Byron Black v. Wayne Carpenter

866 F.3d 734, 2017 FED App. 0174P, 2017 WL 3428745, 2017 U.S. App. LEXIS 14771
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 10, 2017
Docket13-5224
StatusPublished
Cited by24 cases

This text of 866 F.3d 734 (Byron Black v. Wayne Carpenter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Byron Black v. Wayne Carpenter, 866 F.3d 734, 2017 FED App. 0174P, 2017 WL 3428745, 2017 U.S. App. LEXIS 14771 (6th Cir. 2017).

Opinions

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 [737]*737and 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:

[738]*738[[Image here]]

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 distinct court, that his IQ scores should be reduced retroactively to account for both the standard error of measurement [739]*739(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. certifícate of appealability, and Black again appealed to our court.

[740]*740In 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)(l) “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.”

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866 F.3d 734, 2017 FED App. 0174P, 2017 WL 3428745, 2017 U.S. App. LEXIS 14771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byron-black-v-wayne-carpenter-ca6-2017.