Does the Constitution permit Tennessee to evade the mandate of Atkins v. Virginia, 536 U.S. 304 (2002) by legislative inaction and judicial abdication?

QUESTION PRESENTED When Mr. Keen first attempted to prove his ineligibility for execution, the Tennessee Supreme Court held that the state has “no business executing the intellectually disabled,” and invited Mr. Keen to continue to pursue relief. Keen v. State, 398 S.W.3d 594, 613 (Tenn. 2012). Subsequently, the Tennessee courts have held that there is no statutory remedy available for prisoners like Mr. Keen. Payne v. State, 493 S.W. 3d 478, 492 (Tenn. 2016); Dellinger v. State, No. 2019 WL 1754701 at *6 (Tenn. Crim. App. April 17, 2019). Twice the Tennessee Supreme Court invited the Tennessee legislature to “create a procedure that accommodates prisoners on death row whose intellectual disability claims cannot be raised under [current Tennessee law].” Keen v. State, 398 S.W.3d 594 (Tenn. 2012); accord Payne v. State, 493 8.W. 3d 478, 492 (Tenn. 2016). However, as the Court of Criminal Appeals recently noted, “[t]he General Assembly is in its seventh session since Keen was filed and no legislation establishing a procedure mentioned in Keen has become law.” Dellinger, 2019 WL 1754701 at *6. The question presented by this petition is: Does the Constitution permit Tennessee to evade the mandate of Atkins v. Virginia, 536 U.S. 304 (2002) by legislative inaction and judicial abdication? David Keen respectfully petitions for a writ of certiorari to review the judgment of the Tennessee Supreme Court. i