Sims v. Colson

Filing 21

Order Denying Petitioner's Motion to Authorize Counsel to Represent Petitioner in State Court. Signed by Judge S. Thomas Anderson on 4/23/12. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
)
(
)
(
)
(
Petitioner,
(
)
)
(
vs.
)
(
)
(
ROLAND COLSON, Warden, Riverbend(
)
Maximum Security Institution,
(
)
)
(
Respondent.
(
)
)
(
VINCENT SIMS,

No. 11-2946-STA-cgc

ORDER DENYING PETITIONER’S MOTION TO AUTHORIZE COUNSEL
TO REPRESENT PETITIONER IN STATE COURT
On

March

9,

2012,

Petitioner

Vincent

Sims

submitted

Petitioner’s Motion to Reopen Administratively Closed Case and Ex
Parte Motion to Authorize Counsel to Represent Petitioner in State
Court Intellectual Disability Proceeding. The motion was filed ex
parte and under seal and was not served on opposing counsel. On
March 26, 2012, the Court entered an order directing the Clerk to
file the ex parte motion and reopen the case and directing the
Respondent

to

file

a

response.

(Docket

Entry

(“D.E.”)

16.)

Petitioner’s motion was filed in the record. (D.E. 17 & 18.)
Petitioner seeks to pursue claims in state court that he is
intellectually disabled under Coleman v. State, 341 S.W.3d 221
(Tenn. 2011), and that his death sentence is unconstitutional under
Atkins v. Virginia, 536 U.S. 304 (2002), and to have his federal

habeas counsel represent him in the state court proceedings.1 (D.E.
18 at 1, 3-4.) On April 10, 2012, Respondent filed a response in
opposition to Petitioner’s motion asserting that Petitioner does
not have a state court remedy to pursue an intellectual disability
claim based on Coleman. (D.E. 20.)
In Harbison v. Bell, 556 U.S. 180, 194 (2009), the Supreme
Court held that 18 U.S.C. § 3599 authorizes federally appointed
counsel to represent a prisoner in state clemency proceedings.
Section 3599(e) provides:
Unless replaced by similarly qualified counsel upon the
attorney’s own motion or upon motion of the defendant,
each attorney so appointed shall represent the defendant
throughout every subsequent stage of available judicial
proceedings, including pretrial proceedings, trial,
sentencing, motions for new trial, appeals, applications
for writ of certiorari to the Supreme Court of the United
States, and all available post-conviction process,
together with applications for stays of execution and
other appropriate motions and procedures, and shall also
represent the defendant in such competency proceedings
and proceedings for executive or other clemency as may be
available to the defendant.
The Supreme Court stated that subsection (e) authorizes counsel to
represent

a client in “‘subsequent’ stages of available judicial

proceedings” recognizing that state post-conviction litigation
sometimes follows the initiation of federal habeas proceedings.
Harbison, 556 U.S. at 189-90. The Court stated that with regard to

1
Petitioner’s full scale intelligence quotient (“I.Q.”) was 75, greater
than the bright line statutory requirement to qualify as intellectually disabled
under Tenn. Code Ann. § 39-13-203(a). Sims v. Colson, No. W2008-2823-CCA-R3-PD,
2011 WL 334285, at *34 (Tenn. Crim. App. Jan. 28, 2011). In Coleman, 341 S.W.3d
at 247-48, the Tennessee Supreme Court held that evidence regarding a defendant’s
functional I.Q. is not limited to raw scores but may also include competent
expert testimony that a test score does not accurately reflect functional I.Q.
Petitioner now contends that in light of Coleman, he has a legitimate claim that
he is intellectually disabled under Atkins and Tennessee law. (D.E. 18 at 3.)

“‘other appropriate motions and procedures,’ a district court may
determine on a case-by-case basis that it is appropriate for
federal counsel to exhaust a claim in the course of her federal
habeas representation.” Id. at 190 n.7.
In Irick v. Bell, 636 F.3d 289, 291-93 (6th Cir. 2011), the
Sixth Circuit determined that a petitioner was not eligible for
federally funded counsel under Section 3599 because he was entitled
to counsel under Tennessee law for state court proceedings related
to

the

determination

of

his

competency-to-be-executed

and

to

re-open post-conviction proceedings. See Hill v. Mitchell, No.
1:98-CV-452, 2009 WL 2898812, at *4 (S.D. Ohio. Sept. 4, 2009)
(“Harbison does not contemplate the expansion of federal habeas
counsel’s representation of Petitioner for an Atkins hearing.”)
Petitioner has a statutory right under Tennessee law to appointed
counsel in post-conviction proceedings. Irick, 636 F.3d at 292; see
Tenn. Code Ann. § 40-30-206(a). The Sixth Circuit stated that the
argument that federal habeas counsel are more familiar with the
case or more qualified is of no import under § 3599 as long as
Tennessee provides adequate representation. Irick, 636 F.3d at
292.2

It

is

not

necessary

for

the

Court

to

determine

the

availability of a state court remedy to resolve this motion. In the
event Petitioner is allowed to proceed with this claim in state
court,

2

Tennessee

law

provides

for

adequate

representation.

The Sixth Circuit notes that there is no barrier precluding a petitioner
from seeking state funds for his federal habeas counsel to represent him in the
state post-conviction proceedings. Id. at 293.

Petitioner’s motion is DENIED.
IT IS SO ORDERED this 23rd day of March, 2012.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE