Full Opinion (html_with_citations)

        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

R OBERT L. H OLLOWAY, J R., J., delivered the opinion of the Court, in which A LAN E. G LENN
and R OBERT W. W EDEMEYER, 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

                                              -2-
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.

                                       -3-
       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 until sometime 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.

                                              -4-
       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, self-
              direction, 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, self-
              direction).


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

                                               -5-
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 post-
conviction 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.



                                               -6-
        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/interpersonal skills, 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

                                               -7-
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

                                               -8-
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 has the 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

                                              -9-
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 of seventy (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.

                                              -10-
         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 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. 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.

                                              -11-
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

                                              -12-
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.

                                              -13-
        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 against self-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 post-
conviction 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.




                                             -14-
        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).

                                              -15-
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. 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. 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.

                                              -16-
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 “later-
arising” 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

                                              -17-
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




                                              -18-