Session July 11, 2017
from the Criminal Court for Shelby County No. 01-12388 James
C. Beasley, Jr., Judge
Petitioner, David Ivy, appeals the Shelby County Criminal
Court's denial of his petition for a writ of error coram
nobis, seeking relief from his conviction of first degree
premeditated murder and resulting sentence of death. On
appeal, the Petitioner contends that the coram nobis court
erred by dismissing his petition, by denying his Rule 36.1
motion to correct an illegal sentence, and by denying his
writ of error audita querela. In addition, he asks that this
court advise him as to the correct pleading to file in order
to challenge his death sentence. Based upon the oral
arguments, the record, and the parties' briefs, we
conclude that the coram nobis court did not err by denying
relief, and we decline to provide an advisory opinion
regarding future requests for relief.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
J. Henry, Supervisory Assistant Federal Public Defender, and
Amy D. Harwell, Assistant Federal Public Defender, Nashville,
Tennessee, for the appellant, David Ivy.
Herbert H. Slatery III, Attorney General and Reporter; Andrew
C. Coulam, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Stephen P. Jones, Assistant
District Attorney General, for the appellee, State of
McGee Ogle, J., delivered the opinion of the court, in which
D. Kelly Thomas, Jr., and Camille R. McMullen, JJ., joined.
MCGEE OGLE, JUDGE
2000, the Petitioner was released from prison and placed on
parole. David Ivy v. State, No.
W2010-01844-CCA-R3-PD, 2012 WL 6681905, at *1 (Tenn. Crim.
App. at Jackson, Dec. 21, 2012). Subsequently, he began
dating the victim, LaKisha Thomas. Id. Their
relationship was "marked by Ivy's violence against
Thomas, " and the victim obtained an order of protection
against the Petitioner on June 6, 2001. Id. at *2.
Two days later, the Petitioner ran up to the victim while she
was sitting in her car and shot her five times, killing her.
Id. In 2003, a Shelby County Criminal Court Jury
convicted the Petitioner of first degree premeditated murder
and sentenced him to death. State v. Ivy, 188 S.W.3d
132, 138-39 (Tenn. 2006).
2012, the Petitioner filed a petition for post-conviction
relief claiming, in pertinent part, that trial counsel were
ineffective during the penalty phase of his trial by failing
to have him evaluated by a mental health professional.
David Ivy, No. W2010-01844-CCA-R3-PD, 2012 WL
6681905, at *26. This court found that while counsel were
deficient, the Petitioner failed to demonstrate prejudice.
Id. at 44-46. On May 28, 2015, the Petitioner filed
a petition for a writ of error coram nobis "and/or other
relief, " which is the basis for this appeal, asserting
that he was intellectually disabled and, therefore,
ineligible for the death penalty pursuant to Atkins v.
Virginia, 536 U.S. 304 (2002). In support of his claim,
the Petitioner attached a 1984 mental health report from the
Memphis School System. According to the report, the then
twelve-year-old Petitioner's I.Q. score on the WISC-R was
73, "placing him in the borderline range of
intelligence." The report stated that additional testing
showed the Petitioner, who was in the sixth grade, exhibited
"deficits" in reading, math, and written language
and was reading on just the third-grade level. The report
concluded that the Petitioner's "[i]ntellectual
functioning is more than two standard deviations below the
mean, academic achievement is at or below the fourth
percentile in Reading Comprehension, Reading Mechanics and
Written Language and adaptive behavior is not significantly
State responded to the petition, arguing that it was barred
by the one-year statute of limitations. On May 11, 2016, the
Petitioner filed additional argument in support of his
petition, also seeking relief pursuant to Tennessee Rule of
Criminal Procedure 36.1 and a petition for writ of audita
coram nobis court denied relief without a hearing. First, the
court concluded that relief was not available to the
Petitioner for his intellectual disability issue due to our
supreme court's ruling in Payne v. State, 493
S.W.3d 478, 480 (Tenn. 2016). As to the motion for relief
pursuant to Tennessee Rule of Criminal Procedure 36.1, the
court determined that the Petitioner was not entitled to
relief because his death sentence was authorized by statute.
The court noted that "changes in constitutional law
render a sentence voidable, not illegal and void." As to
the audita querela claim, the court concluded that the writ
was obsolete and, thus, could not provide relief. The
Petitioner challenges the rulings of the coram nobis court.