                                                                                             04/17/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 28, 2018

                JAMES DELLINGER v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Blount County
                    No. C-24583        David Reed Duggan, Judge
                      ___________________________________

                            No. E2018-00135-CCA-R3-ECN
                        ___________________________________


Petitioner, James Dellinger, appeals the trial court’s summary dismissal of his petition
seeking to invalidate the sentence of death imposed for his conviction of first degree
murder. The petition sought error coram nobis relief pursuant to Tennessee Code
Annotated section 40-26-105, asserted that his sentence of death is an illegal sentence to
be corrected pursuant to Tennessee Rule of Criminal Procedure 36.1, and that he is
entitled to relief by “any other remedy that at common law exists.” After review, we
affirm the judgment of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, J., joined. JAMES CURWOOD WITT, JR., J., concurs in results only.

Amy Dawn Harwell and Richard L. Tennent, Office of the Federal Public Defender,
Nashville, Tennessee, for the appellant, James Dellinger.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Michael L. Flynn, District Attorney General; and Ryan Desmond, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        Petitioner lists five issues for review. Initially, we note that no evidentiary hearing
was held in the trial court. Despite this fact, Petitioner’s brief includes in the “Statement
of the Issues” the first issue described as follows: “Does the record establish that
[Petitioner] is intellectually disabled?” Obviously, no evidence was presented to the trial
court because the petition was summarily dismissed. Nevertheless, Peititoner sets forth
in his brief thirteen pages of “evidence” he implies are proper for consideration by this
court in this appeal.

        The “evidence” Petitioner refers to was never offered at a hearing in the trial court,
much less admitted as evidence. Almost one-half of Petitioner’s argument in his brief is
devoted to his assertion that he is intellectually disabled. Whether or not he is
intellectually disabled is not an issue, standing alone, in this appeal.

       Furthermore, Petitioner’s “Statement of the Issues” does not match the
presentation of issues in the argument section of his brief. After reviewing arguments of
an issue not addressed by the trial court, and the somewhat befuddling organizational
differences between the other stated issues and the presentation of arguments in
Petitioner’s brief, we conclude that the State’s brief more accurately states the issues we
must review. These are:

       1. Whether the trial court properly dismissed the petitioner’s second petition for
          writ of error coram nobis without an evidentiary hearing;

       2. Whether the trial court properly denied the petitioner’s motion to correct an
          illegal sentence after determining that the petitioner’s sentence was authorized
          by the statute at the time of its imposition; and

       3. Whether the trial court properly denied the petitioner’s claim that the court was
          required to provide him with a procedural vehicle to obtain relief.

Trial Court’s Order

        In its order dismissing the petition, the trial court provided a detailed history of
Petitioner’s case. That history does not need to be presented again in this appeal. In fact,
it is also set forth in an opinion of this court addressing a prior request for error coram
nobis relief (and other theories) by Petitioner, also based upon his alleged intellectual
disability. See James Dellinger v. State, No. E2013-02094-CCA-R3-ECN, 2015 WL
4931576, at *1-*6 (Tenn. Crim. App. Aug. 18, 2015) perm. app. denied (Tenn. May 6,
2016). In that case it was noted that Petitioner’s request for error coram nobis relief was
filed on February 6, 2013, more than fifteen years after expiration of the applicable one
year statute of limitations. Id. at *9. After a thorough analysis, the panel of this court
held that the error coram nobis petition, based upon Petitioner’s claim that his alleged
intellectual disability prohibited his sentence for the death penalty, was barred by the one
year statute of limitations. The court also concluded that constitutional rights to due
process did not require tolling of the statute of limitations. Id. at *13.

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        After providing the history of Petitioner’s case, the trial court in the case sub
judice summarily dismissed Petitioner’s error coram nobis claim based upon the
Tennessee Supreme Court’s holding in Payne v. State, 493 S.W.3d 478 (Tenn. 2016) that
a petition for writ of error coram nobis “is not the appropriate procedural mechanism for
pursuing the Petitioner’s claim of intellectual disability. . . . the Petitioner has failed to
state a claim that is cognizable under the coram nobis statute.” Id. 493 S.W.3d at 486.

        The trial court next addressed Petitioner’s claim that his death sentence is an
illegal sentence and must be set aside pursuant to Tennessee Rule of Criminal Procedure
36.1. Based upon the fact that Rule 36.1 defines an illegal sentence as one that is not
authorized by or one that directly contravenes applicable statutes, and the fact that a
sentence of death was statutorily authorized for first degree murder, the trial court
concluded that Petitioner was not entitled to relief pursuant to Rule 36.1.

        Finally, as to Petitioner’s claim for relief from his death sentence pursuant to “any
procedural vehicle identified by the Tennessee courts in the future,” the trial court ruled
that this theory for relief failed to state a claim for relief because “the Tennessee Supreme
Court has not identified such a procedural vehicle.”

Analysis

       I.      Writ of Error Coram Nobis

        Petitioner argues that the writ of error coram nobis as a vehicle to address
intellectual disability as a prohibition of his death sentence is not barred by Payne.
Peititoner relies upon an unpublished opinion of this court in the case of David Ivy v.
State, No. W2016-02454-CCA-R3-ECN, 2018 WL 625127 (Tenn. Crim. App. Jan. 30,
2018) in support of this assertion. In David Ivy, the panel concluded that in Payne, our
supreme court found that as to an intellectual disability claim, “a writ of error coram
nobis was not the proper avenue for relief in that particular case because the petitioner
was ‘attempting to challenge his sentence of death based on changes in the law that
occurred many years after his trial.’” David Ivy, 2018 WL 625127 at *3 (quoting Payne,
493 S.W.3d at 486).

        We respectfully disagree with the conclusion of our colleagues in David Ivy that
the holding in Payne does not apply whenever a petitioner’s death penalty is imposed
after the statutory law prohibiting execution of intellectually disabled defendants (Tenn.
Code Ann. § 39-13-203, enacted 1990) or the case law doing the same (Van Tran v. State,
66 S.W.3d 790, 812 (Tenn. 2001) became effective. Peititoner, who is represented in the
case sub judice by one of the attorneys who represented Mr. Ivy, has seized the ruling in
David Ivy to argue that since he went to trial in 1996 after Tennessee Code Annotated
                                            -3-
Section 39-13-203 was enacted, then Payne does not bar his effort to set aside his death
sentence by a petition for error coram nobis relief. We respectfully conclude that the
panel’s conclusion in David Ivy placed undue emphasis on a passing phrase in our
supreme court’s Payne opinion, and that the David Ivy panel’s conclusion on this issue is
incorrect.

      The ruling of our supreme court in Payne, which contains the phrase relied upon
in David Ivy, states,

                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 v.
        State, 398 S.W.3d 594, 613 (Tenn. 2012)]. However, we also are
        committed to not contorting Tennessee’s statutes under the guise of
        construction.

                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 not address the trial court’s ruling on the statute of limitations.

Payne, 493 S.W.3d at 486 (emphasis added).

       Even if the panel in David Ivy is correct in its interpretation of Payne, Petitioner is
not entitled to relief for two reasons. First, Petitioner heavily relies upon the cases of
Coleman v. State, 341 S.W.3d 221 (Tenn. 2011), Keen v. State, 398 S.W.3d 594 (Tenn.
2012), Atkins v. Virginia, 536 U.S. 304 (2002), Moore v. Texas, 581 U.S. ____, 137 S.
Ct. 1039 (2017), and Hall v. Florida, 572 U.S. ____, 134 S. Ct. 1986 (2014) to assert that
determinations of intellectual disability have expanded greatly, requiring consideration of
many more factors than those considered at the time of his trial in 1996. Accordingly,
Petitioner’s error coram nobis claim is actually based on changes in the law that occurred
several years after his trial. Thus, if we accepted Petitioner’s argument that Payne only
applies when pertinent changes in the law are developed many years after Petitioner’s
                                            -4-
trial, then David Ivy actually supports the conclusion that Petitioner is barred from
presenting his claim via error coram nobis petition.

       Second, a panel of this court has already held that Petitioner’s ability to challenge
his death sentence due to alleged intellectual disability, via error coram nobis relief, is
barred by the one year statute of limitations. See James Dellinger, 2015 WL 4931576, at
*13. The doctrine of collateral estoppel prohibits relitigation of this issue.

              Collateral estoppel is an issue preclusion doctrine. See Dickerson
        v. Godfrey, 825 S.W.2d 692, 694 (Tenn. 1992); Goeke v. Woods, 777
        S.W.2d 347, 349 (Tenn. 1989). Once an issue has been actually or
        necessarily determined by a court of competent jurisdiction, the doctrine
        of collateral estoppel renders that determination conclusive on the parties
        and their privies in subsequent litigation, even when the claims or causes
        of action are different. [citations omitted] It applies to both issues of
        law and issues of fact.

State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 178-79 (Tenn. Ct. App. 2000) (cited
with approval in Gibson v. Trant, 58 S.W.3d 103, 113 (Tenn. 2001)).

        As noted above, this court has already determined that Petitioner’s error coram
nobis petition requesting relief based upon intellectual disability is barred by the one year
statute of limitations, and due process does not require tolling of the statute of limitations.
James Dellinger, 2015 WL 4931576, at *13. Petitioner’s request for error coram nobis
relief has no merit.

       II.    Relief Pursuant to Tennessee Rule of Criminal Procedure 36.1

        Petitioner argues that his sentence of death is illegal, and pursuant to Tennessee
Rule of Criminal Procedure 36.1, he is entitled to have his sentence corrected. This is
based on the premise that Petitioner is, in fact, intellectually disabled; that execution of an
intellectually disabled person is unconstitutional based upon Atkins v. Virginia, 536 U.S.
304, 122 S. Ct. 2242 (2002) and Van Tran v. State, 66 S.W.3d 790 (Tenn. 2001); and that
Montgomery v. Louisiana, ____ U.S. ____, 136 S. Ct. 718 (2016) mandates that an
unconstitutional death sentence is void, even if the sentence was imposed prior to the law
being changed to prohibit the death sentence in Petitioner’s case.

       A death sentence was, at the time it was imposed in Petitioner’s case, and through
the present time, authorized by statute. Tenn. Code Ann. § 39-13-202(c)(1). However,
certain collateral factors determine whether a statutorily authorized sentence of death for
a conviction of first degree murder can be imposed. (Statutory aggravating factor(s) must
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outweigh mitigating factors beyond a reasonable doubt, Tenn. Code Ann. § 39-13-
204(g)(1)(A)(B); imposition of the death penalty must be proportionate, Tenn. Code Ann.
§ 39-13-206(c)(1)(D); a statutorily lawful death sentence cannot be imposed on a person
who is intellectually disabled, Atkins, 122 S. Ct. at 2252; Van Tran, 66 S.W.3d at 809-
812); a death sentence cannot be imposed upon a person who is intellectually disabled,
Tenn. Code Ann. § 39-13-203.

       The judgment in Petitioner’s case shows that a jury convicted him of first degree
murder and that the sentence of death was imposed on September 3, 1996, for a murder
committed February 21, 1992. There is nothing on the face of the judgment that indicates
the sentence of death for first degree murder was not authorized by statute, or that it
directly contravenes an applicable statute.

       In reviewing Petitioner’s assertion that he is entitled to relief pursuant to Rule
36.1, we must keep in mind that we are required to follow precedent established by our
supreme court. In State v. Wooden, 478 S.W.3d 585 (Tenn. 2015), our supreme court
noted the definition of an “illegal sentence” in Rule 36.1 is one “that is not authorized by
the applicable statutes or that directly contravenes an applicable statute.” Id., 478 S.W.3d
at 594. The types of sentences that can be deemed illegal “for purposes of Rule 36.1” id.,
478 S.W.3d at 595, are “fatal errors.” Id. In addition to fatal errors, there are clerical
errors, which result from a mistake in filling out the judgment document, id., and
appealable errors, which are errors that the “Sentencing Act specifically provides a right
of direct appeal.” Id. (quoting Cantrell v. Easterling, 346 S.W.3d 445, 449 (Tenn.
2011)). “Included in this category are claims ‘akin to . . . challenge[s] to the sufficiency
of the evidence supporting a conviction,’ such as claims that the record does not support
the trial court’s factual findings regarding sentencing.” Wooden, 478 S.W.3d at 595
(quoting Cantrell, 346 S.W.3d at 450-52).

       Tennessee Code Annotated section 39-13-203(b) establishes that “no defendant
with intellectual disability at the time of committing first degree murder shall be
sentenced to death.” This statutory prohibition has existed since 1990, prior to the
murder for which Petitioner was convicted. Also, at the time of Petitioner’s trial, and
continuing to the present, the determination of whether a defendant is intellectually
disabled is to be made by the court prior to the trial on the merits. Payne, 493 S.W.3d at
488 (“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.”). If the trial court determines that a defendant is not intellectually
disabled, the issue may be a basis for direct appeal by the defendant after the sentencing
portion of the trial for first degree murder. Accordingly, the issue of whether the death
penalty can be imposed upon an intellectually disabled defendant, in violation of
                                            -6-
Tennessee Code Annotated section 39-13-203(b), is clearly an “appealable error” as that
term is defined in Cantrell and Wooden.

      Furthermore, the only sentence errors which are rendered illegal sentences
pursuant to Rule 36.1 are fatal errors. Wooden, 478 S.W.3d at 595.

        Included in this category [of fatal errors] are sentences imposed pursuant
        to an inapplicable statutory scheme, sentences designating release
        eligibility dates where early release is statutorily prohibited, sentences
        that are ordered to be served concurrently where statutorily required to
        be served consecutively, and sentences not authorized by any statute for
        the offenses.

Id. (emphasis added).

        Of the above quoted categories, the only one which might arguably apply pursuant
to Petitioner’s assertions in this appeal is the last one. However, the flaw in Petitioner’s
argument that he is entitled to relief under Rule 36.1 is that a sentence of death is clearly
authorized for his conviction offense of first degree murder. The term “fatal error”
applies to situations where the sentence is not authorized for the offense, not to situations
where the sentence is not authorized for the person who is convicted of the offense. Rule
36.1’s applicability is clearly limited to a specific sentence that is not authorized by
and/or is in direct contravention of a statute(s). Tenn. R. Crim. P. 36.1(a)(2). It does not
apply to a sentence that is unconstitutional and thus directly contravenes case law. We
do not dispute that Montgomery v. Louisiana may very well entitle Petitioner to relief.
However, this relief cannot be granted through Tennessee Rule of Criminal Procedure
36.1.

       III.   Right to a Remedy

        As we construe Petitioner’s argument, he asserts that if he is not entitled to relief
under either error coram nobis proceedings or pursuant to Tennessee Rule of Criminal
Procedure 36.1, a remedy is still mandated by Montgomery, Ford v. Wainwright, 477
U.S. 399, 416-17 (1986), and Van Tran v. State, 6 S.W.3d, 257 (Tenn. 1999). While
acknowledging that this particular Van Tran decision was abrogated by State v. Irick, 320
S.W.3d 284, 294-95 (Tenn. 2010), Petitioner asserts that Irick upheld Van Tran’s
requirement that under appropriate circumstances an incompetency hearing must be held
prior to an execution.




                                            -7-
      Petitioner candidly admits that this court can defer to the Tennessee Supreme
Court to “fashion the parameters” of a new judicially created remedy. That is exactly
what we conclude we should do.

        In his amended petition in the trial court, submitted following our supreme court’s
decision in Payne, Petitioner includes the following plea for relief to which he asserts he
is entitled:

                In this amended motion for relief, [Petitioner] continues to press
        his request for relief pursuant to any procedural vehicle which may be
        identified by the Tennessee courts as the appropriate vehicle for the
        vindication of his claims. [Petitioner’s] claim pursuant to the Eighth
        Amendment and the Tennessee Constitution that he is intellectually
        disabled and therefor not eligible for execution must, at some point, be
        heard – by some court, somewhere.

        It appears that the issue of intellectual disability was heard by a trial judge in
Petitioner’s first hearing for post-conviction relief. According to the procedural history
set out by a panel of this court addressing Petitioner’s first error coram nobis
proceedings, Petitioner argued in this post-conviction petition that he was ineligible to be
executed because of his intellectual disability and that his trial attorneys rendered
ineffective assistance of counsel by not developing evidence of intellectual disability.
James Dellinger, 2015 WL 4931576, at *2. Post-conviction counsel presented the
testimony of an expert witness in clinical psychology and in the psychology of rural
Appalachia. The expert witness testified extensively about Petitioner’s condition. While
the witness noted multiple deficits in Petitioner’s IQ, verbal reasoning, literacy, grade
level (first or second grade), personality development, and cognitive limitations, the
limitations “were not ‘to the degree where he’s [intellectually disabled], by any means.’”
Id. The post-conviction court denied relief, noting the testimony of the expert that
Petitioner was not intellectually disabled. The claims pertaining to intellectual disability
were not pursued on appeal of the post-conviction court’s denial of relief. Id.
Ultimately, the post-conviction court’s judgment denying relief was affirmed by the
Tennessee Supreme Court. Dellinger v. State, 279 S.W.3d 282, 285-86 (Tenn. 2009).

       Attached to Petitioner’s amended petition in the case sub judice are lengthy
affidavits of Petitioner’s two attorneys in his initial post-conviction proceedings
ultimately decided against Petitioner in Dellinger v. State, 279 S.W.3d 282 (Tenn. 2009).
Both attorneys state under oath that they rendered deficient performance representing
petitioner in his post-conviction proceedings, including the issues related to Petitioner’s
assertion of intellectual disability. However, even if taken as fact that post-conviction
counsel rendered ineffective assistance of counsel by failing to develop available proof
                                           -8-
that Petitioner’s intellectual disability voids his sentence of death, Petitioner has no
remedy for that transgression. It is clear in Tennessee that a Peititoner is not entitled to
effective assistance of counsel in post-conviction proceedings, even in capital cases.
Stokes v. State, 146 S.W.3d 56, 60 (Tenn. 2004).

       The door to a proceeding to now present Petitioner’s claim of intellectual
disability has been closed in post-conviction (initial proceedings and motion to reopen);
error coram nobis; writ of audita querala; declaratory judgment; pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); due
process; law of the land; open courts provision of the United States and Tennessee
Constitutions; and violations of double jeopardy. See James Dellinger, 2015 WL
4931576.

        As far as we are able to discern, Petitioner has no state court remedy in order to
present his claim that the sentence of death is void due to his alleged intellectual
disability. The one time that the issue has been submitted to a trial court for
consideration, the witness who testified on behalf of Petitioner testified that he was not
intellectually disabled. See James Dellinger, 2015 WL 4931576, at *2.

        In Keen v. State, 398 S.W.3d 594 (Tenn. 2012), our supreme court held that the
petitioner in that case did not have the ability to assert he was intellectually disabled in a
motion to reopen his post-conviction proceedings pursuant to Tennessee Code Annotated
section 40-30-117(a)(1) and (2). The court acknowledged that the petitioner “deserves to
be heard” if “he is indeed intellectually disabled.” Id. 398 S.W.3d at 613. The court also
noted that its ruling “does not foreclose the ability of the [Tennessee] General Assembly
to create a procedure that accommodates prisoners on death row whose intellectual
disability claims cannot be raised under Tenn. Code Ann. § 40-30-117(a)(1) or (2).” Id.
It has been a few months more than eight years since Keen was filed on December 20,
2012. The General Assembly is in its seventh session since Keen was filed and no
legislation establishing a procedure mentioned in Keen has become law. We note,
however, that in its current session, the General Assembly passed, and the Governor has
signed into law, legislation which eliminates appellate review by the Court of Criminal
Appeals in direct appeals from the imposition of death sentences. See SB 400/HB 0258.
This legislation reduces state appellate court review of death sentences by fifty (50%)
percent on direct appeal.

                                          CONCLUSION

       We affirm the judgment of the trial court summarily dismissing the petition, as
amended, without an evidentiary hearing. The relief sought by Petitioner cannot be
presented in an error coram nobis proceeding or as an “illegal sentence” pursuant to
                                            -9-
Tennessee Rule of Criminal Procedure 36.1. In addition, it appears that Petitioner has no
available state procedure to present his claim of intellectual disability as a result of the
holdings in Keen, Payne, and James Dellinger.


                                   ____________________________________________
                                   THOMAS T. WOODALL, JUDGE




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