
                        IN THE INDIANA SUPREME COURT

ALLEN, Howard,
                 petitioner,
           v.


STATE OF INDIANA,
                 respondent.
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Supreme Court case no.
49S00-0303-SD-122

Marion Superior Court case no.
CR87-194C


                    ORDER CONCERNING SUCCESSIVE PETITION
                 FOR POST-CONVICTION RELIEF IN CAPITAL CASE

      Petitioner, Howard Allen, by counsel,  seeks  permission  to  litigate
one additional post-conviction claim relating to  his  death  sentence.   He
alleges that he is a mentally retarded person whose execution is  prohibited
by Atkins v. Virginia, 536 U.S. 304, 321  (2002).  We  conclude  that  Allen
has already litigated this claim, and therefore deny permission for  him  to
litigate the issue a second time.

      Allen has filed a “Tender of Successive Petition  for  Post-Conviction
Relief (Capital  Case)”  and  tendered  a  successive  “Petition  for  Post-
Conviction Relief.”  Respondent, State of Indiana, was permitted to file  an
“Opposition to Tender of Successive Petition  for  Post-Conviction  Relief.”
The Court has jurisdiction because Allen has been sentenced to  death.   See
Ind. Appellate Rule 4(A)(1)(a).

      Background of this case.  Allen was charged with  the  July  14,  1987
murder, felony-murder, and robbery of Ernestine Griffen.  A jury  found  him
guilty on all counts, and the  murder  and  felony-murder  convictions  were
merged.  The State  sought  the  death  penalty,  alleging  the  aggravating
circumstance of an intentional killing during a robbery.  See  Ind.  Code  §
35-50-2-9(b)(1).  The Marion Superior Court followed  the  jury’s  unanimous
recommendation and sentenced  Allen  to  death.   See  I.C.  §  35-50-2-9(e)
(Supp. 1987).  Before considering the merits of Allen’s  direct  appeal,  we
remanded the case with  instructions  for  the  trial  court  to  produce  a
written  sentencing  order,  to  apply  certain   stricter   standards   for
sentencing in capital cases, and to consider affidavits Allen had  submitted
on his claim that he was mentally retarded.  See Allen, 686 N.E.2d  at  787-
88, & n.32.  Thereafter, the trial court entered a written order  sentencing
Allen to death.

      The convictions and sentence were affirmed on direct appeal  in  Allen
v. State, 686 N.E.2d 760, 765  (Ind.  1997),  cert.  denied  525  U.S.  1073
(1999).   The  judgment  denying  relief   in   collateral   post-conviction
proceedings was affirmed on appeal in Allen v. State, 749 N.E.2d 1158,  1163
(Ind. 2001), cert. denied 535 U.S. 1061 (2002).   Allen  has  also  filed  a
petition for writ of habeas  corpus  in  a  federal  district  court,  which
remains pending.  See Howard Allen v. Cecil Davis,  case  no.  IP-01-1658-C-
T/K (S.D. Ind.).

      Post-Conviction Rule 1,  Section  12.   The  Court’s  rules  permit  a
person convicted of a crime in an  Indiana  state  court  to  challenge  the
conviction and sentence collaterally in a post-conviction  proceeding.   See
Ind. Post-Conviction Rule 1.  As indicated above, Allen has already  availed
himself of that procedure.

      Post-Conviction  Rule  1,  Section  12  specifies  the  procedure  for
requesting a second, or “successive” collateral review.  The rule states:

            (b) The court will authorize the filing of the petition  if  the
      petitioner establishes a reasonable possibility that the petitioner is
      entitled to post-conviction relief.  In making this determination, the
      court may consider applicable law, the petition,  and  materials  from
      the  petitioner’s  prior  appellate  and  post-conviction  proceedings
      including the record,  briefs  and  court  decisions,  and  any  other
      material the court deems relevant.

      We have considered the  materials  from  Allen’s  prior  appeals,  the
materials  submitted  in  connection  with  the  successive  petition,   and
applicable law.

      Atkins v. Virginia.  The United  States  Supreme  Court  has  declared
that execution of a mentally retarded  person  is  an  “excessive”  sanction
that violates the Eighth Amendment to the United States  Constitution.   536
U.S. at 321.  Mentally retarded  persons  are  regarded  as  less  culpable,
Atkins says, because they have

      diminished  capacities  to  understand  and  process  information,  to
      communicate, to abstract from mistakes and learn from  experience,  to
      engage in logical reasoning, to control impulses,  and  to  understand
      the reactions of others . . . .  [T]here  is  abundant  evidence  that
      they often act on impulse rather than pursuant to a premeditated plan,
      and that in group settings they are followers rather than leaders.


Id. at 318 (footnotes omitted).

      Atkins cited definitions  of  mental  retardation  from  the  American
Association of Mental Retardation and the American Psychiatric  Association.
 See 536 U.S.  at  308  n.3.   Although  not  identically  worded,  the  two
definitions require significantly subaverage  intellectual  functioning  and
limitations in adaptive skills, both of which  manifest  before  the  person
reaches eighteen years of  age.   Still,  Atkins  informs  that  “[n]ot  all
people who claim to be mentally retarded will be  so  impaired  as  to  fall
within the range of mentally  retarded  offenders  about  whom  there  is  a
national consensus” against executing.  Id. at 317.

      We assume  the  Atkins  proscription  against  execution  of  mentally
retarded persons applies  retroactively  to  Allen’s  death  sentence.   See
Penry v. Lynaugh, 492 U.S. 302, 330 (1989) (indicating that if  the  Supreme
Court were to hold that the Eighth  Amendment  prohibits  the  execution  of
mentally retarded persons “such a rule would fall under the first  exception
to the general  rule  of  non-retroactivity  and  would  be  applicable   to
defendants on collateral review.”).  We have  applied  Atkins  retroactively
in another case.  See  Gamba  Rastafari  v.  State,  No.  45S00-0210-SD-510,
unpublished  order,  (Ind.  Feb.  5,  2003)  (allowing  prisoner   to   file
successive post-conviction petition and litigate  issue  of  whether  he  is
mentally retarded pursuant to Atkins).

       Although  Indiana  has  enacted  legislation  barring  execution   of
mentally retarded persons, we held in Allen’s direct  appeal  that  the  law
did not apply to him because he was tried before the law’s  effective  date.
See Allen v. State,  686  N.E.2d  at  786.   At  that  time,  there  was  no
constitutional mandate for a rule exempting  mentally  retarded  individuals
from the death penalty,  see  id.,  therefore  Allen’s  claim  under  Atkins
remains.

      The successive claim.   Allen’s  successive  post-conviction  petition
alleges that he is a mentally retarded person whose execution is  prohibited
under Atkins and that he is entitled to  litigate  this  claim  in  a  state
trial court.  The State responds, in part, that Allen has already  litigated
whether he is mentally retarded and is not entitled to another  opportunity.


      Evidence of Allen’s mental  capacity  was   considered  by  the  trial
court  after  we  remanded  the  case,  on  direct  appeal,  for  a  written
sentencing order.  Our remand order directed the  trial  court  to  consider
evidence of Allen’s mental capacity and authorized the court  to  grant  any
appropriate relief contemplated by the Indiana Trial Rule 59, which  governs
motions to correct error.  See 686 N.E.2d at 787-88, & n.32.

      Evidence presented to the trial court supporting  Allen’s  claim  that
he  is  mentally  retarded  included  the  following.   In  1956,   at   the
chronological  age  of  seven  years,  nine  months,  Allen’s   Intelligence
Quotient (“I.Q.”) was scored  as  seventy  on  the  Revised  Stanford  Binet
Intelligence Scale, which indicated a mental age  of  five  years  and  five
months.  Supplemental Trial  Record,  p.  20   (Psychological  Report).   In
1959, at the chronological age of ten years and nine months,  his  I.Q.  was
scored as 68, which indicated a mental age of seven years and  four  months.
Id. at 21.  An I.Q. of  70  or  below  is  an  indication  of  significantly
subaverage intellectual functioning.   Supp.  T. R.,  p.  28  (affidavit  of
Richard B. Dever, Ph.D.).

      Dr. Dever opined that there were “many indications [in the records  he
reviewed] that Howard Allen  manifested  significant  deficits  in  adaptive
behavior during the developmental period of his life . . . .”   Id.  at  29.
These  deficits  included  “significant  academic   retardation,”   and   an
“inability to function  appropriately  within  the  context  of  the  social
requirements imposed on people his age by the  community,”  when  Allen  was
not in the structured environment of prison.  Id. at 29-30.

      Allen was enrolled in special education classes for mentally  retarded
children, and when he left elementary school at the age of twelve years  and
eight months, he was reading at the second grade level.  Supp. T.R.,  p.  15
(Affidavit of Mary Jo Dare, a director  of  special  education).   Ms.  Dare
opined that Allen “had difficulty processing language” as a child, that  his
“thinking and decision-making would be very concrete,” and  that  he  “could
have difficulty understanding the consequences of his conduct and  could  be
easily led.”  Id. at 18.

      Other evidence, however, tended to show that  Allen  is  not  mentally
retarded.  Allen’s I.Q. was scored as 104 on a test used by  the  Department
of Correction for assessing prisoners.   See  686  N.E.2d  at  790  &  n.34.
Allen’s mother testified that he was an “average” student.  See id.  at  790
n.35.  None of Allen’s family members described him as anything  other  than
of normal intelligence.  See id. at 790.  None of the  eighteen  people  who
submitted letters on Allen’s behalf before sentencing indicated he  was  not
of normal intelligence.  See id.  Allen was a “solo-acting  criminal.”   See
id.  The trial court observed that Allen made an “articulate”  statement  at
the sentencing hearing.  See Supp. T.R., p.  81  (trial  court’s  sentencing
order); T.R., p. 3135-47 (Allen’s statement).

      Allen argued to the trial court that  he  was  mentally  retarded  and
that this  should  be  considered  as  a  mitigating  circumstance  weighing
against a death sentence.  See I.C. §  35-50-2-9(c)  &  (e).   In  rejecting
Allen’s argument, the trial court commented on the weight of  the  evidence,
and concluded:

      The information contained in the affidavits . .  .   tend  to  show  a
      mitigating factor, but is a very slight mitigating factor.  The  Court
      gives it little weight  in  light  of  evidence  in  the  record  that
      Defendant  was  examined  and   evaluated   by   two   court-appointed
      psychiatrists in 1975 who reported that he was well oriented  and  had
      the capacity to understand  his  behavior.   The  pre-sentence  report
      filed in [a prior case in which Allen had been convicted] states  that
      Howard Allen had an I.Q. of 104.  The  pre-sentence  report  filed  in
      this case reiterated  the  orientation-and-capacity-to-understand-his-
      behavior-and-I.Q.-of-104  statements.   At  one   point   during   the
      proceedings a motion for  psychiatric  examination  of  defendant  was
      filed, but the motion was withdrawn in open court with the Defendant’s
      oral agreement after discussion of the matter with counsel.
            No witness called by Defendant at his sentencing  mentioned  any
      possibility of mental retardation.  . .  .     None  [of  the  letters
      written  on  Allen’s  behalf]  mentioned  any  possibility  of  mental
      retardation.
            Moreover, the Court’s own observation of the Defendant  and  the
      articulate statement he gave on his behalf at the  sentencing  hearing
      further erodes whatever weight the  Court  gives  to  this  mitigating
      circumstance.”

Supp. T. R., p. 80-82 (sentencing order).

      In the direct appeal, we rejected  Allen’s  argument  that  the  trial
court had failed to give adequate consideration to the  evidence  of  mental
retardation, and we deferred to the trial court’s judgment about the  weight
to be given the evidence:

      Judge Barney devoted more than  half  of  his  four-page  [sentencing]
      order to weighing the evidence averred by Mary Jo Dare and Dr. Richard
      Dever, experts who submitted affidavits supporting  Allen’s  claim  of
      retardation.  He found  it  controverted  by  other  evidence  in  the
      record, which reduces the issue to  one  of  credibility.   The  trial
      court’s judgment about the credibility and weight of evidence is  part
      and parcel of its statutory balancing function.  This Court  will  not
      second-guess the trial court on questions of credibility or weighing.


686 N.E.2d at 788-89 (rejecting argument that trial court  failed  to  weigh
aggravators and mitigators properly).  We concluded:

      There is little evidence that Allen is  mentally  retarded,  and  none
      that shows him to be incapable of appreciating the criminality of  his
      conduct or to conform it to the law.  At sentencing, Allen's  colloquy
      with the trial judge amply demonstrated that he was  mentally  present
      and that he understood  the  proceedings.   As  a  result,  the  trial
      court's balance of the statutory aggravator against the scant evidence
      in  mitigation  and  the  court's  due  consideration  of  the  jury's
      recommendation are reasonable in fact  and  supportable  in  law.   We
      conclude that the aggravating circumstance  outweighs  the  mitigating
      circumstance and that the penalty is appropriate to  the  offense  and
      the offender.

Id. at 790-91.

       We  acknowledge  that  the  issue  of  Allen’s  mental  capacity  was
presented to the trial court in the context of whether  mental  retardation,
if established, was a mitigating circumstance  sufficient  to  outweigh  the
death-eligible aggravating circumstance of an  intentional  killing  in  the
course of a robbery.  At the time, this balancing process was the  procedure
for factoring a convicted  person’s  mental  retardation  into  the  capital
sentencing decision.   See I.C. § 35-50-2-9(c) & (e); Allen, 686  N.E.2d  at
790.

      Atkins held that a person shown to  be  mentally  retarded  cannot  be
executed.  That is, when Atkins is applied to Indiana’s  sentencing  scheme,
the mitigating circumstance of mental retardation necessarily outweighs  any
death-eligible aggravating circumstance.

      However, the factual inquiry under either analysis is  the  same:   is
the  person  mentally  retarded?   In  Allen’s  case,  the   trial   court’s
sentencing order acknowledged the existence of some evidence that Allen  was
mentally retarded, but ultimately, found that he was not.   When  the  trial
court’s order stated that the evidence tended “to show . . .  a very  slight
mitigating factor,” and that other  evidence  “erodes  whatever  weight  the
Court gives to this mitigating circumstance,” we conclude  the  trial  court
meant that Allen had not proved to the court’s satisfaction that  Allen  was
actually mentally retarded.

      One other point  is  worth  mention.   In  the  first  post-conviction
conviction proceeding, Allen asserted  that  he  had  been  misdiagnosed  as
mentally retarded.   See,  e.g.,    Brief  of  Petitioner-Appellant,  p.  41
(Allen “likely would not have been misdiagnosed  as  mentally  retarded”  if
his attorney had had more time and  resources);  see  also  Reply  Brief  of
Petitioner-Appellant, p. 8.  In rejecting Allen’s  attempt  to  re-cast  the
claim of mental retardation as a “thought disorder” and a  “severe  learning
disability” similar to mental  retardation,  we  reiterated  our  conclusion
that the trial court had sufficiently  considered  the  evidence  of  mental
retardation.  See Allen, 749 N.E.2d at 1174-75.  We also decided  the  trial
court’s determination was res judicata on the issue. Id. at 1175.

      We have previously decided that the trial court adequately  considered
the evidence of mental retardation.  See 686 N.E.2d  at  790-91  (on  direct
appeal); 749 N.E.2d at  1175  (on  appeal  from  denial  of  post-conviction
relief).  We have also rejected Allen’s various claims that he was  deprived
of his right to effective assistance of counsel with respect to this  issue.
 See 686 N.E.2d at 779, 781 (on direct  appeal);  749  N.E.2d  at  1176  (on
appeal from denial of post-conviction relief).  We  now  conclude  that  the
record shows that Allen has had a full and fair opportunity to litigate  the
issue of whether he is mentally retarded, and that, faced  with  conflicting
evidence, the trial court resolved the issue against Allen.

      “The doctrine of res judicata prevents the repetitious  litigation  of
that which is essentially the same  dispute.”   Ben-Yisrayl  v.  State,  738
N.E.2d 253, 258 (Ind. 2000).  We conclude that Allen has already  litigated,
and lost, his claim that he is mentally retarded.  Therefore, the  claim  is
res judicata and is not available to Allen in a  successive  post-conviction
proceeding.  See, e.g., Wrinkles v. State, 776 N.E.2d 905, 908  (Ind.  2002)
(denying  permission  to  file  successive  petition  when  claim   is   res
judicata).

      Having not established a reasonable possibility that  he  is  entitled
to post-conviction relief on this claim, Allen’s request for leave  to  file
a successive post-conviction relief petition is DENIED.

      The Clerk is directed to send a copy  of  this  order  to  the  Marion
Superior Court; to the Public Defender of Indiana; to the  Attorney  General
of Indiana;  to  Paula  Sites,  the  Public  Defender  Council;  to  Rebecca
McClure, the Prosecutor’s Council; and to counsel of record.

      DONE AT INDIANAPOLIS INDIANA, this 15th day of July, 2003.

                                  /s/ Randall T. Shepard
                                       Chief Justice of Indiana

Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., dissents with opinion, in which Rucker, J., concurs.




BOEHM, J., dissenting

      Last year, in Atkins v. Virginia, 536  U.S.  304  (2002)  the  Supreme
Court made clear that  the  Eighth  Amendment  prohibits  execution  of  the
mentally retarded.  Allen now claims that he is mentally  retarded  as  that
term is used in Eighth Amendment jurisprudence.  It  seems  clear  that  the
precise meaning of that term is yet to be fleshed out, but Allen  points  to
opinion that he is “mentally retarded” as one expert would define  the  term
and to data from his early school years, including I.Q. tests of 68  and  70
at an early age.  This evidence was offered  in  a  1996  hearing  in  which
mental retardation was offered as  a  mitigating  factor  to  be  considered
under Indiana state law in Allen’s sentencing.

      Application of Atkins is yet to be worked out by the  courts  of  this
state, but it seems to me that the  Eighth  Amendment  presents  us  with  a
binary decision: either Allen is or is not  mentally  retarded.   The  trial
court in its 1996 sentencing proceeding was confronted with a  balancing  of
mitigating factors against aggravating factors.  One of  the  factors  Allen
argued as mitigating was his claimed mental retardation.   The  Court  today
concludes that the trial court found that Allen was not  mentally  retarded.
I cannot reach that  conclusion  with  any  confidence.  The  trial  court’s
observations are quoted by  the  Court  at  length.   It  seems  to  me  the
operative finding is the trial court’s statement that the offered pieces  of
evidence “tend to show a mitigating  factor  but  is  [sic]  a  very  slight
mitigating factor.”. The trial  court’s  findings  on  this  point  are  not
entirely clear but they  seem  to  me  to  mean  either  1)  Allen’s  mental
retardation was  relatively  slight  compared  to  other  mentally  retarded
persons, or 2) other factors render it entitled to little weight in a  state
court balancing of aggravating and mitigating factors  or  3)  both.   Under
any  of  these  three  alternatives,   the  trial  court  findings  do   not
constitute an adjudication of the Eighth  Amendment  issue  Allen  presents.
Finally, the  trial  court  did  not  elaborate  its  understanding  of  the
criteria for mental retardation as a state  law  mitigating  factor.   As  a
result, even if we took the trial  court  to  find  no  mental  retardation,
which I do not, we could not be confident that the trial court’s finding  on
this point meets Eighth Amendment standards.
In short, both the sentencing judge  and  the  factfinder  in  a  pre-Atkins
regime were confronted with different considerations  in  evaluating  mental
retardation as a mitigating circumstance as opposed to  a  complete  bar  to
execution.  Accordingly, their conclusions do not resolve the  issues  Allen
now raises. See Johnson v. State,  102  S.W.3d  535  (Mo.  2003);  State  v.
Grell, 66 P.2d 1234, 1240 (Ariz. 2003); State  v.  Lott,  779  N.E.2d  1001,
1015 (Ohio 2002).   For that reason, I respectfully dissent from the  denial
of leave to permit Allen to litigate that issue in light of Atkins.

