Bowling v. Commonwealth, No. 2011–SC–000056–MR.

• Decision Date: 24 May 2012
• Docket Number: No. 2011–SC–000056–MR.
• Citation: 377 S.W.3d 529
• Parties: Thomas C. BOWLING, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

377 S.W.3d 529

Thomas C. BOWLING, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2011–SC–000056–MR.

Supreme Court of Kentucky.

May 24, 2012.

David Michael Barron, Department of Public Advocacy, Assistant Public Advocate,Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, William Robert Long, Jr., Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice VENTERS.

Appellant, Thomas Clyde Bowling, appeals as a matter of right, Ky. Const. § 110, from a judgment of the Fayette Circuit Court dismissing his petition for a declaratory judgment in which he sought to challenge the implementation of his two twenty-two year-old death sentences upon the grounds that he is mentally retarded. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (prohibiting the execution of a seriously mentally retarded offender); KRS 532.130 et seq. (also prohibiting the execution of a seriously mentally retarded offender).

In Bowling v. Commonwealth, 163 S.W.3d 361 (Ky.2005) (Bowling IV ), ¹ we addressed this identical argument and concluded that (1) Appellant has procedurally defaulted by waiver any challenge to his death sentences upon the grounds of mental retardation because he failed to raise the issue at trial, on direct appeal, or in any of his subsequent collateral attacks on his judgment and sentence. Considering potential exceptions to the procedural default rule, in Bowling IV we further held that: (2) Appellant had failed to demonstrate adequate cause so as to excuse his default; and (3) that under the fundamental miscarriage of justice/actual innocence exception, failure to consider his claim would not result in a fundamental miscarriage of justice because Appellant had failed to demonstrate a prima facie showing of mental retardation.

As further discussed below, pursuant to Bowling IV, it is the law of the case that Appellant has procedurally defaulted on his mental retardation claim and that he has failed to demonstrate adequate cause for his default. It is further, predominantly (except for one de minimis omission), the law of the case that Appellant cannot make a prima facie showing that he is able to meet the statutory definition for mental retardation because IQ scores taken around the time of trial reflect that Appellant has an IQ in the 86–87 range, which effectively forecloses any reasonable possibility that he could be found mentally retarded following an evidentiary hearing on the issue. Further, to the extent it is necessary to account for recent changes by the AAMR ² in its recommended methods for interpreting IQ scores, and to factor the practice effect (the de minimis omission referred to above) into the Bowling IV analysis, upon a de novo re-examination of the issue, we once more conclude that Appellant cannot make a prima facie showing that he is seriously mentally retarded.

Because Appellant's procedural default is dispositive of the case, all other issues raised in this proceeding, including the broader implications of the adoption of new methods for interpreting IQ test score data by the AAMR, are moot; and although Appellant requests us to do so, we decline to further address the arguments raised in this appeal on the merits by method of an advisory opinion. We accordingly affirm the circuit court's judgment dismissing the petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 9, 1990, Appellant shot and killed Eddie and Tina Earley and wounded their two-year old child. While Appellant was awaiting trial, the legislature amended KRS Chapter 532 to prohibit the execution of a “seriously mentally retarded” offender. SeeKRS 532.130, 532.135, and 532.140; Ky. Acts. 1990 c 488 § 1 (eff. 7–13–90). Therefore, at the time of Appellant's trial, the law in Kentucky was that a death sentence could not be imposed against a seriously mentally retarded offender. Appellant, however, failed to initiate the procedures by which to invoke this prohibition to the death penalty prior to his trial,³ or to otherwise raise the issue in the trial proceedings.

At the conclusion of a one-week trial in December 1990, Appellant was convicted of two counts of murder and one count of assault in the fourth degree. He was sentenced to death for each of the two murders. His convictions and sentences were affirmed on direct appeal. His subsequent RCr 11.42 motion was overruled by the trial court, and that decision was also affirmed on appeal. After that, his petition in federal district court for a writ of habeas corpus, 28 U.S.C. § 2254, was denied.⁴ Significantly, Appellant did not raise mental retardation as a challenge to his death sentences as an issue at any stage of the above proceedings.

In June 2002, the United States Supreme Court issued Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, which held, in equivalence with our KRS Chapter 532 statutory provisions, that the execution of a “seriously mentally retarded offender” is prohibited by the Eighth Amendment of the United States Constitution. After Atkins was issued, Appellant filed Bowling IV in Fayette Circuit Court seeking to challenge his two death sentences on the basis that he is mentally retarded. The trial court denied the motion and, upon review, we affirmed. Bowling IV, 163 S.W.3d 361. As relevant to the present appeal, and as further discussed below, in Bowling IV we determined that Appellant had procedurally defaulted upon any challenge to his death sentence by a claim of mental retardation by failing to raise the issue at the proper time. We further held that none of the potentially applicable exceptions to the default applied, and suggested that the most relevant historical IQ scores were the 86 and 87 scores measured around the time of the crimes and trial. Upon review of the issue, we ultimately determined that Appellant was not able to make a prima facie showing that he is, in fact, mentally retarded.

In reaching our conclusion in Bowling IV that Appellant could not make a prima facie showing that he was mentally retarded,we hypothetically considered the implications of the Flynn Effect ⁵ and the margin of error effect on his historical IQ readings, and determined that consideration of those two factors would not change the result. And while we did not specifically consider the practice effect ⁶ in Bowling IV, as further discussed below, it is clear that the additional consideration of this single factor would not change the result reached in Bowling IV.

In 2007, the AAMR issued revised guidelines addressing how practitioners should interpret IQ scores. More specifically, the new guidelines recommended that IQ scores be interpreted in light of the Flynn Effect, the practice effect, and the margin of error effect.⁷ As a practical result, under the liberalized guidelines, it is more likely that a borderline IQ score will be interpreted as reflecting that the subject is mentally retarded, because application of these factors tend to push the adjusted IQ score downward. Notwithstanding our holdings in BowlingIV, and believing that the new guidelines would justify additional mental retardation litigation, on July 24, 2007, Appellant filed the present petition for a declaratory judgment ⁸ seeking to challenge the implementation of his two death sentences on the basis that he qualifies as a seriously mentally retarded offender upon application of the new AAMR guidelines.

The petition sought a holding from the circuit court that the relevant mental retardation statutes contained in KRS Chapter 532 must now be interpreted in light of the new AAMR guidelines. In the alternative, Appellant requested that if the statutes prevented the consideration of these factors, then the statutes be declared unconstitutional as being in violation of the Eighth Amendment of the United States Constitution and Section Seventeen of the Kentucky Constitution. Moreover, Appellant argued that upon application of these factors to his historical IQ scores, he qualifies as being severely mentally retarded and thus ineligible for execution.

The Commonwealth responded with a motion to dismiss on the basis that the petition amounted to an impermissible use of a declaratory judgment proceeding to collaterally attack our holding in Bowling IV. In ruling on the motion, the Circuit Court noted that in Bowling IV we comprehensively addressed issues relating to the Appellant's mental retardation claim, and accordingly held that the petition was an unlawful collateral attack on our 2005 decision. See Back's Guardian v. Bardo, 234 Ky. 211, 27 S.W.2d 960, 963 (1930). (“The purpose of the Declaratory Judgment Act was to have a declaration of rights not theretofore determined, and not to determine whether rights theretofore adjudicated had been properly adjudicated.”). The circuit court consequently denied the motion.

While we agree with the trial court that Appellant's present claim amounts to an impermissible use of the declaratory judgment process to collaterally attack the Bowling IV proceedings,⁹ as further discussed below, we affirm on the broader grounds that it is the law of the case, as determined in Bowling IV, that Appellant has waived his right to challenge his death sentences based upon a claim of mental retardation, and that, moreover, even upon consideration of the AAMR guideline changes, and consideration of the practice effect as applied to the Bowling IV analysis, Appellant cannot make a prima facie showing that he is seriously mentally retarded. As such, we affirm the circuit court's dismissal of the petition, although on slightly different grounds.

II. PROCEDURAL DEFAULT, EXCEPTIONS, AND LAW OF THE CASE

As further discussed below, pursuant to Bowling IV, it is the law of the case that: (1) Appellant has procedurally defaulted upon his claim that he is not subject to execution because he is mentally retarded; and that (2) the adequate cause exception to...