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Ivy v. State

Court of Criminal Appeals of Tennessee, Jackson

January 30, 2018

DAVID IVY
v.
STATE OF TENNESSEE

          Session July 11, 2017

         Appeal from the Criminal Court for Shelby County No. 01-12388 James C. Beasley, Jr., Judge

         The 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.

         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, 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 Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Camille R. McMullen, JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

         In June 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).

         In 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 impaired."

         The 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 querela.

         The 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.

         II. ...


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