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Keen v. State

Court of Criminal Appeals of Tennessee, Jackson

August 11, 2017

DAVID KEEN
v.
STATE OF TENNESSEE

         Appeal from the Criminal Court for Shelby County No. P-25157 Chris Craft, Judge

         The Petitioner, David Keen, raped and murdered the eight-year-old daughter of his girlfriend in March 1990, later discarding the body by throwing it into the Wolf River in Memphis. He pled guilty in 1991 to first degree murder and aggravated rape and was sentenced, respectively, to death and imprisonment for twenty years. See Keen v. State, 398 S.W.3d 594, 597-98 (Tenn. 2012). In his latest of many post-conviction filings, he argues that the Tennessee Supreme Court erred in its decision in Payne v. State, 493 S.W.3d 478 (Tenn. 2016), which denies relief for his claims; that his coram nobis petition was not time-barred; and that he is entitled to relief under Tennessee Rule of Criminal Procedure 36.1 because his sentence is illegal. He additionally seeks advice from this court as to what other avenues he may utilize in seeking relief. The coram nobis court denied relief, and we affirm that decision and decline to provide the advisory opinion sought by the Petitioner.

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

          Kelley J. Henry, Supervisory Assistant Federal Public Defender; and Amy D. Harwell and Gretchen L. Swift, Assistant Federal Public Defenders, Nashville, Tennessee, for the appellant, David Keen.

          Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Reginald Henderson, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and J. Ross Dyer, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS

         Since his convictions, the Petitioner has been active in seeking post-conviction relief. In 2001, he filed a petition for post-conviction relief, which was later amended, resulting in a hearing at which psychologists, Dr. Tara Wass and Dr. Mark Douglas Cunningham, testified regarding his intellectual deficits. Neither testified that the Petitioner was intellectually disabled, nor did Dr. Pamela Auble, a neuropsychologist, and his petition was denied. David Keen v. State, No. W2004-02159-CCA-R3-PD, 2006 WL 1540258, at *14-15, *23-29 (Tenn. Crim. App. June 5, 2006), perm. app. denied (Tenn. Oct. 30, 2006).

         Next, in 2010, the Petitioner filed a motion to reopen his previous post-conviction proceeding, claiming that he was intellectually disabled and, thus, actually innocent of the offenses. The post-conviction court dismissed the motion, and this court affirmed the dismissal. Subsequently, our supreme court affirmed, holding that State v. Coleman, 341 S.W.3d 221 (Tenn. 2011), did not create a new constitutional right, as the Petitioner also had argued in his motion. Keen, 398 S.W.3d at 597. Next, in 2015, the Petitioner filed a petition for writ of error coram nobis, contending again that he was intellectually disabled. That petition, the denial of which is the basis for this appeal, was bolstered by reports from several experts, which we will discuss in the analysis section of this opinion. The coram nobis court denied relief, concluding that the action had been foreclosed by the opinion in Payne. The Petitioner timely appealed the ruling of the coram nobis court.

         ANALYSIS

         We will review the issues raised by the Petitioner on appeal.

         I. Intellectual Disability and Coram Nobis Relief

         As the Petitioner acknowledges on appeal, our supreme court has held that a claim of intellectual disability may not be brought in ...


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