*1 property. Accordingly, defendant’s
plaintiffs may remove the artificial addi- subject only
tions on their property own duty doing of reasonable care in so to unnecessary damage adjoining
avoid to the
property. plaintiffs’ pro-
viding thirty days reason- notice was plaintiffs may proceed with
able. sloped
their excavation of the embankment
subject duty to a exercising continued doing long
reasonable care in so. As plaintiffs portion do not excavate the state, ground natural defen- its responsible
dant will be for the costs of
maintaining support the current level judgment
the defendant’s land. The Appeals is affirmed. appeal
The costs of this are taxed to the Petroleum, Incorpo-
appellant, RaceTrac
rated or its sureties for which execution if
may necessary. issue Wayne
Michael HOWELL
STATE of Tennessee. Tennessee,
Supreme Court
at Jackson.
April 2004 Session.
Nov. *3 Kelley Henry,
Paul R. Bottei and J. Nashville, Tennessee, appellant, for the Wayne Michael Howell. Summers, Attorney
Paul G. & General Moore, Reporter; Michael E. Solicitor General; Smith, L. Jennifer Senior Coun- sel, appellee, for the Tennessee. OPINION BARKER, J., WILLIAM M. delivered court, in opinion which E. RILEY A. ANDERSON and ADOLPHO BIRCH, JR., JJ., joined. FRANK F. DROWOTA, III, C.J., and JANICE M. HOLDER, J., concurring each filed dissenting opinions.
This case before on a motion comes us reopen petition for re- petitioner alleges that he is men- lief. The tally retarded as defined Tennessee 39-13-203(a) Code Annotated section (2003), ineligible and therefore for the penalty death under Van Tran (Tenn.2001) and Atkins v. S.W.3d Vir- ginia, 536 U.S. 122 S.Ct. trial court L.Ed.2d 335 denied motion, finding showing failed to make a facie support mental retardation sufficient to re- post-conviction proceeding, opening his Appeals af- and the Court of Criminal firmed the denial. We reverse the Court Appeals, holding that under of Criminal for application permis the petitioner’s a nied specific facts of this able, to appeal. the first time his sion for reopen for petition post- motion to motion to filed this second Petitioner relief, ineligibility for to claim conviction post-conviction re- penalty the death due to i’etarda- 3, 2002, arguing that lief on December Atkins, the tion under Van Tran or motion his death because he under the “colorable should considered con- the state and federal sentence violates evidentiary claim” standard rather State, 66 Van Tran v. stitutions under convincing” “clear and standard. We (Tenn.2001), Atkins v. Vir- *4 also hold that Tennessee Code Annotated S.Ct. ginia, 536 U.S. 39-13-203(a) (2003) clearly un- section and (2002). He the L.Ed.2d asserts the defendant to ambiguously requires finding that he had trial court erred I.Q. seventy of or to be have an below that he is showing made a facie mentally retarded. con- considered We in- and an applying the motion re- petitioner’s clude that to of review. correct standard hearing a open post-conviction set out the reopen, of his motion to support claim, entitling him to an colorable thus Dr. Daniel petitioner filed the affidavit of evidentiary jury, a the hearing, without on Grant, psychologist and board a licensed issue of mental retardation. who neuropsychologist certified clinical testi- Dr. Grant petitioner. evaluated the
Background
that he
a clini-
fied
affidavit
conducted
Howell,
of
Wayne
cal
and administered a series
petitioner,
Michael
interview
larceny
felony
petition-
of
to
grand
procedures
was convicted
tests and
assess
murder,
26, 1989,
intelligence, adaptive
and on
er’s level
function-
September
of
skills,
function-
ing,
memory
affirmed
language
sentenced
death. We
the con
death,
ing.
viction and
v.
reviewed numerous records
sentence of
He also
Howell,
(Tenn.1993),
petitioner.
Dr. Grant
pertaining
that,
I.Q.
gen-
an
testified
because
score
the United States
denied
certiorari,
mea-
erally thought
for
v.
to involve an error of
petition
writ of
Howell
Tennessee,
an
approximately
points,
five
U.S.
surement of
a
timely
I.Q.
seventy
represent
of
is considered to
127 L.Ed.2d
Petitioner
relief,
seventy-five.
sixty-five
of
petition
post-conviction
filed a
for
band
zone
court,
trial
and Dr.
stated
on the Wechsler
which was denied
Grant
Edition
Appeals
Intelligence
of Criminal
Adult
Scale—Thud
the Court
affirmed
(“WAIS-III”),
obtained
that denial.
No. 02C01-
Howell
(Tenn.
9706-CR-00200,
seventy-five,
I.Q.
performance
Tennessee Code Annotated 39-13- *5 203(a)(1) by adopted the Court Van Tran. He specifically states sub av- below, I.Q. not erage does have an of 70 or functioning intellectual is evi- by requisite has not intelligence I.Q. denced functional manifested deficits (70) behavior, seventy in adaptive put of or below. This statute nor has he any way does not in forth proof set forth that and that mental retardation man- seventy of age [sic] is considered to ifested itself before the of 18.2 The however, (second Interestingly, during percentile), Expression both the Oral stan- post-conviction hearing sentencing (second and the percentile) dard score 68 and an phase petitioner presented of his trial the (first Composite Oral standard score of 66 testimony Phillip Murphy, Dr. of J. a clinical (Af- percentile) significantly impaired. are psychologist, stating full Grant, ¶ 23). fidavit of Dr. at ninety-one. scale was Howell v. performance Managing Money His on the 02C01-9706-CR-00200, No. 746438, 1997 WL Independent Living subtest of the Scale Dec.3, 1997). (Tenn.Crim.App. at *7 placed ability money, manage his do calculations, monetary pay bills and take respect 2. With all due to the trial court and precautions money with at a standard score dissent, Chief Justice Drowota’s the affidavit performance of 55. Mr. Howell’s on these Grant, along petition of Dr. filed with the tests indicate his functional academic skills reopen post-conviction proceedings, clearly (Affidavit significantly impaired. are of Dr. stated, pertinent part: Grant, ¶ 24). at mentally Mr. Howell is retarded as indicat- performance Independent Living His on the IQ by ed his Full Scale of 73 on the WAIS- placed adaptive Skills test his skills at a III, his Binet-Fourth Edition Stanford (.9 percentile) Standard score of 61 (standard score) Composite and his clearly range within the retarded for Comprehensive Test of Nonverbal Intelli- adaptive behavior and meets the criteria as gence IW of 67. All of these scores meet (Affidavit by set forth the AAMR. of Dr. significantly subaverage gen- the criteria for ¶ Grant, 25). functioning by eral intellectual as evidenced Mr. Howell’s mental retardation manifested (IQ) intelligence quotient of 73 or below developmental period within the as noted in when the standard error of measurement is developmental his school records and histo- Dr.Grant., (Affidavit considered. ry are where there numerous indications of ¶ 22.) failed and mental retardation. Mr. Howell significant Mr. Howell has deficits in grade. repeated the In the second adaptive example, first behavior. For communi- grade, passed to the third Mr. Howell was cation skills measured Oral and Written grade spite receiving Language placed listening three D’s and Scales his Com- By grade, prehension at a of 69 F’s. the fourth Mr. How- skills standard score three on collateral review.” to cases make a Petitioner failed to decision to our Subsequent at 811. mentally that he retarded facie case was in Van the United States offenses time he committed the at the Virginia similarly held in Atkins does he was He for which convicted. mentally retarded execution defen- qualify as punishment cruel and unusual persons criteria set dant in accordance with the Amendment. Eighth prohibited Annotated forth Tennessee Code 304, 321, 39-13-203, such, 122 S.Ct. pen- death 536 U.S. as (2002). alty not unconstitutional. This Motion L.Ed.2d Petition Re-Open for Post-Conviction Tran, just the case before is without merit and should Relief had a petitioner who today, us involved a hear- without the dismissed benefit prior to enactment been convicted ing. statute, seeking postcon- was who now but affirmed Appeals of Criminal The Court men upon claim of relief based viction court, peti- granted trial that exe holding and our tal retardation permission appeal. tioner mentally retarded individuals cuting that, un recognized We unconstitutional.
Analysis obtaining for scheme der the relief, Assem- the Tennessee General reopening post-conviction exe- bly legislation if prohibiting enacted permissible relief was ruling retarded individuals. cution “is based the claim *6 § In Ann. a constitution establishing Tenn.Code 39-13-203 appellate was recognized 2001 this Court held that the statute was at right al that not Assembly trial, to if of retrospective application not intended General time Ann. Van that required.” given application. right Tenn.Code be retroactive 40-30-117(a)(l) Tran (2003); Tran v. Van 798-799 S.W.3d Therefore, Van (Tenn.2001). in Therefore, petitioner as the at 811-812. S.W.3d Tran, to to “hear in Van Tran prior had we directed the trial court been convicted and make not motion to statute, reopen he could the petitioner’s the enactment al the statute for relief. Id. petitioner’s at 799. as to the a determination rely upon Tran However, at we also held Van in retardation.” leged section although individ- concluded that mentally the execution 812. We retroactively not to prohibitions apply did uals violated constitutional 39-13-203 Id. crite appropriate punishment. petitioner’s cruel unusual addition, re recognizing evaluating In his claim of mental at 811. while ria for persons did not were those set forth within protect the statute those tardation enactment, at 812. statute. Van prior convicted to its this Court However, in newly an issue not address recognized held that this constitu- we did Tran was the applica- appropriate standard tional “warrants retroactive attempt grade eight at grades D’s. the end of his second ell's included six F’s and At nine, in a Howell ranked 105th promotion” to the Mr. was He received "social Grant, (Affidavit at struggle of Dr. grade. He class of 106. fifth continued high through school he arrived until ¶ 21). his repeated Howell's] school records [Mr. Mr. failed and His school. Howell clearly developmental history indicate grade, only time. to fail a second ninth age mentally of 18. retarded before the attempt grade nine third Rather ¶ Grant, (Affidavit 26). time, school. of Dr. Mr. Howell not return to did stances, which the trial court would evaluate the still be considered re- Additionally, argues claim under those criteria to petitioner tarded. if pled prima determine he had facie presented showing that he facie ease. That is the issue we must now ad- mental retardation in his motion in dress case order to deter- post-conviction proceedings, but alleged mine whether the applied trial court an incorrect standard of prima facie case of mental retardation to denied the mo- subsequently review and support reopening post- evidentiary tion without benefit of an hear- conviction Respectfully, relief.3 our ing. by applying He contends a “clear and view, dissenting opinions neither of the reviewing standard in convincing evidence” grips comes to with this issue. motion, rather than the “colorable claim” standard found in Tennessee Su- presents arguments Petitioner several 6(B)(6), Rule 28 section preme Court regard, and we will address each him process. trial court denied due arguments turn. can The thrust of these main focusing be summarized as on two response, argues that the 1) points: definition of mental retar- of mental retardation found definition applied capital dation defendants has section 39-13- Tennessee Code Annotated rigidly by interpreted been too the lower 203(a) clearly requires unambiguously 2) courts; dictates I.Q. seventy below. the Post-Conviction Procedures Act have interpreted the statute should operated deprive of a fair any make allowance for standard error opportunity litigate his claim that he is measurement or other circumstances ineligible for the due to penalty death whereby person with an above sev- mental retardation. enty could be considered retard- argues requirement Petitioner ed. below, seventy contained argues the definition of mental retardation The State further a different *7 applies evaluating Tennessee Annotated section 39-13- standard when motion Code 203(a) (2003), reopen post-conviction proceedings interpreted should not be as to rule, post- “bright-line” original petition but rather should be rather than an conviction relief. construed to make allowance for standard The State asserts pro- convincing “clear and evidence” stan- testing errors of in the measurement dard, an set forth in Tennessee Code Anno- person cess so that a with score 40-30-117(a)(4) could, in some circum- tated section is correct seventy above (Tenn.2000) (citations omitted). In this 3. Chief Justice Drowota’s dissent asserts that "scrupulously” the trial followed the court never indicated what le- trial court mandates of Van Tran and Tennessee Code applied making gal standard it had its reaching its Annotated section 39-13-203 determination that the affidavits submitted in made a conclusion that the had not petition reopen post-convic- support of the showing retardation. facie of mental proceedings had failed to set forth a the trial court did This dissent concludes that showing prima facie of mental retardation. discretion when it dismissed the not abuse its impossible we find it to determine note, however, reopen. We that a its discretion the trial court abused whether applies if it trial court abuses its discretion applied knowing whether it without standard, legal reachefs] "an incorrect convincing standard or “clear and evidence” logic reasoning decision which is evaluating claim” standard in the "colorable injustice party to the com- [causes] petition. plaining.” Spicer v. is mental retardation appro- question, standard this instance and Without accurately define. a difficult condition applied by the trial court. priately Court, in At- The United States much, stat- 39- Annotated Section admitted as Tennessee Code Virginia, kins v. 13-203(a) there is serious dis- Deñnition of ing: the extent “[t]o mentally execution
Mental Retardation
agreement about the
offenders,
determining
it is
retarded
argu
turn first to petitioner’s
We
are in fact retarded.”
offenders
ment that the definition of
retarda
Generally
317, 122
U.S.
tion,
in the applicable portion
as contained
the scientific
within
accepted definitions
Code,
misinter
of the Tennessee
has been
no
as our
will
doubt be refined
community
it
by
applies
As
preted
lower courts.
knowledge
pres-
At
in this area advances.
capital prosecution,
to a
in a
defendant
however,
widely recognized
ent
most
by the
term mental retardation is defined
of mental retardation include
definitions
legislature
state
as follows:
significantly
basic characteristics:
two
(1)
in-
subaverage general
Significantly
functioning
intellectual
accom-
subaverage
by a
functioning
tellectual
as evidenced
limitations in two or
panied by related
(I.Q.) of
intelligence quotient
functional
(such as
more
skill areas
self-
adaptive
below;
seventy or
skills),
communication,
care,
or social
(2)
behavior;
adaptive
Deficits in
age
condition
manifestation of the
before
(3) The mental retardation must have
18.4
developmen-
been manifested
during
provide
question
The
becomes how
(18)
by eighteen
years
tal
period, or
guidelines to
used
the courts
valid
be
age.
intellectu
determining when a defendant’s
39-13-203(a) (2003).
TenmCode Ann.
Atkins,
“subaverage.” In
functioning
al
is
left it to
Supreme Court
the United States
three-prong
This definition sets out a
adopt appropriate
the individual states
test
to be utilized
determin-
definitions of mental
retardation.
ing
mentally
capital
whether
defendant
all people
stated that
who
“[n]ot
and, therefore, ineligible
retarded
for the
be so
claim to
retarded will
petitioner argues
death
penalty. The
range
fall
impaired as to
within the
the statute’s inclusion of an
score
offenders about whom
seventy
“bright-line”
cutoff score
Atkins,
consensus.”
there
a national
contrary
prevailing
views mental
317,
Ass’n v. Hamblen Bd. of 33-1-101(17), yet purposely chose to 431 (Tenn.Ct.App.1994)). adopt different definition of mental re desired, if legislature, it had applied tardation be the criminal provisions establishing free to include That both touch context. the two statutes range into scores would take matter, subject yet the same contain testing account measurement errors in the provisions, dissimilar is indicative of a leg process. It also have to ex- could chosen different, intent islative have more any specific clude reference to scores alto- restrictive, apply standard defendants However, Instead, gether. it did neither. capital prosecution. legislature’s pro- it enacted the current statute which decision to demarcate an score of sev objective guideline vides a clear and 39, yet enty or below title not to do so in followed when applying courts *9 differing clearly title evidences this as set out in Tennessee three-prong test respect to legislative intent with the two 39-13-203(a) (2003). Code Annotated Lewis, of sections the code. State v. (1997) in- legislature (stating Further evidence 958 S.W.2d 739 bright given provi tended to such a line rule one statute contains a “[w]hen create sion, same may by examining provision be found the omission of the is applied significant definition of retardation as from similar statute to mental existed.”) However, record to nothing is in the (citing intent there show a different Davis, tests, (Tenn. such as the Stan- v. that other indicate Edi- Crim.App.1983)). Intelligence Test-Fourth ford-Binet not also accurate tion, are or the CTONI adopted some states While have defini- certainly may give A court I.Q. tests. tions mental of retardation do not test, do so to but should one weight more I.Q. scores,5 include numerical specific oth- considering fully analyzing only after that, similar employ er to states definitions explain As we will presented. all evidence Tennessee, I.Q. specific include as a scores particular herein, under the fully more determinative factor.6 while hold the facts of the there no appears general to be national ap- reviewed motion should be of regarding consensus use numerical standard, see claim the colorable plying I.Q. in determining scores as factor men- 2(H), § entails R. retardation, Sup.Ct. Tenn. to tal the use of such scores claim, if taken bright-fine determining whether point establish a cutoff for mak- to true, in the favorable contrary fight most ing this determination not viewed A in At- him to relief. Supreme holding either the Court’s would entitle petitioner, definitions Virginia kins v. or with those would neces- review under standard adopted several of mental retardation full and fair consider- sarily giving include legislature other states. The Tennessee peti- to the ation to all tests administered seventy of or adopt fit to score seen tioner. in finding below as a determinative factor purposes of mentally retarded for person Appropriate Review Standard Based carrying capital out sentence. the Post- Due Process Under analysis, no we see reason
upon our Act Procedures Conviction validity approach. of such question petitioner’s second We now address trial argues The also that the point statutory dictates of main —that and the Appeals Criminal Act Procedures work the Post-Conviction relying solely upon erred in results him, deprive unique cir- because I.Q. making the WAIS-III test their cumstances, litigate a fair opportunity determinations, to even men- failing while claim retarded and tion- other which he was two tests ineligible capital punishment. therefore administered. Court rec- United States provide clear statute does Nebraska, ommended, directive in Case v. U.S. regarding which particular test (1965), testing 14 L.Ed.2d method be used. The post-conviction pro- WAIS-III test create has been called stan states “the dard addressing alleged in the constitu- instruiAent United States for cedures for assessing functioning.” occurring during intellectual At the convic- tional errors kins, at 309, U.S. n. supplement S.Ct. 2242. process order habeas See, 5. e.g., 1376(a) (West (I.Q.) (70) § Cal.Penal seventy Code or below” to be consid- 2004) (defining retarded); retardation as "the Murphy ered significantly subaverage condition of general (Okla.Crim.App.2002) (requir- P.3d functioning existing intellectual concurrently ing claiming defendant mental retardation to behavior”). adaptive with deficits in seventy show an "as reflected below test). scientifically recognized one” least See, Ky.Rev.Stat. e.g., 532.130(2) Ann. (2004) (requiring intelligence "an quotient
corpus (Tenn.2003). State, remedies. The General Assembly v. S.W.3d of Tennessee responded to that Additionally, requires recommen- the statute that “[i]t dation in by enacting the Post-Con- appear[] that the facts underlying the viction Procedures Act. See claim, Tenn.Code true, if by establish would clear and §§ Ann. seq. (2003); 40-30-101 et see also that convincing petitioner evidence State, 206 entitled to conviction set Burford have the aside or (Tenn.1992). the sentence Ann. reduced.” Tenn.Code 40-30-117(a)(4) (2003). § Act, a prisoner may
Under
file
a petition
post
for
conviction relief with the
seen,
As can
peti
defendants
clerk of the court where the conviction tioning
post-conviction
for
relief are held
occurred,
40-30-104(a)
§
Tenn.Code Ann.
stringent
they
to more
pror
standards as
“[rjelief
(2003), and
shall be granted when
They
ceed further
along
process.
this
the conviction or sentence is void or voida
present
must
a
only
“colorable claim” to
ble because
abridgment
in any way relief in
original petition,
but
a mo
of any right guaranteed by the constitution
tion to reopen post-conviction proceeding
of this state or the Constitution of the
they
present
must
facts which “would es
United States.”
§
Tenn.Code Ann.
40-30-
convincing
tablish
clear and
evidence”
(2003).
In
for a
order
hearing to be
that they are
to relief. Id.
entitled
These
granted,
petition
must assert a “color- progressively
standards
higher
attempt
able
State,
claim.” See Burnett v.
maintaining
balance the
State’s interest
(Tenn.2002).
previous
As
the finality of judgments
petition
with a
discussed,
ly
claim
colorable
is defined as
er’s interest in attacking
possibly
uncon
“
that,
true,
‘a claim
if
light
taken
in the
stitutional
conviction
sentence.
most
petitioner,
favorable to the
would
case,
In
petitioner
petitioner
entitle
to relief under the Post-
”
has moved to reopen
post-conviction
Conviction
Act.’
Procedure
Id. (quoting
2(H)).
proceedings
ground
on
he
that
Tenn. Sup.Ct.
§
R.
If petition
new
right of
right—the
constitutional
er makes this initial colorable claim to
not to
retarded individual
be exe
relief,
hearing
an evidentiary
is held at
cuted—and that
right
given
this
was
retro
prove
must
allega
><m
application.
active
r
Tenn.Code
convincing
tions
clear and
evidence.
39-13-203(a) (2003);
§
Van Tran v.
40-30-110(f) (2003).
TenmCode Ann.
(Tenn.2001).
support of
461
(1976)). Also,
evidentiary
impor
hearing.
perhaps
ed and denied him an
18
and
most
tantly,
process
argues
recognize
Petitioner
that
trial court
that due
“em
the
com-
we
by applying
concept
fundamental fair
mitted
constitutional error
bodies the
Seals,
ness.”
23
at 277.
convincing
the “clear
evidence” stan-
S.W.3d
and
evaluating
his motion to
dard
carved out
previously
This Court
of the “col-
petition instead
post-conviction
requirements
exceptions to the technical
claim” standard. Petitioner asserts
orable
Act in or
Procedures
the Post-Conviction
that,
the
person
because a
who now raises
rights
due
petitioners’
protect
der to
for the first
issue of mental retardation
recognized that
Burford,
In
process.
post-conviction
time in a
relief
the
of due
precise
identification of
dictates
is, under
Court Rule
Supreme
Tennessee
process requires consideration of both
6(B)(6),
only
held
to a “colorable
28 section
involved and
governmental
interests
standard,
claim”
he
denied
has been
due
official
private interests affected
process
being
required to
(citing
action.
at 207
Fusari v.
845 S.W.2d
convincing
and
“clear
evidence” mental
389,
533,
Steinberg, 419 U.S.
95 S.Ct.
retardation,
prior
notice
when
had no
(1975)).
42
L.Ed.2d 521
We held that
Tran
Atkins
a mentally
and
that
re-
attacking
interest in
his convic
person
constitutionally
tarded
ineligi-
was
tion
on constitutional
sentencing
and
capital punishment.
ble
receive
grounds
inter
greater
was
state’s
preventing litigation
est
stale or
recognized
previously
We have
that
claims
fraudulent
where
duty
post-convic
the State has no
to enact
post-conviction
bring
forced to wait
procedures
tion
opportunity
claim
de
underlying
until
convictions were
collaterally attack
constitutional viola
invalid,
three-year
at
time the
clared
in the
occurring
process
tions
conviction
post-
for bringing
statute of limitations
right.
not
fundamental
See Seals v.
already
conviction claims had
run.
Id.
State,
(Tenn.2000);
277
66
See also Van
S.W.3d
812
Burford,
yond prevented his control which him from deny the of a right. fundamental previously challenging his conviction and We stated in Burford: sentence on constitutional grounds. For “If consideration of the reasons, these find the indi barred, petitioner] bewill forced to [this outweigh vidual to those of interests a sentence that persistent serve offender specific capital state of this under facts by previous was enhanced convictions case. result, longer a that no stand. As [he] will an be forced serve excessive sen- correctly points out that rights tence in under violation a right defendant has no fundamental Eighth Amendment to the U.S. Consti- collaterally on attack conviction constitu tution, I, § and Article Tennes- Seals, grounds. tional 23 S.W.3d at Constitution, which, definition, see Further, 277. that “un State asserts are fundamental rights entitled to involved, less fundamental right is heightened protection.” test for determining whether a statute Burford, comports process with substantive due excessively If legislation lengthy impli-
whether bears reasonable sentence Burford, legislative purpose right, as proper and cates a fundamental relation to arbitrary discriminatory.” certainly then a death sentence would as neither (Tenn. Cox, Newton v. well. contrary the State’s 1994). analysis, The State contends statute we find the today case before us at issue with complies due pro substantive does right. involve fundamental We re- cess ject as it is arbitrary discriminatory attempt the State’s to frame ques- in its treatment of petition right as one of a attack conviction they all must meet the “clear and rather than a from be free uncon- ers— convincing” Also, threshold requirement punishment. re stitutional while there open post-conviction proceedings. argument procedural Howev is merit to the developmental period due fested within process process due and substantive deficits significant different, conceptually are we find that agree with adaptive *13 in behavior. While we encompass both the idea of funda- central has shown petitioner the State If the petitioner mental the in fairness. that in his motion he present case re- is found to be evidence,” convincing we by “clear and tarded, right then he has a fundamental that, the the viewing conclude evidence process requires not to be executed. Due petitioner, to has light most favorable litigate to given opportunity he be fair claim” that he is forth a “colorable set right. this claim to this protect order to an mentally retarded and entitled Therefore, spe- hold that under these we evidentiary hearing. cific and circumstances which narrow section 40- Code Annotated Tennessee for post-conviction files for relief petitioner 110(f) that, post-convic at a provides Atkins, 30— Tran under the time first hearing, petitioner evidentiary the the requiring petitioner plead to proving the “shall have the burden of alle by convincing retardation clear and evi- convincing fact clear and gations of in his to reopen petition dence motion to applies peti evidence.” This burden post-conviction for relief would funda- making post- an initial for tioners claim mentally unfair pro- and violation due conviction relief or to those who have re petitioner cess. Because the was not able opened post-conviction proceedings. How to previously his claim of mental advance ever, law, the current a defendant under challenge eligibility retardation as a to his now who raises the issue mental retar to penalty, receive the death we find that prove at only dation trial has to claim he should be held to the lower “colorable by a of the preponderance evidence. him claim” requiring standard instead of 39-13-203(c) Ann. Tenn.Code plead facts show his mental retardation placed disparity This between burden convincing “clear and evidence.” on at trial and those now the defendants process raises due post-conviction stage Hearing Evidentiary to determine concerns. Mental Retardation explained above, now,
As
All
are
petitioners who
hearing
is entitled to a
if
through
post-conviction
proceedings,
his motion sets
forth a
claim”
claiming exemption
punish
“colorable
of mental retar
from capital
dation.
Testing
petitioner by ex ment
to mental
under
due
retardation
Atkins or Van Tran
perts
yielded
range
I.Q.
has
have
wide
one fact
Murphy
scores. Dr.
an
during
they
op
testified
not afforded
were
common—
trial,
sentencing
during
first
at
portunity
to raise these claims
post-conviction
applied
proceeding
peti
yet
do so
been
See Van Tran tioner’s
ninety-one,
retroactively.
which was
to them
“not significantly below normal.”
dis
As
S.W.3d at 811. This includes defendants
previously,
support
filing
petition
post-conviction
cussed
second
an initial
for
those,
reopen post-conviction
peti
motion to
relief as
such as the
proceed
well
ings
produced affidavit
tioner
have con
who
stating
proceedings
from Dr. Grant
that his
scores
cluded
but
ranged
sixty-two
from
them based on
seventy-three.
attempt
now
recognized
Dr.
also
newly
right.
Grant
testified in the affidavit
this
constitutional
apply
right retroactively, yet
mani-
petitioner’s mental retardation
To
time
post-conviction peti-
same
hold
effectively
communicate
with counsel
a higher
proof
tioners to
burden
protection.
mandate constitutional
at trial
fundamentally
defendants
un-
Cooper,
along with the State’s in the interest case mental should then retardation at bar. The Court stated: preponderance be determined evidence, deep roots forth in charac- as set Tennessee Code fundamental 39-13-203(c).
ter of the Just as right defendant’s not to stand Annotated section trial likely when it is Supreme Cooper regard more than not held in he lacks the capacity ing it incompetency, understand the conclude nature of the process him due proceedings or would violate to execute circumstances, balance, under likely than not these defendant who more justi weighs in favor mentally retarded. applying preponderance evidence fies make Tran Atkins As Van hearing. at the standard clear, mentally have retarded individuals right not to be executed.7 constitutional Jury under Demand for Trial today our recognize holding We Apprendi Ring out in Tennes odds with standard set argues Petitioner next Annotated 40-30-117. see Code section have a rather than the jury, entitled to However, we to the statute’s apply were he is judge, trial court determine whether convincing” light “clear and standard retarded. The would newly declared constitutional prove the burden on the State place also mentally re execution against Petitioner his lack of retardation. tarded, the statute would be unconstitu argument upon bases application. tional in its holding Apprendi v. New Jers Court’s *15 fact that could light of the the Arizona,9 Ring Appren v. Both ey,8 and litigated any at earlier not have claim jury that a Ring essentially di and held evidentiary proceeding, we hold that at an any aggravating factors must determine have hearing, opportunity he will the be used to enhance criminal sentence prove by preponder mental retardation statutory The peti the yond maximum.10 ance of the evidence. lack of tioner asserts a defendant’s holding peti equiva mindful that the We are retardation is the functional mental aggravating evidence of an circumstance and preponderance tioner to a of the lent by jury. be We the therefore must found may at this increase hearing standard disagree. defending the burden present the claim. In the capital sentencing Under Tennessee’s
however,
the risk to
the
also,
scheme,
jury
guilt
determines
dire,
is
erroneous outcome
as
would
separate
proceeding,
in a
determines
penalty,
the risk to
face the death
while
impose
penalty.
the death
See
whether
comparatively
(2003).
modest. See
the State is
§Ann.
Tenn.Code
39-13-204
This
364-365, 116
at
1373
Cooper, 517 U.S.
S.Ct.
sentencing
qualitatively differ-
scheme is
defen
(comparing
incompetent
Ring.
the risk
Un-
from the Arizona
ent
statute
Ring,
trial
risk of
the
standing
dant
versus State’s
the Arizona law at issue
der
determination).
death;11
penalty
The maximum
for murder was
competency
incorrect
Atkins,
589,
792;
ings.
at
2428. We
66
536
536 U.S.
122 S.Ct.
7. See Van
S.W.3d at
321,
that,
peti
by
although
S.Ct.
cited
the
U.S. at
122
also
note
tioner,
Blakely
the latest in this line of cases
Washington, - U.S. -,
124 S.Ct.
120
147 L.Ed.2d
8. 530 U.S.
S.Ct.
(2004).
Blakely,
(2000).
403
the
L.Ed.2d
In
statutory
maximum sen
Court held
tence,
expressed Apprendi, is "the maxi
153 L.Ed.2d
9. 536 U.S.
solely
judge may impose
on
mum sentence
(2002).
jury
in the
reflected
the basis
facts
Id.
by
defendant.”
at
verdict or admitted
the
Apprendi Court held in
10. The
S.Ct. 2348.
a criminal
issues used
enhance
all factual
beyond
must
maximum
sentence
13-1105(c)
(West
491-92,
§
Ann.
11. Ariz.Rev.Stat.
by jury.
530 U.S.
be found
also,
2001);
Ring,
U.S. at
reasoning
This
was extended
S.Ct. 2348.
sentencing proceed
capital
S.Ct. 2428.
Ring
apply to
however,
only
im-
impairments
sentence could
limitations and
associated
posed if
judge,
jury,
not the
found with mental retardation warrant more con
aggravating
support
factors
simply
sideration than
evi
allowing the
penalty.12
death
in mix
weighed
aggrava
dence to be
ting
mitigating
circumstances.”
contrast,
capital
under Tennessee’s
810. The Tennessee General
scheme,
sentencing
jury,
very
it is
Assembly apparently agrees, as evidenced
fact,
jury,
same
that found the defen
placing
prohibition
executing
its
on
dant guilty, that decides whether to im
mentally retarded individuals in Tennessee
pose
penalty.
the death
Tenn.Code Ann.
Code Annotated section 39-13-203 rather
(2003).
deliberations,
§ 39-13-204
In its
it
placing
among
mitigating
fac
jury
“any
is instructed to consider
tors listed
Tennessee Code Annotated
tending
evidence
establish
rebut
39-13-204(j). Accordingly,
pe
section
aggravating
any
circumstances ... and
ev
upon Ring misplaced,
titioner’s reliance
tending
any
idence
to establish or rebut
aggravating
as the issue is not one of
mitigating
circumstances.”
Tenn.Code
factors,
enhancing
eligibility
but of
for the
39-13-204(c)
Ann.
Diminished
imposed by jury.
sentence
capacity
among
mitigating
may by weighed against ag
factors that
Further,
the lack of mental retardation
gravating
jury.
factors
See Tenn.
operate
does not
as “the functional equiva-
However,
39-13-204(j).
Code Ann. section
greater
lent
element of a
offense”
*16
mental
a
retardation is now threshold is
subjects
greater
that
the defendant to a
sue that
determines whether
defendant
by
penalty
proved
which must be
the
eligible
capital punishment
is
for
at all.
beyond
Ap-
State
a reasonable doubt. See
Atkins,
Following
Van Tran and
mental
prendi, 530
at
n.
120 S.Ct.
U.S.
completely exempts a
retardation
defen
Apprendi
Ring
2348. Both
dealt with
from
capital punishment,
dant
rather
cases which the court made factual find-
simply being among
mitigating
factors
ings to increase the defendant’s sentence
weighed against aggravating
to be
factors
beyond
solely
what was available based
by
jury.
upon
jury’s
Apprendi,
verdict. See
482-483,
2348; Ring,
posing deprivation the defendant appro- is more by tion of mental retardation greater than that liberty authorized judge, statute, trial court priately nor left to the according to the verdict An- Tennessee Code contemplated under imposing upon the defen- judge 39-13-203(c) states notated section stigma than accom- greater dant a determination the defen- of whether jury “[t]he verdict panying the alone. Core at the time of dant animating jury concerns and burden- murder shall be first-degree offense are of-proof requirements thus absent added). by (Emphasis made the court.” from such a scheme. Further, in this persuasion burden n. Apprendi 530 U.S. 120 S.Ct. rather than respect is the defendant upon §Ann. 39-13- the State. See Tenn.Code 203(c) capital sentencing proce- Tennessee’s by just such a scheme as discussed
dure is Apprendi. proce- Under this CONCLUSION dure, retardation to reduce works sum, peti- requiring we find sentence, possible the maximum based tioner, is able who for the first time verdict, jury’s from to life death retardation under raise claim of mental Therefore, imprisonment. it is not an ele- by claim prove Atkins Van required ment of the offense convincing clear and evidence is fundamen- nor proven found peti- tally infringes upon unfair and jury- rights. tioner’s due process limited very hold that these factual under holding today out that our point We also in which a now circumstances is in an ever-growing line with number of claim, first if for the time able to raise to have considered courts the issue an initial relief True, held likewise. See Hedrick *17 a petition reopen post-conviction pro- or (W.D.Va. 24, WL 594989 at *25 March ceedings presents claim to a colorable re- 2004) (mental equiv retardation not the entitled to an lief the shall be offense); In re alent an element evidentiary issue of hearing on the mental (C.A. Tex.) Johnson, 403, 405 334 F.3d 5 hearing, petitioner retardation. At this (absence of 2003 mental retardation is not opportunity prove will have mental offense); element of Russell v. retardation, as defined Tennessee Code (Miss.2003) 95, (Ring So.2d has no 39-13-203(a), by a pre- Annotated section application determination); to Atkins State ponderance the evidence. Flores, v. 135 N.M. P.3d (2004) (Ring applicable not to mental re appeal The costs are taxed of this determination); Hitt, tardation Head Tennessee. (2003)
277 Ga. 587 S.E.2d (Ring require jury and Atkins do not trial C.J., DROWOTA, III, FRANK F. retardation); on issue of mental State v. HOLDER, J., M. each filed JANICE Lott, 97 Ohio St.3d N.E.2d concurring dissenting opinions. (2002) (mental retardation does not DROWOTA, III, J., FRANK F. represent jury Bri question); parte Ex concurring dissenting. seno, (Tex.Crim.App.2004) (lack majority I concur decision implied of mental retardation is not in the insofar murder). Apprendi as it holds v. New capital element of that neither Jersey,1 Ring nor v. Arizona2 application mandates a retroactive on cases collater- jury trial on mental retardation. I also al Centrally review.” 66 at 811. agree majority with the that mental retar- important presented to the issues in this dation an element of the offense appeal is the fact that Van Tran was itself disprove the State must beyond a reopen proceeding. motion to Id. at 792. Furthermore, reasonable agree doubt. I In providing directions for trial with majority that the General Assem- to follow remand in evaluating the bly adopted a bright-line requiring rule reopen motion to this Court in Tran Van individuals claiming mental retardation to stated: present proof seventy or trial petitioner’s court shall hear the However, disagree below. I with the ma- reopen motion to and make a determi- jority’s Wayne conclusion that Michael nation as to the alleged Howell reopen is entitled to for applicable mental retardation. The cri- post-conviction relief and to have an evi- teria are presently those set forth dentiary hearing on his mental retardation (1) significantly statute: sub-average my claim. In opinion, the trial court scru- general functioning intellectual as evi- pulously applied governing legal stan- intelligence quo- denced a functional dards and correctly denied Howell’s mo- (70) (2) (I.Q.) below; seventy tient reopen tion to failure to state a (3) in adaptive deficits behavior: and facie claim of my mental retardation. during retardation manifested
view,
require
Due Process does not
trial
developmental period,
by eighteen
apply
courts to
the “colorable claim” stan-
(18) years
age.
reopen
dard to a motion to
alleging mental
Thus,
Analysis
review, and instructed trial
to evalu-
courts
Assembly
The Tennessee General
ate
alleging
motions to
mental re-
legislation
enacted
prohibiting
ex-
tardation under Tennessee Code Annotat-
ecution of
retarded individuals.
ed section 39-13-203.
TenmCode Ann.
39-13-203
Clearly, the trial court in this case scru-
General Assembly
provide
did not
for ret-
*18
pulously followed the directives this Court
roactive application of this statute. Elev-
in
later, however,
provided
Van Tran. The trial court
years
majority
en
of this
reopen
evaluated Howell’s motion to
under
Court held that
pro-
the state constitution
Tennessee Code Annotated section
executing
hibits
individuals who are men-
39-13-
State,
203.
trial
tally
The
court denied Howell’s mo-
retarded. Van Tran v.
66
(Tenn.2001).3
majority
reopen upon finding
790
in tion to
that Howell
newly
Tran determined that
had
to
a prima
rec-
failed make
facie case on
ognized
constitutional
two of the three criteria this
identi-
“warrant[ed]
Court
466,
2348,
Supreme
1. 530 U.S.
S.Ct.
147 L.Ed.2d
3. The United States
thereafter
(2000).
Eighth
held
that the
Amendment to
Unit
prohibits executing
ed States Constitution
mentally
Virginia,
retarded. Atkins v.
2428,
2. 536 U.S.
122 S.Ct.
153 L.Ed.2d
304, 321,
U.S.
122 S.Ct.
153 L.Ed.2d
(2002).
(70)
re-
in Van Tran —an
seventy
by accrediting the
I.Q.
cretion
WAIS-III
fied
of the results
adaptive
or below and deficits in
behavior.
sults to the exclusion
I.Q.
The United
pointed
trial court
other
tests administered.
out
Wech-
Court has held
Intelligence
Edition
sler Adult
Scale—3rd
States
in
(“WAIS-III”)
I.Q.
“the standard instrument
did
Howell’s
not show
WAIS-III
(70)
below,
intellectual
seventy
assessing
and the trial
States
to be
the United
Atkins,
U.S.
emphasized
functioning.”
court
that Howell had failed
n.
court
adaptive
at 2245
5. Another federal
allege facts
show deficits
Thus,
“gold
found:
referred to the
as
behavior.
trial court
has
WAIS-III
Johnson,
Walton
I.Q. test.”
standard
pri-
The Petitioner
failed to make
(W.D.Va.2003). my
F.Supp.2d
case
re-
ma facie
that he was
view,
I.Q.
mea-
where an individual’s
at the
tarded
time he committed the
by
in the field
sured
the standard test
offenses for which he
convicted. He
the individual’s claim of mental
negates
qualify
does
as a
retardation, a trial court does not abuse its
crite-
defendant
accordance with the
by
reopen.
denying
discretion
a motion
ria set forth Tennessee Code Annotat-
I.Q.
full
39-13-203,
such,
only
Not
did the
scale
death
WAIS-III
ed
and as
negate
retardation
is not
This of 73
Howell’s mental
penalty
unconstitutional.
claim,
very
Howell now
Re-Open
proceeding
for Post-
Motion
Petition
evi-
reopen,
presented
Relief
merit and seeks to
Howell has
Conviction
is without
of 91. Howell v.
I.Q.
should be dismissed without the benefit
dence
02C01-9706-CR-00200,
hearing.
aof
No.
1997 WL
perm,
(Tenn.Crim.App.1997),
at *7
agree
I do not
with Howell’s assertion
1998).
(Tenn.
app. denied
June
Under
court
that the trial
its discretion
abused
circumstances,
did not
the trial court
these
dismissing the motion
reopen
without
dismissing Howell’s
abuse its discretion
hearing. Howell
trial
argues that
reopen
determining that
motion to
after
per-
should not
have accredited his
failed to
evi-
Howell had
essential
formance on
to the exclu-
WAIS-III
I.Q.
seventy
dence of an
or below.
I.Q.
sion of his scores on
other
tests
Furthermore,
stating
although generally
administered.4 Neither this Court nor the
Assembly
trial
behav-
adaptive
General
has instructed
that Howell has deficits in
ior,
to accredit a
particular
support
courts
test when
the affidavit offered
I.Q.
whether
not include
determining
an individual’s
is Howell’s motion
does
Nonetheless,
seventy
my
Again,
supporting
below.5
facts
these statements.
view,
view,
trial court
dis-
a trial
not abuse its
my
did not abuse its
court does
yielded
Assembly may
to consider
4. The WAIS-III
a verbal
5. The General
wish
IQ
designating a test or
courts to consid-
tests for
performance
and full scale
Otherwise,
likely will
er.
this determination
Intelligence
The Standford
Test—
Binet
*19
plagued
and
to be
with confusion
continue
yielded
composite score of
Fourth Edition
uncertainty. Nothing in this Court’s decision
62,
60,
reasoning
abstract
a verbal
score of
Supreme
States
in Van Tran nor
the United
78,
reasoning
quantitative
score of
reason-
legisla-
decision in
forecloses
Court’s
Atkins
60,
memory
ing
of
score
and a short-term
Indeed,
designating one
tests.
tion
or more
Comprehensive
score of 68. The
Test of non-
Atkins
United States
Court in
I.Q.
yielded
intelligence
verbal
a nonverbal
of
developing ap-
left to the states “the task of
70,
67,
pictorial
and a
nonverbal
ways
propriate
to enforce
constitutional
[the]
geometric nonverbal
of 68.
upon executing mentally retarded
restriction”
at 2250
536 U.S.
S.Ct.
individuals.
by dismissing
searching,
discretion
a motion to re-
than the “colorable claim” stan
open
majority
upon by way
dard the
settles
of a
upon
that is based
an affidavit which
complicated
unnecessary
and
constitutional
only
includes
conclusions rather than facts.
analysis.
adopting
In
the “colorable
Additionally
clearly
the record
reveals
claim”
purported
standard as
matter
that the trial court did not base its dis-
necessity,
majority
constitutional
disre
missal
reopen upon
of Howell’s motion to
gards
longstanding principle
convincing
the clear and
evidence standard
ques
courts do not decide constitutional
of Tennessee Code Annotated section 40-
absolutely
tions unless resolution is
neces
30-117(a)(4). Nor did the Court of Crimi-
sary
to determine the issues
a case and
Appeals
nal
base its
decision
How-
adjudicate
rights
parties.
ell’s failure to
meet
clear and convinc-
(Tenn.2002);
Taylor,
v.
sure,
ing evidence standard. To be
(Tenn.
Owens v.
Appeals quoted
Court of Criminal
1995)
cases);
(citing
see
Three
also
Affili
convincing
clear and
evidence standard
ated Tribes
the Fort Berthold Reserva
and cited Tennessee Code Annotated sec-
P.C.,
138, 157,
Eng’g,
tion v. Wold
467 U.S.
30—117(a)(4).Nonetheless,
tion
in-
40—
(“It
(1984)
L.Ed.2d
S.Ct.
appellate
termediate
court applied, cor-
judicial
is a
rule of
restraint
fundamental
rectly, the “abuse of discretion” standard
...
that this
will not reach constitu
Court
of Tennessee Code Annotated section 40-
necessity
tional
questions
advance of the
117(c),stating
upon the fore-
“[biased
30—
Serv.,
them.”);
deciding
Spector
Motor
going,
cannot
conclude that
the trial
101, 105,
Inc. McLaughlin,
323 U.S.
denying
court abused its discretion in
(1944) (“If
S.Ct.
89 L.Ed.
there is
Thus,
majority
motion to reopen.”
deeply
any
one doctrine more
rooted
opinion
upon premise
is based
that sim-
process
adju
other
of constitutional
ply is not accurate as a matter of fact.
dication,
ought
pass
it is that we
not to
on
Neither the trial court nor the
...
questions
constitutionality
unless
Appeals
Criminal
denied Howell’s motion
unavoidable.”);
adjudication
Bur
such
satisfy
for failure to
the clear
States,
283, 295, 25
ton v. United
196 U.S.
convincing
evidence standard of sec-
(1905) (“It
243,
471 hart, (Tenn.2001); seeking post-conviction from relief 697-98 barred 58 S.W.3d Dept. Safety, Helms Tennessee 987 v. by the statute limitations. applicable (Tenn.1999); Petition S.W.2d 549 In re State, 41 v. S.W.3d 100 See also Workman (Tenn. Burson, 909 775 S.W.2d State, 44 (Tenn.2001); v. S.W.3d Williams 1995); Lyons, v. 592 State State, (Tenn.2001); v. 23 Seals S.W.3d (Tenn.1990). appeal, majority In this State, (Tenn.2000); v. Watkins appears indulge every presumption (Tenn.1995). In each these S.W.2d validity the constitutional cases, prior observed that the this Court convincing clear and evidence standard of operated statute of to “termi- limitations Annotated Tennessee Code section 40-30- existing statutory right nate” an otherwise 117(a)(4) adopts and construction Seals, to seek relief. conflict, creates a constitutional Burford). (quoting S.W.3d Be- majority by ignoring then resolves reopen cause the motion to statute does decision prior Court’s Van Tran from entirely preclude seeking not Howell then “colorable engrafting the claim” stan upon relief from death sentence his based dard upon the motion to statute. retardation, claim his of mental the risk majori- Not I only am convinced that the minimal. deprivation erroneous On the ty should have declined create and then hand, other the State has substantial issue, upon rule am constitutional I also finality in the interest both criminal disagree majority’s constrained to with the judgments preventing groundless and in resolution of the constitutional issue it cre- inevitably claims with newly arise rec- view, my applying ates. the clear and ognized rules. constitutional The State convincing evidence standard of Tennessee 40-30-117(a)(4) protect Code section has chosen to these interests Annotated would not violate Howell’s constitutional creating statutory procedure summary Process; therefore, engraft- to Due out designed that is to winnow frivolous ing the “colorable claim” standard State, 102 claims. See Harris v. S.W.3d 40-30-117(a) section is not a constitutional (Tenn.2003). Applying clear necessity, majority as the holds. Applying convincing standard enforce evidence the balancing test enunciated in Burford appears particularly the State’s interests State, (Tenn.1992), appropriate in this case. Howell has private interest at stake in this case is not post-con- appellate availed himself of opportunity challenge Howell’s importantly, More viction remedies. death ground sentence on the of mental very proceeding he now seeks to re- retardation under this Court’s decision in open, proof Howell offered Van Tran and the United States proof negates claim of 91— Howell, Court’s decision Atkins. Howell v. No. mental retardation. fact, already has been afforded such 02C01-9706-CR-00200, WL Instead, opportunity. private interest (Tenn.Crim.App.1997), perm. app. at *7 opportunity stake is Howell’s have his (Tenn. 1998). denied June For these challenge considered under a “colorable agree majority I with the reasons do claim” rather than standard convincing evi- applying the clear clear and convincing standard of evidence. of Tennessee Anno- dence standard Code out, points As the interest Howell’s 40-30-117(a)(4) tated would violate section fundamentally private different right to Pro- Howell’s constitutional Due proge- at stake in and its interests Burford ny, petitioners entirely where the were cess.
Furthermore,
A
the al-
agreed
reopen
if I
with the
motion to
based
even
leged
capital peti-
it cre-
mental retardation of a
majority on the constitutional issue
ates,
to
of a
agree
majority’s
unique
I would not
with the
tioner is
due
the existence
redundancy,
prohibiting
At the risk of
I am statute
the execution of men-
decision.
retarded defendants. tally
Tenn.Code
compelled
again point
to
out that the trial
(2003). Although
simply
court
did not base dismissal of Ann.
39-13-203
Tran
in
that a con-
Van
reopen upon
recognized
motion to
the clear Court
Howell’s
convincing
standard of Ten-
stitutional claim based on mental retarda-
evidence
through a motion to
nessee Code Annotated section 40-30-
tion could be raised
117(a)(4).
with Van
reopen,
adopted
criteria
Consistent
Annotated section 39-
reopen
trial court evaluated the motion to
Tennessee Code
v.
a 13-203 to evaluate the claim. Van Tran
alleged
Howell had
determine whether
State,
(Tenn.2001).
prima
claim of mental retardation.
facie
Tran
Thus,
Van
view,
merely
my
In
the trial court did not abuse
reaffirmed
ex-
doing
pre-existing prohibition
its discretion
so. Howell has not State’s
ecuting
retarded. We did not
deprived
opportunity
been
Tran, however,
Van
whether the
specify
his claim. The failure of Howell’s motion
in the men-
reopen
evidentiary
the result of his failure to
standard set forth
post-con-
or in the
proof
offer
of a
claim of men-
tal retardation statute
facie
apply
should
to collateral
tal retardation.
viction statute
claim.
review of a mental retardation
Conclusion
duty
that courts have a
It is well settled
stated, I
to avoid a constitu-
For the reasons herein
concur
to construe a statute
Burkhart,
v.
tional conflict. majority
decision insofar as it holds
(Tenn.2001).
To avoid
jury
that a
trial on mental retardation is
697-98
S.W.3d
in this
I
not mandated
the state or federal con-
a constitutional conflict
permit-
agree
majority
I also
with the
would limit the role of
statute
stitution.
reopen
post-conviction
ting
that mental retardation is not an element
motions
determining
petition-
whether a
petition
of the offense which the State must dis-
men-
has raised a constitutional claim of
prove beyond a reasonable doubt. Howev-
er
of year
er,
majority’s
tal
within one
disagree
I
with the
conclu-
retardation
Virginia,
Tran or Atkins v.
Wayne
536 U.S.
sion that Michael
Howell is entitled
I
post-conviction
122 S.Ct.
has established If evidentiary hearing.
case to warrant an
so, hearing then hold a a trial would whether a
and determine by “preponderance
proven allegations
of evidence.” See Tenn.Code §Ann. 39- 203(c).
13— agree
I with Chief Justice Drowota
the trial court did not abuse its discretion denying motion to re- for failure to state a facie case
open
of mental retardation. I would judgment
affirm the of the Court Crimi- Appeals.
nal A.
William COHN
BOARD OF RE- PROFESSIONAL THE
SPONSIBILITY OF SUPREME
COURT OF TENNESSEE. Tennessee,
Supreme Court of
at Jackson.
April 2004 Session.
Nov. 2004. Rehearing
Order on Petition for
Denied Dec.