Coonce v. United States

Cite as: 595 U. S. ____ (2021) 1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
WESLEY PAUL COONCE, JR. v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 19–7862. Decided November 1, 2021

The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and
JUSTICE KAGAN join, dissenting from the denial of certio-
rari.
Petitioner Wesley Paul Coonce, Jr., was convicted in fed-
eral court of murder. Facing the death penalty, he argued
that his execution would violate the Eighth Amendment be-
cause he has an intellectual disability. See Atkins v. Vir-
ginia, 536 U. S. 304 (2002). The District Court denied
Coonce’s Atkins claim without a hearing, the jury sentenced
him to death, and the Eighth Circuit affirmed.
In denying Coonce relief without a hearing, the courts re-
lied on the definition of intellectual disability by the Amer-
ican Association on Intellectual and Developmental Disa-
bilities (AAIDD), which then required that an impairment
manifest before age 18. It is undisputed that Coonce’s im-
pairments fully manifested at age 20. After Coonce peti-
tioned for certiorari, the AAIDD changed its definition to
include impairments that, like Coonce’s, manifested before
age 22.
The Government urges us to grant certiorari, vacate the
judgment below, and remand (GVR), conceding that it is
reasonably probable that the Eighth Circuit would reach a
different result on reconsideration given the significant
shift in the definition that formed the basis of its opinion.
Instead, the Court denies certiorari. Because Coonce is en-
titled to a hearing on his Atkins claim, and because our
precedents counsel in favor of a GVR, I respectfully dissent.
2 COONCE v. UNITED STATES

SOTOMAYOR, J., dissenting

I
A
Coonce’s childhood was marked by emotional, physical,
and sexual abuse. He cycled through child psychiatric in-
stitutions beginning at age four. He entered the Texas ju-
venile system at age 11. While in juvenile custody, he cut
his own body and had to be restrained so he would not fur-
ther harm himself. He was sentenced to adult prison at age
17, where he continued to engage in self-mutilation.
At age 20, after Coonce’s release from state prison, he suf-
fered a traumatic brain injury. Coonce broke multiple fa-
cial bones, experienced bleeding around the brain, and
briefly entered a coma. His IQ plummeted from average
into the range of intellectual disability.
At age 29, while in federal prison serving a life sentence
for kidnapping and carjacking, Coonce and his codefendant,
Charles Michael Hall, attacked and killed Victor Castro Ro-
driguez, another prisoner. Hall was a decade older than
Coonce, with an IQ about 30 points higher. It was Hall who
bound, gagged, and blindfolded Castro. Hall consistently
asserted that he had killed Castro by standing on his neck
and suffocating him. Coonce, however, immediately
claimed responsibility for the killing.
B
A jury convicted Coonce of first-degree murder and mur-
der by a federal prisoner serving a life sentence. See 18
U. S. C. §§1111, 1118. After a penalty-phase hearing, the
jury recommended death.1 932 F. 3d 623, 631 (CA8 2019).
Before trial, the defense represented that Coonce would

——————
1 The jury unanimously found as a mitigating factor that Coonce’s

childhood “ ‘was marked by chaos, abuse (both physical and sexual), as
well as neglect and abandonment.’ ” 932 F. 3d, at 632. Eight jurors also
found that Coonce “ ‘ha[d] suffered from mental and emotional impair-
ments from a very young age.’ ” Ibid.
 Cite as: 595 U. S. ____ (2021) 3

SOTOMAYOR, J., dissenting

not be raising a claim of intellectual disability. Ibid. How-
ever, on May 27, 2014, in the midst of the penalty-phase
proceedings, this Court held that a “rigid rule” disqualify-
ing a defendant from establishing intellectual disability if
the defendant “scored a 71 instead of 70 on an IQ test” was
unconstitutional. Hall v. Florida, 572 U. S. 701, 724. The
next day, Coonce moved for relief under Atkins. He noted
that he had scored a 71 on a reliable IQ test and argued that
a rigid age-18 onset cutoff, like the 70-IQ cutoff in Hall, was
unconstitutional.
The District Court denied the motion without a hearing.
932 F. 3d, at 633, 634. The Eighth Circuit affirmed. Id., at
634. When considering Coonce’s Eighth Amendment claim,
the court acknowledged that “the [American Psychiatric As-
sociation (APA)] has recently changed its definition for the
age of onset from before eighteen to ‘during the develop-
mental period,’ defined as ‘during childhood or adoles-
cence.’ ” Ibid. And, it added, Coonce “tells us about litera-
ture suggesting the AAIDD, which still defines the age of
onset as before eighteen, will eventually shift to a more
vague standard.” Ibid. The court rejected such “predic-
tions” as “not sufficient for us to divine any current Eighth
Amendment limitation.” Ibid.
Coonce timely petitioned for certiorari. While his petition
was pending, the AAIDD issued a new edition of its leading
manual on intellectual disability. The manual included a
revised definition of intellectual disability, which requires
that a disability “originat[e] during the developmental pe-
riod, which is defined operationally as before the individual
attains age 22.” AAIDD, Intellectual Disability: Definition,
Diagnosis, Classification, and Systems of Supports 1 (12th
ed. 2021) (AAIDD Manual). Coonce filed a supplemental
petition requesting that the Court GVR so the Eighth Cir-
cuit could reconsider his Atkins claim in light of this new
development.
4 COONCE v. UNITED STATES

SOTOMAYOR, J., dissenting

The Government agreed. “This Court should GVR,” it ex-
plained, “because the AAIDD’s intervening definitional re-
vision affects a central factual predicate for the court of ap-
peals’ Eighth Amendment analysis.” Brief in Opposition
12. It conceded that “below, [it] invoked the AAIDD’s and
APA’s ‘leading publications’ on intellectual disability” to ar-
gue for an age-18-onset standard; that the Eighth Circuit
“likewise relied on” those standards; and that the change in
the AAIDD’s definition “affect[ed] a central factual predi-
cate for the court of appeals’ Eighth Amendment analysis.”
Id., at 12, 14. “A GVR order is particularly warranted,” the
Government emphasized, “given the stakes in this capital
context.” Id., at 15.
Nevertheless, the Court denies certiorari.
II
The Court’s refusal to GVR is deeply concerning, espe-
cially given the strength of Coonce’s claim. In context, the
change in the AAIDD’s definition provides compelling evi-
dence of a shift in consensus in Coonce’s favor with respect
to the age of onset requirement. If he satisfies that require-
ment, he likely could establish an intellectual disability un-
der Atkins.
A
“The Eighth Amendment prohibits certain punishments
as a categorical matter.” Hall, 572 U. S., at 708. “[A]s rel-
evant for this case, persons with intellectual disability may
not be executed.” Ibid. “[T]he medical community defines
intellectual disability according to three criteria: [1] signif-
icantly subaverage intellectual functioning, [2] deficits in
adaptive functioning (the inability to learn basic skills and
adjust behavior to changing circumstances), and [3] onset
of these deficits during the developmental period.” Id., at
710. The Government does not dispute that Coonce has of-
 Cite as: 595 U. S. ____ (2021) 5

SOTOMAYOR, J., dissenting

fered enough evidence on the first two prongs of this defini-
tion to merit an Atkins hearing. With respect to the third
prong, however, the courts below held that Coonce categor-
ically could not prove intellectual disability because the
Eighth Amendment required onset prior to age 18. Coonce,
by contrast, argued that his age-20 onset may accord with
the definition of intellectual disability.
Since the decision below, the consensus in support of
Coonce’s position has only grown. The AAIDD’s change in
definition offers powerful evidence of this shift.
As this Court demonstrated in Hall, the analysis begins
by “consult[ing] the medical community’s opinions.” 572
U. S., at 710. “The legal determination of intellectual disa-
bility is distinct from a medical diagnosis, but it is informed
by the medical community’s diagnostic framework.” Id., at
721; see also Moore v. Texas, 581 U. S. ___, ___ (2017) (slip
op., at 10) (emphasizing that our precedent does not “license
disregard of current medical standards”). As noted, the
AAIDD (relied upon in Hall) now has replaced its prior age-
18 onset requirement with an age-22 onset requirement,
evincing a clear shift. AAIDD Manual 1.2 Similarly, the
APA’s Diagnostic and Statistical Manual of Mental Disor-
ders (DSM) used to require an impairment to onset “ ‘before
age 18 years’ ” to meet the definition of an intellectual disa-
bility. Atkins, 536 U. S., at 308, n. 3 (quoting DSM–IV, p.
41 (4th ed. 2000)). However, in 2013, the manual’s fifth edi-
tion (DSM–5) changed course, providing only that an im-
pairment must onset “during the developmental period.”
Hall, 572 U. S., at 721 (citing DSM–5, at 33). The revisions
to the AAIDD and APA definitions have aligned those defi-
nitions more closely with that of the American Psychologi-
cal Association, another authority relied upon in Hall,

——————
2 This Court held in Moore that a state court on collateral review re-

versibly erred when it disregarded the AAIDD’s definition of intellectual
disability in favor of wholly nonclinical factors. 581 U. S., at ___.
6 COONCE v. UNITED STATES

SOTOMAYOR, J., dissenting

which also sets the cutoff at age 22. Manual of Diagnosis
and Professional Practice in Mental Retardation 13, 36
(1996). These three leading clinical pronouncements pro-
vide powerful evidence of medical consensus that cannot be
disregarded. Moore, 581 U. S., at ___.
“[T]he legislative policies of various States” in defining
intellectual disability are also central to the inquiry. Hall,
572 U. S., at 710. By my count, here, as in Hall, “in 41
States an individual in [Coonce’s] position . . . would not be
deemed automatically eligible for the death penalty.” Id.,
at 716.3 Moreover, this aggregate number is “not the only

——————
3 As follows, 41 States appear to eschew a rigid age-18 onset require-

ment. Two States impose no age-of-onset requirement in the Atkins con-
text. Neb. Rev. Stat. §28–105.01(3) (Cum. Supp. 2014); Kan. Stat. §§21–
6622(h), 76–12b01(d) (Cum. Supp. 2018); see State v. Vela, 279 Neb. 94,
151, 777 N. W. 2d 266, 307 (2010) (discussing Nebraska Legislature’s
choice to omit age-of-onset requirement). Two impose an age-22 onset
requirement. See Ind. Code §35–36–9–2 (2021); Utah Code §77–15a–
102(2) (2021). A fifth State, the Nation’s most populous, recently
amended its law to replace its rigid age-18 onset requirement with “the
developmental period, as defined by clinical standards.” Cal. Penal Code
Ann. §1376(a)(1) (West Cum. Supp. 2021). A sixth dropped its rigid age-
18 onset requirement in 2014. Compare La. Code Crim. Proc. Ann., Art.
905.5.1(H) (West 2014) (requiring onset “before the age of eighteen
years”) with La. Code Crim. Proc. Ann., Art. 905.5.1(H) (West Cum.
Supp. 2021) (requiring onset “during the developmental period”). Three
more States (totaling 9) similarly impose no rigid age-of-onset cutoff and
require onset “during the developmental period,” indicating flexibility
and suggesting incorporation of the medical consensus. Ga. Code Ann.
§17–7–131(a)(2) (2020); Ky. Rev. Stat. Ann. §532.130(2) (West 2016);
S. C. Code Ann. §16–3–20(C)(b)(10) (2015); see also Woodall v. Common-
wealth, 563 S. W. 3d 1, 7 (Ky. 2018) (emphasizing that in Kentucky, “pre-
vailing medical standards should always take precedence in a court’s de-
termination”). Two more, Montana and Wyoming (totaling 11), have not
adopted any rigid definition of intellectual disability in the criminal con-
text. Twenty-three additional States (totaling 34) have abolished the
death penalty, as has the District of Columbia. See Roper v. Simmons,
543 U. S. 551, 574 (2005) (teaching that States that have abandoned cap-
ital punishment should be considered as part of the consensus against
 Cite as: 595 U. S. ____ (2021) 7

SOTOMAYOR, J., dissenting

consideratio[n] bearing on a determination of consensus,”
id., at 717; the “[c]onsistency of the direction of change,”
ibid., also supports Coonce’s position. In the last five years,
five States (Colorado, Delaware, New Hampshire, Virginia,
and Washington) have abolished the death penalty, and a

——————
its application). Two more States (totaling 36), Oregon and Pennsylva-
nia, have suspended executions. See Hall, 572 U. S., at 716 (counting
“Oregon, which has suspended the death penalty,” as part of consensus
against rigid 70-IQ rule).
Four States’ courts of last resort have mentioned an age-18 onset re-
quirement in the Atkins context, but relied on at least one medical defi-
nition that subsequently has changed. State v. Ford, 158 Ohio St. 3d
139, 146–148, 2019-Ohio-4539, 140 N. E. 3d 616, 647 (relying on AAIDD
and APA standards in effect at the time); Ex parte Lane, 286 So. 3d 61,
63 (Ala. 2018) (same); Chase v. State, 171 So. 3d 463, 470 (Miss. 2015)
(same); Ex parte Briseno, 135 S. W. 3d 1, 7 (Tex. Crim. App. 2004) (same),
abrogated in part by Moore, 581 U. S., at ___. In addition, Nevada's high-
est court has defined the state legislature’s flexible age-of-onset require-
ment (“during the developmental period,” Nev. Rev. Stat. §174.098(7)
(2017)) to require age-18 onset, again relying on AAIDD and APA defini-
tions that are now outdated. Ybarra v. State, 127 Nev. 47, 53–54, 57–58,
247 P. 3d 269, 273–274, 276 (2011). Because these courts have defined
intellectual disability for capital cases in direct reference to the medical
consensus, it is far from clear that Coonce would be denied an Atkins
hearing in these five States (totaling 41) solely because his impairments
fully manifested at age 20. See Moore, 581 U. S., at ___, ___ (slip op., at
8, 17) (holding that “adherence to superseded medical standards,” as op-
posed to reliance on “current manuals [which] offer the best available
description of how mental disorders are expressed and can be recognized
by trained clinicians,” violated the Eighth Amendment (internal quota-
tion marks omitted)).
Only nine States with capital punishment have adopted a statutory
age-18 onset requirement for Atkins claims. See Ariz. Rev. Stat. Ann.
§13–753(K)(3) (2020); Ark. Code Ann. §5–4–618(a)(1)(A) (Supp. 2021);
Fla. Stat. §921.137(1) (2015); Idaho Code Ann. §19–2515A(1)(a) (2017);
Mo. Rev. Stat. §565.030(6) (2016); N. C. Gen. Stat. Ann. §15A–2005(a)(1)
(2019); Okla. Stat., Tit. 21, §701.10b(B) (Supp. 2020); S. D. Codified Laws
§23A–27A–26.1 (Cum. Supp. 2019); Tenn. Code Ann. §39–13–203(a)(3)
(Supp. 2021). There is no reason to assume that on reconsideration, the
Eighth Circuit would necessarily side with this minority of jurisdictions.
8 COONCE v. UNITED STATES

SOTOMAYOR, J., dissenting

sixth (California) recently repealed its rigid age-18 onset re-
quirement and replaced it with “clinical standards.” Cal.
Penal Code Ann. §1376(a)(1) (effective Jan. 1, 2021). Three
of these States (California, Colorado, and Virginia) enacted
these reforms just during the pendency of Coonce’s petition
for certiorari.
On the whole, there is “strong evidence of consensus that
our society does not regard this strict cutoff as proper or
humane.” Hall, 572 U. S., at 718. As the Government con-
cedes, with the new information, there is at least “a reason-
able probability” the Eighth Circuit would conclude that
Coonce has demonstrated timely onset of his impairments.
Brief in Opposition 13 (internal quotation marks omitted).
B
The Government also tells us that a redetermination by
the Eighth Circuit “may determine the ultimate outcome”
of Coonce’s Atkins claim. Brief in Opposition 13 (internal
quotation marks omitted). Indeed, even without a hearing,
Coonce has produced convincing evidence on the first two
prongs of intellectual disability. A defense psychologist
who reviewed documentary evidence and administered a
comprehensive battery of tests on Coonce across two 4-hour
sessions determined that he had an IQ of 71, within the ac-
cepted range for intellectual disability. See Moore, 581
U. S., at ___ (IQ score of 74, accounting for standard error,
required consideration of adaptive functioning); Brumfield
v. Cain, 576 U. S. 305, 315 (2015) (state court unreasonably
applied Hall in finding IQ score of 75 to preclude intellec-
tual disability); Hall, 572 U. S., at 712–714 (if IQ score is
close to 70, courts must account for “standard error of meas-
urement”). Coonce therefore has put forth evidence to es-
tablish that he has “significantly subaverage intellectual
functioning.” Id., at 710.
The remaining prong, deficits in adaptive functioning,
 Cite as: 595 U. S. ____ (2021) 9

SOTOMAYOR, J., dissenting

“requires an evaluation of the individual’s ability to func-
tion across a variety of dimensions.” Brumfield, 576 U. S.,
at 317. A defense expert’s evaluation of Coonce identified
significant impairments in memory, language, attention,
reasoning, ability to organize information, and executive
functioning. There is also evidence that Coonce was unable
to hold employment, control his impulses, and function in-
dependently. Even in the regimented environment of
prison, Coonce’s attorneys represent that he continues to
engage in self-mutilation, has proven unable to timely take
medication, and cannot complete other basic tasks.4
In sum, if Coonce satisfies the age-of-onset requirement,
he has a substantial likelihood of proving he has an intel-
lectual disability.
III
In light of the above, the material change in the AAIDD’s
leading definition of intellectual disability plainly warrants
a GVR. To my knowledge, the Court has never before de-
nied a GVR in a capital case where both parties have re-
quested it, let alone where a new development has cast the
decision below into such doubt.
The Court has held that “[w]here intervening develop-
ments . . . reveal a reasonable probability that the decision
below rests upon a premise that the lower court would re-
ject if given the opportunity for further consideration, and
——————
4 That some “other evidence in the record . . . cut[s] against [Coonce’s]

claim” is no justification for denying a hearing, Brumfield v. Cain, 576
U. S. 305, 320 (2015), especially where that evidence was less than com-
pelling. For example, a psychologist estimated Coonce’s IQ at around 79
after his accident, while a Bureau of Prisons psychologist later estimated
his IQ at around 77. However, neither of these estimates used tests de-
signed to measure IQ. In contrast, the expert witness who calculated
Coonce’s IQ at 71 did so using the leading clinical instrument for con-
ducting such testing. Even the Government’s expert conceded that the
defense expert’s IQ testing was conducted properly and that there was
no evidence of malingering.
10 COONCE v. UNITED STATES

SOTOMAYOR, J., dissenting

where it appears that such a redetermination may deter-
mine the ultimate outcome of the litigation, a GVR order is
. . . potentially appropriate.” Lords Landing Village Condo-
minium Council of Unit Owners v. Continental Ins. Co., 520
U. S. 893, 896 (1997) (per curiam) (internal quotation
marks omitted). The Government appropriately confesses
that “[t]his case satisfies both criteria” and that, as a result,
“[t]his Court should GVR.” Brief in Opposition 12, 14.
Members of this Court have expressed additional views
on the propriety of GVR orders.5 Under any, a GVR was
appropriate here. The parties have identified a new devel-
opment with obvious legal bearing. The AAIDD definition
was one of only two sources the Eighth Circuit consulted,
and the court rejected Coonce’s argument solely because, at
the time, it was an unrealized “predictio[n] that medical ex-
perts will agree with Coonce’s view in the future.” 932
F. 3d, at 634. As the Government concedes, the realization
of Coonce’s “predictio[n]” surely presents a reasonable prob-
ability of a different outcome. Thus, the Government does
not defend the judgment below.
Finally, in the Government’s words, “[a] GVR order is

——————
5 See, e.g., Myers v. United States, 587 U. S. ___, ___ (2019) (ROBERTS,

C. J., dissenting) (slip op., at 2) (GVR unwarranted “[u]nless there is
some new development to consider”); Hicks v. United States, 582 U. S.
___, ___ (2017) (GORSUCH, J., concurring) (slip op., at 2) (in cases involv-
ing unpreserved but plain errors, GVR appropriate “where we think
there’s a reasonable probability” that “curing the error will yield a differ-
ent outcome”); Stutson v. United States, 516 U. S. 193, 198 (1996) (Scalia,
J., dissenting with Lawrence v. Chater, 516 U. S. 163, 178, 191–192
(1996)) (GVR warranted “where an intervening factor has arisen that has
a legal bearing upon the decision”).
In Myers, unlike here, the Government endorsed the judgment below
and requested GVR only because the lower court “made some mistakes
in its legal analysis.” 587 U. S., at ___ (slip op., at 1). Hicks, too, did not
involve any new development. Rather, the Government sought to resus-
citate a claim that the defendant had forfeited. 582 U. S., at ___
(ROBERTS, C. J., dissenting).
 Cite as: 595 U. S. ____ (2021) 11

SOTOMAYOR, J., dissenting

particularly warranted given the stakes in this capital con-
text.” Brief in Opposition 15. Coonce asserts an interest of
constitutional dimension. He requests a meaningful oppor-
tunity to be heard on his claim that he has an intellectual
disability, such that his execution would “violat[e] his . . .
inherent dignity as a human being,” threaten “the integrity
of the trial process,” and contravene the Eighth Amend-
ment’s prohibition on cruel and unusual punishment. Hall,
572 U. S., at 708, 709. The Court has issued GVR orders
for far less.
This Court has long emphasized the “need for reliability
in the determination that death is the appropriate punish-
ment in a specific case.” Woodson v. North Carolina, 428
U. S. 280, 305 (1976) (plurality opinion). A GVR was the
least the Court could have done to protect this life-or-death
interest.
* * *
I can only hope that the lower courts on collateral review
will give Coonce the consideration that the Constitution de-
mands. But this Court, too, has an obligation to protect our
Constitution’s mandates. It falls short of fulfilling that ob-
ligation today. The Court should have allowed the Eighth
Circuit to reconsider Coonce’s compelling claim of intellec-
tual disability, as both he and the Government requested.
I respectfully dissent.