STATE OF INDIANA,

respondent.   )
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                   )Supreme Court case no.

Marion Superior Court case no.
CR87-194C

    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 jury’s unanimous recommendation and sentenced Allen to death. See I.C. § 35-50-2-9(e) (Supp. 1987). Before considering the merits of Allen’s 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 Court’s 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 petitioner’s 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 Allen’s 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 Allen’s 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 Allen’s direct appeal that the law did not apply to him because he was tried before the law’s 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 Allen’s claim under Atkins remains.

    The successive claim. Allen’s 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 Allen’s 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 Allen’s 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 Allen’s claim that he is mentally retarded included the following. In 1956, at the chronological age of seven years, nine months, Allen’s 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 29-30.

    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 18.

    Other evidence, however, tended to show that Allen is not mentally retarded. Allen’s 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. Allen’s mother testified that he was an “average” student. See id. at 790 n.35. None of Allen’s family members described him as anything other than of normal intelligence. See id. at 790. None of the eighteen people who submitted letters on Allen’s 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 court’s sentencing order); T.R., p. 3135-47 (Allen’s 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 Allen’s 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 Defendant’s 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 Allen’s behalf] mentioned any possibility of mental retardation.
    Moreover, the Court’s 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 Allen’s argument that the trial court had failed to give adequate consideration to the evidence of mental retardation, and we deferred to the trial court’s 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 Allen’s claim of retardation. He found it controverted by other evidence in the record, which reduces the issue to one of credibility. The trial court’s 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 Allen’s 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 person’s 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 Indiana’s 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 Allen’s case, the trial court’s sentencing order acknowledged the existence of some evidence that Allen was mentally retarded, but ultimately, found that he was not. When the trial court’s 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 court’s 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 Allen’s 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 court’s 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 Allen’s 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, Allen’s 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 Prosecutor’s 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 Allen’s 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 court’s observations are quoted by the Court at length. It seems to me the operative finding is the trial court’s statement that the offered pieces of evidence “tend to show a mitigating factor but is [sic] a very slight mitigating factor.”. The trial court’s findings on this point are not entirely clear but they seem to me to mean either 1) Allen’s 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 court’s 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.