OPINION
We granted permission to appeal in this case to determine whether a capital defendant, via a petition for writ of error coram nobis, may obtain a hearing to determine whether he is ineligible to .be executed because he is intellectually disabled. The Petitioner, Pervis Tyrone. Payne, was convicted in 1988 of two first degree murders, and the jury imposed the death sentence for each murder. In 2001, this Court held that the-federal .and state constitutions prohibit the execution of individuals who are intellectually disabled.
Van Tran v. State,
Factual and Procedural History
This mattep began in 1987, when the Petitioner stabbed to death Charisse Christopher and her minor daughter, Lade. . He also stabbed Ms. Christopher’s minor son, Nicholas. In 1988, a jury con
The Petitioner since has pursued collateral review but has been unsuccessful in obtaining the reversal of either his convictions or his sentences.
See Payne v. State,
No. 02C01-9703-CR-00131,
In 1990, the Tennessee General Assembly passed legislation providing that, “[njotwithstanding any law to the contrary, no defendant with [an intellectual disability] at the time of committing first degree murder shall be sentenced to death.” 1990 Tenn. Pub. Acts 730, ch. 1038, § 1, codified at Tenn.Code Ann. § 39 — 13—203(b) (2014). 2 The legislation defined intellectual disability as follows:
(1) Significantly subaverage general intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below;
(2) Deficits in adaptive behavior; and
(3) The intellectual disability must have been manifested during the developmental period, or by eighteen (18) years of age.
Tenn.Code Ann. § 39-13-203(a) (“the intellectual disability statute”). Subsequently, in 2001, this Court determined that the federal and state constitutions prohibit the execution of persons who are intellectually disabled.
See
Van
Tran v. State,
66 S:W.3d 790, 812 (Tenn.2001). Shortly thereafter, the United States Supreme Court declared that the federal constitution prohibited the execution of the intellectually disabled.
See Atkins v. Virginia,
The instant collateral proceeding began on April 4, 2012, when the Petitioner filed a motion to reopen his petition for post-conviction relief (“Motion to Reopen”) in an effort to obtain a hearing on his claim that he meets the definition of intellectually disabled as set forth in the intellectual disability statute.
3
. The Petitioner attached to the Motion to, Reopen the March
As grounds for the Motion to Reopen, the Petitioner asserted that this Court’s decision in
Coleman v. State,
After the Petitioner filed the Motion to Reopen but before the trial court ruled on it, this Court issued its decision in
Keen v.
State,.
The State filed a written response, requesting that the trial court deny both the Motion to Reopén and the Amended Petition without a hearing.
The trial court denied both the. Motion to Reopen and the Amended Petition without a hearing. As to the Motion to Reopen, the trial court noted that
Keen
held that
Coleman
did not establish a new constitutional right. Accordingly, the Petitioner was not entitled to reopen his petition for post-conviction relief on that basis. The trial court also noted that
Keen
held that new proof of intellectual disability does not establish the type of .innocence referred to in Tennessee Code Annotated section 40-30-117(a)(2). Accordingly, the Petitioner was not entitled to reopen his petition for post-conviction relief pursuant to that subsection. The trial court further noted that, while the
Van Tran
decision established a new constitutional right that was to be applied retroactively,
see Van Tran,
As to the Petitioner’s claim of error coram nobis, the trial court denied relief on the basis that the claim was barred by the applicable one year statute of limitations. See Tenn.Code Ann. §§ 40-26-105(a) (2012); 27-7-108 (2000). The trial court did not address the Petitioner’s claim that the intellectual disability statute created a free-standing cause of action.
On appeal, the majority of the Court of Criminal Appeals panel affirmed the trial court’s denial of relief on the Petitioner’s claim of error coram nobis and also held that the intellectual disability statute did not afford the Petitioner an independent cause of action.
See Payne v. State, No.
W2013-01248-CCA-R3-PD,
Analysis
Error Coram Nobis
The Petitioner is seeking a hearing on his claim of intellectual disability through the procedural mechanism of error coram nobis relief.. Our statute setting forth the parameters for seeking a writ of error coram nobis provides as follows:
The' relief obtainable by this proceeding shall be confined to errors dehors the record and to matters that were not or could not have been litigated on the trial of the case, on a motion for a new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas corpus proceeding. Upon a showing by the defendant that the defendant was without fault in failing to present certain evidence at the proper time, a writ of error coram ■ nobis will lie for subsequently or newly discovered evidence relating'to matters'which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial.
TenmCode Ann. § 40-26-105(b). The decision to grant or deny a petition for writ of error coram nobis on its merits rests within the trial court’s sound discretion.
Harris v. State,
Claims under the coram nobis statute are subject to a one-year statute of limitations. TenmCode Ann. -27-7-103. “The statute of limitations is computed from the date the judgment of the trial court becomes-final, either thirty days after its entry in the trial court if no post-trial motions are filed or upon entry of an order disposing of a timely filed, post-trial motion.”
Harris,
We have opined that the writ of error coram nobis “is- an
extraordinary
procedural remedy ... [that] fills only a slight gap into which few cases fall.” ,
Mix-on,
The ... petition must be in writing and (1) must describe with particularity the nature and substance of the newly discovered evidence and (2) must demonstrate that this evidence qualifies as “newly discovered evidence.” In order to be considered “newly discovered evidence,” the proffered evidence' must be (a) evidence of facts existing, but not yet áseertained, at the time of the original trial, (b) admissible, and (c) credible. In addition to describing the form and substance of the evidence and demonstrating, that it qualifies as “newly discovered evidence,” the [petitioner] must also demonstrate with particularity (3) why the newly discovéred evidence could not have been discovered in a more timely manner with the exércise of reasonable diligence; and (4) how the newly discovered evidence, had it been admitted at trial, may have resulted in a different judgment.
Harris,
As this Court explained almost twenty years ago, “the common law writ of error coram nobis allowed a trial court to reopen and correct its judgment upon discovery of a substantial
factual
error not appearing in the record which,- -if known at. the time of judgment, would have prevented the judgment from being pronounced.”
Mixon,
Upon a showing by the defendant that the- defendant was without fault in failing to present certain evidence at the proper time, a writ of error coram nobis will -lie for subsequently or newly discovered evidence relating to matters which were litigated at the" trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial.
Id. at 668 (quoting Tenn.Code Ann. § 40-26-105 (1997 Repl.)).
Significantly, the relief being sought via a writ of error coram nobis “is the setting aside of the judgment of conviction and the granting of a new trial.”
Harris,
In the realm of coram nobis jurisprudence, • “newly discovered evidence”
The gravamen of the Petitioner’s claim in this proceeding is that he is ineligible to be executed because he is intellectually disabled. We reiterate our commitment “to the principle that Tennessee has no business executing persons who are intellectually disabled.”
Keen,
The evil that the coram nobis statute is aimed at remedying is a conviction based on materially incomplete or inaccurate information. It is not intended to provide convicted felons a second trial due to subsequent changes in the law. Here, the Petitioner is attempting to challenge his sentence of death based on changes in the law that occurred many years after his trial. A petition for writ of error coram nobis pursuant to Tennessee Code Annotated section 40-26-105(b) is not the appropriate procedural mechanism for pursuing the Petitioner’s claim of intellectual disability. We hold that the Petitioner has failed to state a claim that is cognizable under the coram nobis statute. Therefore, we need hot address the trial court’s ruling on the statute of limitations.
The Petitioner also argues that, even if he is not entitled to relief under the coram nobis
statute,
he is entitled to a hearing under a common law claim of error coram nobis. In this regard, the Petitioner relies on this Court’s decision in
Wlodarz,
claiming that we stated there that coram nobis “survives as the lone means by which a court might rectify a recognized wrong when all other possible remedies are no longer available.”
Wlodarz,
In Mixon, this Court described the writ of error coram nobis, as codified in Tennessee Code Annotated section 40-26-105(b), as an extraordinary procedural remedy which rarely produces results favorable to a petitioner. See Mixon,983 S.W.2d at 673 . Nevertheless, its statutory terms provide an alternative procedural remedy when all other post-judgment remedies fail. “ ‘[Kjnown more for its denial than its approval,’ ” [State v. ] Vasques, 221 S.W.3d [514] at 524 [ (Tenn.2007) ] (quoting Mixon,983 S.W.2d at 666 ), the procedure survives as the lone means by which a court • might rectify a recognized wrong when all other possible remedies are no longer available. Mixon,983 S.W.2d at 672 ; see also United States u Morgan,346 U.S. 502 , 512,74 S.Ct. 247 ,98 L.Ed. 248 (1954).
Wlodarz,
The Petitioner’s claim that he is ineligible to be executed because of his intellectual disability is analogous to a claim that he is not competent to be executed. In
Van Tran v. State,
we held that error coram nobis was notmn appropriate procedural mechanism for determining a capital prisoner’s competency to be executed because “[t]he writ of error coram nobis challenges the judgment itself.”
The Petitioner is not entitled to relief on the basis of his proceeding in error coram nobis.
Free-Standing Claim Under the Intellectual Disability Statute
The Petitioner argues that this Court should construe the intellectual disability statute in such a manner as to provide him with a free-standing cause of action for seeking a ruling on his intellectual disability claim. To address this argument, we recite here the remaining provisions of the intellectual disability statute:
(b) Notwithstanding any law to the contrary, no defendant with intellectual disability at the time of committing first degree .murder shall be sentenced to death.
(c) The burden of production and persuasion to demonstrate intellectual disability by a preponderance of the evidence is upon the defendant. The determination of whether the defendant had intellectual disability at the time of the offense of first degree murder shall be made by the court.
(d) If the court determines that the defendant was a person with intellectual disability at the time of the offense, andif the trier of fact finds the defendant guilty of first degree murder, and if the district attorney general has filed notice of intention to ask for the sentence of imprisonment for life without possibility of parole as provided in § 39 — 13—208(b), the jury shall fix the punishment in a separate sentencing proceeding to determine whether the defendant shall be sentenced to imprisonment for life without possibility of parole or imprisonment for life. The provisions of § 39-13207 shall govern the sentencing proceeding.
(e) If the issue of intellectual disability is raised at trial and the court determines that the defendant is .not a person . with intellectual disability, the defendant shall be entitled to offer evidence to the trier of fact of diminished intellectual capacity as a mitigating circumstance pursuant to § 39 — 13—204(j)(8).
(f) The determination by the trier of fact that the defendant does not have intellectual disability shall not be appeal-able by interlocutory appeal, but may be ■ a basis of appeal by either the state or defendant following the sentencing stage of the trial.
Tenn.Code Ann. § 39-13-203.
While the Petitioner acknowledges that the statute does not contain ■ an explicit provision allowing him to seek an eviden-tiary hearing, he nevertheless contends that the statute allows this Court to infer such a provision. The State disagrees.
The trial court did not rule on this aspect of the Petitioner’s application for relief. The Court of Criminal Appeals rejected the Petitioner’s argument, holding that
[t]he plain language of the statute does not create an independent cause of action allowing a defendant to challenge his or her eligibility for the death penalty. Had the General Assembly intended to create a separate and independent cause of action in which to allege intellectual disability, they would have stated so in the statute.
Payne,
In
Van
Tran, this Court concluded that the intellectual disability statute was to be given prospective application, only.
Consistently with our. decision in
Van Tran,
we hold that the intellectual disability statute does not create an independent collateral cause of action for raising a claim of intellectual disability and ineligibility to be executed. The plain language of the statute indicates that it is not applicable to those defendants who were sentenced to death prior to its enactment because it prohibits those defendants who meet the definition of intellectual disability from being
“sentenced
to death,” not from being executed; Tenn.Code Ann. § 39-13-203(b). ■ The remaining provisions of the intellectual- disability statute also lead to the inescapable conclusion that the legislature intended a claim of intellectual disability to be raised in conjunction with the capital defendant’s
trial,
not in a collateral proceeding-,many years later.- For instance, subsection (d) refers to how the sentencing proceeding shall be conductéd if, prior thereto, the trial court has determined that.the defendant was intellectually disabled at the time he committed the
The Petitioner' has failed to establish that he has a private cause of action to pursue his claim of intellectual disability pursuant to the intellectual disability statute. Accordingly, the Petitioner is not entitled to relief on this basis.
Other Potential Remedies
In conjunction with granting the Petitioner’s application for permission to appeal, this Court requested the parties to address whether the United States Supreme Court’s recent decision in
Hall v. Florida,
— U.S. —,
Although the Petitioner acknowledges that the trial court’s denial of his Motion to Reopen is not before this Court, he argues that recent changes‘in the law should allow him to reopen his post-conviction proceeding; Specifically, he asks us to hold that the United States Supreme Court’s opinion in
Hall
established a new constitutional right that must be applied retroactively.
8
He also asks us to overrule our decision in
Keen
and hold that our decision in
Coleman
created a new constitutional right that requires retrospective application. In support of this latter contention, the Petitioner relies on a recent decision by the United States Court of Appeals for the Sixth Circuit,
Van Tran v. Colson,
Hall v. Florida
The Petitioner claims in his brief to this Court that
Hall
holds that he is
entitled to a hearing
on his claim of intellectual disability because, after applying the standard error of measurement to his I.Q. test scores, he has at least one score that falls below 71. We disagree that
Hall
In
Hall,
the Supreme Court considered the Florida Supreme Court’s interpretation of its state statute prohibiting the execution of intellectually disabled defendants. The Florida statute defined intellectual disability as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.”
Hall,
In Hall, the United States Supreme Court held as follows:
[W]hen a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.
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The Florida statute, as interpreted by its courts, misuses IQ score on its own terms; and this, in turn, bars consideration of evidence that must be considered in determining whether a defendant in a capital case has intellectual disability. Florida’s rule is invalid under the Constitution’s Cruel and Unusual Punishments Clause.
Hall,
At no point in Hall did the Supreme Court address the circumstances under which the defendant was entitled to the hearing. Rather, the issue before the Court was the type of evidence which the defendant was entitled to offer at the hearing otherwise provided. 10 Thus, Hall does not address by what procedural avenue the Petitioner in this case might be afforded a hearing on his claim of intellectual disability. Hall does not stand for the proposition that the Petitioner is entitled to a hearing under the facts and procedural posture of this matter.
Moreover, even if
Hall
held that a condemned inmate must be afforded a hearing on a collateral claim that he is intellectually disabled, the decision would benefit the Petitioner only if it applied retroactively. However, the United States Supreme Court has not ruled that
Hall
is to be applied retroactively to cases on collateral review. The United States Courts of Appeal for the Eighth and Eleventh Circuits have concluded that
Hall
Coleman v. State and Van Tran v. Colson
As set forth above, the constitutional prohibitions against executing the intellectually disabled did not arise until after the Petitioner was convicted and sentenced. The Petitioner’s first opportunity for seeking to avoid the death penalty on this basis arose in 2001 with our decision in Van Tran v. State. The Petitioner, however, did not seek relief on this basis at that time.
In 2004, this Court issued its decision in
Howell v. State,
The Petitioner contends that the progression of the law in this area presented him with another opportunity to reopen his petition for post-conviction relief when this Court decided
Coleman.
As set forth above, this Court already has concluded that
Coleman
did not create a new constitutional rule that must be applied retroactively.
See Keen,
In Colson, the United States Court of Appeals for the Sixth Circuit considered whether the defendant was entitled to federal habeas corpus relief on his claim that he was intellectually disabled. Id. at 597. The defendant had been given a hearing in state court prior to this Court’s decision in Coleman, and the trial court concluded that the defendant had not proved his intellectual disability. Id. at 600. The state trial court therefore denied relief, and the Court of Criminal Appeals affirmed. Id. at 601.
Upon his petition for habeas corpus relief in federal court, the district court denied relief.
Id.
at 602. On appeal, the United States Court of Appeals for the Sixth Circuit remanded “for the entry of a conditional writ of habeas corpus to allow the state courts to consider Van Tran’s
Atkins
claim under the proper, now-governing standard” announced in
Coleman. Id.
at 597. That is, the federal appeals court concluded that
Coleman
was to be applied retroactively.
Id.
at 617. In so concluding, the
Colson
court relied on its
Neither
Colson
nor
Black
is binding on this Court.
See Frye v. Blue Ridge Neuroscience Ctr., P.C.,
Conclusion
Our decision in this case does not foreclose the Petitioner from availing himself of any and all state and federal remedies still available to him.
See Keen,
Notes
. The legislation, which originally used the term "mental retardation,” was revised in 2010 to utilize the term "intellectual disability.” See 2010 Tenn. Pub. Acts 166,' ch 734, §§ 1-3, 7.
. In
Van Tran,
this Court held that those defendants who had been sentenced to death prior to the decision could raise a claim of intellectual disability in a motion to reopen a previously filed petition for post-conviction relief.
.As we have explained previously,
The "Flynn effect" is the name given to the verified worldwide phenomenon that I.Q. scores, since the beginning of intelligence testing, have tended to rise overall at a rate of 0.3 per year, or three points every decade_ To compensate for the Flynn
effect, I.Q. tests have to be routinely revised or “renormed” to make them more difficult. Thus, the WAIS gave way to the WAIS-R, which was eventually replaced by • the WAIS-III, and now the current WAIS-IV. Under the Flynn effect, a recently-obtained WAIS-IV score will be close to accurate, while a WAIS-III score that was obtained ten years after the test was renormed would need to be reduced by approximately three points to capture the test-taker’s actual I.Q. at the time.
Keen v. State,398 S.W.3d 594 , 605 n. 11 (Tenn.2012) (citing Geraldine W. Young, A More Intelligent and Just Atkins: Adjusting for the Flynn Effect in Capital Determinations of Mental Retardation or Intellectual Disability, 65 Vand. L.Rev. 615, 616, 621, 624-25 (2012); Am. Ass’n on Intellectual and Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Supports 37 (11th ed.2010) (hereafter AAIDD Manual); James R. Flynn, Tethering the Elephant: Capital Cases, IQ, and the Flynn Effect, 12 Psy-chol. Pub. Pol’y & L. 170, 173-74, 179-81 (2006)).
. "The practice effect refers to increases in I.Q. test scores that result from a person’s being retested using the same or a similar instrument.”
Coleman v. State,
. The Petitioner has never had an evidentiary hearing on his claim that he is intellectually disabled as that term is defined in the intellectual disability statute. Therefore, his repeated assertions to this Court that the evidence of his intellectual disability is "uncontroverted” are inaccurate.
. Prior to our decision in
Coleman,
both trial courts and the Court of Criminal Appeals had construed our earlier decision in
Howell v. State,
a mandatory requirement that only raw I.Q. test scores may be used to determine whether a criminal defendant has "significantly impaired general intellectual functioning” and that a raw I.Q. test score above ■ seventy (70) may be sufficient, by itself, to disprove a criminal defendant's claim that he or she is a person with intellectual disability.
Coleman,341 S.W.3d at 240 . In Coleman, this Court clarified that a trial court "may receive and consider any relevant and admissible evidence regarding whether the defendant’s functional I.Q. at the time of the offense was seventy (70) or below,” id. at 241 (emphasis added), including expert opinions that utilize various recognized factors for adjusting raw I.Q. scores -upwards or downwards, id. at 242, 242 n. 55.
. Although the Petitioner argues to. this Court that Hall established a new constitutional rule that must be afforded retroactive application, the record contains no indication that the Petitioner filed a. motion to reopen his post-conviction petition within one year of that decision.
. The Petitioner also posits that he should be allowed to seek relief via a declaratory judgment action, a motion to vacate an illegal sentence, and/or a petition for writ of audita querela. We decline to address the Petitioner’s contentions regarding these actions, none of which, so far as the record before us indicates, the Petitioner has pursued.
.
Hall
indicates that the defendant obtained a hearing after filing a motion in 2004 “claiming that he had intellectual disability and could not be executed.”
Hall,