Black v. Carpenter

• Decision Date: 10 August 2017
• Docket Number: No. 13-5224,13-5224
• Citation: 866 F.3d 734
• Parties: Byron Lewis BLACK, Petitioner-Appellant, v. Wayne CARPENTER, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

866 F.3d 734

Byron Lewis BLACK, Petitioner-Appellant,

v.Wayne CARPENTER, Warden, Respondent-Appellee.

No. 13-5224

United States Court of Appeals, Sixth Circuit.

Argued: December 8, 2016

Decided and Filed: August 10, 2017

Rehearing En Banc Denied October 27, 2017

ARGUED: Kelley J. Henry, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. John H. Bledsoe, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Kelley J. Henry, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Andrew H. Smith, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

Before: COLE, Chief Judge; BOGGS and GRIFFIN, Circuit Judges.

BOGGS, J., delivered the opinion of the court in which GRIFFIN, J., joined, and COLE, C.J., joined in part. COLE, C.J. (pg. 750), delivered a separate opinion concurring in the majority opinion except for Section II.E and concurring in the judgment.

OPINION

BOGGS, Circuit Judge.

In 1986, Byron Black shot his girlfriend Angela's ex-husband, Bennie. Black pleaded guilty to malicious shooting and was sentenced to two years of imprisonment at a Davidson County, Tennessee, workhouse. In 1988, while on a weekend furlough from that workhouse, Black entered Angela's home, shot Angela in the head as she slept, and then shot nine-year-old Latoya and six-year-old Lakeisha (Angela's children by Bennie) once and twice, respectively, killing all three victims. Black returned to the workhouse at the end of his furlough before law-enforcement officers discovered the bodies.

Black's trial and post-conviction proceedings have spanned nearly thirty years. Seventeen years have elapsed since Black filed the federal habeas petition presently before us. The Supreme Court and the Tennessee courts have recently recognized limitations imposed by the Eighth Amendment on the power of states to execute mentally retarded persons. But, for the reasons that follow, these jurisprudential developments do not give Black a reprieve from his sentence of death. We affirm the district court's denial of post-conviction relief.

I

Black stood trial for the 1988 triple murder. A jury found Black guilty of murder and burglary and sentenced him to death for one murder and life imprisonment for the other two murders. The Tennessee Supreme Court affirmed on direct appeal. The Tennessee Court of Criminal Appeals denied post-conviction relief, and the Tennessee Supreme Court denied further post-conviction review. In 2000, Black filed a federal habeas petition in which he raised various claims including a claim that his mental retardation precluded the imposition of the death penalty. The petition was dismissed as meritless. Black v. Bell , 181 F.Supp.2d 832, 883 (M.D. Tenn. 2001). Black appealed to our court, but the Supreme Court shortly thereafter decided Atkins v. Virginia , 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that the Eighth Amendment prohibits states from executing "mentally retarded criminals"), so we granted Black's motion to hold his appeal in abeyance while Black exhausted an Atkins claim in the Tennessee courts. Black v. Bell , No. 02-5032 (6th Cir. July 26, 2002) (order).

The Tennessee trial court conducted an evidentiary hearing and denied Black's Atkins claim as meritless, the Tennessee Court of Criminal Appeals affirmed, and the Tennessee Supreme Court denied further review. Black v. State , No. M2004-01345-CCA-R3-PD, 2005 WL 2662577 (Tenn. Crim. App. Oct. 19, 2005), perm. app. denied (Tenn. Feb. 21, 2006). Our court then remanded Black's appeal to the district court so that it could consider Black's federal habeas claim in light of Atkins . Black v. Bell , No. 02-5032 (6th Cir. May 30, 2007) (order). The Supreme Court in Atkins had "le[ft] to the States the task of developing appropriate ways to enforce" its prohibition on executing mentally retarded criminals. Atkins , 536 U.S. at 317, 122 S.Ct. 2242. The district court thus, quite understandably, looked to Tennessee law in analyzing Black's Atkins claim.

Tennessee had enacted a statute defining mental retardation 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 mental retardation must have been manifested during the developmental period, or by eighteen (18) years of age.

Tenn. Code Ann. § 39-13-203(a) (2003).

The United States Supreme Court recently referred to a definition of mental retardation substantially similar to this tripartite Tennessee definition as the "the generally accepted, uncontroversial intellectual-disability diagnostic definition." Moore v. Texas , ––– U.S. ––––, 137 S.Ct. 1039, 1045, 197 L.Ed.2d 416 (2017).

For its part, the Tennessee Supreme Court held in 2004 that the first part of Tennessee's statutory definition of mental retardation imposed a "bright line rule" requiring an Atkins petitioner to demonstrate an IQ of seventy or below. Howell v. State , 151 S.W.3d 450, 456–59 (Tenn. 2004) (agreeing with the State that § 39-13-203(a)(1)"should not be interpreted to make allowance for any standard error of measurement or other circumstances whereby a person with an I.Q. above seventy could be considered mentally retarded" (emphasis added)).

The district court considered Black's IQ scores as follows:

                IQ Scores Before Age 18
                Date of Test     Name of Test        Score     Black's Approximate Age
                1963             Lorge Thorndike     83                              7
                1964             Unknown             97                              8
                1966             Lorge Thorndike     92                             10
                1967             Otis                91                             11
                1969             Lorge Thorndike     83                             13
                                    IQ Scores After Age 18
                Date of Test     Name of Test          Score     Black's Approximate Age
                1989             Shipley-Hartford      76                             33
                1993             WAIS-R                73                             37
                1997             WAIS-R                76                             41
                2001             WAIS-III              69                             45
                2001             Stanford-Binet-IV     57                             45
                

Black argued to the district court that the Tennessee courts' denial of his Atkins claim was improper in part because those courts "refused to consider standard errors in test measurement [and] the 'Flynn Effect,'¹ permitted the State's experts to testify, and placed the burden of proof on the Petitioner." Black v. Bell , No. 3:00-0764, 2008 U.S. Dist. LEXIS 33908 at *15 (M.D. Tenn. Apr. 24, 2008). Black had argued in state court, and argued again to the district court, that his IQ scores should be reduced retroactively to account for both the standard error of measurement (SEM) and the Flynn Effect.²

The district court noted that the Tennessee Court of Criminal Appeals, in rejecting Black's argument to adjust his IQ scores downward to account for the SEM or the Flynn Effect, thoroughly considered the evidence provided by Black's experts and the State's experts. Black v. Bell , 2008 U.S. Dist. LEXIS 33908, at *15–20. The district court itself was "not persuaded" by Black's arguments. Id. at *21. Applying Howell , which had also guided the decision of the Tennessee Court of Criminal Appeals, the district court denied Black's Atkins claim on the basis that "the state court was not unreasonable in stating that the proof in the record did not support the conclusion, under a preponderance of the evidence standard, that [Black's] I.Q. was below seventy before age 18." Id. at *28–29. Nevertheless, the district court issued a certificate of appealability, and Black again appealed to our court.

In 2011, however, before we issued an opinion on that appeal, the Tennessee Supreme Court changed course and overruled Howell , holding that Tenn. Code Ann. § 39-13-203(a)(1)"does not require that raw scores on I.Q. tests be accepted at their face value and that the courts may consider competent expert testimony showing that a test score does not accurately reflect a person's functional I.Q. or that the raw³ I.Q. test score is artificially inflated or deflated." Coleman v. State , 341 S.W.3d 221, 224 (Tenn. 2011) (emphases added).

In light of Coleman , over a dissent, we again remanded Black's Atkins claim to the district court. Black v. Bell , 664 F.3d 81, 84 (6th Cir. 2011). Even though the Tennessee Court of Criminal Appeals could not have known, at the time it denied Black's state habeas relief, that the Tennessee Supreme Court would replace Howell with its opinion in Coleman , we held that the Tennessee Court of Criminal Appeals' decision was "contrary to the latest Tennessee Supreme Court's decision on this subject." Id. at 96. And because Atkins allowed states to define the contours of Atkins itself (such that Atkins incorporated Coleman , so to speak, for purposes of Black's claim), we held that the Tennessee Court of Criminal Appeals' decision was "contrary to clearly established" federal "law under [the Antiterrorism and Effective Death Penalty Act (AEDPA) ]." Id. at 100–01. Thus, because no court had yet evaluated Black's Atkins claim under Coleman , we remanded Black's Atkins claim for the district court to analyze it "according to the proper legal standard, which was set out by the Tennessee Supreme Court in Coleman ." Id. at 101. The district court denied Black's claim, and for the reasons that follow, we affirm.

II

On remand, the district court conducted a de novo review of Black's Atkins claim. The court accepted new briefing from Black and from the State. Black moved for an evidentiary hearing, and the court denied Black's motion on the ground that our remand was a limited remand directing the district court to review the record only, placing an evidentiary hearing "beyond the scope of the...