                    IN THE SUPREME COURT OF TENNESSEE
                                AT JACKSON
                   May 31, 2012 Session Heard at Lipscomb University

                       DAVID KEEN v. STATE OF TENNESSEE

                Appeal by Permission from the Court of Criminal Appeals
                           Criminal Court for Shelby County
                           No. P25157     Chris Craft, Judge


                 No. W2011-00789-SC-R11-PD - Filed December 20, 2012


GARY R. WADE, C.J., dissenting.

      In Van Tran v. State, 66 S.W.3d 790, 792 (Tenn. 2001), this Court held that
“the Eighth Amendment to the United States Constitution and article I, § 16 of the
Tennessee Constitution prohibit the execution of [intellectually disabled] individuals
because such executions violate evolving standards of decency that mark the progress
of a maturing society, are grossly disproportionate, and serve no valid penological
purpose in any case.” The next year, the United States Supreme Court reached the
same conclusion:

        We are not persuaded that the execution of [intellectually disabled]
        criminals will measurably advance the deterrent or the retributive
        purpose of the death penalty. Construing and applying the Eighth
        Amendment in the light of our “evolving standards of decency,” we
        therefore conclude that such punishment is excessive and that the
        Constitution “places a substantive restriction on the State’s power to
        take the life” of a[n intellectually disabled] offender.

Atkins v. Virginia, 536 U.S. 304, 321 (2002) (quoting Ford v. Wainwright, 477 U.S.
399, 405 (1986)). The import of these decisions is clear: executing intellectually
disabled individuals is unlawful under both the state and federal constitutions.1 In my


        1
         As noted in the majority opinion, the Tennessee General Assembly legislatively prohibited the
execution of intellectually disabled persons prior to these decisions. Act of Apr. 12, 1990, ch. 1038, 1990
                                                                                            (continued...)
view, the majority’s interpretation of the Post-Conviction Procedure Act (“PCPA”)
unnecessarily deprives David Keen (the “Petitioner”) of an adequate opportunity to
prove that he is ineligible for the death penalty based on evidence that did not exist
either at the time of trial or at his initial post-conviction proceeding. In consequence,
I must respectfully dissent.

                                            I.
       As observed by the majority, this case requires us to interpret Tennessee Code
Annotated section 40-30-117 (2006), the statute within the PCPA pursuant to which
the Petitioner seeks to reopen his post-conviction proceedings. In my view, the key
provision of the statute in this case is section 40-30-117(a)(2), which allows a
petitioner to reopen his post-conviction proceedings “based upon new scientific
evidence establishing that the petitioner is actually innocent of the offense or offenses
for which the petitioner was convicted.”2

        On August 6, 2010, the Petitioner filed a motion to reopen his post-conviction
proceedings in order to assert a claim that he is intellectually disabled and, therefore,
ineligible to be executed under Tennessee Code Annotated section 39-13-203, article
I, section 16 of the Tennessee Constitution, and the Eighth Amendment to the United
States Constitution. In order to prevail on a claim of intellectual disability, the person
claiming such disability must satisfy the following criteria: “(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). In
support of his motion to reopen, the Petitioner offered evidence as to each of these
requirements. Initially, he provided documentation demonstrating that in February
of 2010, he received a full scale I.Q. score of 67 on the Wechsler Adult Intelligence
Scale, Fourth Edition (“WAIS-IV”). Further, he submitted an affidavit from a
psychologist, who called into question the validity of previous I.Q. test scores—the

(...continued)
Tenn. Pub. Acts 730 (codified as amended at Tenn. Code Ann. § 39-13-203 (2010)).
        2
           Because I believe that the Petitioner has satisfied section 40-30-117(a)(2), I would not reach the
question of whether he is entitled to reopen his post-conviction proceedings pursuant to section 40-30-
117(a)(1) (allowing a petitioner to reopen post-conviction proceedings within one year of “a final ruling of
an appellate court establishing a constitutional right that was not recognized as existing at the time of trial,
if retrospective application of that right is required”).

                                                      -2-
majority of which fell within the low 70s to low 80s range—and reported that the
Petitioner had significant deficits in adaptive behavior which manifested before the
age of eighteen. The psychologist also opined that the new WAIS-IV score should
be adjusted from 67 to 66 because of the Flynn effect. The Petitioner obtained this
information some four years after the Court of Criminal Appeals affirmed the denial
of his initial post-conviction petition.

       The trial court denied the motion to reopen without an evidentiary hearing,
concluding that proof of ineligibility for the death penalty was insufficient to
establish actual innocence for purposes of section 40-30-117(a)(2). The Court of
Criminal Appeals affirmed.

        Preliminarily, I would observe that a fundamental rule of statutory construction
is that this Court has “an obligation to interpret statutes in a way that preserves their
constitutionality.” Jackson v. Smith, ___ S.W.3d ___, ___, No. W2011-00194-SC-
R11-CV, 2012 WL 5828612, at *6 (Tenn. Nov. 16, 2012) (citing Jordan v. Knox
Cnty., 213 S.W.3d 751, 780-81 (Tenn. 2007)). If possible, we should avoid an
interpretation of legislation that “places it on a collision course” with the state or
federal constitutions. Id. This principle gives rise to two questions relevant to this
appeal: (1) whether interpreting Tennessee Code Annotated section 40-30-117(a)(2)
so as to bar a claim based upon newly acquired evidence of intellectual disability
would bring the statute in conflict with the state or federal constitutions; and (2) if so,
whether the statute may reasonably be interpreted to avoid this constitutional conflict.
I would answer both of these questions in the affirmative.

                                           A.
       This Court’s prior decisions have established that a prisoner’s due process
rights under the Fourteenth Amendment to the United States Constitution and article
I, section 8 of the Tennessee Constitution require a meaningful opportunity to
challenge a conviction or sentence in post-conviction proceedings. In Burford v.
State, 845 S.W.2d 204, 206-10 (Tenn. 1992), this Court addressed the
constitutionality of a former version of Tennessee Code Annotated section 40-30-102
(1990), which had established a three-year statute of limitations for filing a petition
for post-conviction relief. Following Burford’s conviction, his sentence was
enhanced because of multiple prior convictions; when several of his prior convictions
were ultimately set aside, he sought relief from the enhanced sentence even though
more than three years had passed. Id. at 206. The Court observed that Burford’s

                                            -3-
challenge to his sentence depended upon having his prior convictions set aside, which
he was unable to accomplish within the time limit imposed by the post-conviction
statute of limitations. Id. at 208. Because the statute, as applied, deprived Burford
of a “reasonable opportunity” to present a post-conviction claim challenging the
validity of his sentence, the Court ruled that the statutory limitations period violated
his constitutional right of due process. Id. In reaching this conclusion, the Court
found that Burford’s “interest against serving an excessive sentence in violation of
his constitutional rights” outweighed the State’s interests in “administrative efficiency
and economy” and in “preventing the litigation of stale and fraudulent claims.” Id.
at 209 (“In criminal litigation, where an alleged infringement of a constitutional right
often affects life or liberty, conventional notions of finality associated with civil
litigation have less importance, and ‘the fact that a given law or procedure is efficient,
convenient, and useful in facilitating functions of government, standing alone, will
not save it if it is contrary to the Constitution.’” (citation omitted) (quoting I.N.S. v.
Chadha, 462 U.S. 919, 944 (1983))).3

       More recent cases have reaffirmed the validity of the due process analysis
employed in Burford. See, e.g., Williams v. State, 44 S.W.3d 464 (Tenn. 2001)
(recognizing a possible due process violation based upon counsel misrepresenting the
fact that appellate review was being sought); Seals v. State, 23 S.W.3d 272 (Tenn.
2000) (recognizing a possible due process violation where mental incompetence
prevents an inmate from filing a post-conviction petition); Sands v. State, 903 S.W.2d
297 (Tenn. 1995) (providing a three-part test for applying Burford and noting that
courts should consider whether the grounds for the claim at issue arose after the
statute of limitations began to run). In Smith v. State, 357 S.W.3d 322, 358 (Tenn.
2011), we observed that the “pervasive theme” in cases in which a procedural
limitation violated a petitioner’s due process rights “is that circumstances beyond a
petitioner’s control” prevented compliance with the procedural limitation at issue.

       Applying the same rationale, this Court has held that post-conviction
petitioners must be given a meaningful opportunity to present claims of intellectual


        3
          The PCPA, originally enacted three years after Burford, includes an exception to the statute of
limitations for claims seeking relief from a sentence enhanced because of a previous conviction that has
subsequently been held invalid. See Tenn. Code Ann. § 40-30-102(b)(3) (2010). The PCPA includes a
nearly identical provision allowing petitioners to reopen post-conviction proceedings when a prior conviction
used to enhance a sentence is set aside subsequent to the adjudication of an initial post-conviction petition.
See id. § 40-30-117(a)(3).

                                                     -4-
disability. In Van Tran, for example, this Court held that the petitioner was entitled
to relief under Tennessee Code Annotated section 40-30-217(a)(1) (1997), which,
like the current version of section 40-30-117(a)(1), allowed post-conviction
proceedings to be reopened “based upon a final ruling of an appellate court
establishing a constitutional right that was not recognized as existing at the time of
trial, if retrospective application of that right is required.” 66 S.W.3d at 811-12. This
Court acknowledged that Van Tran had not strictly complied with section
40-30-217(a)(1) in that his motion to reopen did not assert a final appellate ruling
establishing the unconstitutionality of executing intellectually disabled persons.
Nevertheless, the Court permitted his challenge, holding that “fundamental fairness
dictates that [he] have a meaningful opportunity to raise th[e] issue [of intellectual
disability].” Id. at 812 (citing Williams, 44 S.W.3d at 464; Seals, 23 S.W.3d at 272).
The Court declined to interpret section 40-30-217(a)(1) as a bar to Van Tran’s claim
because, under such an interpretation, a “potentially [intellectually disabled] person
[could] be executed before the issue is reviewed.” Id. Similarly, in Howell v. State,
151 S.W.3d 450 (Tenn. 2004), we held that application of the stringent “clear and
convincing evidence” standard of Tennessee Code Annotated section 40-30-117(a)(4)
would violate the petitioner’s due process rights because, “[a]s in Burford, Williams,
and Seals, the petitioner [was] confronted with circumstances beyond his control
which prevented him from previously challenging his conviction and sentence on
constitutional grounds.” Id. at 462 (emphasis added).

        One of the factors distinguishing Burford and its progeny from the instant case
is that the procedural limitation here is not a statute of limitations but rather a statute
that defines the circumstances under which a prisoner may reopen his post-conviction
proceedings. In my view, this is not a material distinction. By providing a limited
number of avenues for reopening a post-conviction petition, Tennessee Code
Annotated section 40-30-117(a) operates as a procedural bar to claims that do not fall
within its narrowly defined provisions. There is no rational basis for a distinction
between a procedural bar based upon a time limitation for filing and a procedural bar
that operates by restricting a petitioner’s ability to reopen his post-conviction
proceedings. Both Van Tran and Howell applied the rationale of Burford to
procedural limitations that did not involve a time limitation, and the PCPA includes
nearly identical provisions pertaining to both types of procedural bars. See Tenn.
Code Ann. §§ 40-30-102(b)(3), 40-30-117(a)(3).

       Another question is whether the facts presented here qualify as circumstances

                                            -5-
beyond the Petitioner’s control that prevented him from making his claim at an earlier
stage. See Smith, 357 S.W.3d at 358. The majority distinguishes Van Tran and
Howell, explaining that unlike in those cases, the Petitioner was not without a legal
remedy either during his trial or when he filed his initial post-conviction petition.
While that is an accurate statement, this Court has previously established that due
process precludes application of a procedural bar that would deny a reasonable
opportunity to bring a claim that was previously unavailable because its factual
grounds did not yet exist. See Sands, 903 S.W.2d at 301 (“[D]ue process prohibits
the strict application of the post-conviction statute of limitations to bar a petitioner’s
claim when the grounds for relief, whether legal or factual, . . . arise after the point
at which the limitations period would normally have begun to run.” (emphasis
added)).

        In this instance, the key piece of evidence in the motion to reopen is the I.Q.
test score of 67 from February of 2010. While the Petitioner had undergone
intelligence testing in the past, this new score provided a significantly stronger
indication of intellectual disability than previous tests. When made aware of this
score, the Petitioner acted diligently by filing a motion to reopen accompanied by
expert testimony calling into question the validity of his earlier I.Q. test scores.4 It
is my opinion that his motion to reopen represents his first meaningful opportunity
to present an intellectual disability claim. Further, the Petitioner’s interest in
obtaining a hearing to present newly discovered evidence that may render him
ineligible for the death penalty far outweighs any governmental interest in barring his
claim, including the State’s interest in the finality of judgments. See Howell, 151
S.W.3d at 462 (finding that a capital petitioner’s interest “in protecting his very life”
outweighs the governmental interest in the finality of judgments); see also Workman
v. State, 41 S.W.3d 100, 103 (Tenn. 2001) (“[The petitioner’s] interest in obtaining
a hearing to present newly discovered evidence that may establish actual innocence
of a capital offense far outweighs any governmental interest in preventing the
litigation [of] stale claims.”).

       As this Court has previously acknowledged, intellectual disability “is a difficult
condition to accurately define,” Howell, 151 S.W.3d at 457, and both legal and
clinical practitioners face a host of challenges when attempting to assess a particular


        4
         For the same reasons, I would hold that this new evidence of intellectual disability qualifies as
“new scientific evidence” for purposes of Tennessee Code Annotated § 40-30-117(a)(2).

                                                   -6-
individual’s I.Q. See Coleman v. State, 341 S.W.3d 221, 242 & n.55 (Tenn. 2011).
Given these difficulties, it is not surprising that crucial evidence may be discovered
after the expiration of the statute of limitations for filing a post-conviction petition.
The interpretation of Tennessee Code Annotated section 40-30-117(a)(2) adopted by
the majority would bar any intellectually disabled death row inmate from reopening
a post-conviction proceeding—even an inmate without fault in his discovery of the
evidence of the disability after the expiration of the limitations period. In my
assessment, due process requires this Court to interpret section 40-30-117(a)(2) in a
manner that allows a meaningful opportunity to assert a claim of intellectual disability
based upon newly discovered evidence and, consistent with Van Tran, to avoid a
situation in which an “[intellectually disabled inmate] may be executed before the
issue is reviewed.”5 66 S.W.3d at 812; see also Stewart v. Martinez-Villareal, 523


        5
            The majority specifies that its decision does not foreclose any other remedy currently available to
the Petitioner, but the opinion does not identify any such remedy. One possibility the Petitioner may pursue
is a petition for a writ of error coram nobis. See Tenn. Code Ann. § 40-26-105 (2012). Yet while this Court
has recognized a motion to reopen post-conviction proceedings as a proper procedure for bringing an
intellectual disability claim, see, e.g., Van Tran, 66 S.W.3d at 811-12, I have found no authority from this
state recognizing a coram nobis petition as an appropriate procedural vehicle for asserting a claim of
intellectual disability. Indeed, this Court has suggested that a petition for post-conviction relief is the proper
vehicle for claims of actual innocence based upon new scientific evidence, such as proof of I.Q. See
Dellinger v. State, 279 S.W.3d 282, 291 & n.7 (Tenn. 2009). This Court has also emphasized that “coram
nobis is an extraordinary procedural remedy” that “fills only a slight gap into which few cases fall.” State
v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999); see also Wlodarz v. State, 361 S.W.3d 490, 499 (Tenn. 2012).
Moreover, coram nobis petitions are subject to a one-year statute of limitations that begins at the time the
judgment of the trial court becomes final, although tolling may be available under limited circumstances.
Mixon, 983 S.W.2d at 671; see also Workman, 41 S.W.3d at 103 (declining to dismiss as time-barred a
coram nobis petition filed approximately thirteen months after the discovery of new evidence). In short, the
availability of coram nobis relief for the Petitioner’s claim is doubtful.

         Another possible avenue for relief is a declaratory judgment action. In West v. Schofield, 380
S.W.3d 105, 107 (Tenn. Ct. App. 2012), the Court of Appeals implicitly recognized the propriety of using
a declaratory judgment action to bring an execution protocol claim, noting that if the protocol is declared
unconstitutional, the inmate can then seek a stay of execution. In contrast, if a civil court granted the
Petitioner a judgment declaring that he is intellectually disabled, the appropriate injunctive relief would be
to modify his sentence to life imprisonment rather than to merely stay his execution. See id. at 111 (noting
that civil trial courts lack authority to grant injunctive relief that conflicts with a Tennessee Supreme Court
order in a criminal case). Further, because declaratory judgment actions challenging executions are against
the state, sovereign immunity becomes an issue. See Spencer v. Cardwell, 937 S.W.2d 422, 424 (Tenn. Ct.
App. 1996). Sovereign immunity would not preclude a declaratory judgment action challenging the
constitutionality of an execution protocol statute, see Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827,
852-53 (Tenn. 2008) (holding that sovereign immunity does not bar a declaratory judgment claim against
                                                                                                   (continued...)

                                                       -7-
U.S. 637, 644-45 (1998) (interpreting a habeas corpus statute so as to avoid the “far
reaching and seemingly perverse” consequence of “bar[ring] the prisoner from ever
obtaining . . . review” of a claim); Henderson v. Thaler, 626 F.3d 773, 788 (5th Cir.
2010) (Weiner, J., dissenting) (“If we were to condone the barring of [the petitioner’s
intellectual disability claim] . . . , without ever affording him a[n] . . . opportunity to
demonstrate his intellectual disability, then allowing the State to execute him would
not only be ‘fundamentally unjust’; it would be unconstitutional per se.”).

                                        B.
       In my opinion, Tennessee Code Annotated section 40-30-117(a)(2) can be
reasonably interpreted in a way that avoids conflict with the due process rights of
death row inmates. Unlike the majority, I believe that the term “offense,” as used in
section 40-30-117(a)(2), should be interpreted to encompass the offense of murder
resulting in a sentence of death.

        In the criminal context, the term “offense” is customarily equated with the term
“crime,” both of which refer generally to violations of the penal code. See Black’s
Law Dictionary 1186 (9th ed. 2009) (defining “offense” as “[a] violation of the law,
a crime”); 22 C.J.S. Criminal Law § 3, at 4 (1989) (“The word ‘offense’ is usually
used to describe a crime. . . . The terms ‘crime,’ ‘offense,’ and ‘criminal offense’ are
all said to be synonymous, and ordinarily used interchangeably.” (footnote omitted)).
Historically, courts and commentators have defined offenses in terms of the essential
facts—or elements—needed to impose or increase punishment. See Apprendi v. New
Jersey, 530 U.S. 466, 501-18 (2000) (Thomas, J., concurring) (surveying “[a] long
line of essentially uniform authority . . . stretching from the earliest reported cases
after the founding until well into the 20th century” and concluding that such
“authority establishes that a ‘crime’ includes every fact that is by law a basis for
imposing or increasing punishment”). Under this view, identifying the elements of
an offense requires an assessment of the facts that are necessary to impose a particular
punishment. If a particular fact results in an increase in the statutory maximum
punishment the court may impose, then that fact is an essential element of the


        5
          (...continued)
state officers to prevent the enforcement of an unconstitutional statute); however, the Petitioner would likely
have to argue that his execution is unlawful because of his intellectual disability, not because any statute is
unconstitutional. In light of these considerations, it is far from clear that a declaratory judgment action will
provide a viable avenue for relief.

                                                      -8-
offense,6 irrespective of the labels and technicalities of a particular statutory regime.
Id. at 501 (“[I]f the legislature defines some core crime and then provides for
increasing the punishment of that crime upon a finding of some aggravating fact[,]
. . . the core crime and the aggravating fact together constitute an aggravated crime,
just as much as grand larceny is an aggravated form of petit larceny. The aggravating
fact is an element of the aggravated crime.”); see also id. at 495 (majority opinion).

       This understanding has been confirmed by recent United States Supreme Court
cases addressing what constitutes an “offense” in the context of the death penalty.
In Ring v. Arizona, 536 U.S. 584, 609 (2002), the Court held that Arizona’s statutory
death penalty scheme violated the defendant’s Sixth Amendment right to a fair trial
by allowing the sentencing judge, rather than the jury, to determine the existence of
the aggravating factors necessary for imposition of the death penalty. Although the
statutory aggravating factors in the Arizona penal code were technically sentencing
considerations rather than part of the underlying first degree murder offense, the
Court reasoned that the factors “operate[d] as ‘the functional equivalent of an element
of a greater offense,’” which required that they be found beyond a reasonable doubt
by a jury, not a judge. Id. (quoting Apprendi, 530 U.S. at 494 n.19).

       In Sattazahn v. Pennsylvania, 537 U.S. 101, 111-12 (2003), the Supreme Court
reaffirmed this concept. “[I]n the context of capital-sentencing proceedings,” the
Court ruled, “the underlying offense of ‘murder’ is a distinct, lesser included offense
of ‘murder plus one or more aggravating circumstances.’” Id. at 111; see also id. at
112 (“‘[M]urder plus one or more aggravating circumstances’ is a separate offense
from ‘murder’ simpliciter.”). Applying this principle, the Court concluded that if a
defendant is “acquitted” of aggravating circumstances in a prior trial, then
“double-jeopardy protections attach to that ‘acquittal’ on the offense of ‘murder plus
aggravating circumstance(s).’” Id. at 112.7

        6
          To illustrate, under our sentencing scheme, trial courts may sentence a defendant anywhere within
the applicable sentencing range by considering any mitigating or enhancement factors. See generally State
v. Bise, 380 S.W.3d 682 (Tenn. 2012). But because trial courts may not impose a sentence beyond the
maximum of the statutory range based upon such factors, they do not qualify as elements or give rise to a
distinct offense. Facts or circumstances that increase punishment beyond the statutory maximum—which
do qualify as elements—must be found by a jury beyond a reasonable doubt. See Apprendi, 530 U.S. at 490.
        7
           The Sixth Circuit Court of Appeals has also recognized the fact that in capital cases, the “offense”
at issue encompasses any sentencing consideration necessary for imposition of the death penalty. See, e.g.,
                                                                                                  (continued...)

                                                      -9-
        Under Tennessee law, the facts necessary for imposing the death penalty
include guilt of first degree murder, as defined by Tennessee Code Annotated section
39-13-202(a) (2010),8 as well as at least one of the seventeen aggravating
circumstances set out in Tennessee Code Annotated section 39-13-204(i) (2010).
Absent at least one aggravating circumstance, the maximum statutory punishment for
first degree murder is limited to life imprisonment.9 Tenn. Code Ann. § 39-13-204(i).
Hence, the fact of at least one aggravating circumstance is the element that
distinguishes the offense of murder resulting in the death penalty from murder
resulting in life imprisonment. See Sattazahn, 537 U.S. at 112. The decision of the
General Assembly to place the aggravated circumstance requirement in a sentencing
provision does not mean that it is not an element of the offense at issue or that murder
resulting in the death penalty is not a distinct offense. See Apprendi, 530 U.S. at 495
(“[M]erely because the state legislature placed its hate crime sentence enhancer
within the sentencing provisions of the criminal code does not mean that the finding
of a biased purpose to intimidate is not an essential element of the offense.”).

      The majority narrowly interprets the term “offense” as it is used in Tennessee
Code Annotated section 40-30-117(a)(2), rejecting the Petitioner’s argument that he
should be permitted to reopen his post-conviction proceedings based upon new


        7
         (...continued)
Davis v. Mitchell, 318 F.3d 682, 687 (6th Cir. 2003) (“[A]ggravating factors . . . are the elements of the
murder offense that make the defendant death eligible.”).
        8
            Tennessee Code Annotated section 39-13-202(a) defines first degree murder as:

        (1) A premeditated and intentional killing of another;

        (2) A killing of another committed in the perpetration of or attempt to perpetrate any first
        degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated
        child abuse, aggravated child neglect, rape of a child, aggravated rape of a child or aircraft
        piracy; or

        (3) A killing of another committed as the result of the unlawful throwing, placing or
        discharging of a destructive device or bomb.
        9
          The fact that the finding of an aggravating circumstance increases the maximum statutory
punishment available distinguishes aggravating circumstances from more routine sentencing considerations,
which may enhance a sentence within the applicable range but do not increase the maximum punishment to
which a defendant may be subjected. Sentencing considerations within the latter category do not qualify as
elements of the offense.

                                                    -10-
scientific evidence showing that he is actually innocent of the offense of “capital
murder.” In so doing, the majority observes that Tennessee Code Annotated section
39-13-202 defines first degree murder, whereas the procedures for sentencing a
defendant convicted of first degree murder are set out in section 39-13-204. In light
of this statutory scheme, the majority concludes that “[i]t is clear . . . that the
underlying ‘offense’ is ‘first degree murder,’ and that the death penalty is a
sentencing consideration rather than an independent offense.”

      The majority’s conclusion hinges on the assumption that a fact proved at
sentencing can never qualify as part of an offense. Consistent with the authorities
discussed above, I would prefer to define offenses according to their elements.
Because the “aggravating circumstance” requirement set out in Tennessee Code
Annotated section 39-13-204(i) constitutes an element of the capital offense and must
be proved beyond a reasonable doubt, in my view, murder resulting in the death
penalty is a separate offense from murder resulting in life imprisonment. See
Sattazahn, 537 U.S. at 112; Ring, 536 U.S. at 609; see also Apprendi, 530 U.S. at 501
(Thomas, J., concurring).

       The majority also relies upon several federal cases construing the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). Similar to Tennessee Code
Annotated section 40-30-117(a)(2), the AEDPA contains provisions that bar claims
for habeas corpus relief in “second or successive” petitions unless the petitioner can
satisfy certain exceptions, one of which requires newly discovered evidence
establishing that “no reasonable factfinder” would have found the petitioner “guilty
of the offense,” see 28 U.S.C. § 2255(h)(1) (2006), or “guilty of the underlying
offense,” see id. § 2244(b)(2)(B)(ii). Federal authorities, however, are not as
uniformly supportive of the majority’s position as the opinion suggests. In the first
federal case cited by the majority, Henderson, 626 F.3d at 779-81, the Fifth Circuit
declined to recognize an “actual innocence” exception to the AEDPA statute of
limitations based upon an untimely claim of intellectual disability. Of note,
Henderson had nothing to do with the AEDPA’s provisions concerning successive
petitions10 and made no distinction between offenses and sentencing. Rather, the
issue in that case was whether to apply the common law actual innocence exception
to the AEDPA’s statute of limitations, which, unlike Tennessee Code Annotated


        10
           In fact, the Fifth Circuit had granted Henderson permission to file a successive habeas petition in
a prior decision. See In re Henderson, 462 F.3d 413, 417 (5th Cir. 2006).

                                                    -11-
section 40-30-117(a)(2), does not include an actual innocence provision. While the
Fifth Circuit declined to recognize an actual innocence exception to the AEDPA’s
statute of limitations, a majority of the federal circuits that have considered the
question have disagreed with the conclusion in Henderson. See Lee v. Lampert, 653
F.3d 929, 932 (9th Cir. 2011) (en banc); Sandoval v. Jones, 447 F. App’x 1, 4-5 (10th
Cir. 2011); San Martin v. McNeil, 633 F.3d 1257, 1267-68 (11th Cir. 2011); Turner
v. Romanowski, 409 F. App’x 922, 926 (6th Cir. 2011).

       The majority also relies upon In re Dean, 341 F.3d 1247, 1248-49 (11th Cir.
2003), and Hope v. United States, 108 F.3d 119, 120 (7th Cir. 1997). These cases
both involved successive habeas petitions seeking to collaterally attack non-capital
sentences that had been enhanced by virtue of prior convictions. In each case, the
court found that the statutory language “guilty of the offense” permitted challenges
to the crimes of conviction but not to sentences. In re Dean, 341 F.3d at 1248-49;
Hope, 108 F.3d at 120. But because these were non-capital cases involving
sentencing enhancements that did not increase the maximum statutory punishment,
they did not involve any fact proved at sentencing that qualified as an element of the
offense at issue. As a result, these cases provide little guidance as to whether the term
“offense” properly encompasses all elements of the offense at issue, even those, such
as aggravating circumstances, which are found beyond a reasonable doubt by a jury
during the sentencing phase. See Sawyer v. Whitley, 505 U.S. 333, 341 (1992)
(explaining that “[i]n the context of a noncapital case, the concept of ‘actual
innocence’ is easy to grasp,” whereas “[i]t is more difficult to develop an analogous
framework when dealing with a defendant who has been sentenced to death”).

       Admittedly, other cases have refused to allow successive habeas petitions
asserting sentencing claims, even in death penalty cases. See, e.g., In re Webster, 605
F.3d 256, 257-59 (5th Cir. 2010); In re Jones, 137 F.3d 1271, 1274 (11th Cir. 1998).11

        11
           Notably, in In re Webster, the court specified that it did not mean “to suggest that a prisoner is
jurisdictionally barred from seeking successive review where he contests a factual predicate of his capital
murder conviction, without which he would have been guilty only of non-capital murder.” 605 F.3d at 258
n.5. As explained below, I believe the Petitioner’s intellectual disability claim effectively contests his
conviction for murder resulting in the death penalty because he has asserted a claim that, if proven, would
remove the death penalty as an option.

        Other federal cases rejecting successive habeas petitions in death penalty cases involve claims
challenging execution protocol. See, e.g., In re Jones, 137 F.3d at 1274; Greenawalt v. Stewart, 105 F.3d
                                                                                            (continued...)

                                                    -12-
But federal courts are not in agreement on this issue. In Thompson v. Calderon, the
Ninth Circuit, sitting en banc, specifically rejected an interpretation of the AEDPA
that would categorically bar successive sentencing claims in capital cases. 151 F.3d
918, 923-24 & n.4 (9th Cir. 1998) (en banc). Without reference to the labels
employed by the murder statute at issue, the court found that “the ‘underlying
offense’ in a death penalty case is capital murder rather than merely homicide.”12 Id.
at 924. Because Thompson had asserted a claim that, if proven, would negate the sole
aggravating factor that made him eligible for the death penalty, the court found that
he had stated a viable claim of actual innocence of the offense at issue. Id.; see also
Babbitt v. Woodford, 177 F.3d 744, 746 (9th Cir. 1999) (per curiam) (stating that the
AEDPA’s actual innocence exception to the bar on successive claims “permit[s] a
petitioner to establish by clear and convincing evidence that, ‘but for constitutional
error, no reasonable juror would have found the petitioner eligible for the death
penalty under the applicable state law’” (quoting Thompson, 151 F.3d at 923)); Bryan
A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal
Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699, 777 (2002) (“Some courts view [the
AEDPA’s actual innocence exception to the bar on successive claims] as necessarily
including claims of innocence of the death penalty, while other courts read the
provision much more narrowly as limited to claims of innocence of the crime. The
decisions in the former, more protective category would seem to comport most
closely with the available indicia of legislative intent.” (footnotes omitted)).13

        11
           (...continued)
1287, 1288 (9th Cir. 1997) (per curiam). These cases are distinguishable from cases involving claims of
intellectual disability because a successful execution protocol challenge only results in a stay of execution
pending adoption of a lawful protocol, see Greenawalt, 105 F.3d at 1287, whereas a successful intellectual
disability claim results in ineligibility for the death sentence. In other words, unlike intellectual disability,
unlawful execution protocol at best delays rather than negates a sentence of death.
        12
           In addition, rather than finding that the inclusion of the language “guilty of the underlying offense”
was meant to provide a narrower exception than the common law actual innocence exception (as the majority
concludes in this case), the court reasoned that the language was included because the AEDPA provisions
pertaining to successive petitions, unlike the common law exception, “appl[y] to all habeas petitions, not just
capital habeas petitions.” Id. at 923-24.
        13
            Other federal courts of appeals have recognized but declined to resolve the issue of whether the
AEDPA’s provisions on successive habeas petitions bar a claim premised on new evidence establishing
ineligibility for the death penalty. See, e.g., Bryan v. Mullin, 100 F. App’x 783, 787 (10th Cir. 2004)
(acknowledging that it is unclear “whether a challenge to the propriety of a death sentence is cognizable
under § 2244(b)(2)(B)(ii)” but finding it unnecessary to “resolve that difficult question”); LaFevers v.
                                                                                               (continued...)

                                                      -13-
       Unlike the majority, I would hold that the term “offense,” as used in Tennessee
Code Annotated section 40-30-117(a)(2), includes all elements of the offense in
question, including the “aggravating circumstance” element in capital cases. In my
assessment, the term “offense” encompasses murder resulting in the death penalty.
This interpretation of the statute comports with the traditional understanding of what
constitutes an offense and, of great importance, preserves the constitutionality of the
statute by avoiding an interpretation that deprives death row inmates of a meaningful
opportunity to present claims based upon newly discovered evidence of intellectual
disability.

       Reading the term “offense” in this manner, the question becomes whether
demonstrating intellectual disability establishes actual innocence of the offense of
murder resulting in the death penalty. I believe that it does. While intellectual
disability does not directly contradict the elements of the offense (including any
aggravating circumstances), it is incompatible with the imposition of a death sentence
under Tennessee Code Annotated section 39-13-203, as well as our state and federal
constitutions, effectively negating the “aggravating circumstance” element of the
offense.

                                           II.
       In summary, interpreting Tennessee Code Annotated section 40-30-117(a)(2)
so as to bar the Petitioner’s intellectual disability claim based upon new evidence
conflicts with his right of due process by depriving him of a meaningful opportunity
to establish ineligibility for the death sentence. A proper interpretation of the term
“offense” in section 40-30-117(a)(2) encompasses all elements of the offense at issue,
including the “aggravating circumstance” requirement for the imposition of a death
sentence.

      It may be that the Petitioner would ultimately be unable to satisfy the statutory
requirements for demonstrating intellectual disability; however, to interpret section
40-30-117(a)(2) in a manner that deprives a petitioner of an evidentiary hearing and


        13
          (...continued)
Gibson, 238 F.3d 1263, 1267 (10th Cir. 2001) (same); In re Vial, 115 F.3d 1192, 1198 & n.12 (4th Cir. 1997)
(en banc) (holding that the statutory exception to the bar on successive habeas petitions is generally
unavailable to assert sentencing errors, but declining to address “the question of whether, under the AEDPA,
an individual subject to a sentence of death may assert the existence of new evidence establishing that the
sentence was imposed improperly”).

                                                   -14-
an adjudication on the merits risks putting to death an intellectually disabled
individual in violation of the state and federal constitutions. I would, therefore,
remand to the trial court for consideration of the merits of the intellectual disability
claim.



                                                 _________________________________
                                                 GARY R. WADE, CHIEF JUSTICE




                                          -15-
