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Case No. 17-6390

File Name: 18a0067n.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

In re: PERVIS T. PAYNE,

Movant.

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O R D E R

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

Pervis Payne, a Tennessee prisoner sentenced to death, moves this court for leave to file a 

successive petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the district court. The 

warden has filed a response opposing his motion. Upon review, we deny Payne’s motion.

In 1988, a Tennessee jury convicted Payne of two counts of first-degree murder and one 

count of assault with intent to commit murder, and the jury sentenced Payne to death. The trial 

court also sentenced Payne to thirty years of imprisonment for the assault with intent to murder 

conviction. The Tennessee Supreme Court affirmed Payne’s convictions and sentences on direct 

appeal. State v. Payne, 791 S.W.2d 10, 21 (Tenn. 1990). The United States Supreme Court 

granted certiorari and concluded that the introduction of victim impact evidence during the 

sentencing phase did not violate Payne’s constitutional rights. Payne v. Tennessee, 501 U.S. 

808, 827 (1991).

In 1992, Payne filed a petition for post-conviction relief in state court and, later that same 

year, Payne also filed a petition for a writ of error coram nobis. The trial court denied Payne’s 

post-conviction and coram nobis petitions in separate orders. The Tennessee Court of Criminal 

Appeals affirmed these decisions, Payne v. State, No. 02C01-9703-CR-00131, 1998 WL 12670 

(Tenn. Ct. Crim. App. Jan. 15, 1998), and the Tennessee Supreme Court denied further review.
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In November 1998, Payne filed a § 2254 petition in the district court, and the court 

dismissed his petition as meritless. Payne v. Bell, 194 F. Supp. 2d 739 (W.D. Tenn. 2002). On 

appeal, this court affirmed that decision. Payne v. Bell, 418 F.3d 644 (6th Cir. 2005).

In April 2007, Payne filed a motion for relief from judgment under Federal Rule of Civil 

Procedure 60(b), alleging that the prosecution was improperly withholding exculpatory evidence 

from him. The district court concluded that Payne’s allegations were not properly raised under 

Rule 60(b), and so denied his motion. On appeal, this court denied him a certificate of 

appealability and dismissed Payne’s case. Payne v. Bell, No. 07-5991 (6th Cir. Aug. 5, 2008) 

(order).

Payne then returned to state court and filed a motion to compel testing of evidence. The 

post-conviction court denied his motion, the Tennessee Court of Criminal Appeals affirmed that 

decision, Payne v. State, No. W2007-01096-CCA-R3-PD, 2007 WL 4258178 (Tenn. Ct. Crim. 

App. Dec. 5, 2007), and the Tennessee Supreme Court denied further review. In 2012, Payne 

filed a motion to reopen his petition for post-conviction relief, arguing that new caselaw 

established that he was intellectually disabled and ineligible for the death penalty. Payne also 

filed a petition for a writ of error coram nobis, raising a similar argument. The trial court denied 

the motion and the petition, and the Tennessee Supreme Court affirmed that decision. Payne v. 

State, 493 S.W.3d 478, 480 (Tenn. 2016). In 2013, Payne filed a complaint seeking declaratory 

judgment, again alleging that he met the criteria for intellectual disability and, therefore, was 

ineligible to be sentenced to death. The trial court dismissed the complaint, the Tennessee Court 

of Appeals affirmed that decision, Payne v. Carpenter, No. M2014-00688-COA-R3-CV, 2016 

WL 4142485 (Tenn. Ct. App. Aug. 2, 2016), and the Tennessee Supreme Court denied further 

review.

In November 2017, Payne filed his current motion with this court, seeking permission to 

file a successive § 2254 petition. In his motion, Payne argues that recent Supreme Court 

decisions in Moore v. Texas, 137 S. Ct. 1039 (2017), and Hall v. Florida, 134 S. Ct. 1986 (2014), 

should be applied retroactively to his case.
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Before a habeas petitioner can file a “second or successive” § 2254 petition, he must 

receive authorization for the filing from the court of appeals. 28 U.S.C. § 2244(b)(3)(A); In re 

Salem, 631 F.3d 809, 812 (6th Cir. 2011). To obtain this authorization, the petitioner must make 

a prima facie showing either that: (1) a new rule of constitutional law applies to his case that the 

Supreme Court has made retroactive to cases on collateral review; or (2) a newly discovered 

factual predicate exists which, if proven, sufficiently establishes that no reasonable factfinder 

would have found the petitioner guilty of the underlying offense but for constitutional error. 

28 U.S.C. §§ 2244(b)(2), 2244(b)(3)(C); Magwood v. Patterson, 561 U.S. 320, 330 (2010).

Payne argues that he is intellectually disabled and, therefore, ineligible for the death 

penalty under the Moore and Hall decisions. In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the 

Supreme Court held that the Eighth Amendment prohibits the execution of individuals who are 

intellectually disabled. The Court left to the States the task of developing appropriate methods 

for enforcing this prohibition. Id. at 317. Under Tennessee Code Annotated § 39-13-203(a), 

Tennessee has defined intellectual disability as follows: “(1) Significantly subaverage general 

intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) 

or below; (2) Deficits in adaptive behavior; and (3) The intellectual disability must have been 

manifested during the developmental period, or by eighteen (18) years of age.” Tennessee’s 

definition mirrors “the generally accepted, uncontroversial intellectual-disability diagnostic 

definition.” See Moore, 137 S. Ct. at 1045; Black v. Carpenter, 866 F.3d 734, 737 (6th Cir. 

2017).

This court has concluded that Atkins applies retroactively. See Hill v. Anderson, 300 F.3d 

679, 681 (6th Cir. 2002). The Supreme Court issued Atkins after the district court dismissed 

Payne’s first § 2254 petition and while his appeal from that decision was pending before this 

court. Nonetheless, Payne did not seek to have the case remanded to the district court in order to 

raise an Atkins claim, nor did he subsequently request permission to file a successive habeas 

petition based on Atkins. Payne’s failure to pursue such a claim is perhaps unsurprising because 

his I.Q. scores over several decades did not appear to demonstrate that he met the first factor for 
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intellectual disability under Tennessee’s statute. On a test taken in 1987, Payne scored an I.Q. of 

78, he scored 78 again on a 1996 test, and the result of his 2010 test was 74.

In Hall, 134 S. Ct. at 2001, the Supreme Court revisited Atkins and concluded that a 

State, in that case Florida, could not impose a strict cutoff I.Q. score of 70 in determining 

whether the petitioner had significantly subaverage general intellectual functioning. Rather, 

consideration must be given to the standard error of measurement, which reflects the imprecise 

nature of the I.Q. test and the fact that an individual’s I.Q. score may fluctuate for a variety of 

reasons. States must “understand that an IQ test score represents a range rather than a fixed 

number.” Id. Therefore, “when a defendant’s IQ test score 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. In Moore, 137 S. Ct. 

at 1048-53, the Court again returned to Atkins and concluded that Texas had improperly relied on 

outdated medical guidelines to determine intellectual disability.

Based on the Court’s holdings in Hall and Moore, Payne argues that he can demonstrate 

that he is intellectually disabled. However, in order to receive authorization to file a successive 

§ 2254 petition, Payne must show that these cases are new rules of constitutional law which the 

Supreme Court has made retroactive to cases on collateral review. See § 2244(b)(2). While new 

constitutional rules of criminal procedure usually will not apply to cases which are final before 

the new rules are announced, Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion), new 

substantive constitutional rules generally do apply retroactively. Id. at 307, 311. Further, new 

“watershed rules of criminal procedure” (rules “implicating the fundamental fairness and 

accuracy of the criminal proceeding”) will have retroactive effect. Welch v. United States, 136 

S. Ct. 1257, 1264 (2016); Montgomery v. Louisiana, 136 S. Ct. 718, 728 (2016); Teague, 489 

U.S. at 311-13. A rule that alters the range of conduct or the class of persons punished is 

substantive rather than procedural. Welch, 136 S. Ct. at 1264-65. The category of substantive 

rules would include a constitutional determination placing particular conduct or persons covered 

by a statute beyond the State’s power to punish. Id. at 1265.
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Even if we assume, without deciding, that Hall and Moore announce new rules of 

constitutional law, Payne has not shown that these decisions apply retroactively. Federal courts 

have repeatedly concluded that Hall and Moore merely created new procedural requirements that 

do not amount to “watershed rules of criminal procedure.” See Williams v. Kelley, 858 F.3d 464, 

474 (8th Cir. 2017) (Moore not retroactive); Goodwin v. Steele, 814 F.3d 901, 904 (8th Cir. 

2014) (Hall not retroactive); Kilgore v. Sec’y, Fla. Dep’t of Corr., 805 F.3d 1301, 1314 (11th 

Cir. 2015) (Hall not retroactive); Lynch v. Hudson, No. 2:07-CV-948, 2017 WL 3404773, at

*2-3 (S.D. Ohio Aug. 9, 2017) (Moore and Hall do not apply retroactively); Smith v. Dunn, 

No. 2:13-CV-00557-RDP, 2017 WL 3116937, at *4-6 (N.D. Ala. July 21, 2017) (Moore and 

Hall do not apply retroactively); Prieto v. Davis, No. 3:13CV849-HEH, 2014 WL 3867554, 

at *41-42 (E.D. Va. Aug. 5, 2014) (Hall not retroactive).

More importantly, Payne fails to show that the Supreme Court has determined that Moore

and Hall apply retroactively. Under § 2244(b)(2), a “new rule is not ‘made retroactive to cases 

on collateral review’ unless the Supreme Court holds it to be retroactive.” Tyler v. Cain, 

533 U.S. 656, 663 (2001). In addition to the Court expressly holding that a new rule is 

retroactive, the Court may make a new rule apply retroactively through multiple holdings 

logically dictating the retroactive nature of the new rule. Id. at 668 (O’Connor, J., concurring); 

In re Watkins, 810 F.3d 375, 381 (6th Cir. 2015). In order for this to occur, these holdings must 

permit no other conclusion than that the rule applies retroactively. Tyler, 533 U.S. at 669

(O’Connor, J., concurring); Watkins, 810 F.3d at 381.

While it is undisputed that the Supreme Court has not expressly made Moore and Hall

retroactive, Payne argues that it has made these decisions retroactive through multiple holdings. 

In support of this argument, he first cites the Hall and Moore decisions themselves as examples 

of retroactive applications of these rules. However, both of those decisions merely analyzed the 

application of Atkins claims that were appropriately raised in state post-conviction proceedings. 

Payne next cites several cases that the Supreme Court remanded for additional consideration in 

light of Moore, but all of these were cases involving previously-raised Atkins claims. See Long 

v. Davis, 663 F. App’x 361 (5th Cir. 2016), cert. granted, judgment vacated, 138 S. Ct. 72 
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(2017); Weathers v. Davis, 659 F. App’x 778 (5th Cir. 2016), cert. granted, judgment vacated, 

138 S. Ct. 315 (2017); Martinez v. Davis, 653 F. App’x 308 (5th Cir. 2016), cert. granted, 

judgment vacated, 137 S. Ct. 1432 (2017); Henderson v. Stephens, 791 F.3d 567 (5th Cir. 2015), 

cert. granted, judgment vacated, 137 S. Ct. 1450 (2017). Lastly, Payne cites another Supreme 

Court order that, in light of Hall, vacated and remanded a Florida Supreme Court decision 

denying an Atkins claim. Haliburton v. State, 123 So. 3d 1146 (Fla. 2013), cert. granted, 

judgment vacated, 135 S. Ct. 178 (2014). A Supreme Court order that grants certiorari, vacates 

the lower court’s judgment, and remands for further proceedings (GVR order) is not considered a 

final determination on the merits. Tyler, 533 U.S. at 666 n.6. “[A] GVR order does not 

necessarily imply that the Supreme Court has in mind a different result in the case, nor does it 

suggest that [the] prior decision was erroneous.” Monroe v. FTS USA, LLC, 860 F.3d 389, 393 

(6th Cir. 2017), petition for cert. filed (Oct. 31, 2017) (No. 17-637); In re Whirlpool Corp. 

Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013). None of these 

United States Supreme Court orders, whether considered separately or jointly, dictate that the 

decisions in Moore and Hall are to be applied retroactively. The Supreme Court, for instance, 

could hold in a new case that Hall and Moore merely clarify Atkins rather than establish separate 

rules, or that Hall and Moore prescribe procedural rather than substantive requirements for the 

application of Atkins. In either case, such a holding would not overrule any part of Hall or 

Moore or any of the cited GVR’s. It follows that the cases Payne cites do not “logically dictate” 

the retroactive nature of any new rule Hall or Moore may have established.1 

Alternatively, Payne argues that, if § 2244(b) precludes consideration of his intellectualdisability claim, that statute is unconstitutional as applied to him. However, he cites no authority 

to support that proposition, and the Supreme Court and this court have concluded that § 2244(b) 

 

1 Moreover, a recent published Sixth Circuit decision strongly suggests that Hall and Moore do 

not even qualify as “new” rules. See Hill v. Anderson, Nos. 99-4317/14-3718, 2018 WL 671834 

at *6 (6th Cir. Feb. 2, 2018) (“[T]he primary holdings in Hall and Moore were compelled by 

Atkins. Both are illustrations of what was previously established by Atkins.”). Only new rules 

may form the basis for a successive habeas petition under § 2244(b)(2)(A).
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is constitutional. See Felker v. Turpin, 518 U.S. 651, 664 (1996); Alley v. Bell, 392 F.3d 822, 

833 (6th Cir. 2004).

Accordingly, we DENY Payne’s motion for leave to file a successive § 2254 petition and

DISMISS this case.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk