Van Tran v. Colson

• Decision Date: 25 August 2014
• Docket Number: No. 11–5867.,11–5867.
• Parties: Heck VAN TRAN, Petitioner–Appellant, v. Roland COLSON, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

764 F.3d 594

Heck VAN TRAN, Petitioner–Appellant,

v.Roland COLSON, Warden, Respondent–Appellee.

No. 11–5867.

United States Court of Appeals,Sixth Circuit.

Argued: June 12, 2013.

Decided and Filed: Aug. 25, 2014.

ARGUED:Robert L. Hutton, Glankler Brown, PLLC, Memphis, Tennessee, for Appellant. James E. Gaylord, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee. ON BRIEF:Robert L. Hutton, Glankler Brown, PLLC, Memphis, Tennessee, Brock Mehler, Nashville, Tennessee, for Appellant. James E. Gaylord, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee. Steven J. Mulroy, Cecil C. Humphreys School of Law, Memphis, Tennessee, for Amici Curiae.

Before: ROGERS, COOK, and WHITE, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Heck Van Tran, a Tennessee prisoner under sentence of death, appeals the district court's judgment denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Van Tran raised twenty-six claims in his original habeas petition. The district court and this court have certified three claims for this appeal: (1) whether Van Tran is intellectually disabled and his execution would therefore violate the Eighth Amendment under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); ¹ (2) whether, as applied to Van Tran's crime, the “heinous, atrocious, or cruel” aggravating circumstance of the capital jury instruction violates the Eighth and Fourteenth Amendments; and (3) whether Van Tran's penalty phase counsel was ineffective, thereby violating the Sixth, Eighth, and Fourteenth Amendments. The district court committed no error in denying the writ of habeas corpus on the second and third claims. With respect to the first claim, however, because the Tennessee state court's decision did not apply the proper legal standard for assessing whether Van Tran has intellectual disability, which was announced in a recent decision of the Tennessee Supreme Court, the district court's judgment must be vacated and remanded. In accordance with the Supreme Court's command that the procedural scheme for enforcing Atkins is within the state's purview and because the State is faced with a state law—imposed procedural burden it could not have anticipated at the time of the original state-court Atkins hearing, we remand for the entry of a conditional writ of habeas corpus to allow the state courts to consider Van Tran's Atkins claim under the proper, now-governing standard.

I.

Heck Van Tran was born in 1966 in Vietnam, during the Vietnam War, the son of a Vietnamese woman and an American serviceman. Van Tran's father died two years after his birth. Van Tran and his mother lived in poverty, and as a young child Van Tran suffered severe social deprivation and inadequate support. He began speaking at a late age, although even after beginning to speak he had difficulty articulating words and spoke infrequently and in short phrases. He and his mother were relocated to Memphis by a charitable organization in 1983. He attended one year of school in the United States, during which he had good attendance but got poor grades. He dropped out in 1984.

In October 1987, Van Tran and three accomplices participated in an armed robbery of the Jade East Restaurant in Memphis, Tennessee, where Van Tran had been employed and from which he had been fired a month or two before. During the robbery, three people were killed. A fourth, a seventy-five-year-old woman, was beaten and knocked unconscious. The victims were all related and worked in the restaurant together. The robbers obtained a few jewelry cases from the restaurant's back office, and two diamond rings, a necklace, and a watch that were taken from the survivor's person. A detailed summary of the incident, including the ensuing interstate manhunt, is found in the Tennessee Supreme Court's statement of the facts at State v. Van Tran, 864 S.W.2d 465, 468–70 (Tenn.1993). For the purposes of this appeal, it suffices to summarize a few additional facts.

During the robbery, Van Tran twice shot Kai Yin Chuey, a slight, seventy-four-year-old woman. The first time he shot her through her windpipe, although he claims that this was an accident. A few moments later, he placed the gun directly against the back of her skull and shot her again, killing her instantly. During the robbery, two others were killed. Van Tran shot one of them in the face; his accomplices shot the other while Van Tran collected the loot.

Six months later, Van Tran was arrested in Houston, where he confessed that he participated in the robbery. After trial, Van Tran was convicted of three counts of felony murder; he was sentenced to death for each count on the basis of two aggravating circumstances, one of which was that the murder was found to be “especially cruel in that it involved depravity of mind.” Id. at 470. ² On direct appeal, the Tennessee Supreme Court affirmed Van Tran's convictions on the three counts of felony murder, but reversed his sentence of death for two of the three murders, affirming the death sentence only for the murder of Kai Yin Chuey. Id. at 482. In arriving at this decision, the state supreme court disapproved of the deletion of the words “heinous” and “atrocious” from the aggravating circumstance instruction. However, the court ultimately affirmed on the grounds that the curtailed instruction did not likely confuse the jurors, that the jury still made the dispositive “depravity of mind” finding, and relatedly, that the failure to include those terms in the instruction had no effect on the result. Id. at 479.

In addition, the Tennessee Supreme Court independently determined that there was sufficient evidence presented at trial to find that the killing of Kai Yin Chuey evinced “depravity of mind.” Id. at 480. In making this determination, the court summarized the murder in the following manner:

In [Kai Yin Chuey's] case we have a helpless 74–year–old woman, who had already been shot by the Defendant and was lying on the floor unable to protect herself when the Defendant put a gun to the back of her head and shot her a second time. We find the evidence of this brutal and senseless execution of a helpless old woman sufficient to support this aggravating circumstance in the murder of Kai Yin Chuey.

Id.

Van Tran filed a state postconviction petition in March 1995, claiming, among other things, that he received ineffective assistance of counsel and that he should not be executed because he is mentally retarded and incompetent. After being denied relief in the postconviction trial court, Van Tran appealed to the Tennessee Court of Criminal Appeals (TCCA), where the trial court's judgment was affirmed. Van Tran v. State, No. 02C01–9803–CR–00078, 1999 WL 177560, at *13 (Tenn.Ct.Crim.App. Apr. 1, 1999). Regarding Van Tran's claim of ineffective assistance of counsel for failure to investigate and present additional mitigating evidence during the penalty phase, the appellate court found that trial counsel conducted a proper investigation and that there was no prejudice. Id. at *11–12. As to whether Van Tran's execution was prohibited by state statute because of his mental retardation, the appeals court deferred to the postconviction trial court's finding that Van Tran's I.Q. was above 70, which was based upon the State's expert's testimony that Van Tran's expert had misread the manual related to I.Q. calculation and had arrived at an erroneously low figure. Id. at *6.

With respect to only the issue of whether Van Tran's execution was prohibited because of mental retardation, Van Tran's petition eventually reached the Tennessee Supreme Court, which took up the case “in order to clarify the procedure by which a prisoner who has been sentenced to death may raise the issue of present mental competency to be executed.” Van Tran v. State, 6 S.W.3d 257, 260 (Tenn.1999). The court denied Van Tran's request for relief primarily on the ground that the issue of his competency for the purposes of execution was not ripe for resolution, because the execution was not imminent. Id. at 274. Van Tran filed a motion to reopen his postconviction petition in February 2000, alleging that new evidence established that he was mentally retarded and was therefore ineligible for the death penalty under state law. When this petition reached the Tennessee Supreme Court, that court announced as an issue of first impression that execution of mentally retarded persons was prohibited by the Eighth Amendment of the U.S. Constitution and Article I, Section 16 of the Tennessee Constitution. Van Tran v. State, 66 S.W.3d 790, 809 (Tenn.2001). The state supreme court remanded to the postconviction trial court for a hearing on the issue of whether Van Tran qualified as mentally retarded. Id. at 812. Furthermore, the court held that mental retardation, for the purposes of the state and federal constitutions, was defined by the Tennessee Code. The code defined mental retardation, for the purposes of prohibiting the execution of those with mental retardation, according to the following three necessary 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) mental retardation manifested during the developmental period, or by eighteen (18) years of age.” Id. (citing Tenn.Code Ann. § 39–13–203 (1997)). Within a year, the United States Supreme Court would similarly hold that the execution of persons with mental retardation violates the United States Constitution. Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).³

On remand, the postconviction trial court held a trial to determine whether Van Tran was mentally retarded as defined by § 39–13–203 of the Tennessee Code. At the trial, two psychologists testified that Van Tran is mentally retarded under the statute's definition. Van Tran v....