Keen v. State

Full title: David KEEN v. STATE of Tennessee.

Court: Supreme Court of Tennessee, at Jackson.

Date published: Dec 20, 2012

398 S.W.3d 594 (Tenn. 2012)

Opinion

No. W2011–00789–SC–R11–PD.

2012-12-20

David KEEN v. STATE of Tennessee.

Kelley Henry and Gretchen L. Swift, Office of the Federal Public Defender, Nashville, Tennessee, for the appellant, David Keen. Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Deshea Dulany Faughn, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.

WILLIAM C. KOCH

Kelley Henry and Gretchen L. Swift, Office of the Federal Public Defender, Nashville, Tennessee, for the appellant, David Keen.Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Deshea Dulany Faughn, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.

OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which JANICE M. HOLDER, CORNELIA A. CLARK, and SHARON G. LEE, JJ., joined.

WILLIAM C. KOCH, JR., J.

This appeal involves a prisoner who was sentenced to death in 1991. Nineteen years later, he filed a petition in the Criminal Court for Shelby County seeking to reopen his post-conviction proceeding on the ground that he possessed new scientific evidence of his actual innocence. His evidence consisted of a newly-obtained I.Q. test score purportedly showing that he could not be executed by virtue of Tenn.Code Ann. § 39–13–203 (2010) because he was intellectually disabled. The trial court declined to hold a hearing and denied the prisoner's petition. The trial court determined, as a matter of the law, that the prisoner's newly-obtained I.Q. test score was not new scientific evidence of his actual innocence of the offenses to which he earlier pleaded guilty. The prisoner filed an application for permission to appeal the denial of his petition to reopen in the Court of Criminal Appeals. In addition to asserting that the newly-obtained I.Q. test score was new scientific evidence of his actual innocence, the prisoner asserted that this Court's decision in Coleman v. State, 341 S.W.3d 221 (Tenn.2011), announced a new constitutional right and, therefore, provided another basis for reopening his petition for post-conviction relief. The Court of Criminal Appeals entered an order on June 29, 2011, affirming the trial court's denial of the petition to reopen because the I.Q. test score did not amount to scientific evidence of actual innocence for the purpose of Tenn.Code Ann. § 40–30–117(a)(2) (2006) and because Coleman v. State did not announce a new rule of constitutional law under Tenn.Code Ann. § 40–30–117(a)(1). We granted the prisoner's application for permission to appeal to address whether the phrase “actually innocent of the offense” in Tenn.Code Ann. § 40–30–117(a)(2) encompasses ineligibility for the death penalty in addition to actual innocence of the underlying crime and whether our holding in Coleman v. State established a new constitutional right to be applied retroactively under Tenn.Code Ann. § 40–30–117(a)(1). We hold that the Tennessee General Assembly, when it enacted Tenn.Code Ann. § 40–30–117(a)(2), did not intend for the phrase “actually innocent of the offense” to include ineligibility for the death penalty because of intellectual disability. We also hold that Coleman v. State did not establish a new rule of constitutional law that must be applied retroactively under Tenn.Code Ann. § 40–30–117(a)(1). Accordingly, we affirm the judgment of the trial court and the Court of Criminal Appeals denying the prisoner's petition to reopen his post-conviction petition.

I.

Eight-year-old Ashley Nicole Reed was raped and murdered in March 1990. Her body, wrapped in a blanket, was thrown into the Wolf River near Mud Island in Memphis. Shortly thereafter, David Keen, the boyfriend of the child's mother, confessed that he had thrown the child's body into the river and gave conflicting statements regarding the rape and murder.²

2 For details of the crime, Mr. Keen's confession, and the sentencing hearing, see State v. Keen, 31 S.W.3d 196, 202–05 (Tenn.2000) and State v. Keen, 926 S.W.2d 727, 730–31 (Tenn.1994).

A Shelby County grand jury indicted Mr. Keen for first degree murder, murder in perpetration of rape, and aggravated rape, and the State announced that it would seek the death penalty. Mr. Keen entered a plea of guilty to all the charges in the Criminal Court for Shelby County, and the case was submitted to a jury for sentencing. The jury sentenced Mr. Keen to death for the first degree murder offense and twenty years imprisonment for the aggravated rape offense. When the case was automatically appealed to this Court, we remanded the case for a new sentencing hearing because of errors in the trial court's instructions to the jury. State v. Keen, 926 S.W.2d at 729–31, 735–36.

On August 15, 1997, a new jury sentenced Mr. Keen to death. The Court of Criminal Appeals affirmed the sentence. State v. Keen, No. 02C01–9709–CR–00365, 1999 WL 61058, at *23 (Tenn.Crim.App. Feb. 10, 1999). This Court likewise affirmed the sentence. State v. Keen, 31 S.W.3d at 225.

On May 3, 2001, Mr. Keen filed a pro se petition for post-conviction relief in the Criminal Court for Shelby County. The post-conviction court appointed counsel for Mr. Keen, and counsel filed an amended post-conviction petition. Following a hearing, the post-conviction court entered an order on August 2, 2004, denying post-conviction relief. The Court of Criminal Appeals affirmed the post-conviction court, and this Court declined to review the case. Keen v. State, No. W2004–02159–CCA–R3–PD, 2006 WL 1540258, at *53 (Tenn.Crim.App. June 5, 2006), perm. app. denied (Tenn. Oct. 30, 2006).

In February 2010, Mr. Keen received a score of 67 on the Wechsler Adult Intelligence Test, Fourth Edition (“WAIS–IV”). Based on this new score, Mr. Keen filed a motion in the Criminal Court for Shelby County, seeking to reopen his post-conviction proceedings in accordance with Tenn.Code Ann. § 40–30–117(a)(2) (2006). He asserted that the new I.Q. test score constituted “new scientific evidence” that he was “actually innocent” of the offense of first degree murder.³ He argued that he was “actually innocent” because Tenn.Code Ann. § 39–13–203(b) (2010) prohibited imposing the death penalty on persons with a functional intelligence quotient of 70 or below. Although Mr. Keen presented several psychological issues as mitigating circumstances during his sentencing hearing,⁴ he has not previously asserted that he was ineligible for the death penalty because he is intellectually disabled. Mr. Keen supported his motion to reopen with an expert affidavit taking issue with the validity of the scores he had received on earlier I.Q. tests.⁵

3 The 2010 WAIS–IV test was not the first I.Q. test administered to Mr. Keen. When he was nine years old, he received I.Q. test scores of 83 and 111 on the Wechsler Intelligence Scale for Children (“WISC”). When he was ten years old, he received a score of 76 on the Otis–Lennon School Ability Test (“Otis”) and a score of 80 on the Comprehensive Test of Basic Skills (“CTBS”). At fifteen years of age, he received a score of 82 on the CTBS. One year later, he received a score of 84 on the CTBS. When he took the Wechsler Adult Intelligence Scale, Third Edition (“WAIS–III”) in 2002, Mr. Keen received an I.Q. test score of 73.

4 At the sentencing hearing, Mr. Keen presented testimony that, as a young child, he was malnourished, neglected, and frequently emotionally and physically abused. He had been diagnosed with serious depression, attention deficit disorder, and post-traumatic stress disorder with “psychotic-like symptoms.” Mr. Keen presented the sentencing jury with the following statutory and non-statutory mitigating circumstances:
(1) that the defendant has no significant history of criminal behavior; (2) that the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance; (3) that the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform to the requirements of the law was substantially impaired as a result of mental disease or defect or intoxication which was insufficient to establish a defense to the crime but which substantially affected his judgment; (4) that the defendant was physically abused as a child; (5) that the defendant was sexually abused as a child; (6) that the defendant was abandoned and neglected as a child; (7) that the defendant was emotionally deprived as an infant and during early childhood; (8) that the defendant was deprived of nutrition as a child; (9) that the defendant did not receive continued counseling and psychotherapy for persons who are sexually and physically abused; (10) that the defendant has been diagnosed with attention deficit disorder; (11) that the defendant has been diagnosed as having post-traumatic stress disorder; (12) that the defendant was a productive citizen in our society prior to his arrest; having served our community in the military and been employed; (13) that the defendant acknowledges the seriousness of the crime he has committed and accepts responsibility for his actions; and (14) that the defendant is ashamed of his actions. The trial court also included a “catch-all” instruction to the jury that it could consider any other mitigating circumstances not specifically recited in the charge.

State v. Keen, 31 S.W.3d at 204–05 & n. 1.

5 Dr. Victoria Swanson's affidavit stated that Mr. Keen's WISC score of 111 was inflated due to the practice effect and that his WISC score of 83 should be adjusted to 76 due to the Flynn effect. Dr. Swanson also opined that Mr. Keen's WAIS–III score of 76 should be adjusted to 71 due to the Flynn effect and that his WAIS–IV score should be adjusted from 67 to 66 due to the Flynn effect. In addition, Dr. Swanson stated that Mr. Keen's scores on the Otis and CTBS tests “do not meet the ‘gold standard’ required in an Atkins [ v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ] hearing” but they nevertheless “corroborate” his WISC, WAIS–III, and WAIS–IV scores.

The trial court heard argument on February 18, 2011, to determine whether to proceed to an evidentiary hearing. In an order filed on March 28, 2011, the trial court concluded that Mr. Keen had “failed to establish by clear and convincing evidence that new scientific evidence exists establishing his actual innocence.” More specifically, the court held that actual innocence under Tenn.Code Ann. § 40–30–117(a)(2) did not encompass ineligibility for the death penalty under Tenn.Code Ann. § 39–13–203(b).

Mr. Keen filed an application for permission to appeal in accordance with Tenn.Code Ann. § 40–30–117(c). In addition to arguing that his petition contained a viable basis for reopening his post-conviction proceeding in accordance with Tenn.Code Ann. § 40–30–117(a)(2), Mr. Keen raised an additional claim that he was entitled to reopen his post-conviction petition based on a new “constitutional right” under Tenn.Code Ann. § 40–30–117(a)(1). He argued that our decision in Coleman v. State, 341 S.W.3d 221 (Tenn.2011), announced a new rule of constitutional criminal law that required retroactive application. The Court of Criminal Appeals rejected both of Mr. Keen's claims in an order filed on June 29, 2011. Mr. Keen then filed an application for permission to appeal with this Court on August 31, 2011. We granted that application on December 14, 2011.

II.

The issues presented in this case involve questions of statutory interpretation. The construction of a statute and its application to the facts of a particular case present questions of law which we review de novo. State v. Russell, 382 S.W.3d 312, 315–16 (Tenn.2012); State v. Marshall, 319 S.W.3d 558, 561 (Tenn.2010).

III.

In 1990, the Tennessee General Assembly decided that intellectually disabled ⁶ persons who commit first degree murder should not be executed. Tenn.Code Ann. § 39–13–203(b). Tenn.Code Ann. § 39–13–203(a) defines “intellectual disability” in terms of a three-part test. In order to be found intellectually disabled, a person must demonstrate: “(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.” In addition, Tenn.Code Ann. § 39–13–203(c) provides that “[t]he burden of production and persuasion to demonstrate intellectual disability by a preponderance of the evidence is upon the defendant. The determination of whether the defendant had intellectual disability at the time of the offense of first degree murder shall be made by the court.”

6 Act of Apr. 12, 1990, ch. 1038, 1990 Tenn. Pub. Acts 730 (codified as amended at Tenn.Code Ann. § 39–13–203 (2010)). In 2010, the General Assembly amended Tenn.Code Ann. § 39–13–203 by replacing the terms “mentally retarded” and “mental retardation” with “intellectual disability.” Act of Apr. 9, 2010, ch. 734, 2010 Tenn. Pub. Acts 166, 166–67. The General Assembly noted that the former terminology was “increasingly considered to be derogatory and hurtful,” contributed to “negative stereotypes,” and was being abandoned by “states and organizations across the country.” Consistent with the spirit of the 2010 Act, we have removed all references to “retardation” from this opinion.

This Court previously addressed motions to reopen in Van Tran v. State, 6 S.W.3d 257 (Tenn.1999). In 1995, death row inmate Heck Van Tran filed a petition for post-conviction relief, asserting that he could not be executed because of the prohibition on executing intellectually disabled persons in Tenn.Code Ann. § 39–13–203(b). At the hearing on Mr. Van Tran's petition, two psychologists presented conflicting opinions regarding whether Mr. Van Tran's I.Q. was 67 or 72. Their opinions were based on Mr. Van Tran's performance on the Wechsler Adult Intelligence Scale Revised (“WAIS–R”). The post-conviction court credited the higher score offered by the state's psychologist and dismissed Mr. Van Tran's petition. Both the Court of Criminal Appeals and this Court affirmed the post-conviction court's decision. Van Tran v. State, No. 02C01–9803–CR–00078, 1999 WL 177560, at *6 (Tenn.Crim.App. Apr. 1, 1999); Van Tran v. State, 6 S.W.3d 257, 274.

Mr. Van Tran was re-tested in 1999 using the newer third edition of the Wechsler Adult Intelligence Scale (“WAIS–III”). At that time, the psychologist who administered this test determined that Mr. Van Tran's full-scale I.Q. was actually 65. In February 2000, Mr. Van Tran filed a motion to reopen his post-conviction proceeding, arguing that this new test result constituted “new scientific evidence” of his actual innocence under Tenn.Code Ann. § 40–30–117(a)(2). The post-conviction court denied his motion, and the Court of Criminal Appeals declined to grant him permission to appeal.

We accepted Mr. Van Tran's appeal. Following oral argument, we requested the parties to file supplemental briefs addressing the issue of whether executing an intellectually disabled person violated the “cruel and unusual punishments” clauses of the Eighth Amendment to the United States Constitution or Article I, § 16 of the Tennessee Constitution.⁷ Van Tran v. State, 66 S.W.3d 790, 794 (Tenn.2001).

7 .U.S. Const. amend. VIII states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Tenn. Const. Art. I, § 16 states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This Court has held, and repeatedly affirmed, that capital punishment itself does not violate the state and federal constitutions. See State v. Black, 815 S.W.2d 166, 188–91 (Tenn.1991) (noting that, among other rationales, the Tennessee Constitution expressly references capital punishment in two places).

This Court granted Mr. Van Tran's motion to reopen his post-conviction proceeding based on the first prong of Tenn.Code Ann. § 40–30–117(a), which provides for relief when an appellate court announces a new “constitutional right.” ⁸ Applying the three-prong test for determining whether a particular punishment is “cruel and unusual,” ⁹ we held that executing intellectually disabled persons violated “the evolving standards of decency that mark the progress of a maturing society.” Van Tran v. State, 66 S.W.3d at 812. Our conclusion was buttressed by the fact that after the United States Supreme Court upheld the execution of mentally disabled individuals in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), sixteen states and the federal government had passed legislation prohibiting the practice. Van Tran v. State, 66 S.W.3d at 802. We also held that such executions were “grossly disproportionate” and served “no valid penological purpose.” We therefore found that executing an intellectually disabled defendant would violate the state and federal constitutions. Van Tran v. State, 66 S.W.3d at 812.

8 Although Mr. Van Tran's motion to reopen alleged that he had new scientific evidence that he was actually innocent under Tenn.Code Ann. § 40–30–117(a)(2), it was our view that his motion was “more appropriately based on the provisions of [Tenn.Code Ann. § 40–30–117(a)(1) ], which provides that the ‘claim in the motion is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the trial, if retrospective application of that right is required.’ ” Van Tran v. State, 66 S.W.3d at 811–12.

9 In State v. Black, we adopted the test for “cruel and unusual punishment” that was announced by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), as modified by the New Jersey Supreme Court in State v. Ramseur, 106 N.J. 123, 524 A.2d 188, 210 (1987):
First, does the punishment for the crime conform with contemporary standards of decency? Second, is the punishment grossly disproportionate to the offense? Third, does the punishment go beyond what is necessary to accomplish any legitimate penological objective[?]

State v. Black, 815 S.W.2d at 189.

We also determined that the holding in Van Tran should apply retroactively. This finding involved a two-part analysis. The first question was whether the “constitutional right” is actually “new.” A constitutional rule is considered “new” when “the result was not dictated by precedent existing at the time the defendant's conviction became final.” Van Tran v. State, 66 S.W.3d at 811 (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)). Second, a new constitutional right is applied retroactively when it “materially enhances the integrity and reliability of the fact finding process of the trial.” Van Tran v. State, 66 S.W.3d at 811 (citing Meadows v. State, 849 S.W.2d 748, 755 (Tenn.1993)); see alsoTenn.Code Ann. § 40–30–122 (2006) (citing the federal standard for retroactivity under Teague v. Lane, 489 U.S. at 307, 109 S.Ct. 1060). Applying these standards, we determined that our holding in Van Tran was new, and that it warranted retroactive application. Van Tran v. State, 66 S.W.3d at 811.

The following year, the United States Supreme Court overruled its holdingin Penry v. Lynaugh. In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court employed an analysis similar to the one we used in Van Tran and likewise held that executing intellectually disabled persons constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Atkins v. Virginia, 536 U.S. at 321, 122 S.Ct. 2242.

In December 2002, relying on the recent holdings of Van Tran and Atkins as new, retroactive constitutional rules, condemned prisoner Michael Wayne Howell filed a motion to reopen his post-conviction proceeding under Tenn.Code Ann. § 40–30–117(a)(1). Howell v. State, 151 S.W.3d 450, 453 (Tenn.2004). The post-conviction court and Court of Criminal Appeals denied Mr. Howell's motion. However, we remanded Mr. Howell's intellectual disability claim to the post-conviction court for consideration under the “colorable claim” standard of Tenn. Sup.Ct. R. 28, §§ 2(H), 6(B)(6) (2012), rather than the “clear and convincing evidence” standard of Tenn.Code Ann. § 40–30–117(a)(4). Howell v. State, 151 S.W.3d at 460–63. Mr. Howell's position was unusual and almost unique: he was “able, for the first time in his motion to reopen ..., to claim ineligibility for the death penalty” under the newly-decided Van Tran and Atkins decisions. Howell v. State, 151 S.W.3d at 453. Therefore, under these very specific facts, we held that applying the stringent “clear and convincing” evidence standard would violate due process notions of fundamental fairness. Howell v. State, 151 S.W.3d at 462–63.

We also addressed shortcomings in the expert proof Mr. Howell submitted to support his claim that he was intellectually disabled. The psychologist who examined Mr. Howell administered the WAIS–III, as well as the Stanford–Binet Intelligence Test–Fourth Edition and the Comprehensive Test of Nonverbal Intelligence (“CTONI”). Although Mr. Howell's score on the WAIS–III was above 70, his scores on the other tests were below 70. Thereafter, the psychologist prepared an affidavit stating that an I.Q. test score of 70 actually represented “a band or zone of sixty-five to seventy-five.” Howell v. State, 151 S.W.3d at 453. Accordingly, the psychologist opined that Mr. Howell's level of intellectual functioning was “within the [intellectual disability] range of intelligence.” Howell v. State, 151 S.W.3d at 453–54. The post-conviction court relied completely on Mr. Howell's raw score on the WAIS–III, ignored the other tests, and found, without a hearing, that Mr. Howell had not put forth a prima facie case of intellectual disability. Howell v. State, 151 S.W.3d at 454–55, 459.

When Mr. Howell's case reached this Court, we noted that “[w]ithout question,” intellectual disability “is a difficult condition to accurately define” and that “[g]enerally accepted definitions within the scientific community will no doubt be refined as our knowledge in this area advances.” Howell v. State, 151 S.W.3d at 457. Nevertheless, we found that Tenn.Code Ann. § 39–13–203 was “perfectly clear and unambiguous” and that it made “no reference to ... any range of scores above the score of seventy.” Howell v. State, 151 S.W.3d at 458. After noting that the Tennessee General Assembly had adopted a more relaxed definition of intellectual disability in the social services context that contained no reference to I.Q. test scores,¹⁰ we concluded that the General Assembly intended “to have a different, more restrictive,standard apply to defendants in a capital prosecution.” Howell v. State, 151 S.W.3d at 458. Accordingly, we found that the General Assembly “intended to create ... a bright line rule” when it defined “intellectual disability” in Tenn.Code Ann. § 39–13–203(a)(1) as having a “functional intelligence quotient (I.Q.) of seventy (70) or below.” Howell v. State, 151 S.W.3d at 457–58.

10 This definition of “intellectual disability” is currently codified at Tenn.Code Ann. § 33–1–101(16) (2012).

With regard to Mr. Howell's argument that the post-conviction court erred by disregarding the scores from other tests besides the WAIS–III, we noted that the United States Supreme Court had referred to the WAIS–III as “the standard instrument in the United States for assessing intellectual functioning.” Atkins v. Virginia, 536 U.S. at 309 n. 5, 122 S.Ct. 2242. However, we also found that

there is nothing in the record to indicate that other tests, such as the Stanford–Binet Intelligence Test–Fourth Edition, or the CTONI are not also accurate I.Q. tests. A court may certainly give more weight to one test, but should do so only after fully analyzing and considering all evidence presented.... A review under [the colorable claim standard] would necessarily include giving full and fair consideration to all tests administered to the petitioner.
Howell v. State, 151 S.W.3d at 459 (emphasis added).

Regrettably, several courts misconstrued our holding in Howell that Tenn.Code Ann. § 39–13–203(a)(1) established a “bright line rule” for determining intellectual disability. They understood this language to mean that courts could consider only raw I.Q. scores. Accordingly, these courts tended to disregard any evidence suggesting that raw scores could paint an inaccurate picture of a defendant's actual intellectual functioning. See, e.g., Smith v. State, No. E2007–00719–CCA–R3–PD, 2010 WL 3638033, at *40 (Tenn.Crim.App. Sept. 21, 2010) (reluctantly refusing to consider the Flynn effect); Coleman v. State, No. W2007–02767–CCA–R3–PD, 2010 WL 118696, at *14, 16–18, 23 (Tenn.Crim.App. Jan. 13, 2010) (upholding, under Howell, a trial court's refusal to consider the standard error of measurement and the Flynn effect in determining the petitioner's I.Q. score); Black v. State, No. M2004–01345–CCA–R3–PD, 2005 WL 2662577, at *14, 17–18 (Tenn.Crim.App. Oct. 19, 2005) (rejecting the Flynn effect under the “bright-line cutoff” rule of Howell ). This was an inaccurate reading of Howell, in which we took pains to say that the trial court should “giv[e] full and fair consideration to all tests administered to the petitioner” and should “fully analyz[e] and consider[ ] all evidence presented” concerning the petitioner's I.Q. Howell v. State, 151 S.W.3d at 459.

The case of Coleman v. State provided us with an opportunity to clarify and reinforce our holding in Howell. We held that “the plain language of Tenn.Code Ann. § 39–13–203(a)(1) does not limit to raw test scores the evidence regarding whether a criminal defendant is a person with intellectual disability.” Coleman v. State, 341 S.W.3d at 230. We also recognized that there was an “ ‘imperfect fit’ between the clinical community's and the legal system's view of intellectual disability.” Coleman v. State, 341 S.W.3d at 230 (quoting American Psychiatric Ass'n, Diagnostic and Statistical Manual on Mental Disorders xxxiii (4th ed. text rev. 2000) (“DSM–IV–TR”)). In addition, we noted that “[t]he term ‘intellectual disability’ does not refer to a single disorder or disease, but rather to a heterogeneous set of disabilities that affect the level of a person's functioning in defined domains,” and that “[p]ersons with intellectual disabilities frequently have other psychological and physical disorders.” Thus, “the definition of ‘intellectual disability’ embraces a heterogeneous population ranging from persons who are totally dependent to persons who are nearly independent.” But all of them “have a significantly reduced ability to cope with and function independently in the everyday world.” Coleman v. State, 341 S.W.3d at 230–31.

We then considered the four prior cases in which we had been called on to interpret and apply Tenn.Code Ann. § 39–13–203—State v. Smith, 893 S.W.2d 908 (Tenn.1994); Van Tran v. State, 66 S.W.3d 790 (Tenn.2001); Howell v. State, 151 S.W.3d 450 (Tenn.2004); and State v. Strode, 232 S.W.3d 1 (Tenn.2007). From these cases, we gleaned “six principles” that have guided our approach to this statute:

(1) The public policy of this State, reflected in the considered decision of the Tennessee General Assembly to enact Tenn.Code Ann. § 39–13–203, opposes the execution of persons with intellectual disabilities.

(2) The scope of Tenn.Code Ann. § 39–13–203 is more restrictive than the definition of “intellectual disability” in Tenn.Code Ann. § 33–1–101(16) applicable to the provision of support services to persons with intellectual disabilities.

(3) The Court will give effect to the plain and ordinary meaning of the statute's language.

(4) The Court will decline to “read in” language into the statute that the General Assembly did not place there.

(5) The Court's application of the statute may be guided and informed by the clinical standards, criteria, and practices customarily used to assess and diagnose intellectual disability.

(6) In instances where the proper application of the statute is not clear, the Court may confirm its interpretation of the statute by considering its legislative history, prior interpretations of the statute, similar statutes in other jurisdictions, and the clinical standards, criteria, and practices customarily used to assess and diagnose intellectual disability.
Coleman v. State, 341 S.W.3d at 235–40 (footnotes omitted). With regard to the importance of raw I.Q. test scores, we observed that:

While a person's I.Q. is customarily obtained using standardized intelligence tests, see Van Tran v. State, 66 S.W.3d at 795; DSM–IV–TR, at 41, the statute does not provide clear direction regarding how a person's I.Q. should be determined and does not specify any particular test or testing method that should be used. Howell v. State, 151 S.W.3d at 459. In fact, the statute does not even employ the words “test” or “score.”
Coleman v. State, 341 S.W.3d at 241.

Therefore, we held that Tenn.Code Ann. § 39–13–203(a)(1) “does not require a ‘functional intelligence quotient test score of seventy (70) or below,’ ” and that “the trial courts may receive and consider any relevant and admissible evidence regarding whether the defendant's functional I.Q. at the time of the offense was seventy (70) or below.” Coleman v. State, 341 S.W.3d at 241. We also held that the trial court “is not required to follow the opinion of any particular expert” but that the trial court “must give full and fair consideration to all the evidence presented, including the results of all the I.Q. tests administered to the defendant.” Coleman v. State, 341 S.W.3d at 242 (emphasis added).

We also noted in Coleman that the American Association on Intellectual and Developmental Disabilities (“AAIDD”) recognizes ten potential “challenges” to the reliability and validity of I.Q. test scores, including the Flynn effect and the practice effect. Coleman v. State, 341 S.W.3d at 242 n. 55 (citing Am. Ass'n on Intellectual and Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Supports 36–41 (11th ed.2010) (“AAIDD Manual”)). In other words, we held that a court could find, based on expert testimony, that a defendant's actual I.Q. may be higher or lower than what a raw test score indicates:

Because intelligence tests are indirect rather than direct measures of intelligence, experts in the field recognize that they, like other measures of human functioning, are not “actuarial determination[s],” that these tests cannot measure intelligence with absolute precision and that these tests contain a potential for error. The current consensus is that the standard error of measurement in well-standardized intelligence tests is approximately three to five points.
Coleman v. State, 341 S.W.3d at 245 (alteration in original) (footnotes omitted) (quoting AAIDD Manual, at 40).

We take the opportunity to reiterate that, in determining whether a defendant's functional I.Q. is 70 or below, a trial court should consider all the evidence that is admissible under the rules for expert testimony. See State v. Copeland, 226 S.W.3d 287, 301–02 (Tenn.2007); Tenn.Code Ann. § 40–30–117(b). As we stated in Coleman:

[I]f the trial court determines that professionals who assess a person's I.Q. customarily consider a particular test's standard error of measurement, the Flynn Effect, the practice effect, or other factors affecting the accuracy, reliability, or fairness of the instrument or instruments used to assess or measure the defendant's I.Q., an expert should be permitted to base his or her assessment of the defendant's “functional intelligence quotient” on a consideration of those factors.¹¹
Coleman v. State, 341 S.W.3d at 242 n. 55 (footnote added).

11 The “Flynn effect” is the name given to the verified worldwide phenomenon that I.Q. scores, since the beginning of intelligence testing, have tended to rise overall at a rate of 0.3 per year, or three points every decade. When an I.Q. test is created, it is calibrated so that the mean score equals an I.Q. of 100. Over time, as the scores of the general population increase at the rate of the Flynn effect, or three points per decade, the scores become more and more inaccurate in terms of gauging an individual's I.Q. relative to the general population. To compensate for the Flynn effect, I.Q. tests have to be routinely revised or “renormed” to make them more difficult. Thus, the WAIS gave way to the WAIS–R, which was eventually replaced by the WAIS–III, and now the current WAIS–IV. Under the Flynn effect, a recently-obtained WAIS–IV score will be close to accurate, while a WAIS–III score that was obtained ten years after the test was renormed would need to be reduced by approximately three points to capture the test-taker's actual I.Q. at the time. See Geraldine W. Young, A More Intelligent and Just Atkins: Adjusting for the Flynn Effect in Capital Determinations of Mental Retardation or Intellectual Disability, 65 Vand. L.Rev. 615, 616, 621, 624–25 (2012); AAIDD Manual, at 37; James R. Flynn, Tethering the Elephant: Capital Cases, IQ, and the Flynn Effect, 12 Psychol. Pub. Pol'y & L. 170, 173–74, 179–81 (2006).


In addition to the consideration of the Flynn effect, the AAIDD and APA stress that I.Q. scores should be considered in light of the standard error of measurement (“SEM”) and the practice effect. SEM posits that I.Q. scores are best understood as a range, to account for the possibility of error in the determination of an I.Q. score, which is a somewhat subjective determination. There is an uncomfortable fit between SEM and Tennessee's statute, which contains a bright-line cutoff of 70. Nevertheless, consideration of the SEM can aid a trial court as it weighs the various data concerning a particular defendant's mental acuity. The practice effect refers to the fact that people who take multiple I.Q. tests tend to score better over time, so higher scores on later tests may need to be adjusted downward to account for this increase. See AAIDD Manual, at 38; John H. Blume et. al., Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases, 18 Cornell J.L. & Pub. Pol'y 689, 695, 697–703 (2009); LaJuana Davis, Intelligence Testing and Atkins: Considerations for Appellate Courts and Appellate Lawyers, 5 J.App. Prac. & Process 297, 301–02, 309–10 (2003); see also Thomas v. Allen, 607 F.3d 749, 753, 757–58 (11th Cir.2010) (finding no clear error in a trial court's application of the Flynn effect and the standard error of measurement); Holladay v. Allen, 555 F.3d 1346, 1357–58 (11th Cir.2009) (upholding a finding of intellectual disability that took into account the Flynn effect and the practice effect); Cole v. Branker, 328 Fed.Appx. 149, 156–57 (4th Cir.2008) (acknowledging the Flynn effect and the practice effect, but finding them insufficient to adjust the petitioner's I.Q. below 70); Walker v. True, 399 F.3d 315, 322 (4th Cir.2005) (remanding for consideration of the Flynn effect and standard error of measurement). In light of Tennessee's strongly-held public policy against executing the intellectually disabled, this sort of information would be acutely relevant to a trial court attempting to determine whether a particular defendant's I.Q. is 70 or below.

The case of Smith v. State, 357 S.W.3d 322 (Tenn.2011) presented us with our first opportunity to apply Coleman 's principles. Leonard Smith's case came to us via a petition for post-conviction relief, not a motion to reopen. Mr. Smith had been sentenced to death for a felony murder that occurred in 1995. Mr. Smith applied for post-conviction relief in 1999. Van Tran, Atkins, and Coleman were decided while his case was working its way through the courts. We vacated his death sentence. Because the judge who presided over Mr. Smith's sentencing hearing had previously prosecuted Mr. Smith in another matter during Mr. Smith's murder trial, we found that Mr. Smith's due process right to an impartial tribunal had been violated. Smith v. State, 357 S.W.3d at 345.

We also held that Mr. Smith was entitled to a new hearing on whether he was intellectually disabled. At his first hearing, a psychologist opined that Mr. Smith was intellectually disabled when he committed the crime. The evidence indicated that Mr. Smith had brain injuries and a history of physical abuse, as well as alcohol and drug abuse. As a teenager, Mr. Smith's two scores on the Ammons Quick Test indicated an I.Q. of 70 and 84. His contemporaneous WISC test provided a full-scale I.Q. score of 80. Mr. Smith's 1989 WAIS–R score was 75, and his 2000 and 2002 WAIS–III scores were 77 and 65 respectively. His scores on academic tests were also very low. Smith v. State, 357 S.W.3d at 350–53.

Although the post-conviction court found that Mr. Smith satisfied the second and third prongs of the test for intellectual disability, the court decided that he had not proven that he had an I.Q. of 70 or below before the age of eighteen. Smith v. State, 357 S.W.3d at 353. Significantly, the court stated that “testing performed before the age of eighteen reflects a functional IQ of 85,” and that “the arguments for margin of error are contrary to case law of this state and of no assistance to the petitioner.” Smith v. State, 357 S.W.3d at 353. We held that “the post-conviction court misapplied the applicable legal standard when it ruled that Smith's arguments regarding standard margin of error concerning intelligence tests were ‘contrary to the case law of this state and of no assistance’ to Smith.” Therefore, we remanded the case to give Mr. Smith and the State an opportunity to present evidence regarding his functional intelligence quotient in light of Coleman. ¹² Smith v. State, 357 S.W.3d at 354.

12 Heck Van Tran and Michael Wayne Howell remain on Tennessee's death row. See http:// www. tn. gov/ correction/ death row list. html. Shortly after our holding in Coleman v. State, Michael Angelo Coleman's death sentence was reduced to a life sentence.

IV.

Having reviewed the legal predicate for claims of intellectual disability under Tenn.Code Ann. § 39–13–203, we now turn to the claims Mr. Keen presents in his motion to reopen his post-conviction proceedings. We will address the claims in statutory order. The first question is whether Coleman v. State announced a new constitutional rule that must be retroactively applied. The second question is whether Mr. Keen's intellectual disability claim can be heard under the actual innocence prong of the motion-to-reopen statute.

A.

A preliminary issue is whether Mr. Keen's intellectual disability claim has been properly raised. In a petition for post-conviction relief, a ground for relief is generally deemed waived if the petitioner had an opportunity to raise the issue previously, but failed to do so. Tenn.Code Ann. § 40–30–106(g) (2012).

The statutory prohibition against executing intellectually disabled persons was in effect during both of Mr. Keen's sentencing hearings, his two appeals, and his initial post-conviction proceeding. However, Mr. Keen did not invoke Tenn.Code Ann. § 39–13–203 in any of these proceedings. If Mr. Keen was indeed ineligible for the death penalty because he was intellectually disabled, then the attorneys representing Mr. Keen “failed to take whatever action was reasonably available to prevent or nullify the harmful effect” of that error. Tenn. R.App. P. 36(a).

However, Mr. Keen's current appeal comes to us via a motion to reopen his post-conviction proceeding under Tenn.Code Ann. § 40–30–117. A motion to reopen is only available when the petitioner can establish by clear and convincing evidence that either (1) an appellate court has made a final ruling recognizing a new constitutional right that requires retroactive application; (2) new scientific evidence has come to light that establishes the petitioner is “actually innocent of the offense or offenses for which the petitioner was convicted;” or (3) the petitioner's sentence was enhanced due to a previous conviction which was later found to be invalid. Tenn.Code Ann. § 40–30–117(a).

In Van Tran v. State, we recognized that a motion to reopen is the proper vehicle for a claim that arises after the petitioner's original post-conviction avenues have been exhausted and that asserts a newly recognized constitutional right, even when the issue was arguably waived. Van Tran v. State, 66 S.W.3d at 799 (accepting the appeal of a “new scientific evidence” motion to reopen and converting the motion into a “new constitutional right” motion). Although nothing in the statute prevents the waiver provision of Tenn.Code Ann. § 40–30–106(g) from applying to motions to reopen, we found in Van Tran that the narrow circumstances that trigger a motion to reopen may “raise serious constitutional implications of first impression,” so this Court is free “to address these critical issues.” Due to “the importance of correctly resolving constitutional issues,” we held that “constitutional issues should rarely be foreclosed by procedural technicalities.” Van Tran v. State, 66 S.W.3d at 799 (quoting In re Adoption of E.N.R., 42 S.W.3d 26, 32 (Tenn.2001)). Furthermore, as in Van Tran, the parties in this case failed to raise the issue of waiver in their briefs.

Like the Tenn.Code Ann. § 40–30–117(a)(1) motion in Van Tran, motions to reopen that assert actual innocence based on new evidence under Tenn.Code Ann. § 40–30–117(a)(2) similarly raise important constitutional due process concerns. These motions thus warrant the same forgiving treatment as motions to reopen based on a new constitutional rule under Tenn.Code Ann. § 40–30–117(a)(1). Therefore, in light of the narrowness and constitutional gravity of motions to reopen under Tenn.Code Ann. § 40–30–117(a)(1) and (2), we find that a motion to reopen is the proper vehicle for bringing such claims, in spite of circumstances that might otherwise suggest that the issue has been waived.

B.

Mr. Keen bases his motion to reopen on two grounds. The first is Tenn.Code Ann. § 40–30–117(a)(1), which applies to claims “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.” Under this statute, the motion must be filed within one year of the ruling that establishes the new constitutional right.

Mr. Keen filed his motion to reopen on August 5, 2010. At first, his motion was based on Tenn.Code Ann. § 40–30–117(a)(2) and alleged that he had acquired “new scientific evidence” that he was “actually innocent” of the death penalty on account of his intellectual disability. The post-conviction court denied his motion on March 28, 2011. Mr. Keen appealed. We released Coleman v. State on April 11, 2011, while Mr. Keen's case was pending before the Court of Criminal Appeals. In his reply brief filed in the Court of Criminal Appeals, Mr. Keen asserted that Coleman announced a new, retroactive, constitutional rule. Although Mr. Keen's motion was filed before our holding in Coleman, we find that it was indeed “filed within one (1) year” of that ruling. Tenn.Code Ann. § 40–30–117(a)(1).

We must first determine whether Coleman established “a constitutional right that was not recognized as existing at the time of trial.” Only if Coleman qualifies as a new “constitutional right” will we then consider whether its holding requires “retrospective application.” Mr. Keen argues that Coleman “establish[ed] a new retroactive rule for proving an intellectual disability in Tennessee under the Eighth Amendment,” and that he has raised this issue within one year of that ruling.

As we have already noted, our holding in Van Tran—that executing an intellectually disabled person violated the state and federal constitutions-announced a new constitutional right that required retrospective application. Van Tran v. State, 66 S.W.3d at 811. Indeed, our holding in Van Tran was explicitly constitutional and was expressly based on the “cruel and unusual punishments” clauses of the federal and state constitutions. Michael Angelo Coleman and Leonard Smith were among those who took advantage of the one-year window created by Van Tran for reopening post-conviction proceedings.

Coleman was quite different from Van Tran. In Coleman, we were not called upon to interpret the constitution. Instead, Coleman concerned the interpretation of Tenn.Code Ann. § 39–13–203, the statute that defined intellectual disability in the context of the death penalty. Coleman supplemented Howell and clarified that “the trial courts may receive and consider any relevant and admissible evidence regarding whether the defendant's functional I.Q. at the time of the offense was seventy (70) or below.” Coleman v. State, 341 S.W.3d at 241. We held in Coleman that the courts were not limited to raw test scores, but could also consider other factors, such as the Flynn effect, the practice effect, standard error of measurement, malingering, and cultural differences. Coleman v. State, 341 S.W.3d at 242 n. 55, 247.Coleman recognized no new constitutional right. The only constitutional right at issue in Coleman was the one we had already announced ten years earlier in Van Tran. ¹³ Mr. Keen cannot piggyback Coleman on top of Van Tran in order to reopen the one-year statutory window for a constitutional rule that was articulated over a decade ago.

13 The United States Court of Appeals for the Sixth Circuit analyzed Coleman shortly after its release. Although the panel disagreed on whether Coleman primarily interpreted Atkins or the Tennessee Code, both the majority and the dissent viewed Coleman as a clarification of existing law. The majority characterized Coleman 's holding as an “elucidation of the Atkins standard under Tennessee law.” Black v. Bell, 664 F.3d 81, 92, 96, 101 (6th Cir.2011) (remanding Black's intellectual disability claim to the U.S. District Court for reconsideration in light of Coleman ). Judge Boggs, in dissent, offered a more accurate assessment:
In Coleman v. State[ ,] ... the Tennessee Supreme Court construed a Tennessee statute prohibiting the execution of [intellectually disabled] defendants under Tennessee law.... Coleman is purely a construction of a state statute that makes only fleeting references to Atkins ....


....


.... Coleman decided how a Tennessee state statute should apply to a Tennessee state court opinion [i.e., Van Tran ] decided under the Tennessee state Constitution.

Black v. Bell, 664 F.3d at 107–08 (Boggs, J., dissenting).

For other cases analyzing whether one of our holdings announced a new constitutional right, see Miller v. State, 54 S.W.3d 743, 746–47 (Tenn.2001) (explaining that State v. Brown, 836 S.W.2d 530 (Tenn.1992) did not announce a new constitutional right, but “simply reiterated” Tennessee law); Mitchell v. State, No. M2011–02030–CCA–R3–PC, 2012 WL 2308294, at *2–3 (Tenn.Crim.App. June 15, 2012) (finding that Lane v. State, 316 S.W.3d 555 (Tenn.2010) did not announce a new constitutional right, but “applied well-established rules of law”); Coury v. Westbrooks, No. M2003–01800–CCA–R3–PC, 2004 WL 2346151, at *2–3 (Tenn.Crim.App. Oct. 19, 2004) (finding that Dixon v. Holland, 70 S.W.3d 33 (Tenn.2002), rather than announcing a new constitutional right, clarified existing law).

Because we have determined that Coleman 's holding, which concerned the interpretation and application of Tenn.Code Ann. § 39–13–203, was not a constitutional ruling, there is no need to inquire whether that holding would qualify as a “new rule.” Nor is there any use in discussing retroactivity. ¹⁴ See Teague v. Lane, 489 U.S. 288, 301, 307, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Meadows v. State, 849 S.W.2d at 751, 755;see alsoTenn.Code Ann. § 40–30–122 (2012). We also have no need to discuss whether Mr. Keen's claim would be subject to the “clear and convincing evidence” standard of Tenn.Code Ann. § 40–30–117(a)(4) or, as he argues, the “colorable claim” standard of Tenn. Sup.Ct. R. 28, §§ 2(H), 6(B)(6) that we applied in Howell v. State, 151 S.W.3d at 460–63.

14 Contrary to Mr. Keen's arguments, Smith v. State does not support the proposition that Coleman was a new, retroactive, constitutional rule. Mr. Keen suggests that we remanded Leonard Smith's case under the same “new right” rationale we applied in Van Tran. To the contrary, Coleman and Smith were not like Van Tran. In Van Tran, we recognized a new constitutional right, and then remanded the petitioner's case for reconsideration of that right. In Coleman and Smith, by contrast, the post-conviction courts had applied an incorrect legal standard to a claim of intellectual disability under Tenn.Code Ann. § 39–13–203. We remanded those cases for reconsideration under the correct standard articulated in Coleman. See Smith v. State, 357 S.W.3d at 353–54;Coleman v. State, 341 S.W.3d at 253. In Mr. Keen's case, however, the post-conviction court did not apply an incorrect legal standard. As we will soon explain, that court correctly determined that a death-sentence-ineligibility claim was not cognizable under Tenn.Code Ann. § 40–30–117(a)(2) and properly denied Mr. Keen's motion.

C.

Having determined that Coleman v. State did not announce a new constitutional right, we now turn to Mr. Keen's original grounds for reopening his petition for post-conviction relief. The question we must decide is whether the result of his WAIS–IV test taken in 2010 constitutes “new scientific evidence” that he is “actually innocent of the offense or offenses” for which he was convicted for the purpose of a claim under Tenn.Code Ann. § 40–30–117(a)(2). Mr. Keen asserts that evidence supporting his claim that he is intellectually disabled for the purpose of Tenn.Code Ann. § 39–13–203(b) is tantamount to evidence that he is “actually innocent” for the purpose of Tenn.Code Ann. § 40–30–117(a)(2). This assertion requires us to construe the phrase “actually innocent of the offense” in Tenn.Code Ann. § 40–30–117(a)(2).¹⁵

15 The same language occurs in Tenn.Code Ann. § 40–30–102(b)(2) (2012) (concerning “[w]hen prisoners may petition for post-conviction relief”). Act of Apr. 26, 1995, ch. 207, § 1, 1995 Tenn. Pub. Acts 305, 305. Both subsections of the Act were passed simultaneously by the General Assembly. The language is identical. Our analysis applies equally to both statutes.

It is now axiomatic that our role in construing a statute is to “ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope.” State v. Strode, 232 S.W.3d 1, 9 (Tenn.2007). To do this, we focus initially on the statute's words, giving these words their natural and ordinary meaning in light of their statutory context. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn.2010). We avoid any “forced or subtle construction that would limit or extend the meaning of the language.” Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn.2004). “[E]very word in a statute is presumed to have meaning and purpose.” U.S. Bank, N.A. v. Tennessee Farmers Mut. Ins. Co., 277 S.W.3d 381, 386 (Tenn.2009). If the statutory language is clear and unambiguous, we apply the statute's plain language in its normal and accepted use. We need look no further than the statute itself, enforcing it just as it is written. Shelby Cnty. Health Care Corp. v. Nationwide Mut. Ins. Co., 325 S.W.3d 88, 92 (Tenn.2010); Eastman Chem. Co. v. Johnson, 151 S.W.3d at 507.

On their faces, the words “actually” and “innocent” appear clear enough. They denote that the person in question truly did not commit the crime for which they have been convicted. However, the courts have expanded the concept of actual innocence to include the idea that someone could be actually innocent of, i.e., ineligible for, a given sentence. Under this parlance, for example, a minor or an intellectually disabled person can be said to be “actually innocent” of the death penalty, due to their inherent ineligibility for such a sentence. In other words, “actual innocence” has become a legal term of art that implies more than what the words themselves suggest. See Sawyer v. Whitley, 505 U.S. 333, 336, 340–41, 343–47, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) (discussing how to determine whether an inmate is “innocent of death”).

In 1996, Congress undertook to restrict the scope of “actual innocence” for the purpose of federal habeas corpus when it enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under the AEDPA, federal courts must dismiss a second or subsequent habeas corpus petition unless newly discovered evidence establishes, by “clear and convincing evidence,” that “no reasonable factfinder” would have found the applicant “guilty of the offense” or “guilty of the underlying offense.” 28 U.S.C. §§ 2244, 2255 (2006). This language, “guilty of the offense,” has been interpreted by the federal courts to reflect Congress' intent that federal habeas relief under these statutes not be available to challenge a sentence—even a death sentence. Henderson v. Thaler, 626 F.3d 773, 779–81 (5th Cir.2010); In re Webster, 605 F.3d 256, 257–58 (5th Cir.2010); In re Dean, 341 F.3d 1247, 1248–49 (11th Cir.2003); Hope v. United States, 108 F.3d 119, 120 (7th Cir.1997).

The year before Congress enacted the AEDPA, the Tennessee General Assembly enacted the Post–Conviction Procedure Act,¹⁶ which includes Tenn.Code Ann. § 40–30–117, the statute governing motions to reopen post-conviction proceedings. In order to reopen the post-conviction process under § 40–30–117(a)(2), an inmate must present evidence that he is “actually innocent of the offense or offenses” for which he was convicted.

16 Act of Apr. 26, 1995, ch. 207, § 1, 1995 Tenn. Pub. Acts 305, 305.

This Court has not squarely addressed the meaning of “actually innocent of the offense” in Tenn.Code Ann. § 40–30–117(a)(2), although Justice Barker, joined by Justice Holder, did so in a dissenting opinion in Van Tran. In his dissenting opinion, Justice Barker equated the “actually innocent of the offense” language in Tenn.Code Ann. § 40–30–117(a)(2) with the AEDPA's new “not guilty of the offense” language. Van Tran v. State, 66 S.W.3d at 822 (Barker, J., dissenting) (citing Hope v. United States, 108 F.3d 119, 120 (7th Cir.1997) and Greenawalt v. Stewart, 105 F.3d 1287, 1287–88 (9th Cir.1997)).

Justice Barker's separate opinion cites with favor Judge Richard Posner's opinion in Hope v. United States, in which Judge Posner found it “highly unlikely that Congress intended the word [‘offense’] to bear a special meaning.” Hope v. United States, 108 F.3d 119, 120 (7th Cir.1997). Like Judge Posner, Justice Barker concluded that the Tennessee General Assembly, like Congress, had chosen the word “offense” to limit post-conviction relief to prisoners who could show that they never actually committed the crime. Van Tran v. State, 66 S.W.3d at 820–22 (Barker, J., dissenting).

Subsequently, the United States Court of Appeals for the Fifth Circuit adopted a similar interpretation of the AEDPA's analogous language. In re Webster, 605 F.3d 256, 258–59 (5th Cir.2010). The court held that

[T]here is no reason to believe that Congress intended the language “guilty of the offense” to mean “eligible for a death sentence.” Had Congress wanted the provision to cover challenges to a sentence—even if only to a death sentence—it easily could have referenced sentences explicitly in the text, as it did numerous times throughout § 2255. Or if Congress had intended to signal courts to incorporate the old, broad interpretation of actual innocence, it well could have used the words, “actual innocence.” Instead, it elected to couch § 2255(h)(1), as well as § 2244(b)(2)(B)(ii), in the markedly different, unmistakable terms of guilt of the offense. Absent some indication that Congress meant for the language in § 2255(h)(1) not to be taken literally, we decline to interpret it any other way.
In re Webster, 605 F.3d at 258–59 (footnotes omitted).¹⁷

17 Judge Jacques Wiener wrote separately in In re Webster “to emphasize the absurdity of its Kafkaesque result.” If a jury was given the evidence of Mr. Webster's intellectual disability, Judge Wiener said, “it is virtually guaranteed” that he would be found intellectually disabled. However, “[b]ecause Webster seeks to demonstrate only that he is constitutionally ineligible for the death penalty—and not that he is factually innocent of the crime—we must sanction his execution.” Because “Congress's instruction ... ties our judicial hands so illogically, we today have no choice but to condone just such an unconstitutional punishment.” In re Webster, 605 F.3d at 259–60 (Wiener, J., concurring).

We agree with Justice Barker that the same reasoning applies to Tennessee's statute. To qualify as “actually innocent” under Tenn.Code Ann. § 40–30–117(a)(2), a petitioner must “demonstrate actual innocence of the underlying crimes for which he was convicted.” Van Tran v. State, 66 S.W.3d at 822 (Barker, J., dissenting).¹⁸

18 Additional evidence for this conclusion is found in the fact that Tenn.Code Ann. §§ 40–30–102(b)(3) and 40–30–117(a)(3) explicitly contemplate an inmate's attack on an erroneously enhanced “sentence.” This language demonstrates that the General Assembly was fully capable of differentiating between sentences and offenses in the Post–Conviction Procedure Act. We are compelled to conclude that “actually innocent of the offense” means that one was never factually guilty of the crime.

On this point, Mr. Keen raises an additional argument. He insists that the “offense” of which he was convicted and of which he is actually innocent is the “offense” of “capital murder.” While this argument might have traction in other jurisdictions, in Tennessee, there is no separate offense known as “capital murder.” ¹⁹Tenn.Code Ann. § 39–13–202 defines “first degree murder,” ²⁰ and Tenn.Code Ann. § 39–13–204 sets out the procedures for sentencing a defendant convicted of first degree murder. These statutes assign three possible sentences: imprisonment for life, imprisonment for life without the possibility of parole, and “punishment of death.” Tenn.Code Ann. § 39–13–204(i) sets out the seventeen aggravating factors that authorize a jury to impose a sentence of death. It is clear from this statutory scheme that the underlying “offense” is “first degree murder,” and that the death penalty is a sentencing consideration rather than an independent offense.

19 Several states recognize “capital murder” as a distinct offense. In Arkansas, Kansas and Virginia, “capital murder” is defined by statute as a separate offense with its own distinct elements. SeeArk.Code Ann. § 5–10–101 (Lexis Supp.2011); Kan. Stat. Ann. § 21–5401 (Supp.2011); Va.Code Ann. § 18.2–31 (Supp.2012). Mississippi and Texas recognize “capital murder,” but the definition of the offense relies on the separately-enumerated elements of “murder.” SeeMiss.Code Ann. § 97–3–19 (2006); Tex. Penal Code Ann. § 19.03 (West 2011). By contrast, the term “capital murder” appears nowhere in the Tennessee Code, and, while this Court sometimes speaks of “capital offenses” and “capital sentencing,” we have generally avoided the phrase “capital murder.”

20 First degree murder is:
(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.

Tenn.Code Ann. § 39–13–202(a).

To reopen post-conviction proceedings under Tenn.Code Ann. § 40–30–117(a)(2), a petitioner must present scientific evidence that he is “actually innocent of the offense.” Because we cannot apply any “forced or subtle construction” to distort the “natural and ordinary meaning” of the statute's “clear and unambiguous” language, Eastman Chem. Co. v. Johnson, 151 S.W.3d at 507, we find that “actually innocent of the offense” means nothing other than that the person did not commit the crime. Here, Mr. Keen pleaded guilty to the rape and “first degree murder” of Nikki Reed. His “offense” at issue is “first degree murder.” He is not alleging factualinnocence of that offense. Intellectual disability does not equate to actual innocence. Mr. Keen's cause cannot be heard on a motion to reopen under Tenn.Code Ann. § 40–30–117(a)(2).

Because we have determined that a claim alleging ineligibility for the death penalty does not qualify as an actual innocence claim under Tenn.Code Ann. § 40–30–117(a)(2), it is not necessary that we examine the issue of whether a recently obtained score from a recently renormed I.Q. test, such as the WAIS–IV, constitutes “new scientific evidence” under that subsection.

Mr. Keen asks us to remand his case for a new hearing on intellectual disability, just as we did for Michael Angelo Coleman and Leonard Smith. But Mr. Keen's circumstances are different. Messrs. Coleman and Smith were able to take advantage of the one-year window for reopening their petitions under Van Tran or Atkins. For whatever reason, Mr. Keen did not avail himself of that opportunity.

We remain committed to the principle that Tennessee has no business executing persons who are intellectually disabled. Our holding today is only that Tenn.Code Ann. § 40–30–117(a)(1) and (2) do not provide Mr. Keen with a vehicle to assert that he is intellectually disabled. Our decision does not foreclose any other remedy currently available to Mr. Keen. If he is indeed intellectually disabled, this issue deserves to be heard. Likewise, it does not foreclose the ability of the General Assembly to create a procedure that accommodates prisoners on death row whose intellectual disability claims cannot be raised under Tenn.Code Ann. § 40–30–117(a)(1) or (2).

V.

We have determined that our holding in Coleman v. State did not establish a new constitutional right under Tenn.Code Ann. § 40–30–117(a)(1). Additionally, we have determined that the General Assembly, in crafting Tenn.Code Ann. § 40–30–117(a)(2), did not intend the words “actually innocent of the offense” to encompass ineligibility for the death penalty under Tenn.Code Ann. § 39–13–203. Therefore, we affirm the judgment of the post-conviction court and the Court of Criminal Appeals denying Mr. Keen's motion to reopen his post-conviction proceeding. Because Mr. Keen appears to be indigent, the costs of this appeal are assessed to the State of Tennessee. GARY R. WADE, C.J., filed a dissenting opinion.

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, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (quoting Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)). The import of these decisions is clear: executing intellectually disabled individuals is unlawful under both the state and federal constitutions.¹ In my 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.

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 Tenn. Pub. Acts 730 (codified as amended at Tenn.Code Ann. § 39–13–203 (2010)).

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

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”).

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 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, 387 S.W.3d 486, 495 (Tenn.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 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, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983))).³

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. SeeTenn.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).

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 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. SeeTenn.Code Ann. §§ 40–30–102(b)(3), 40–30–117(a)(3).

Another question is whether the facts presented here qualify as circumstances 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.”).

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).

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 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 U.S. 637, 644–45, 118 S.Ct. 1618, 140 L.Ed.2d 849 (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.”).

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. SeeTenn.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 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.

B.

In my opinion, Tennessee Code Annotated section 40–30–117(a)(2) can be reasonablyinterpreted 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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 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).

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.

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, 122 S.Ct. 2428, 153 L.Ed.2d 556 (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, 123 S.Ct. 732, 154 L.Ed.2d 588 (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

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., 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.”).

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. ⁹Tenn.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.”).

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.

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 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,” see28 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 petitions ¹⁰ 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 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).

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).

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, 112 S.Ct. 2514, 120 L.Ed.2d 269 (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 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 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 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. 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”).

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 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.