STATE OF INDIANA,
respondent. ) ) ) ) ) )Supreme Court case no.49S00-0303-SD-122
Marion Superior Court case no.
Allen has filed a Tender of Successive Petition for Post-Conviction Relief (Capital Case)
and tendered a successive Petition for Post-Conviction Relief. Respondent, State of Indiana,
was permitted to file an Opposition to Tender of Successive Petition for Post-Conviction
Relief. The Court has jurisdiction because Allen has been sentenced to death.
See Ind. Appellate Rule 4(A)(1)(a).
Background of this case. Allen was charged with the July 14, 1987
murder, felony-murder, and robbery of Ernestine Griffen. A jury found him guilty
on all counts, and the murder and felony-murder convictions were merged. The
State sought the death penalty, alleging the aggravating circumstance of an intentional killing
during a robbery. See Ind. Code § 35-50-2-9(b)(1). The Marion Superior
Court followed the jurys unanimous recommendation and sentenced Allen to death. See
I.C. § 35-50-2-9(e) (Supp. 1987). Before considering the merits of Allens direct
appeal, we remanded the case with instructions for the trial court to produce
a written sentencing order, to apply certain stricter standards for sentencing in capital
cases, and to consider affidavits Allen had submitted on his claim that he
was mentally retarded. See Allen, 686 N.E.2d at 787-88, & n.32.
Thereafter, the trial court entered a written order sentencing Allen to death.
The convictions and sentence were affirmed on direct appeal in Allen v. State,
686 N.E.2d 760, 765 (Ind. 1997), cert. denied 525 U.S. 1073 (1999).
The judgment denying relief in collateral post-conviction proceedings was affirmed on appeal in
Allen v. State, 749 N.E.2d 1158, 1163 (Ind. 2001), cert. denied 535 U.S.
1061 (2002). Allen has also filed a petition for writ of habeas
corpus in a federal district court, which remains pending. See Howard Allen
v. Cecil Davis, case no. IP-01-1658-C-T/K (S.D. Ind.).
Post-Conviction Rule 1, Section 12. The Courts rules permit a person convicted of a crime in an Indiana state court to challenge the conviction and sentence collaterally in a post-conviction proceeding. See Ind. Post-Conviction Rule 1. As indicated above, Allen has already availed himself of that procedure.
Post-Conviction Rule 1, Section 12 specifies the procedure for requesting a second, or
successive collateral review. The rule states:
(b) The court will authorize the filing of the petition if the petitioner establishes a reasonable possibility that the petitioner is entitled to post-conviction relief. In making this determination, the court may consider applicable law, the petition, and materials from the petitioners prior appellate and post-conviction proceedings including the record, briefs and court decisions, and any other material the court deems relevant.
We have considered the materials from Allens prior appeals, the materials submitted in connection with the successive petition, and applicable law.
Atkins v. Virginia . The United States Supreme Court has declared that execution
of a mentally retarded person is an excessive sanction that violates the Eighth
Amendment to the United States Constitution. 536 U.S. at 321. Mentally
retarded persons are regarded as less culpable, Atkins says, because they have
diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others . . . . [T]here is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders.
Id. at 318 (footnotes omitted).
Atkins cited definitions of mental retardation from the American Association of Mental Retardation
and the American Psychiatric Association. See 536 U.S. at 308 n.3.
Although not identically worded, the two definitions require significantly subaverage intellectual functioning and
limitations in adaptive skills, both of which manifest before the person reaches eighteen
years of age. Still, Atkins informs that [n]ot all people who claim
to be mentally retarded will be so impaired as to fall within the
range of mentally retarded offenders about whom there is a national consensus against
executing. Id. at 317.
We assume the Atkins proscription against execution of mentally retarded persons applies retroactively
to Allens death sentence. See Penry v. Lynaugh, 492 U.S. 302, 330
(1989) (indicating that if the Supreme Court were to hold that the Eighth
Amendment prohibits the execution of mentally retarded persons such a rule would fall
under the first exception to the general rule of non-retroactivity and would be
applicable to defendants on collateral review.). We have applied Atkins retroactively
in another case. See Gamba Rastafari v. State, No. 45S00-0210-SD-510, unpublished order,
(Ind. Feb. 5, 2003) (allowing prisoner to file successive post-conviction petition and litigate
issue of whether he is mentally retarded pursuant to Atkins).
Although Indiana has enacted legislation barring execution of mentally retarded persons, we held
in Allens direct appeal that the law did not apply to him because
he was tried before the laws effective date. See Allen v. State,
686 N.E.2d at 786. At that time, there was no constitutional mandate
for a rule exempting mentally retarded individuals from the death penalty, see id.,
therefore Allens claim under Atkins remains.
The successive claim. Allens successive post-conviction petition alleges that he is a
mentally retarded person whose execution is prohibited under Atkins and that he is
entitled to litigate this claim in a state trial court. The State
responds, in part, that Allen has already litigated whether he is mentally retarded
and is not entitled to another opportunity.
Evidence of Allens mental capacity was considered by the trial court after
we remanded the case, on direct appeal, for a written sentencing order.
Our remand order directed the trial court to consider evidence of Allens mental
capacity and authorized the court to grant any appropriate relief contemplated by the
Indiana Trial Rule 59, which governs motions to correct error. See 686
N.E.2d at 787-88, & n.32.
Evidence presented to the trial court supporting Allens claim that he is mentally
retarded included the following. In 1956, at the chronological age of seven
years, nine months, Allens Intelligence Quotient (I.Q.) was scored as seventy on the
Revised Stanford Binet Intelligence Scale, which indicated a mental age of five years
and five months. Supplemental Trial Record, p. 20 (Psychological Report).
In 1959, at the chronological age of ten years and nine months, his
I.Q. was scored as 68, which indicated a mental age of seven years
and four months. Id. at 21. An I.Q. of 70 or
below is an indication of significantly subaverage intellectual functioning. Supp. T. R., p.
28 (affidavit of Richard B. Dever, Ph.D.).
Dr. Dever opined that there were many indications [in the records he reviewed]
that Howard Allen manifested significant deficits in adaptive behavior during the developmental period
of his life . . . . Id. at 29. These
deficits included significant academic retardation, and an inability to function appropriately within the
context of the social requirements imposed on people his age by the community,
when Allen was not in the structured environment of prison. Id. at
Allen was enrolled in special education classes for mentally retarded children, and when
he left elementary school at the age of twelve years and eight months,
he was reading at the second grade level. Supp. T.R., p. 15
(Affidavit of Mary Jo Dare, a director of special education). Ms. Dare
opined that Allen had difficulty processing language as a child, that his thinking
and decision-making would be very concrete, and that he could have difficulty understanding
the consequences of his conduct and could be easily led. Id. at
Other evidence, however, tended to show that Allen is not mentally retarded. Allens I.Q. was scored as 104 on a test used by the Department of Correction for assessing prisoners. See 686 N.E.2d at 790 & n.34. Allens mother testified that he was an average student. See id. at 790 n.35. None of Allens family members described him as anything other than of normal intelligence. See id. at 790. None of the eighteen people who submitted letters on Allens behalf before sentencing indicated he was not of normal intelligence. See id. Allen was a solo-acting criminal. See id. The trial court observed that Allen made an articulate statement at the sentencing hearing. See Supp. T.R., p. 81 (trial courts sentencing order); T.R., p. 3135-47 (Allens statement).
Allen argued to the trial court that he was mentally retarded and that
this should be considered as a mitigating circumstance weighing against a death sentence.
See I.C. § 35-50-2-9(c) & (e). In rejecting Allens argument, the
trial court commented on the weight of the evidence, and concluded:
The information contained in the affidavits . . . tend to show a mitigating factor, but is a very slight mitigating factor. The Court gives it little weight in light of evidence in the record that Defendant was examined and evaluated by two court-appointed psychiatrists in 1975 who reported that he was well oriented and had the capacity to understand his behavior. The pre-sentence report filed in [a prior case in which Allen had been convicted] states that Howard Allen had an I.Q. of 104. The pre-sentence report filed in this case reiterated the orientation-and-capacity-to-understand-his-behavior-and-I.Q.-of-104 statements. At one point during the proceedings a motion for psychiatric examination of defendant was filed, but the motion was withdrawn in open court with the Defendants oral agreement after discussion of the matter with counsel.
No witness called by Defendant at his sentencing mentioned any possibility of mental retardation. . . . None [of the letters written on Allens behalf] mentioned any possibility of mental retardation.
Moreover, the Courts own observation of the Defendant and the articulate statement he gave on his behalf at the sentencing hearing further erodes whatever weight the Court gives to this mitigating circumstance.
Supp. T. R., p. 80-82 (sentencing order).
In the direct appeal, we rejected Allens argument that the trial court had failed to give adequate consideration to the evidence of mental retardation, and we deferred to the trial courts judgment about the weight to be given the evidence:
Judge Barney devoted more than half of his four-page [sentencing] order to weighing the evidence averred by Mary Jo Dare and Dr. Richard Dever, experts who submitted affidavits supporting Allens claim of retardation. He found it controverted by other evidence in the record, which reduces the issue to one of credibility. The trial courts judgment about the credibility and weight of evidence is part and parcel of its statutory balancing function. This Court will not second-guess the trial court on questions of credibility or weighing.
686 N.E.2d at 788-89 (rejecting argument that trial court failed to weigh aggravators and mitigators properly). We concluded:
There is little evidence that Allen is mentally retarded, and none that shows him to be incapable of appreciating the criminality of his conduct or to conform it to the law. At sentencing, Allen's colloquy with the trial judge amply demonstrated that he was mentally present and that he understood the proceedings. As a result, the trial court's balance of the statutory aggravator against the scant evidence in mitigation and the court's due consideration of the jury's recommendation are reasonable in fact and supportable in law. We conclude that the aggravating circumstance outweighs the mitigating circumstance and that the penalty is appropriate to the offense and the offender.
Id. at 790-91.
We acknowledge that the issue of Allens mental capacity was presented to the trial court in the context of whether mental retardation, if established, was a mitigating circumstance sufficient to outweigh the death-eligible aggravating circumstance of an intentional killing in the course of a robbery. At the time, this balancing process was the procedure for factoring a convicted persons mental retardation into the capital sentencing decision. See I.C. § 35-50-2-9(c) & (e); Allen, 686 N.E.2d at 790.
Atkins held that a person shown to be mentally retarded cannot be executed.
That is, when Atkins is applied to Indianas sentencing scheme, the mitigating
circumstance of mental retardation necessarily outweighs any death-eligible aggravating circumstance.
However, the factual inquiry under either analysis is the same: is the
person mentally retarded? In Allens case, the trial courts sentencing order acknowledged
the existence of some evidence that Allen was mentally retarded, but ultimately, found
that he was not. When the trial courts order stated that the
evidence tended to show . . . a very slight mitigating factor,
and that other evidence erodes whatever weight the Court gives to this mitigating
circumstance, we conclude the trial court meant that Allen had not proved to
the courts satisfaction that Allen was actually mentally retarded.
One other point is worth mention. In the first post-conviction conviction proceeding,
Allen asserted that he had been misdiagnosed as mentally retarded. See, e.g.,
Brief of Petitioner-Appellant, p. 41 (Allen likely would not have been
misdiagnosed as mentally retarded if his attorney had had more time and resources);
see also Reply Brief of Petitioner-Appellant, p. 8. In rejecting Allens attempt
to re-cast the claim of mental retardation as a thought disorder and a
severe learning disability similar to mental retardation, we reiterated our conclusion that the
trial court had sufficiently considered the evidence of mental retardation. See Allen,
749 N.E.2d at 1174-75. We also decided the trial courts determination was
res judicata on the issue. Id. at 1175.
We have previously decided that the trial court adequately considered the evidence of
mental retardation. See 686 N.E.2d at 790-91 (on direct appeal); 749 N.E.2d
at 1175 (on appeal from denial of post-conviction relief). We have also
rejected Allens various claims that he was deprived of his right to effective
assistance of counsel with respect to this issue. See 686 N.E.2d at
779, 781 (on direct appeal); 749 N.E.2d at 1176 (on appeal from denial
of post-conviction relief). We now conclude that the record shows that Allen
has had a full and fair opportunity to litigate the issue of whether
he is mentally retarded, and that, faced with conflicting evidence, the trial court
resolved the issue against Allen.
The doctrine of res judicata prevents the repetitious litigation of that which is
essentially the same dispute. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.
2000). We conclude that Allen has already litigated, and lost, his claim
that he is mentally retarded. Therefore, the claim is res judicata and
is not available to Allen in a successive post-conviction proceeding. See, e.g.,
Wrinkles v. State, 776 N.E.2d 905, 908 (Ind. 2002) (denying permission to file
successive petition when claim is res judicata).
Having not established a reasonable possibility that he is entitled to post-conviction relief
on this claim, Allens request for leave to file a successive post-conviction relief
petition is DENIED.
The Clerk is directed to send a copy of this order to the
Marion Superior Court; to the Public Defender of Indiana; to the Attorney General
of Indiana; to Paula Sites, the Public Defender Council; to Rebecca McClure, the
Prosecutors Council; and to counsel of record.
DONE AT INDIANAPOLIS INDIANA, this 15th day of July, 2003.
/s/ Randall T. Shepard
Chief Justice of Indiana
Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., dissents with opinion, in which Rucker, J., concurs.
BOEHM, J., dissenting
Last year, in Atkins v. Virginia, 536 U.S. 304 (2002) the Supreme Court
made clear that the Eighth Amendment prohibits execution of the mentally retarded.
Allen now claims that he is mentally retarded as that term is used
in Eighth Amendment jurisprudence. It seems clear that the precise meaning of
that term is yet to be fleshed out, but Allen points to opinion
that he is mentally retarded as one expert would define the term and
to data from his early school years, including I.Q. tests of 68 and
70 at an early age. This evidence was offered in a 1996
hearing in which mental retardation was offered as a mitigating factor to be
considered under Indiana state law in Allens sentencing.
Application of Atkins is yet to be worked out by the courts of
this state, but it seems to me that the Eighth Amendment presents us
with a binary decision: either Allen is or is not mentally retarded.
The trial court in its 1996 sentencing proceeding was confronted with a balancing
of mitigating factors against aggravating factors. One of the factors Allen argued
as mitigating was his claimed mental retardation. The Court today concludes that
the trial court found that Allen was not mentally retarded. I cannot
reach that conclusion with any confidence. The trial courts observations are quoted by
the Court at length. It seems to me the operative finding is
the trial courts statement that the offered pieces of evidence tend to show
a mitigating factor but is [sic] a very slight mitigating factor.. The trial
courts findings on this point are not entirely clear but they seem to
me to mean either 1) Allens mental retardation was relatively slight compared to
other mentally retarded persons, or 2) other factors render it entitled to little
weight in a state court balancing of aggravating and mitigating factors or 3)
both. Under any of these three alternatives, the trial court findings
do not constitute an adjudication of the Eighth Amendment issue Allen presents. Finally,
the trial court did not elaborate its understanding of the criteria for mental
retardation as a state law mitigating factor. As a result, even if
we took the trial court to find no mental retardation, which I do
not, we could not be confident that the trial courts finding on this
point meets Eighth Amendment standards.
In short, both the sentencing judge and the factfinder in a pre-Atkins regime were confronted with different considerations in evaluating mental retardation as a mitigating circumstance as opposed to a complete bar to execution. Accordingly, their conclusions do not resolve the issues Allen now raises. See Johnson v. State, 102 S.W.3d 535 (Mo. 2003); State v. Grell, 66 P.2d 1234, 1240 (Ariz. 2003); State v. Lott, 779 N.E.2d 1001, 1015 (Ohio 2002). For that reason, I respectfully dissent from the denial of leave to permit Allen to litigate that issue in light of Atkins.