IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 3, 2014

VINCENT SIMS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. P25898 Chris Craft, Judge

No. W2014-00166-CCA-R3-PD - Filed December 23, 2014

The Petitioner, Vincent Sims, appeals from the denial of his petition for writ of error coram

nobis, in which he claimed he is intellectually disabled and, therefore, ineligible for the death

penalty. On appeal, the Petitioner contends that the trial court erred in denying his petition

for writ of error coram nobis and his stand-alone claim under the intellectual disability

provisions in Tennessee Code Annotated section 39-13-203. We affirm the judgment of the

trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT L. HOLLOWAY,JR.,J., delivered the opinion of the Court, in which ALAN E. GLENN

and ROBERT W. WEDEMEYER, JJ., joined.

Robert L. Hutton, Memphis, Tennessee, for the appellant, Vincent Sims.

Robert E. Cooper,Jr., Attorney General & Reporter;James E. Gaylord, Senior Counsel; Amy

P. Weirich, District Attorney General; and Stephen Jones, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

In May 1998, the Petitioner was convicted of especially aggravated burglary and first

degree premeditated murder in connection with the shooting death of Forrest Smith. The

Petitioner received consecutive sentences of 25 years for especially aggravated burglary and

death for first degree murder. The jury found four aggravating circumstances in sentencing

the Petitioner to death: (1) the Petitioner was previously convicted of one or more felonies

with statutory elements that involve the use of violence against the person; (2) the murder
was especially heinous, atrocious, or cruel; (3) the murder was committed for the purpose of

avoiding, interfering with, or preventing a lawful arrest or prosecution of the Petitioner or

another; and (4) the murder was committed during the commission of a burglary or theft. See

Tenn. Code Ann. § 39-13-204(i)(2), (5), (6), (7) (1997). The Tennessee Supreme Court

affirmed the Petitioner’s convictions and sentences on direct appeal. See State v. Sims, 45

S.W.3d 1, 5 (Tenn. 2001).

The evidence presented at trial was summarized by the Tennessee Supreme Court in

its opinion on direct appeal as follows:

On April 5, 1996, Forrest Smith arrived home from work around 10:00

p.m. He found the [Petitioner], Vincent Sims, and Sims’s cousin, Brian

Mitchell, in the process of burglarizing his home. Mitchell testified that Sims

had called him earlier in the evening asking for help in moving a big screen

television from a house Sims had burglarized. Sims picked up Mitchell in a

borrowed Toyota Camry belonging to Sims’s girlfriend. They drove to

Smith’s house, parked the car under the carport, and loaded the big screen

television in the trunk. Sims and Mitchell were in the house disconnecting a

computer when Smith arrived. Smith parked his Jeep in the driveway to block

the other vehicle’s exit. When Smith entered the house, Sims and Mitchell ran

outside but were unable to get the Camry out of the driveway. Sims went back

into the house while Mitchell remained outside.

Mitchell testified that he heard Sims yelling at Smith to give Sims the

keys to the Jeep. Mitchell then heard eight or nine gunshots fired inside the

house. Sims returned carrying Smith’s .380 caliber chrome pistol and the keys

to the Jeep. Sims was holding his side and told Mitchell that he had been shot.

Sims threw Mitchell the keys to move the Jeep, and the two fled the scene in

the Camry. Mitchell testified that Sims told him that Sims and Smith had

fought over the .380 caliber pistol and that Sims had shot Smith. Sims told

Mitchell that Sims had to kill Smith because Smith had seen Sims’s face. Sims

instructed Mitchell not to talk to anyone about what had happened and later

threatened Mitchell’s life after they were in custody.

Smith’s girlfriend, Patricia Henson, arrived at the home shortly after the

shooting, sometime between 10:00 and 10:30 p.m. Smith was lying on the

kitchen floor in a pool of blood, but he was conscious and asked Henson to call

911. When asked what had happened, Smith was able to tell Henson and

Officer Donald Crowe that there had been a robbery and that Smith had been

shot in the head. Officer Crowe testified that Smith was bleeding from several

parts of his body, appeared to have been shot more than once, and was in

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severe pain. After receiving treatment by paramedics on the scene, Smith was

transported to the hospital. He died approximately four and a half hours later.

In the meantime, Sims took Mitchell home and picked up Sims’s

girlfriend, Tiffany Maxwell, from work after she clocked out at 11:05 p.m.

Maxwell testified that Sims was visibly upset and had blood on his shirt. Upon

inquiry, Sims told her that someone had attempted to rob him. Maxwell also

noticed that he had a “deep scar” injury on his side, which she treated herself

after Sims refused to go to the hospital. The following morning, Sims and

Maxwell took Maxwell’s car to be washed and detailed. Maxwell then noticed

that the license plate frame on her car was broken. Sims and Maxwell attended

an Easter Sunday church service the next morning. According to Maxwell,

Sims behaved normally with nothing unusual occurring until the following

Tuesday when Sims was arrested at Maxwell’s place of employment.

After Sims and Mitchell were in custody, Sims gave Mitchell a letter to

deliver to Mitchell’s attorney. In that letter, Sims recalled the events

surrounding the burglary and murder. Sims alleged that Smith had fired at

Sims and Mitchell as they fled the house. Mitchell testified that this portion

of the letter was untrue. Mitchell maintained that no shots were fired until

Sims went back inside the house to get Smith’s keys to the Jeep. Sims also

contended in the letter that Smith was accidentally shot in the head while the

two struggled over the .380 caliber pistol.

Significantly, however, the bullet removed from Smith’s brain was a .22

caliber bullet. The police also recovered fragments from three or four .22

caliber bullets at the scene. Mitchell testified that he had seen Sims with a

long barrel .22 caliber revolver with a brown handle earlier in the evening.

Although Mitchell did not see Sims with the revolver during the burglary, he

did see something protruding under Sims’s shirt. In addition to the .22 caliber

bullets, the police found a bullet fragment from a probable .380 caliber bullet

and five fired .380 caliber cartridge cases at the scene. Officers also recovered

from Smith’s carport a beeper that was later identified as belonging to Sims

and the broken license plate frame from Maxwell’s car.

Forensic pathologist Wendy Gunther performed the autopsy on Smith.

She testified that Smith suffered a gunshot entry and exit wound to his head.

Part of the bullet entered Smith’s brain and lodged in his skull above his right

eye, and the other piece exited in front of his right ear. Smith also suffered

multiple blows to his head, neck, shoulders, arms, sides, back, and buttocks.

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The bruising indicated that Smith had been struck with a long, narrow,

rod-shaped object at least a quarter inch wide. Dr. Gunther estimated that

Smith had been struck at least ten times but probably many more. She stated

that the blows were very hard as evidenced by the immediate bruising on

Smith’s body. Smith suffered at least six blows to his head, one of which

fractured his skull at the back of his head. Dr. Steven Symes, a forensic

anthropologist, opined that this head injury was inflicted after the gunshot

wound to Smith’s head. Although the gunshot wound to the head was the

worst injury and would by itself have caused death, Dr. Gunther testified that

the cause of death was a combination of all of the injuries.

Based upon the above evidence, the jury convicted Sims of especially

aggravated burglary and first degree premeditated murder. Trial then

proceeded to the penalty stage. The State presented evidence through Jennifer

Gadd, an employee with the Criminal Court Clerk’s Office, that Sims had two

prior convictions for aggravated assault. The State also submitted all evidence

from the guilt phase in support of its position in the penalty phase.

The defense presented five mitigation witnesses, Sims’s mother, father,

brother, and two aunts. These family members testified that Sims was a good

child who never got into trouble untilsometime in his teens. They also testified

that Sims had close relationships with his family. One of his aunts, Mary

Gardner, worked at the Shelby County Correctional Facility and testified that

Sims was a model prisoner while incarcerated there. On cross-examination the

State was allowed to question the mitigation witnesses regarding Sims’s prior

convictions for theft in 1990, aggravated assault in 1991, and aggravated

burglary in 1993.

Sims, 45 S.W.3d at 5-7.

POST-CONVICTION PROCEEDINGS

On November 15, 2001, the Petitioner filed a pro se petition for post-conviction relief.

Following the appointment of counsel, the Petitioner filed an amended petition on August

8, 2002. The Petitioner did not raise a claim regarding intellectual disability.

In preparation for the post-conviction proceedings, Dr. Pamela Auble, a clinical

neuropsychologist, evaluated the Petitioner in July 2002 and April 2003 and provided a

report of her findings dated August 20, 2004. Dr. Auble testified regarding her findings

during the post-conviction hearing on September 17, 2004.

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In evaluating the Petitioner, Dr. Auble interviewed him, administered testing, and

reviewed numerous records. These records included the transcript of testimony of other

witnesses during the post-conviction hearing,school records, medical records, the Tennessee

Supreme Court’s opinion on direct appeal, the Petitioner’s pre-sentence report, and a

timeline. In both her report and during her testimony, Dr. Auble discussed the Petitioner’s

family history, medical history, educational history, achievement testing, history of alcohol

and drug abuse, criminal history, and employment history.

Dr. Auble administered the Wechsler Adult Intelligence Scale-III test (WAIS-III) to

the Petitioner. The Petitioner received a verbal I.Q. score of 72, a performance I.Q. score of

81, and a full scale I.Q. score of 75. In her report, Dr. Auble stated:

Mr. Sims’s Full Scale IQ of 75 would not meet current

legal criteria for [intellectual disability] as defined by the

Tennessee statute on [intellectual disability] (TCA 39-13-203).

The Diagnostic and Statistical Manual of Mental Disorders

(Fourth Edition, Text Revision) states that mild [intellectual

disability] can be diagnosed with Full Scale Wechsler IQ’s as

high as 75 if there are concurrent adaptive deficits because there

is a measurement error of five points on the scale. From the

DSM-IV, deficits in at least two of ten areas of adaptive

functioning are required (communication,self-care, home living,

social/interpersonal skills, use of community resources, selfdirection, functional academic skills, work, leisure, health and

safety). Mr. Sims’ language deficits, his impaired verbal

memory, his limited verbal knowledge and reasoning, and his

mental rigidity raise the possibility of deficits in several of these

areas (for example, communication, social/interpersonal, selfdirection).

During the post-conviction hearing, Dr. Auble also testified that the standard for intellectual

disability pursuant to Tennessee statute differed from the standard set forth in other sources.

The Petitioner was also evaluated by Dr. George Woods, a neuropsychiatrist. Dr.

Woods interviewed the Petitioner, administered testing, and reviewed many of the same

records reviewed by Dr. Auble. Dr. Woods did not administer I.Q. testing but relied upon

the results obtained by Dr. Auble.

Dr. Woods testified during post-conviction proceedings on September 17 and

November 5, 2004. He stated that although the Petitioner’s I.Q. score of 75 did not meet the

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legal standards of intellectual disability, the score fell within the range of intellectual

disability set forth by the American Association of Mental Retardation and the Diagnostic

and Statistical Manual. Dr. Woods also stated that the Petitioner had brain impairments that

were “greater than what a 75 IQ could predict.”

On October 1, 2008, the post-conviction court entered an order denying postconviction relief. This Court affirmed the post-conviction court’s judgment on appeal. See

Vincent Sims v. State, No. W2008-02823-CCA-R3-PD, 2011 WL 334285, at *1 (Tenn.

Crim. App., Jan. 28, 2011), perm. app. denied (Tenn. Aug. 31, 2011).

INTELLECTUAL DISABILITY PROCEEDINGS

On April 9, 2012, the Petitioner filed a motion to reopen post-conviction proceedings,

alleging that he is intellectually disabled and, therefore, ineligible for the death penalty. The

Petitioner contended that the Tennessee Supreme Court’s decision in Coleman v. State, 341

S.W.3d 221 (Tenn. 2011), established a new constitutional right that was not recognized at

the time of his trial. He further contended that he had new scientific evidence that he is

intellectually disabled and, therefore, actually innocent of capital murder and the death

penalty.

The Petitioner attached to his motion an affidavit from Dr. Auble dated April 5, 2012.

Dr. Auble stated that she performed a neuropsychological evaluation on the Petitioner in

2002 and 2003. She said that in evaluating the Petitioner, she considered the results of

testing that she administered, testimony from the post-conviction hearing, medical records,

school records, the Tennessee Supreme Court’s opinion on direct appeal, the Petitioner’s

pre-sentence report, and a timeline. Dr. Auble stated that at the time she conducted the

evaluation, she understood that Tennessee courts required a raw test score of 70 or below

before an expert could opine that an individual had significantly subaverage general

intellectual functioning as provided in Tennessee Code Annotated section 39-13-203(a)(1).

Dr. Auble quoted from her 2004 report in which she stated the Petitioner’s full scale

I.Q. score of 75 on the WAIS-III would not meet the current legal criteria for intellectual

disability as defined by Tennessee statute and the DSM-IV provided that intellectual

disability could be diagnosed with a full scale score of 75 on the Wechsler tests because there

is a measurement error of five points on the scale. Dr. Auble said that she understood that

the Tennessee Supreme Court abandoned the “bright line requirements” of a raw test I.Q.

score of 70 or below in Coleman. As a result, she re-analyzed the information that she had

available in 2004 and supplemented it with additional information that she obtained in

examining the Petitioner’s adaptive deficits.

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Dr. Auble adjusted the Petitioner’s I.Q. score of 75 based upon the Flynn Effect and

the errors in the normative sample on the WAIS-III. These adjustments resulted in a full

scale I.Q. of 70.26. She also considered the five-point measurement error on the WAIS-III.

Dr. Auble noted that the 95% confidence interval for an I.Q. test score of 70 would be 67-75

and that the 95% confidence interval for an I.Q. test score of 71 would be 68-76. Dr. Auble

stated that intellectual disability can be diagnosed with intelligence test scores that are above

70 if the range of error of the test includes an I.Q. of 70 or below, and there is corollary

evidence of other impairments in intelligent or adaptive functioning. She noted that in the

Petitioner’s case, there is evidence of significant adaptive deficits and significant deficits on

tests measuring intelligent functioning. As a result, Dr. Auble opined that the Petitioner has

significant subaverage general intellectual functioning as evidenced by a functional I.Q. of

70 or below and meets the first prong of intellectual disability set forth in the Tennessee

statute.

Dr. Auble stated that in 2004, she did not conduct a formal evaluation of adaptive

behavior deficits. She administered the Independent Living Scale to the Petitioner on March

19, 2012. Dr. Auble determined that the Petitioner had significant adaptive deficits under

the DSM-IV criteria in the areas of communication,social/interpersonalskills,self-direction,

and functional academic skills. She found that the Petitioner had mild impairments in home

living, work, and health and safety. Dr. Auble determined that the Petitioner had significant

adaptive deficits under the AAIDD criteria in the conceptual and social domains. She further

determined that the Petitioner’s intellectual impairments have been present since early

childhood. Accordingly, Dr. Auble concluded the Petitioner met the criteria for intellectual

disability provided in the Tennessee statute.

On December 20, 2012, the Tennessee Supreme Court released its opinion in Keen

v. State, 398 S.W.3d 594 (Tenn. 2012), in which the court rejected the basis upon which the

Petitioner sought to reopen his post-conviction proceedings. On December 27, 2012, the

Petitioner amended his motion to include a petition for writ of error coram nobis and an

independent claim of relief under Tennessee’s intellectual disability statute. The State filed

a response seeking summary dismissal.

Based upon the pleadings, the trial court entered an order denying relief. The trial

court found that the basis upon which the Petitioner sought to reopen his post-conviction

petition were precluded by Keen. With regard to the Petitioner’s petition for writ of error

coram nobis, the trial court found that the evidence presented in Dr. Auble’s report was

cumulative to the evidence presented by Dr. Auble and Dr. Woods during post-conviction

proceedings. The trial court noted that Dr. Auble and Dr. Woods testified regarding the

clinical practice of applying the standard error of measurement and the Flynn Effect and

provided an opinion regarding the effect that the application of these practices might have

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on their assessments of the Petitioner’s overall functioning. The trial court found that based

upon their testimony, it is clear that the standard error of measurement and the Flynn Effect

were part of the “neuropsychological parlance and practice” at the time of the post-conviction

hearing. The trial court noted both experts expressed an opinion regarding the Petitioner’s

I.Q. in light of these factors and an opinion indicating that the Petitioner likely suffered from

adaptive deficits.

The trial court found that although it did not appear that specific testing for adaptive

deficits was conducted to verify the doctors’ conclusions, the Petitioner and post-conviction

counsel were aware that such deficits likely existed and chose not to pursue further testing

to confirm the presence of the deficits. The trial court further found that the evidence which

the Petitioner claims demonstrates his intellectual disability was available to counsel at the

time of his post-conviction hearing. The trial court concluded that the Petitioner was not

entitled to relief based upon newly discovered evidence because the evidence was not “newly

discovered.”

The trial court also found the Petitioner’s claim was barred by the one-year statute of

limitations. The trial court noted that the information related to the potential issue of

intellectual disability had been available for many years. The trial court further noted that

“[m]erely having an expert re-evaluate previous testing or conduct additional testing when

previous evaluations had been done in the past does not satisfy the criteria for tolling the

statute.”

The Petitioner filed a notice of appeal of the denial of his coram nobis petition and

claim for relief under the Tennessee intellectual disability statute, pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure. He also filed an application for permission to

appeal the trial court’s denial of his motion to reopen his post-conviction petition, pursuant

to Supreme Court Rule 28. On February 5, 2014, this Court entered an order denying the

Petitioner’s application for permission to appeal, concluding that the claims in his motion to

reopen were precluded by Keen. See Vincent Sims v. State, No. W2013-02594-CCA-R28-

PD (Tenn. Crim. App. Feb. 5, 2014) (order). The Tennessee Supreme Court denied the

Petitioner’s application for permission to appeal on May 28, 2014. This current appeal

concerns the trial court’s denial of coram nobis relief and the Petitioner’s claim under

Tennessee’s intellectual disability statute.

ANALYSIS

The Petitioner contends that the trial court erred in denying his petition for writ of

error coram nobis in which he claimed he is intellectually disabled and, therefore, ineligible

for the death penalty. He also contends he should be allowed to directly invoke the

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provisions of Tennessee Code Annotated section 39-13-203 to establish that he is

intellectually disabled.

A. Intellectual Disability and the Death Penalty

Enacted in 1990, Tennessee Code Annotated section 39-13-203 prohibits the

execution of defendants who were intellectually disabled at the time that they committed first

degree murder. See Tenn. Code Ann. § 39-13-203(b); State v. Howell, 151 S.W.3d 450, 455

(Tenn. 2004); State v. Van Tran, 66 S.W.3d 790 (Tenn. 2001). Although the statute is not

to be applied retroactively, the execution of intellectually disabled individuals violates

constitutional prohibitions against cruel and unusual punishment. Howell, 151 S.W.3d at 455

(citing Van Tran, 66 S.W.3d at 798-99); see Atkins v. Virginia, 536 U.S. 304, 321 (2002).

In Tennessee, “intellectual disability” rendering a defendant ineligible for the death

penalty requires:

(1) Significantly subaverage general intellectual functioning as

evidenced by a functional intelligent quotient (I.Q.) of seventy

(70) or below;

(2) Deficits in adaptive behavior; and

(3) The intellectual disability must have manifested during the

developmental period, or by eighteen (18) years of age.

Tenn. Code Ann. § 39-13-203(a). All three prongs must be satisfied to establish intellectual

disability.

The defendant hasthe burden of establishing intellectual disability by a preponderance

of the evidence. See Tenn Code Ann. § 39-13-203(c); Howell, 151 S.W.3d at 465. The issue

of whether a defendant is intellectually disabled and, thus, ineligible for the death penalty is

a mixed question of law and fact. State v. Strode, 232 S.W.3d 1, 8 (Tenn. 2007). A trial

court’s findings of fact are binding on this Court unless the evidence preponderates against

those findings. Id. The trial court’s application of the law to those facts is reviewed de novo.

Id.

The first prong of intellectual disability under section 39-13-203(a)(1) requires

“[s]ignificantly subaverage general intellectual functioning as evidenced by a functional

intelligent quotient (I.Q.) of seventy (70) or below.” In applying this provision, the

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Tennessee Supreme Court held in Howell that the demarcation of an I.Q. of 70 was a

“bright-line” rule that must be met. Howell, 151 S.W.3d at 456-59. Following Howell, the

Tennessee Supreme Court released its opinion in Coleman v. State, 341 S.W.3d 221, 241

(Tenn. 2011), holding that although an individual’s I.Q. is generally obtained through

standardized intelligence tests, section 39-13-203 does not provide clear direction regarding

how an I.Q. should be determined and does not specify any particular test or testing method

that should be utilized. The court noted section 39-13-203(a)(1) requires a “functional

intelligence quotient ofseventy (70) or below” and does not require a “functional intelligence

quotient test score of seventy (70) or below.” Coleman, 341 S.W.3d at 241 (emphasis in

original). Therefore, “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.” Id.

Our supreme court noted that section 39-13-203(a)(1) differs with clinical practice in

one material respect. Id. at 247. In diagnosing intellectual disability, clinicians generally

report their conclusions regarding an individual’s I.Q. within a range, whereas section

39-13-201(a)(1) requires more definite testimony. Id. As a result, “an expert’s opinion

regarding a criminal defendant’s I.Q. cannot be expressed within a range (i.e., that the

defendant’s I.Q. falls somewhere between 65 to 75) but must be expressed specifically (i.e.,

that the defendant’s I.Q. is 75 or is ‘seventy (70) or below’ or is above 70).” Id. at 242.

In determining whether a defendant’s functional I.Q. is 70 or below, “a trial court

should consider all evidence that is admissible under the rules for expert testimony.” Keen,

398 S.W.3d at 605. Experts may use relevant and reliable practices, methods, standards, and

data in formulating their opinions. Coleman, 341 S.W.3d at 242. Moreover,

if 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.

Id. at n.55. The emphasis to be placed upon clinical judgment varies depending upon “the

type and amount of information available, the complexity of the issue, and the presence of

one or more challenging conditions or situations.” Id. at 246. The trial court is not required

to follow any particular expert’s opinion but must fully and fairly consider all evidence

presented, including the results of all I.Q. tests administered to the defendant. Id. at 242.

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Following Coleman, the Tennessee Supreme Court released its opinion in Keen v.

State, 398 S.W.3d 594 (Tenn. 2012), addressing the issue of whether a capital petitioner may

allege intellectual disability as a basis for reopening post-conviction proceedings. The

petitioner in Keen sought to reopen post-conviction proceedings on the ground that he

possessed new scientific evidence of actual innocence. Keen, 398 S.W.3d at 598. The

evidence consisted of a newly-obtained I.Q. score of 67, which the petitioner claimed

established he was intellectually disabled and, therefore, “‘actually innocent’ of the offense

of first degree murder.” Id. The petitioner also asserted that Coleman established a new rule

of constitutional criminal law that required retroactive application. Id. at 599. The

Tennessee Supreme Court rejected both of the basis upon which the petitioner sought to

reopen post-conviction proceedings. The court specifically held that Coleman addressed the

interpretation and application of Tennessee Code Annotated section 39-13-203 and was not

a constitutional ruling. Id. at 609. The court further held that “a claim alleging ineligibility

for the death penalty does not qualify as an actual innocence claim.” Id. at 613. While

remaining “committed to the principle that Tennessee has no business executing persons who

are intellectually disabled,” the court held that the petitioner failed to meet the requirements

for reopening post-conviction proceedings. Id.

In addressing its holdings in Howell and Coleman, the court noted:

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 thislanguage 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. 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.

Id. at 603 (citations omitted) (emphasis in original). The petitioner requested that the court

remand his case for a new hearing on the issue of intellectual disability, just as the court had

done in Coleman and in Smith v. State. See Smith v. State, 357 S.W.3d 322, 354-55 (Tenn.

2011); Coleman, 341 S.W.3d at 252-53. The court in Keen, however, rejected the

petitioner’s contention, noting that Coleman and Smith took advantage of the one-year

window for reopening their petitions following the recognition of the constitutional

prohibition against executing intellectually disabled defendants in Van Tran and Atkins.

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Keen, 398 S.W.3d at 613. The petitioner in Keen failed to avail himself of that opportunity.

Id.

B. Writ of Error Coram Nobis

A writ of error coram nobis is an “extraordinary procedural remedy,” filling only a

“slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999)

(citation omitted). Tennessee Code Annotated section 40-26-105(b) provides that coram

nobis relief is available in criminal cases as follows:

The relief obtainable by this proceeding shall be confined to

errors dehors the record and to matters that were not or could

not have been litigated on the trial of the case, on a motion for

a new trial, on appeal in the nature of a writ of error, on writ of

error, or in a habeas corpus proceeding. Upon a showing by the

defendant that the defendant was without fault in failing to

present certain evidence at the proper time, a writ of error coram

nobis will lie for subsequently or newly discovered evidence

relating to matters which were litigated at the trial if the judge

determines that such evidence may have resulted in a different

judgment, had it been presented at the trial.

Unlike the grounds for reopening a post-conviction petition, the grounds for seeking

a petition for writ of error coram nobis are not limited to specific categories. Harris v. State,

102 S.W.3d 587, 592 (Tenn. 2003). Coram nobis claims may be based upon any “newly

discovered evidence relating to matters litigated at the trial” so long as the petitioner

establishes that he or she was “without fault” in failing to present the evidence at the proper

time. Id. Coram nobis claims are “singularly fact-intensive,” are not easily resolved on the

face of the petition, and often require a hearing. Id. at 592-93. In a coram nobis proceeding,

the trial judge must first consider the newly discovered evidence and be “reasonably well

satisfied” with its veracity. State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). If the

defendant is “without fault” in the sense that the exercise of reasonable diligence would not

have led to a timely discovery of the new information, the trial judge must then consider both

the evidence at trial and that offered at the coram nobis proceeding in order to determine

whether the new evidence may have led to a different result. Id. The decision to grant or

deny coram nobis relief rests within the sound discretion of the trial court. Id. at 527-28.

The State asserts that the Petitioner’s claim is barred by the statute of limitations.

Coram nobis claims are subject to a one-year statute of limitations. Tenn. Code Ann. § 27-7-

103. The statute of limitations is computed “from the date the judgment of the trial court

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becomes final, either thirty days after its entry in the trial court if no post-trial motions are

filed or upon entry of an order disposing of a timely filed, post-trial motion.” Harris v. State,

301 S.W.3d 141, 144 (Tenn. 2010). The issue of whether a claim is barred by an applicable

statute of limitations is a question of law, which this Court reviews de novo. See id. We

must construe the coram nobis statute of limitations “consistent with the longstanding rule

that persons seeking relief under the writ must exercise due diligence in presenting the

claim.” Id.

The one-year statute of limitations may be tolled on due process grounds if the

petitioner seeks relief based upon newly discovered evidence of actual innocence. Wilson

v. State, 367 S.W.3d 229, 234 (Tenn. 2012). In determining whether tolling is proper, the

court must balance the petitioner’s interest in having a hearing with the State’s interest in

preventing a claim that is stale and groundless. Harris, 301 S.W.3d at 145 (citing Workman

v. State, 41 S.W.3d 100, 102 (Tenn. 2001)). Generally, “before a state may terminate a claim

for failure to comply with . . . statutes of limitations, due process requires that potential

litigants be provided an opportunity for the presentation of claims at a meaningful time and

in a meaningful manner.” Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992). The Burford

rule consists of three steps:

(1) determine when the limitations period would normally have

begun to run; (2) determine whether the grounds for relief

actually arose after the limitations period would normally have

commenced; and (3) if the grounds are “later-arising,” determine

if, under the facts of the case, a strict application of the

limitations period would effectively deny the petitioner a

reasonable opportunity to present the claim.

Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995).

In this case, the limitations period would have begun to run 30 days after the entry of

the order denying the Petitioner’s motion for new trial from his 1998 convictions. The

statute of limitations would have expired in 1999. Clearly, the petition was untimely, filed

approximately 13 years later in on December 27, 2012.

The Petitioner contends, however, that he is entitled to due process tolling. He asserts

that Dr. Auble’s report is “newly available” evidence or evidence that did not become

available for presentation until after the trial concluded. While the Petitioner acknowledges

that his intellectual disability existed before trial, he argues that circumstances beyond his

control prevented him from presenting such evidence. He submits that his intellectual

disability first became available for presentation following our supreme court’s opinion in

Coleman.

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Generally, to qualify as newly discovered evidence, the evidence must not have been

known to the defendant at the time of trial. Wlodarz v. State, 361 S.W.3d 490, 506 (Tenn.

2012). However, a narrow exception exists where “‘although not newly discovered evidence,

in the usual sense of the term,’” the “‘availability’” of the evidence “‘is newly discovered.’”

Harris, 301 S.W.3d at 160-61 (Koch, J., concurring) (quoting Taylor v. State, 171 S.W.2d

403, 405 (Tenn. 1943)); see David G. Housler, Jr. v. State, No. M2010-02183-CCA-R3-PC,

2013 WL 5232344, at *44 (Tenn. Crim. App. Sept. 17, 2013).

Courts have applied this narrow exception where previously unavailable evidence

became available following a change in factual circumstances. See, e.g., Taylor, 171 S.W.2d

at 405 (applying the exception when at the time of trial, one witness was hospitalized and one

witness was working outside the state, and they later became available to testify); Misty Jane

Brunelle v. State, No. E2010-00662-CCA-R3-PC, 2011 WL 2436545, at *10 (Tenn. Crim.

App. June 16, 2011), perm. app. denied (Tenn. Oct. 18, 2011) (noting that the petitioner

should have sought coram nobis relief when a DCS report that was known to the petitioner

but sealed at the time of trial later became available). Many of these cases involve testimony

of a co-defendant or a witness who previously refused to testify by asserting the

constitutional privilege againstself-incrimination. See, e.g., David G. Housler,Jr., 2013 WL

5232344, at *44; United States v. Guillette, 404 F.Supp. 1360, 1372-74 (D. Conn. 1975);

Brantley v. State, 912 So.2d 342, 343 (Fla. App. 2005); State v. Williams, 246 So.2d 4, 6 (La.

1971); Commonwealth v. Brown, 431 A.2d 343, 344 (Pa. Super. Ct. 1981); State v. Gerdes,

258 N.W.2d 839, 843 (S.D. 1977).

The Petitioner has failed to cite to any authority applying this narrow unavailability

exception based upon a change in the law. Issues regarding whether a change in the law

should apply post-trial relate to retroactivity and are more properly addressed in postconviction proceedings or a motion to reopen post-conviction proceedings. Even if the

unavailability exception applies to a change in law, the Petitioner is not entitled to relief.

The Petitioner argues that following Howell and prior to Coleman, courts only could

consider raw I.Q. scores in determining intellectual disability pursuant to Tennessee Code

Annotated section 39-13-203(a)(1). We note that the Tennessee Supreme Court’s opinion

in Howell was released on November 16, 2004. Dr. Auble’s initial report was dated August

20, 2004, and she testified during post-conviction proceedings on September 17, 2004. Dr.

Woods testified on September 17 and November 5, 2004. Thus, Dr. Auble and Dr. Woods

reached their opinion regarding the issue of intellectual disability prior to the release of

Howell. Accordingly, the Petitioner cannot rely upon the holding in Howell in claiming that

his mental health experts were limited in the information that they could consider in

determining whether the Petitioner is intellectually disabled.

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Moreover, the Tennessee Supreme Court in Keen stated that Howell did not provide

for such a limitation. Keen, 398 S.W.3d at 603. Rather, the court in Howell instructed trial

courts to “‘giv[e] full and fair consideration to all tests administered to the petitioner’” and

to “‘fully analyz[e] and consider[] all evidence presented’” concerning the petitioner’s I.Q.

Id. (quoting Howell, 151 S.W.3d at 459).

The Tennessee Supreme Court noted in Coleman that its review of all cases involving

the application of section 39-13-203 reflected that “the parties and the courts have not been

limiting their consideration of whether a criminal defendant has a ‘functional intelligence

quotient of seventy (70) of below’ to the defendant’s raw I.Q. test scores.” Coleman, 341

S.W.3d at 247. The court explained:

For example, in Cribbs v. State, both the State and Mr.

Cribbs presented evidence that his raw I.Q. test scores did not

accurately reflect his actual I.Q. On behalf of the State, Dr.

Wyatt Nichols stated that Mr. Cribbs’s intellectual level was

actually higher than the I.Q. test score of 73 and was “[m]ore

like the mid to high 80s.” Cribbs v. State, 2009 WL 1905454,

at *22, 32. Dr. Pamela Auble, appearing for Mr. Cribbs, stated

in her initial report that his I.Q. was between 71 and 84. Cribbs

v. State, 2009 WL 1905454, at *17. However, Dr. Auble later

revised her opinion based on information obtained after her first

report and concluded that Mr. Cribbs’s I.Q. was below seventy.

Cribbs v. State, 2009 WL 1905454, at *17. Based on all the

evidence, the trial court concluded that the I.Q. test that

produced the score of 73 was the most reliable. The trial court

found that Dr. Auble’s explanation for the change in her opinion

was not credible and that Dr. Nichols’s testimony was

persuasive. Cribbs v. State, 2009 WL 1905454, at *32.

The consideration of I.Q. test scores in Cribbs v. State is

but one example of cases in which the State has argued and

presented evidence that scores on I.Q. tests should not be

considered on their face value. See also State v. Strode, 232

S.W.3d at 5 (the State presented evidence challenging the score

on the basis that the defendant had been malingering); Smith v.

State, 2010 WL 3638033, at *30 (the State presented evidence

that the defendant’s I.Q. test score should be discounted because

of malingering); Van Tran v. State, 2006 WL 3327828, at 4-6

(the State argued that the Vietnamese-born defendant’s low I.Q.

test score reflected cultural and linguistic bias).

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Id. The Tennessee Supreme Court concluded that these cases reflected “the parties’ and the

courts’ existing awareness that, as a practical matter, a criminal defendant’s ‘functional

intelligence quotient’ cannot be ascertained based only on raw I.Q. scores.” Id. The court

further concluded that the cases also reflected “the parties’ conclusion that Tenn. Code Ann.

§ 39-13-203(a) does not prevent them from presenting relevant and competent evidence,

other than the defendant’s raw I.Q. test scores, either to prove or to disprove that the

defendant’s ‘functional intelligence quotient’ when the crime was committed was ‘seventy

(70) or below.’” Id. at 247-48.

The Petitioner asserts that this Court has recognized that the legal standard for

establishing intellectual disability following Coleman is different from the legal standard

prior to Coleman. This Court, however, has rejected this argument. See Dennis Wade

Suttles v. State, No. E2013-01016-CCA-R3-PD, 2014 WL 2902271, at *16-17 (Tenn. Crim.

App.June 25, 2014). Rather, the Tennessee Supreme Court specifically held in Keen that

Howell did not limit a court’s determination of a defendant’s I.Q. to raw I.Q. scores, and this

holding in Keen controls.

We note that recently in Hall v. Florida, 134 S.Ct. 1986 (2014), the United States

Supreme Court held that Florida courts’ interpretation of the significantly subaverage

intellectual functioning provision in Florida’s intellectual disability statute is

unconstitutional. Florida courts interpreted the statute as requiring a strict I.Q. raw test score

of 70 without consideration of the standard error of measurement. Hall, 134 S.Ct. at 1992.

The Supreme Court agreed “with medical experts that when a defendant’s I.Q. testscore falls

within the test’s acknowledged and inherent margin of error, the defendant must be able to

present additional evidence of intellectual disability, including testimony regarding adaptive

deficits.” Id. at 2001. Unlike the defendant in Hall, however, the Petitioner has not been

precluded during his original trial or during post-conviction proceedings from presenting

evidence, other than his raw I.Q. test scores, to establish that his “functional intelligence

quotient” when he committed the murder was 70 or below.

Contrary to the Petitioner’s claims, the information in Dr. Auble’s affidavit was

available for presentation prior to Coleman. Nothing prevented the Petitioner from

presenting during post-conviction proceedings relevant and competent evidence, other than

his raw I.Q. test scores, to prove that his “functional intelligence quotient” when the crime

was committed was “seventy (70) or below.”

Almost eight years after Dr. Auble testified, the Petitioner filed his petition seeking

to present testimony from the same expert. The information upon which Dr. Auble relied

was available to the Petitioner at the time of the trial and the post-conviction hearing. Dr.

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Auble relied upon the results of the I.Q. test she administered to the Petitioner in preparation

of post-conviction proceedings. Nothing prevented Dr. Auble from administering the

Independent Living Scale to the Petitioner prior to the post-conviction proceedings. The new

testing in 2012 is merely cumulative to the evidence previously available to the Petitioner.

See Wlodarz, 361 S.W.3d at 499 (noting that newly discovered evidence that is merely

cumulative does not warrant the issuance of a writ). Because the Petitioner’s claim could

have been litigated at trial or during post-conviction proceedings, the grounds are not “laterarising” and do not justify the tolling of the one-year statute of limitations. See Tenn. Code

Ann. § 40-26-105(b) (confining coram nobis relief to “matters that were not or could not

have been litigated on the trial of the case, on a motion for a new trial, on appeal in the nature

of a writ of error, on writ of error, or in a habeas corpus proceeding” and requiring the

defendant to show that he was without fault in failing to present the evidence at the proper

time).

Even if Coleman provided new grounds for relief, the Petitioner did not file his

petition for writ of error coram nobis until 20 months following the issuance of Coleman.

The Petitioner asserts that the coram nobis petition should relate back to his motion to reopen

his post-conviction petition filed in April 2012. “No statute in Tennessee nor tolling rule

developed at common law provides that the time for filing a cause of action is tolled during

the period in which a litigant pursues a related but independent cause of action.” Harris, 301

S.W.3d at 146. When the Petitioner filed his motion to reopen, he chose not to file a petition

for writ of error coram nobis. It was not until after our supreme court released its opinion

in Keen, rejecting the basis upon which the Petitioner relied in filing his motion to reopen,

that the Petitioner filed a petition for writ of error coram nobis. A petitioner may not delay

presenting a coram nobis claim until “every other avenue of relief ha[s] been exhausted.”

Billy Ray Irick v. State, No. E2010-02385-CCA-R3-PD, 2011 WL 1991671, at *18 (Tenn.

Crim. App.May 23, 2011), perm. app. denied (Tenn. Aug. 25, 2011). Therefore, we

conclude that under the circumstances of this case, the delay in seeking coram nobis relief

is unreasonable.

We hold that the trial court properly found that the instant petition was barred by the

one-year statute of limitations. Accordingly, the Petitioner is not entitled to coram nobis

relief.

C. Intellectual Disability Statute

The Petitioner asserts that the intellectual disability provisions in Tennessee Code

Annotated section 39-13-203 provide an independent cause of action allowing him to

challenge his eligibility for the death penalty. In construing a statute, we must ascertain and

give effect to the legislative intent without unduly restricting or expanding a statute’s

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coverage beyond its intended scope. State v. Strode, 232 S.W.3d 1, 9 (Tenn. 2007). We

must give the words in the statute their natural and ordinary meaning in light of their

statutory context. Keen, 398 S.W.3d at 610. We must avoid any “forced or subtle

construction that would limit or extend the meaning of the language.” Id. (citation omitted).

“If the statutory language is clear and unambiguous, we apply the statute’s plain language

in its normal and accepted use.” Id.

Tennessee Code Annotated section 39-13-203 lists the requirements of intellectual

disability, the burden of proof, and the procedure when the issue is raised at trial. The plain

language of the statute does not create an independent cause of action allowing a defendant

to challenge his or her eligibility for the death penalty. Had the General Assembly intended

to create a separate and independent cause of action in which to allege intellectual disability,

they would have stated so in the statute. See, e.g., Tenn Code Ann. § 40-30-301, et. al.

(creating a cause of action to allow certain defendants to request DNA testing of evidence).

The Petitioner is not entitled to relief with regard to this issue.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

_________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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