evidence spectfully dissent. Initially, provided he documentation dem- onstrating February he I. received a full score of 67 on the scale majority, case As observed Scale, Intelligence Wechsler Adult Fourth interpret us to Tennessee requires Code (“WAIS-IV”). Further, he Edition sub- (2006), section 40-30-117 Annotated psychologist, an from a mitted affidavit pursuant to within the which statute PCPA question validity who called into reopen his post- the Petitioner seeks previous I.Q. majority of test scores—the view, my proceedings. conviction fell within the low 70s to low 80s key of the statute in this case is provision the Petitioner range reported that —and 40-30-117(a)(2), pe- which allows a section adaptive behav- significant deficits reopen post-conviction pro- his titioner age ior which manifested before upon new scientific evi- ceedings “based eighteen. opined The also psychologist establishing petitioner dence the new score should be WAIS-IV of the offense or offenses actually innocent adjusted from 67 to 66 because of the petitioner for which the was convicted.”2 Flynn effect. The Petitioner obtained this 6, 2010, the August On Petitioner filed years after information some four post-conviction reopen pro- his motion Appeals affirmed the Court of Criminal assert a claim that he ceedings in order to petition. denial of his initial and, therefore, in- intellectually disabled trial court denied the motion to Tennessee eligible to be executed under 39-13-203, evidentiary hearing, reopen section article without Code Annotated question majority of whether he is entitled to opinion, Ten- reach As noted Assembly legislatively prohib- proceedings pursu- nessee General 40-30-117(a)(1) ited the execution of disabled (allowing pe- ant to section persons prior Apr. decisions. Act of to these proceedings titioner 1990, 1038, 12, Pub. ch. 1990 Tenn. Acts 730 year ruling an appel- one "a final of within of (codified at Tenn.Code Ann. as amended establishing right a late court constitutional (2010)). § 39-13-203 existing recognized was not trial, retrospective application if of time of I that the Petitioner has Because believe right required”). is 40-30-117(a)(2), I would not satisfied section concluding ineligibility for the proof (1990), Annotated section 40-30-102 was insufficient to establish had three-year established a statute of purposes actual for innocence of section limitations for filing petition post- 40-30-117(a)(2). The Court of Criminal Following conviction relief. Burford’s con Appeals affirmed. viction, his sentence was enhanced because convictions; multiple prior when several

Preliminarily, I would observe that a prior of his convictions were ultimately set statutory fundamental rule of construction aside, sought he relief from the enhanced is that this has “an obligation sentence even more though than three in interpret way that preserves statutes years passed. Id. at 206. The Court Smith, their constitutionality.” Jackson v. observed that Burford’s challenge to his (Tenn.2012) 486, 387 S.W.3d (citing depended upon sentence having prior Cnty., Jordan Knox 213 S.W.3d aside, convictions set which he was unable (Tenn.2007)). 780-81 If possible, we accomplish within the time limit im interpretation legisla- should avoid an posed by statute of lim tion that it on “places a collision course” Id. at statute, itations. 208. Because the with the state or federal constitutions. Id. as applied, deprived Burford a “reason This rise principle gives questions to two able opportunity” present (1) post-convic relevant to appeal: this whether inter- tion claim challenging validity of his preting Tennessee Code section Annotated sentence, the 40-30-117(a)(2) Court ruled that the statuto as to so bar a claim based ry period limitátions violated his upon newly constitu acquired evidence of intellectu- right tional of due process. Id. In reach bring al in statute ing conclusion, this the Court conflict with found that the state or federal constitu- tions; so, Burford’s against serving “interest an if whether statute ex may cessive sentence violation of reasonably interpreted his consti to avoid rights” outweighed conflict. tutional constitutional I would an- State’s in terests questions efficiency swer both of “administrative these the affir- economy” “preventing mative. and in litigation stale fraudulent claims.” Id. at 209 A. (“In litigation, criminal an alleged where This prior Court’s decisions estab- infringement have of a right constitutional often lished prisoner’s rights that a due process liberty, affects life or conventional notions under the Fourteenth finality Amendment associated with civil litigation I, United States Constitution and article importance, have less and ‘the fact that a section 8 of given efficient, the Tennessee Constitution or procedure law conve require nient, a meaningful opportunity to chal- facilitating and useful in functions of lenge alone, post- government, conviction sentence in standing will not save proceedings. conviction contrary it if it to the Constitution.’” Burford (citation omitted) (Tenn.1992), (quoting I.N.S. v. Cha dha, this Court the constitutionality addressed 462 U.S. 103 S.Ct. (1983))).3 of a former version Tennessee Code L.Ed.2d PCPA, originally years enacted three held invalid. See Tenn.Code Ann. 40-30- (2010). Burford, 102(b)(3) after exception includes to the nearly The PCPAincludes a seeking provision allowing statute of petitioners limitations claims relief identical to re- from a previ- open sentence enhanced post-conviction proceedings pri- because of when a ous subsequently conviction that has been or conviction used to enhance a sentence is appellate not a final reaffirmed the did assert cases have More recent e ruling unconstitutionality process analysis establishing em validity of the du See, executing per v. disabled e.g., Williams ployed in Burford. (Tenn.2001) Nevertheless, permitted (recog sons. the Court State, 44 S.W.3d challenge, holding his “fundamental possible process due violation nizing a meaning a fairness dictates that have upon misrepresenting [he] counsel based intel being opportunity th[e] [of ful raise issue fact review was appellate State, disability].” (citing Id. 272 lectual at 23 S.W.3d sought); Seals (Tenn.2000) Williams, 464; Seals, at possible due (recognizing a 272). at The Court declined to process where mental incom S.W.3d violation 40-30-217(a)(1) as a filing interpret a bar petence prevents an inmate from section State, because, Tran’s claim under such post-conviction Sands v. to Van petition); (Tenn.1995) “potentially a (providing interpretation, [intellectu a 903 S.W.2d 297 ally person and executed applying disabled] [could] test for three-part fie Burford is reviewed.” Id. Similar that courts consider whether before the issue noting should 151 S.W.3d 450 ly, for the claim at issue arose Howell grounds (Tenn.2004), began application after the of limitations we held that statute run). stringent convincing “clear evidence” In Smith v. and. (Tenn.2011), we standard of Tennessee Code Annotated observed that 40-30-117(a)(4) violate the “pervasive pro .theme” in in which a section cases because, petitioner’s petitioner’s process rights limitation violated a due cedural Williams, Seals, the Bwrford, due “is that circumstances process rights “[a]s ” beyond petitioner’s .prevented a confronted with circum petitioner control [was] procedural beyond prevent limitation control which compliance with stances his previously challenging him ed from his issue. on constitutional conviction sentence rationale, same this Applying the Court added). grounds.” (emphasis Id. petitioners post-conviction has held that opportunity distinguishing One of the factors Bwr- given meaningful must be a present disability. progeny claims of intellectual from the instant case its ford Tran, example, procedural this held is that the limitation here Van Court is but rather a statute petitioner was entitled to relief statute of limitations section that defines under under Tennessee Code Annotated circumstances 40-30-217(a)(1) (1997),which, a prisoner may reopen post- like cur which 40-30-117(a)(1), view, proceedings.- my rent al conviction version section proceedings By providing to be re not a material post-conviction lowed is distinction. reopening a final of an a limited number of avenues for opened upon ruling “based petition, appellate establishing a constitution Tennessee Code 40-30-117(a) existing operates section right recognized al that was not Annotated trial, procedural if as a to claims that do not retrospective applica at the time bar required.” narrowly provisions. within its defined right tion of that fall .that basis for a distinction acknowledged at 811-12. This There no rational upon complied procedural with bar based strictly Van Tran had not between 40-30-217(a)(l) filing procedural in that his motion time limitation section 30-117(a)(3). adjudication subsequent to of an set aside petition. See id. 40- initial by operates bar that a restricting petition reopen tion to accompanied by expert tes- ability reopen er’s post-conviction calling to his timony question into the validity of proceedings. Both Van Tran Howell I.Q. his earlier test scores.4 It my is applied proce opinion rationale to that his motion reopen repre- Butford dural limitations that did not involve a sents his first meaningful opportunity to limitation, time and the includes present PCPA disability intellectual claim. nearly provisions Further, pertaining identical the Petitioner’s interest in obtain- types both of procedural ing hearing bars. See Tenn. a to present newly discovered 40-30-102(b)(3), §§ Code Ann. 40-30- may that evidence render him ineligible 117(a)(3). death penalty outweighs any far governmental barring claim, interest in his Another question whether the facts including the State’s in the interest finality presented qualify here as circumstances Howell, of judgments. See 151 S.W.3d at beyond the pre- Petitioner’s control that 462 (finding that a capital petitioner’s in- vented making him from at an his claim terest “in protecting very his life” out- Smith, earlier See stage. 357 S.W.3d at weighs governmental interest in the majority distinguishes The Van Tran finality of judgments); also see Workman Howell, explaining unlike those (Tenn.2001) cases, the Petitioner was not without a (“[The petitioner’s] in obtaining interest a legal remedy during either trial or present hearing newly discovered evi- when he filed his initial post-conviction may dence that establish actual innocence petition. While is an state- accurate of a offense capital outweighs any far gov- ment, this has previously estab- ernmental interest in preventing litiga- process lished that precludes applica- due claims.”). tion stale [of] procedural tion of a bar deny a would opportunity reasonable a claim bring As this Court has previously acknowl that was previously unavailable because its edged, disability intellectual “is a difficult grounds yet factual did not exist. See define,” Howell, to accurately condition Sands, (“[D]ue at 301 process S.W.2d both legal prohibits application post- the strict of the practitioners clinical face host of chal conviction statute limitations to bar a lenges when attempting partic to assess petitioner’s when grounds claim I.Q. ular individual’s See Coleman relief, legal factual, whether ... arise (Tenn.2011). 242 & 55 n. after the point which the limitations difficulties, Given these it is not surprising period normally begun would have run.” may crucial evidence be discovered added)). (emphasis expiration after the of the statute limita instance, filing tions for petition. this key piece evi- interpretation dence in of Tennessee Code An the motion to 40-30-117(a)(2) adopted test score of from notated section February of 2010. majority any intellectually Wfiiilethe intelli- would bar undergone Petitioner gence in the testing past, this new score disabled row inmate from reopening provided significantly stronger indication proceeding an in —even disability intellectual fault previous discovery than mate without in his of the score, tests. When aware of made expira evidence after diligently by Petitioner a mo- filing my acted tion of the period. limitations as reasons, For the I same that this Code hold Tennessee Annotated 40-30- disability quali- new 117(a)(2). evidence of intellectual fies as “new purposes scientific evidence” for 618 claim); a

sessment, obtaining ... review” of requires this Court ever process due Thaler, 626 F.3d 773, 40-30-117(a)(2) in a Henderson v. 788 interpret to section (5th Cir.2010) (“If J., (Weiner, dissenting) meaningful opportu a manner that allows barring the of [the we were to condone disabil nity assert a claim of intellectual to disability petitioner’s claim] intellectual ity upon newly discovered evidence based ..., Tran, affording ... without ever him and, a[n] with Van avoid a consistent to demonstrate his intellectual opportunity “[intellectually an dis situation which disability, allowing then the State exe may be executed before inmate] abled only ‘fundamentally cute him would not see 812; is 66 S.W.3d issue reviewed.”5 per Martinez-Villareal, unjust’; it would be unconstitutional also Stewart v. 523 se.”). 637, 644-45, 1618, 118 140 U.S. S.Ct. habeas (interpreting

L.Ed.2d 849 a B. “far corpus as avoid statute so my seemingly perverse” opinion, conse In Tennessee Code Annotat reaching 40-30-117(a)(2) quence “bar[ring] prisoner from ed section can be reason majority specifies possible its does Another avenue for relief is a de 5. The that decision currently any remedy foreclose other claratory judgment not v. action. In West Scho Petitioner, opinion 105, to the but the available field, (Tenn.Ct.App. 380 S.W.3d 107 remedy. identify any pos does not such One 2012), recog Appeals implicitly Court sibility petition may pursue is a Petitioner using declaratory propriety nized a for writ of error coram nobis. Tenn. a See judgment bring proto an action to execution (2012). while Code Ann. 40-26-105 Yet claim, noting protocol if the de col that recognized has this Court a motion to unconstitutional, clared the inmate can then pro proceedings proper as a contrast, stay a In if civil seek of execution. a bringing for an intellectual cedure claim, granted judgment Petitioner a de see, Tran, e.g., at 811- Van 66 S.W.3d disabled, claring that he is 12, authority I have no from this state found injunctive appropriate relief be to mod would ap recognizing petition a coram nobis as ify imprisonment life sentence to rather asserting propriate procedural for a vehicle merely stay than to his execution. See id. at Indeed, disability. claim of intellectual (noting lack 111 that civil trial courts authori post- suggested petition has that grant injunctive ty to conflicts with relief that proper is the conviction relief vehicle Supreme in a crimi a Tennessee Court order upon claims of actual innocence based new Further, case). declaratory judg nal because evidence, proof such See scientific challenging ment actions executions are Dellinger v. 279 S.W.3d 291 & n. 7 state, against sovereign immunity be (Tenn.2009). emphasized Court has also This Cardwell, Spencer comes an issue. See v. extraordinary proce that “coram nobis is an 1996). (Tenn.Ct.App. S.W.2d Sover remedy" slight only gap "fills into dural eign immunity preclude declara Mixon, few v. cases fall.” State tory challenging judgment the constitu action (Tenn.1999); see also Wlo statute, tionality protocol anof execution see (Tenn. 361 S.W.3d darz 2012). Pipeline Morgan, Colonial Co. Moreover, petitions are coram nobis (Tenn.2008) (holding that sover subject one-year to a statute limitations eign immunity declaratory not bar a does begins judgment at the time the judgment against pre claim state officers final, although tolling trial court becomes vent enforcement of an unconstitutional may be available under limited circum however, statute); likely Petitioner would Mixon, 671; also stances. 983 S.W.2d at see argue Workman, have to that his execution is unlawful (declining dis disability, because of his intellectual not be petition as time-barred a coram miss nobis light any cause statute unconstitutional. approximately months filed thirteen after considerations, short, evidence). it is far from clear of these discovery of new declaratory judgment will availability pro action relief for the Peti coram nobis claim vide a viable avenue for relief. tioner’s is doubtful. ably interpreted way con avoids then that fact is an essential element of the offense,6 flict process rights with the due of death irrespective of the labels and row inmates. Unlike the I majority, particular be technicalities of a statutory re “offense,” (“[I]f gime. lieve that the term used in Id. at 501 legislature as the de 40-30-117(a)(2), section fines some core should be inter crime and then provides increasing for preted encompass punishment murder offense of of that crime a resulting upon finding in a sentence death. some aggravating fact[,] ... the core aggrava crime and the context, In the criminal “of- term ting together fact constitute an aggravated customarily fense” is equated with the crime, just as much as grand larceny is an “crime,” term general- both of which refer aggravated form of petit larceny. The ly to of the penal violations code. See aggravating fact is an element of the ag ed.2009) (9th Dictionary Black’s Law 1186 crime.”); (ma gravated see id. at also 495 (defining “offense” as violation of the “[a] jority opinion). law, crime”); a 22 C.J.S. Law Criminal (“The (1989) understanding This at 4 has been word ‘offense’ is confirmed by Supreme recent United States usually used to describe a crime.... The ‘offense,’ cases ‘crime,’ addressing what terms constitutes an “of- and ‘criminal of- fense” in the context of the death penalty. fense’ are all synonymous, said Arizona, 584, 609, Ring (footnote U.S. ordinarily interchangeably.” used omitted)). (2002), S.Ct. L.Ed.2d 556 Historically, courts and com- Court held that statutory Arizona’s mentators have defined offenses in terms penalty scheme violated the defendant’s of the essential facts—or elements —need- right Sixth Amendment ato fair trial by ed to impose punishment. or increase See allowing the sentencing judge, rather than Apprendi Jersey, v. New 530 U.S. jury, determine the existence of the 501-18, S.Ct. L.Ed.2d 435 aggravating necessary factors imposi- J., (Thomas, concurring) (surveying tion of the death penalty. Although the long essentially line “[a] uniform author- statutory aggravating factors in the Ari- ity stretching ... report- from the earliest zona penal technically code were sentenc- ed cases after the founding until well into ing considerations part rather than century” the 20th and concluding that such underlying offense, first degree murder “authority establishes that a ‘crime’ in- the Court reasoned that “oper- the factors cludes every fact that is law a basis ‘the equivalent functional of an ate[d] imposing increasing punishment”). or Un- ” offense,’ greater element which re- view, der this identifying the elements quired they beyond be found a rea- an offense requires assessment by jury, sonable doubt a judge. not Id. facts necessary impose partic- that are 19). (quoting Apprendi, at 530 U.S. 494 n. ular punishment. particular If a fact re- statutory sults in an increase in the maxi- v. Pennsylvania, Sattazahn 537 U.S. 101, 111-12, 123 mum punishment impose, the court may 732,154 S.Ct. L.Ed.2d 588 illustrate, scheme, factors, 6. To sentencing they under our qualify such do not as elements may any- trial courts sentence a defendant give rise or to a distinct offense. Facts or applicable sentencing where range within the punishment circumstances increase be- by considering any mitigating or enhance- yond statutory qual- maximum —which do Bise, generally ment factors. See State ify by jury as elements-must be found be- (Tenn.2012). S.W.3d 682 But trial because yond Apprendi, reasonable doubt. See may impose beyond courts a sentence U.S. at 490. statutory range upon maximum of the based in the death resulting of murder (2003), reaffirmed this fense Supreme Court capital-sen in life im resulting context of from murder concept. “[I]n ruled, Sattazahn, “the the Court proceedings,” See 537 U.S. tencing prisonment. distinct, is a of ‘murder’ underlying offense General As 112. The decision plus one of ‘murder lesser included offense place aggravated circum sembly to ” Id. circumstances.’ aggravating or more sentencing in a requirement pro stance (“ 111; plus also at 112 ‘[M]urder see id. not mean that it is not an vision does circumstances’ aggravating one or more issue element of offense at simplici- offense from ‘murder’ separate resulting penalty in the death murder ter.”). the Court Applying principle, Apprendi, not See a distinct offense. “acquitted” that if a defendant is concluded (“[M]erely at because the U.S. prior in a of circumstances aggravating hate crime legislature placed its state trial, “double-jeopardy protections at then sentencing enhancer within the sentence on the offense of ‘acquittal’ tach to that does provisions of the criminal code not aggravating circum plus ‘murder finding pur the of a biased mean that ” stance(s).’ Id. at 112.7 pose is not an essential el to intimidate law, facts Tennessee neces- Under offense.”). of the ement in- sary penalty the death imposing for narrowly interprets majority The murder, degree of first as guilt clude it is in Tennessee term “offense” as used Annotated by Tennessee Code defined 40-30-117(a)(2), Annotated section Code 39-13-202(a) (2010),8 as well as section argument that he rejecting Petitioner’s aggrava- at one of the seventeen least permitted post- should be ting circumstances set out Tennessee proceedings upon based new sci- conviction 13—204(i) Annotated section Code 39— actually showing that he is entific evidence (2010). aggravating Absent at least one “capital of murder.” innocent offense circumstance, statutory the maximum doing, majority observes that so degree murder punishment for first Code Annotated section 39-13- Tennessee life imprisonment.9 limited to murder, 13—204(i). degree first whereas Hence, defines the fact of 39— sentencing a defendant procedures one circumstance is aggravating least degree murder set distinguishes the of- convicted of first are the element child, rape aggravated rape neglect, Appeals Court of has also The Sixth Circuit cases, recognized capital piracy; fact that a child or aircraft encompasses any (3)A “offense” issue sentenc killing of another committed as the necessary imposition ing consideration throwing, placing or result of the unlawful See, Mitchell, e.g., penalty. the death Davis discharging of a destructive device or (6th Cir.2003) ("[A]ggrava- F.3d bomb. ... ting factors are the elements of mur make the defendant death der offense that finding aggravating 9.The fact eligible.”). increases maximum statuto- circumstance ry distinguishes aggra- punishment available 39-13- Tennessee Code Annotated section vating circumstances from more routine sen- 202(a) degree as: defines first murder considerations, may tencing enhance a (1) killing premeditated A and intentional range applicable do within the but sentence another; punishment maximum not increase the killing another in the A committed may subjected. Sen- which a defendant attempt any perpetration perpetrate of or tencing the latter cate- considerations within murder, terrorism, arson, degree act first gory qualify as elements of offense. do theft, robbery, burglary, kidnapping, rape, abuse, aggravated child aggravated child out in section 39-13-204. In light of this an “actual innocence” exception to the scheme, statutory majority concludes AEDPA statute of limitations upon based is clear ... that the underlying “[i]t an untimely claim of intellectual disability. murder,’ degree ‘offense’ is ‘first note, that Of Henderson nothing to do with the death is a sentencing consider- provisions AEDPA’s concerning suc- ation independent rather than an offense.” petitions10 cessive and made no distinction between Rather, offenses and sentencing. majority’s hinges conclusion on the the issue in that case was whether to apply assumption that a fact proved at sentenc- the common law actual innocence excep- ing qualify can never part of an offense. tion to the AEDPA’s limitations, statute of Consistent with the authorities discussed which, unlike Tennessee Code Annotated above, I prefer to define offenses 40-30-117(a)(2), section does not include according to their elements. Because the an actual provision. innocence While the “aggravating circumstance” requirement Fifth Circuit declined to recognize an actu- set out in Tennessee Code Annotated sec- al innocence exception to 39-13-204(i) the tion AEDPA’s constitutes an element of limitations, statute of a majority of the capital the offense and must proved federal circuits that doubt, have beyond view, considered the reasonable in my question have disagreed murder with the resulting in the conclu- penalty is a sion in Henderson. See Lee v. separate Lampert, offense from murder resulting in (9th 929, Cir.2011) (en 653 F.3d 932 Sattazahn, banc); imprisonment. life See 537 Jones, 1, Sandoval v. 112; 447 F. 609; App’x U.S. at 4-5 Ring, 536 U.S. at see (10th Cir.2011); McNeil, San Martin v. Apprendi, (Thomas, also 530 U.S. at 501 1257, (11th J., 633 F.3d Cir.2011); concurring). 1267-68 Romanowski, Turner v. 922, 409 F. App’x The majority also upon relies several (6th Cir.2011). 926 federal cases construing the Antiterrorism The majority also upon and Effective relies Penalty Death In re Act of 1996 Dean, 1247, (11th (“AEDPA”). 341 F.3d 1248-49 Similar to Cir. Tennessee Code 2003), Hope States, v. United Annotated 108 F.3d 40-30-117(a)(2), section (7th 119, Cir.1997). 120 AEDPA These cases both provisions contains that bar involved successive petitions habeas claims for seek- corpus habeas relief in “second ing to collaterally non-capital or attack successive” sen- petitions petition- unless the er tences that had been satisfy by can enhanced virtue exceptions, certain one of prior case, In convictions. each requires newly the court discovered evidence found that statutory establishing language “guilty that “no reasonable factfin- permitted der” would offense” challenges have found the petitioner offense,” “guilty of crimes of conviction but not to see 28 sentences. U.S.C. 2255(h)(1) Dean, (2006), 1248-49; In re 341 “guilty F.3d at Hope, of the un- offense,” derlying 108 F.3d at 120. see id. But because these were 2244(b)(2)(B)(ii). authorities, non-capital involving Federal cases sentencing en- however, are not uniformly as hancements supportive that did not increase the maxi- of the majority’s position opinion statutory as the mum punishment, they did not suggests. In the first by any federal case cited involve proved fact at sentencing that Henderson, the majority, 626 qualified F.3d at 779- an as element of the offense at 81, the Fifth Circuit recognize declined to result, issue. As a provide these cases fact, 10. In granted Fifth Circuit petition prior beas in a decision. See re In permission Henderson, 413, (5th Henderson file Cir.2006). a successive ha- 462 F.3d 417 of- ‘underlying that “the term the court found whether guidance as to little penalty capital ele- case is encompasses all fense’ a death properly “offense” those, issue, merely than homicide.”12 even murder rather offense at ments of the circumstances, which Thompson at 924. Because had assert- aggravating Id. such by a that, proven, negate a reasonable doubt if beyond are found ed a claim See sentencing phase. him jury during sole factor made aggravating 341, Whitley, Sawyer v. 505 U.S. the court eligible penalty, for the death (ex- 120 L.Ed.2d S.Ct. viable he had stated a claim found that noncapi- of a context plaining that “[i]n of the offense at issue. actual innocence case, innocence’ concept of ‘actual Id.; tal F.3d Woodford, Babbitt v. see also diffi- curiam) (stat- is more easy (9th Cir.1999) “[i]t whereas grasp,” (per analogous framework develop cult to AEDPA’s actual innocence ing has who dealing when with a defendant exception the bar on successive claims death”). been sentenced petitioner to establish clear “permit[s] that, ‘but for con- convincing evidence have refused to Admittedly, other cases error, juror no reasonable stitutional asserting petitions habeas allow successive eligible petitioner would have found claims, penalty in death sentencing even applicable the death under Webster, See, 605 F.3d e.g., cases. re ” F.3d (quoting Thompson, state law’ (5th Jones, Cir.2010); re 923)); Stevenson, A. The Politics Bryan (11th Cir.1998).11 But F.3d Fear and Death: Successive Problems agreement are in on this federal courts not of Cases, Corpus Capital Federal Habeas Calderon, in Thompson v. issue. In (2002) (“Some 699, 777 77 N.Y.U.L.Rev. Circuit, banc, sitting specifically Ninth en AEDPA’s inno- courts view actual [the interpretation of the AEDPA rejected an to the bar on successive exception cence categorically bar that would successive necessarily including as claims of claims] capital claims in cases. sentencing (9th Cir.1998) (en other penalty, innocence of the death while & 4 F.3d n. banc). provision labels much more nar- reference courts read Without issue, rowly as limited to claims of innocence employed by the murder statute at Webster, only stay speci- challenge in a execu- Notably, in In re the court col results suggest not "to that a pending adoption protocol, fied that it did mean tion of a lawful jurisdictionally prisoner Greenawalt, barred from seek- whereas a see F.3d ing where he successive review contests disability results successful intellectual claim capital convic- predicate factual of his murder ineligibility oth- in for the death sentence. In tion, guilty which he would have been without words, disability, er intellectual unlaw- unlike only non-capital 605 F.3d at 258 murder.” protocol delays ful at best rather execution below, explained I the Peti- n. 5. As believe negates a sentence death. than effectively disability tioner’s intellectual claim resulting in murder contests his conviction for addition, finding In rather than that the penalty the death because he has asserted "guilty language of the under- inclusion of the that, proven, claim if would remove the death lying provide a nar- offense” was meant penalty option. as an exception rower than the common law actual rejecting successive ha- Other federal cases (as exception majority con- innocence petitions involve beas in death cases case), cludes in this the court reasoned See, protocol. challenging claims execution language because the AED- was included 1274; rejones, e.g., In Greenawalt F.3d peti- provisions pertaining to PA successive (9th Cir.1997) Stewart, 105 F.3d tions, exception, law unlike the common curiam). distinguishable (per These are cases just capi- ”appl[y] petitions, habeas to all involving of intellectual dis- from cases claims petitions.” tal Id. at 923-24. habeas ability proto- because successful execution former, II. the crime. The in the decisions seem protective category more summary, interpreting Tennessee closely with the comport most available 40-30-117(a)(2) Code Annotated section so (footnotes legislative indicia of intent.” as to bar the Petitioner’s intellectual dis- omitted)).13 ability claim upon based new evidence con- flicts with his right process of due majority, I would hold that Unlike depriving him of a meaningful opportunity “offense,” the term in used Tennessee to establish ineligibility for the death sen- 40-30-117(a)(2), section Code Annotated tence. A proper interpretation of the term includes all elements of offense in 40-30-117(a)(2) “offense” in section encom- question, including the cir- “aggravating passes issue, all elements the offense at cumstance” element in cases. capital including the “aggravating circumstance” assessment, my the term “offense” encom- requirement imposition for the of a death passes resulting pen- murder sentence. alty. interpretation This statute comports with traditional understand- It may be that the Petitioner would and, ing of what constitutes an offense ultimately be unable satisfy the statuto- great importance, preserves the constitu- ry requirements demonstrating intel- tionality avoiding 'by of the statute an in- disability; however, lectual to interpret terpretation deprives in- death row 40-30-117(a)(2) section in a manner that meaningful mates of opportunity deprives a petitioner evidentiary of an newly present upon claims based discover- hearing adjudication and an on the merits disability. ed evidence of intellectual risks putting to death an dis- term Reading the “offense” this man- abled individual violation state ner, question becomes whether demon- would, and federal constitutions. I there- strating intellectual establishes fore, remand to the trial consid- actual of the innocence offense murder eration of the merits of the intellectual I resulting penalty. the death believe disability claim.

that it does. While intellectual disability directly

does not contradict elements (including any aggravating offense

circumstances), it is incompatible with the

imposition of a death under sentence Ten- 39-13-203,

nessee Code Annotated section

as well state as our and federal constitu-

tions, effectively negating “aggravating

circumstance” element of the offense. tion”); Gibson, appeals recog-

13. Other federal courts of have LaFevers 238 F.3d (10th Cir.2001) Vial, (same); nized but declined to resolve issue of In re (4th Cir.1997) provisions (en whether the AEDPA’s on F.3d succes- 1198 & n. 12 banc) petitions premised statutory sive habeas bar a (holding exception claim on that the establishing ineligibility new petitions gen- evidence for the bar on successive is habeas See, Mullin, errors, penalty. e.g., Bryan erally sentencing unavailable to assert (10th Cir.2004) (acknowl- App’x declining question F. but to address "the whether, AEDPA, edging challenge that it unclear “whether a under individual propriety subject cogni- may of a death sentence to a sentence of death assert the 2244(b)(2)(B)(ii)” finding establishing zable under but it existence of new evidence unnecessary ques- imposed difficult improperly”). to “resolve that the sentence was notes [‘offense’] 26, 1995, said, Apr. Judge § 16. Act of ability, virtually ch. Wiener "it is guaranteed” Tenn. Pub. Acts that he be found intellec "[bjecause However, tually disabled. Web Judge Jacques Wiener separately only wrote ster he seeks demonstrate is con emphasize absurdity stitutionally ineligible re Webster "to penalty death for the — Kafkaesque given factually its jury result.” If a that he and not is innocent of the the evidence of Mr. Webster’s intellectual dis crime—we must sanction his execution.” Be § Ann. death.” Tenn.Code with Justice Barker agree We 39-13-204® aggravating sets the seventeen factors Tennessee’s out reasoning applies same a sentence jury impose that authorize a qualify “actually as innocent” statute. To 30—117(a)(2), statutory It clear from this of death. is Ann. under Tenn.Code 40— underlying “offense” actual in- scheme petitioner must “demonstrate murder,” degree and that underlying for which “first nocence of the crimes sentencing is a consideration rath- Van Tran he was convicted.” (Barker, J., er an offense. dissenting).18 independent than at 822 proceedings reopen post-conviction Keen To point, On Mr. raises addi- 40-30-117(a)(2), .Ann. He insists that “of- under Tenn.Code argument. tional evi- petitioner present must scientific which he was convicted and of fense” of “actually he innocent of the is the “of- dence that actually which he is innocent any apply Because we cannot “capital fense” murder.” While this offense.” construction” distort might ju- have in other “forced subtle argument traction risdictions, Tennessee, ordinary meaning” no the “natural and sepa- there is unambiguous” lan- “capital murder.”19 statute’s “clear and rate offense known Johnson, Eastman Chem. Co. §Ann. guage, 39-13-202 defines “first Tenn.Code murder,”20 “actually we degree Ann. find nothing innocent of the offense” means procedures 39-13-204 sets out not person of first than that the did commit sentencing defendant convicted other Here, pleaded guilty Mr. degree assign murder. These statutes crime. Keen “first imprisonment rape degree three to the murder” possible sentences: life, Nikki Reed. “offense” at issue is “first imprisonment for life without His degree alleging He is factu- possibility parole, “punishment murder.” “Congress's ju "capital‘murder,” the definition of instruction ... ties our nize but cause ¡¡logically, today separately-enumerat- hands so we have no the offense relies on dicial just choice but to condone such an unconsti ed See elements of "murder.” Miss.Code Webster, (2006); punishment.” In re tutional Ann. 97-3-19 Tex. Penal Code J., (Wiener, concurring). contrast, (West 2011). By F.3d at 259-60 § 19.03 the term

Case Details

Case Name: David Keen v. State of Tennessee

Court Name: Tennessee Supreme Court

Date Published: Dec 20, 2012

Citation: 398 S.W.3d 594

Docket Number: W2011-00789-SC-R11-PD

Court Abbreviation: Tenn.