US Supreme Court Briefs

No. 99-6218

In The
Supreme Court of the United States


WILBERT K. ROGERS,
Petitioner,

vs.

STATE OF TENNESSEE,
Respondent.


On Writ Of Certiorari
To The Supreme Court Of Tennessee


REPLY BRIEF FOR THE PETITIONER



W. MARK WARD
(Counsel of Record)
TONY BRAYTON
GARLAND ERGODEN
Assistant Shelby County Public Defenders
Suite 2-01, 201 Poplar Avenue
Memphis, TN 38103
Telephone: (901) 545-5837
Counsel for Petitioner


Of Counsel:
A C WHARTON, JR.
Shelby County Public Defender




TABLE OF CONTENTS
Page
TABLE OF CONTENTS 1
TABLE OF AUTHORITIES 11
ARGUMENT 1

1. The year-and-a-day rule is a substantive rule of
law 1

2. General ex post facto principles prohibit the retroactive abolition of the year-and-a-day rule if accomplished by an act of the Tennessee legisla
ture 8

3. The purposes behind the prohibition on ex post facto laws are so fundamental that Due Process prevents the Tennessee Supreme Court from obtaining the same
result by judicial decree.... 10
CONCLUSION
16


ii iii


TABLE OF AUTHORITIES


CAsEs

Ball v. United States, 140 U.S. 118 (1891)

3
,
4

Bouie v. City of Columbia, 378 U.S. 347 (1964) ... 10, 12, 13

Cole v. State, 512 S.W.2d 598 (Tenn. Crim. App.
1974) 6
Collins v. Youngblood, 497 U.S. 37 (1990) 5
Frank v. Mangum, 237 U.S. 309 (1915) 11

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529
(1991) 13

Louisville, Evansville & St. Louis R.R. Co. v. Clarke,
152 U.S. 230 (1894) 3, 4

Lynce v. Mathis, 519 U.S. 433, 117 S.Ct 891 (1997).. . 11, 14
Marks v. United States, 430 U.S. 188 (1977) 12
Percer v. State, 103 S.W. 780 (Tenn. 1907) 6

State v. Rogers, 992 S.W.2d 393 (Tenn. 1999). . .1, 6, 7, 8,
15

State v. Ruane, 912 S.W.2d 766 (Tenn. Crim. App.
1995) 6

United States v. Chase, 18 F.3d 1166 (4th Cir. 1994) .. .4, 5
TABLE OF AUTHORITIES
Page
Page

MISCELLANEOUS
3 Coke, Institutes at 53 4

The Commercial Appeal, March 27, 1999, Section
B3, 1999 WL 4142499 16
HALL, GENERAL PRINCIPLES O~ CRIMINAL LAW (2d ed.
1960) 2, 12

Harold J. Krent, Should Bouie Be Buoyed?: Judicial
Retroactive Lawmaking and the Ex Post Facto
Clause, 3 ROGER WMS. U. L. REV. 35, 55-56
(1997) 13, 14, 15

Donald B. Walther, Taming A Phoenix: The Year-And-A-Day
Rule in Federal Prosecutions for Mur
der, 59 U. CMI. L. REV. 1337, 1338 (1992) 3
WAYNE R. LAFAVE, CRIMINAL LAW 1.2(a) & (b), pp.
7-8; 3.1, pp. 193-195 (West 2000) 2
WHARTON ON HOMICIDE (3d ed.) 6




CONSTITUTIONAL PROVISIDNS
U.S. CONST. amend. XIV 1 14


1


ARGUMENT

1. The year-and-a-day rule is a substantive rule of law.

In the Tennessee Court of Criminal Appeals, the State argued the year-and-a-day rule was a substantive rule of law.' In the Tennessee Supreme Court, the State
conceded the rule was a substantive principle of state law.2 For the first time, in its brief in this Court, the State takes the position the rule "was not an element of
homicide, but was merely an exclusionary rule of evidence relating to causation."(emphasis added) (p. 21). In couching its argument in this fashion, the State
demonstrates either a misunderstanding of the nature of substantive criminal law, or an attempt to shift the Court's focus away from the issue of whether the rule
was substantive.


A. The State's Brief is based on a misunderstanding of the nature of substantive criminal law.

The State's Brief did not specifically respond to the
contention that the rule was substantive in nature, yet such an argument can be implied from its claim that the rule is "merely an exclusionary rule of evidence." The
State erroneously concludes that "substantive" criminal law refers only to the statutory elements of an offense.

Substantive criminal law consists of (1) definitions of specific crimes, (2) broader general principles applicable to more than a single crime and so not made a
part of the

The State argued that the rule constituted a legal defense.
2 See State v. Rogers, 992 S.W.2d 393, 399 (Tenn. 1999) (J.A.
26).


2 3


definitions of specific crimes, and (3) some even broader
propositions of law, the basic premises which underlie the whole
of the substantive criminal law. See WAYNE R. LAFAVE,
CRIMINAL LAW 1.2(a) & (b), pp. 7-8; 3.1, pp. 204-206
(West 2000).~

As LAFAVE explains, traditionally, the first type includes the
actus reus, mens rea and, in some offenses, attendant
circumstances and a specified result. The second type includes
"defenses," while the third type encompasses such general
principles as the requirements of "causation," "concurrence" and
the "year-and-a-day"




~ J. HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 17 (2d ed.

1960), refers to these three types as "rules," "doctrines," and
"principles." As an example, LAFAVE explains that substantive
criminal law:
is concerned with much more than is found in the definitions of
specific crimes, for there are many general principles of the
substantive criminal law which apply to more than a single crime
for instance, the principle that an insane person cannot be guilty of any
crime, or that one coerced into committing what would
otherwise be criminal conduct cannot be guilty of most
crimes. Thus criminal battery is sometimes defined as 'the
intentional or reckless application of force to the person of
another, directly or indirectly.' The definition does not
continue: ' . . . by one who is not legally insane; not legally too
young; not too intoxicated to have the necessary state of
mind; who was not coerced . . . ; and who was not justified
because he acted in self-defense, or pursuant to domestic
authority, or because the other person consented,' and so on. See
LAFAVE, supra, at pp. 7-8.
rule.4 Thus, the State's conclusion that the rule cannot be
substantive where it was not included in the statutory elements
of the offense is wrong.


B. The State's detailed recitation of the origins and
development of the common law rule support the
Petitioner's assertion that the rule was substantive in
nature.

The State summarizes the origin and general development of
the common law year-and-a-day rule. Most of this recitation
further supports Petitioner's argument that the rule was
substantive law. For example, the State acknowledges that Lord
Coke included the rule in the definition of murder (pp. 16-17),
and cites Donald E. Walther, Taming A Phoenix: The Year-And-
A-Day Rule in Federal Prosecutions for Murder, 59 U. CHI. L.
REV. 1337, 1338 (1992), for the proposition that at some point in
its history the rule made a transition from a statute of limitations
to "a principle of law in homicide cases" (p. 15).~

The State mistakenly seeks support for its contention that
the rule was merely evidentiary in two opinions of this Court
Ball v. United States, 140 U.S. 118 (1891), and Louisville, E. &
St.L.R. Co. v. Clarke, 152 U.S. 230, 241


The year-and-a-day rule could be considered a limitation
on the actus reus of "killing," a necessary "attendant circumstance,"
or a general principle of law applicable to all homicides.
However characterized, it is substantive in nature.

~ Walther actually says on the page cited by the State that
the rule evolved from a statute of limitations to a substantive
principle of law. Id. at 1338.





5
4
(1894). In fact, the Ball Court reversed murder convictions,
finding the underlying indictment fatally defective for failing to
allege that the victim's death occurred within a year-and-a-day. As
noted in Ball, "The controlling element which distinguished the
guilt of the assailant from a common assault was the death within
a year and a day." Supra at 133 (emphasis added). That language
clearly suggests that the rule was considered substantive. Three
years later, the Clarke Court addressed the rule again,
acknowledging the general applicability of the rule in criminal
cases, but holding it did not apply in civil cases. In discussing
the rule, the Court said: "if a person alleged to be murdered die
after that time, it cannot be discerned, as the law presumes,
whether he died of stroke or poison, etc., or a natural death; and,
in case of life, a rule of law ought to be certain."6 (emphasis
added). The Court's choice of the word "presumes" further
implies that the rule was substantive. Although it is stated in
Clarke that "[un prosecutions for murder the rule was one simply
of criminal evidence," supra at 241, it has been suggested that
this conclusion was dicta, as the issue before the Court was not
the nature of the rule and did not involve its interpretation in a
criminal context. See United States v. Chase, 18 F.3d 1166,
1172 (4th Cir. 1994). See also, Walther, supra at 1341, which
suggests that both characterizations of the rule may be accurate in
that it could be considered a "conclusive presumption that displays
both substantive (Ball) and evidentiary (Clarke) facets."

6 Citing 3 Coke, Institutes at 53.
One of the most recent and detailed considerations of the rule
is contained in United States v. Chase, supra. The Chase Court
recognized that a conclusive or irrebuttable presumption must be
considered a substantive rule of law, id. at 1172, n.7, and said:
"Our review of both ancient and modern commentators and state
court opinions discussing the rule convinces us that the year and
a day rule is a substantive rule of law." Id. at 1173.


Finally, although the State catalogues various ways in which
the rule has been "characterized" by different courts (pp. 18-19),
the State's own characterization of the rule as an "exclusionary
rule of evidence" is notably absent from this list. Further, it is
neither the "label," nor the "characterization" put on a rule which
determines if it violates ex post facto principles. Collins v.
Youngblood, 497 U.S. 37, 46 (1990) ("simply labeling a law
'procedural,' . . . does not thereby immunize it from scrutiny under
the Ex Post Facto Clause. Subtle ex post facto violations are no
more permissible than overt ones."). Characterizing the rule as
evidentiary will not insulate the State of Tennessee from
Constitutional mandates. Whatever the label, the true test remains
whether it made "changes in the substantive law of crimes."
Collins at 457







~' The Collins Court stated that a law abolishing an affirmative
defense would violate ex post facto concerns. Id. at
43.





6 7


C. The nature of the year-and-a-day rule as described by the
Tennessee Courts is such as to render it a substantive
principle of criminal law.

There is no question that on the day James Bowdery was
stabbed, the rule was in full force and effect in Tennessee. See
Percer v. State, 103 S.W. 780 (Tenn. 1907); Cole v. State, 512
S.W.2d 598 (Tenn. Crim. App. 1974); State v. Rogers, 992
S.W.2d 393 (Tenn. 1999) (J.A. 11-29); State v. Ruane, 912
S.W.2d 766 (Tenn. Crim. App. 1995) (describing the rule).
However, the State insists none of these cases "affirmatively
discloses the nature of the Tennessee rule,"(p. 21), except for
Rogers, which it claims demonstrates that the rule is "evidentiary
in nature." (p. 24). In fact, the aforementioned cases explicitly
demonstrate that the Tennessee rule is substantive.

In Percer, supra at 782, the Tennessee Supreme Court,
quoted approvingly WHARTON ON HOMICIDE (3d ed.), p. 18, which
said of the rule: "In murder, the death must be proven to have
taken place within a year and a day from the date of the injury
received." In Rogers, supra at 396, (J.A. 15), it cited this same
quote for the proposition that it had recognized "the viability of
the rule in Tennessee" since 1907. In Cole, supra at 601, the
Tennessee Court of Criminal Appeals said of the rule: "The
common law provides that death must ensue within a year and a
day from the infliction of the mortal wound to constitute
punishable homicide."8 In State v. Ruane, supra at 774, the

8 This quote from the Tennessee Court of Criminal Appeals was quoted
with approval by the Tennessee Supreme Court in Rogers. (TA. 15-16).
same Court said "[alt common law, the proof must have
established that the victim died within a year and a day from the
date of the injury received." Thus, the Tennessee courts have
consistently interpreted the common law year-and-a-day rule as an
essential element of the proof which the prosecution was required
to prove.

In addition to their general comments regarding the rule, the
Tennessee Supreme Court, in rejecting the argument that the rule
was nothing more than a defense, said:
"While similar in some respects to a defense in a sense that it
precludes conviction, the year-and-a-day rule is even more
powerful than a defense because it entirely precludes a murder
prosecution." Rogers, supra at 400. (J.A. 23) (emphasis added).
It is hardly plausible that the Court would recognize the rule is
"more powerful" than a substantive rule of law, yet conceive of it
as merely a rule of evidence. In addition, the quote indicates that
the rule was considered a conclusive presumption, thus constitut-
ing a substantive rule of law.9

Further, in Rogers the Tennessee Supreme Court did not
specifically adopt the characterization of the rule urged by the
State. Nor did it characterize the rule as "merely an exclusionary
rule of evidence,"(State's Brief p. 21), or specifically refer to the
rule as merely being "evidentiary in nature." (State's Brief p. 24).
Had the Tennessee Supreme Court deemed the rule nothing more
than a rule of evidence without substantive implications, it

~ In Rogers, the Tennessee Supreme Court, in discussing
the history of the rule, utilized cases which referred to the rule as
a conclusive presumption ("conclusively presumed") and an
"irrebuttable presumption." (J.A. 18-19).





8 9


could have specifically said so. Further, there would have been no
need for the Court to analyze the case under the Bouie doctrine
and conclude that its "decision abrogating the rule is not an
unexpected and unforseen judicial construction of a principle of
criminal law." Rogers, supra, at
402. (J.A. 28) (emphasis added).


2. General ex post facto principles prohibit the retroactive
abolition of the year-and-a-day rule if accomplished by an act
of the Tennessee legislature.

Rather than address Petitioner's contention that the
Legislature could not retroactively abolish the rule, the State
recast the argument, claiming that the retroactive judicial
abolition violated none of the four Calder categories. (State's
Brief pp. 42-46).

According to the State, the first Calder category is not
violated because the "statutory offense" does not include the rule.
This stance ignores the fact that the Tennessee Supreme Court
has, since 1907. interpreted state homicide statutes to include the
rule despite the fact that no statute has ever explicitly included it.
If the legislature had passed a law in 1999 abolishing the rule, it
would have affected a substantive change in the law. Likewise,
judicial abrogation of the rule changed the substantive law.

The State's contention that the second and third Calder
categories were not violated also relies on the failure to include
the rule in the explicit language of the statutory offense. The State
reasons there can be no ex post facto violation since the abolition of
the rule did not
change the specific wording of the statutory offense. As explained
earlier, this argument relies upon a fallacious understanding of the
nature of substantive criminal law. At the time of the victim's
death the law then in effect forbade Petitioner's conviction for
murder. A retroactive change in the substantive law which permits
such a conviction, whether by legislative action or judicial decree,
violates both the second and third Calder categories.

Finally, the State contends the fourth Calder category was
not violated because the retroactive abolishment of the rule was a
type of procedural or evidentiary change not contemplated by ex
post facto principles. It argues that changes which "leav[e]
untouched the nature of the crime and the amount or degree of
proof essential to conviction," do not implicate ex post facto
concerns. (State's Brief pp. 45-46). Again, the State's proposition
is grounded on its failure to recognize that substantive criminal
law includes matters beyond the statutory definition of an offense.

The year-and-a-day rule was substantive criminal law which
created an absolute bar to prosecution and conviction. Prior to its
abolishment, the State was required to prove both (1) causation
and (2) death within a year and a day. Failure to prove either of
these substantive principles resulted in an acquittal. The
consequence of the rule's abrogation was to lessen the State's total
burden of proof. The burden of proof as to "causation" was
unchanged, while the burden of proof to convict was lessened by
eliminating the separate requirement to prove death within a year
and a day. Simply put, the two principles of substantive criminal
law, causation and the year-and-a-day rule, are separate
requirements of the law





10
11
which cannot be subsumed within each other.10 Retroactive
abolishment of the rule clearly violated the fourth Calder
category.


3. The purposes behind the prohibition on ex post facto laws
are so fundamental that Due Process prevents the Tennessee
Supreme Court from obtaining the same result by judicial
decree.

In response to Petitioner's claim that the Fourteenth
Amendment bars retroactive application of judicial rulings in
criminal cases that are "unexpected and indefensible by reference
to the law which had been expressed prior to the conduct in
issue," Bouie v. City of Columbia, 378 U.S. 347, 353-354
(1964), the State contends that (a) Bouie and its progeny should
be interpreted only to prevent retroactive judicial decisions which
violate the Due Process right to fair warning that conduct is
criminal and
(b) general ex post facto principles should have no application to
judicial decisions through the Due Process Clause.


The State first contends that reference to the Ex Post Facto
Clause in Bouie and its progeny is dicta, and Bouie should only
prevent application of judicial decisions which violate the
principle of fair warning as to what conduct is criminal.
However, the State further contends:



10 The reason for the common law rule was not limited to
difficulty in proving causation. (See J.A. 16-17).
"Read in context, Bouie's references to ex post facto
principles thus reflect no more than a recognition that both
constitutional provisions the Ex Post Facto Clause and the
Due Process Clause share a common concern: the unfairness
of criminalizing conduct, or of escalating its penal
consequences, after the fact. (State's Brief p. 37) (emphasis
added).

Thus, the State actually concedes that the Due Process
Clause is concerned with more than simply fair warning that
certain conduct is criminal, but also addresses the unfairness of
escalating the penal consequences of a criminal act.11 Petitioner
contends that this is exactly what has occurred. The Tennessee
Supreme Court has by retroactive judicial decree altered the
substantive criminal law in such a way that the penal
consequences of Petitioner's offense have been aggravated.

The State also asserts that application of ex post facto
principles through the Due Process Clause would violate
200 years of precedent which holds that the Ex Post Facto
Clause does not apply to the judiciary. See, e.g. Frank v.
Mangum, 237 U.S. 309 (1915). Petitioner fully recognizes


11 "The presumption against retroactive application of new
laws is an essential thread in the mantle of protection that the law
affords the individual citizen. That presumption 'is deeply rooted
in our jurisprudence, and embodies a legal doctrine centuries
older than our Republic. This doctrine finds expression in several
provisions of our Constitution. The specific prohibition on ex
post facto laws is only one aspect of the broader constitutional
protection against arbitrary changes in the law." Lynce v. Ma this,
519 U.S. 433, 439-440. (internal citations omitted) (emphasis
added). The Court goes on to say that the Due Process Clause
also protects against the retroactive application of new laws.





12 13



the continuing viability of the general rule that the Ex Post Facto
Clause does not limit judicial action. This Court fully recognized
this general rule in Marks v. United States, 430 U.S. 188, 191-
192 (1977), but went on to hold that under limited circumstances
due process prevents courts from obtaining the same prohibited
result by judicial decree because the principles on which the Ex
Post Facto Clause is based are so fundamental to the concept of
constitutional liberty. Petitioner has not argued for the unlimited
incorporation of the Ex Post Facto Clause via the Fourteenth
Amendment. Bouie, its progeny, and Petitioner's argument all
place a significant limitation on the application of ex post facto
principles to judicial rulings. Due Process only prevents
retroactive judicial rulings which are "unexpected and indefensible
by reference to the law which had been expressed prior to the
conduct in issue." This limitation takes into account the
fundamental differences between legislative and judicial law-
making.12 Because of these differences, courts may more freely
apply their rulings retroactively than legislatures may

12 Bouie, supra at 354, adopts the limitation urged by
Jerome
Hall found at HALL, GENERAL PIOmJCwLEs OF CRIMINAL LAW (2d ed.

1960), at 61. Hall considers the fact that under traditional theory
all case law operates retroactively and that such a principle is an
essential part of any legal system. "The important thing,
therefore, is not the invalidity of the literal interpretation of the
traditional theory in this regard but the actual quality of the
adjudication. Specifically, is a decision retroactive only in the
above unavoidable way or is it also unexpected and indefensible
by reference to the law which had been expressed prior to the
conduct in issue? . . . In any event, the inevitability of a slight
'normal' degree of retroactivity in judicial decision provides no
ground for tolerating it in its obvious manifestations." HALL at 61.
retroactively apply legislation. So long as a judicial ruling is not
"unexpected and indefensible by reference to the law which had
been expressed prior to the conduct in issue" it may be applied
retroactively without offending due process.

The State also asserts that such an interpretation of
Due Process would "open up a boundless new frontier of
litigation in criminal cases" and would transform a vast array of
state law matters into federal issues. (pp. 40-41). In fact, the
lower courts have already interpreted Bouie as applying ex post
facto principles via the Due Process Clause to judicial rulings
that are "unexpected and indefensible." See Harold J. Krent,
Should Bouie Be Buoyed?:
Judicial Retroactive Lawmaking and the Ex Post Facto Clause, 3
ROGER WMs. U. L. REV. 35, 55-56 (1997) ("Lower courts have
extended the Supreme Court's due process analysis to
unforeseeable judicial changes in sentencing structure as well,
making the reach of the Due Process and Ex Post Facto Clauses
congruent."). Despite these applications, the courts have not been
inundated with Bouie claims and very few such claims have been
successful. Krent, supra at p. 58.

The State further contends that forcing courts to apply their
rulings retroactively will discourage departures from prior
precedent and serve as a check on judicial lawmaking. It relies
upon Justice Scalia's concurring opinion in James B. Beam
Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991), and Krent,
supra at p. 82, as support. This reliance ignores Krent's
commentary:
That justification for full retroactivity, however, misses the
point in the criminal law context. Little reason exists to
think that judges will be





14 15


reluctant to fashion new common law doctrines or
interpretations of statutory language affecting the rights of
criminal offenders due to the requirement of applying all
new rulings to similarly situated offenders. Indeed the
opposite is true. Judges may be tempted to change inter-
pretations precisely in order to achieve a retroactive effect
and punish particular offenders more harshly. Krent, at p.
83.

The State further argues Petitioner has offered no persuasive
reason why ex post facto principles should be applied to judicial
decrees via the Due Process Clause. However, Petitioner's
opening brief argued that the principles on which the Ex Post
Facto Clause is based, i.e fundamental justice, fair warning, and
the prevention of arbitrary and vindictive changes of laws, are
core concepts of constitutional liberty, and that the Due Process
Clause prevents courts from applying judicial rulings in ways
which impinge upon these principles. Each of these principles are
implicated in the present case. In response to Petitioner's
argument, the State attempts to argue that Due Process is only
concerned with fair notice that an act is criminal. They offer no
response to the "fundamental fairness" contentions and all but
ignore the fact that "fair warning" has been interpreted to include
more than the notion of fair warning that conduct is criminal.13


13 In addition, the concept of "fair warning" is not just
limited to the time of the act. A criminal defendant is also
entitled to fair warning of the law and applicable punishment
subsequent to the act. See e.g. Lynce v. Mathis, 519 U.S. 433, 440
(1997) (Ex post facto laws protect "the indigent defendant
engaged in negotiations that may lead to an acknowledgment of
guilt and a suitable punishment.")
Petitioner also raised the possibility that elected state judges
may be susceptible to the same kind of influences which justify
ex post facto limitations on legislatures. The State's response was
simply that no authority had been cited for this contention. Yet
its Brief relied heavily upon Krent, who concurs that: "On
balance, therefore, state court judges, because of their interest in
reelection, are more prone to the same kind of influences that
arguably justify stringent judicial review of legislative
retroactivity under the Ex Post Facto Clause." Krent, supra at 91-
92.~~

Finally, Petitioner contends that his argument for a limited
application of ex post facto principles to judicial law-making via
the Due Process Clause is more reasonable than the State's desire
that courts have unlimited and unbridled power to retroactively
alter substantive criminal law and aggravate an offense to the
detriment of a citizen.

Remarkably, the State contends that "it is impossible to
pinpoint exactly when the year-and-a-day rule ceased to operate in
Tennessee." (p. 31). With such unlimited discretion to alter
substantive law and no statute of limitations on murder, a
defendant who committed an assault in 1970 could now be
prosecuted for murder if the State could establish causation.15
Further, the State's


14 The commentator cites the fact that one Tennessee
Supreme Court Justice lost an election in 1996 because of her
participation in an opinion favorable to a criminal accused. Krent,
supra at p. 91, n. 232. See Amicus pp. 12-13.
15 Tennessee prosecutors are already exhuming bodies of
individuals who died more than a year after being assaulted and
who died before Rogers abrogated the year-and-a-day rule.




16 17



logic, if carried to extremes, would permit the Tennessee
Supreme Court to eliminate the common law requirement of
causation and apply that change retroactively, as well. The need
for repose suggests that retroactive alterations of substantive law
require some limitations.



CONCLUSION

If this Court finds a violation of Due Process, Petitioner
will still be subject to punishment for his criminal acts. This is
not a situation where the Petitioner will escape justice. All he
asks is that he face the law as it was at the time of his offense.
modified to a lesser offense or whether a new trial is required.

Respectfully submitted,
W. MARK WARD
(Counsel of Record)
TONY BRAYTON
GARLAND ERGODEN
Asst. Shelby County Public Defenders
Suite 2-01, 201 Poplar Ave.
Memphis, TN 38103
Telephone: (901) 545-5837
Counsel for the Petitioner
The opinion and judgment of the Supreme Court of
Tennessee should be reversed. Retroactive application of the
judicial abolishment of the year-and-a-day rule to Petitioner
violates the Fourteenth Amendment of the United States
Constitution. Accordingly, this case should be remanded to the
Supreme Court of Tennessee for a determination as to whether
Petitioner's sentence may be










See The Commercial Appeal, March 27, 1999, Section B3, reported
at 1999 WL 4142499.

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