Whether Tennessee's facially-vague prior violent felony aggravating circumstance provided fair notice as required under Johnson v. United States and the Fifth and Fourteenth Amendments

QUESTIONS PRESENTED In its June 26, 2015 decision in Johnson v. United States, __ U.S.__, 185 S. Ct. 2551 (2015), this Court held a statute imposing additional punishment for a prior conviction of “[a]Jny crime punishable by imprisonment for a term exceeding one year ... that ... involves conduct that presents a serious potential risk of physical injury to another|,]” “fails to give ordinary people fair notice of the conduct it punishes” and, as applied, “invites arbitrary enforcement by judges.” Id. at 2555-56. On January 15, 1985, the day on which Mr. Sutton took the life of fellow inmate Carl Estep, a Tennessee aggravating circumstance provided for additional, indeed the ultimate, punishment for a defendant committing such an act if that defendant had a prior conviction of, “one or more felonies other than the present charge which involved the threat or use of violence to the person.” Tenn. Code Ann. § 39-13-204(i)(2) (1988) (repealed and replaced 1989) (emphasis added). That circumstance was applied to Mr. Sutton. No party, and no court, currently maintains that the language of these two statutes can be distinguished in any meaningful way. Indeed, no reasonable person could. Over three years ago, on June 8, 2016, after this Court held in Welch v. United States, _ _ U.S. _, 186 S. Ct. 1257 (2016), that Johnson has retroactive effect in cases on collateral review, Sutton (along with other affected Tennessee inmates) filed a motion to reopen his state post-conviction petition alleging Tennessee’s prior violent felony aggravating circumstance, like the statute at bar in i Johnson, “is unconstitutionally vague, was arbitrarily enforced, and failed to give fair notice.” Though the petition to reopen was promptly granted, it was not until almost two years later, in April of 2018, the Tennessee post-conviction trial court denied Sutton’s reopened petition and not until, January 31, 2020, 20 days before his scheduled execution, that the Tennessee Court of Criminal Appeals affirmed its decision. Only five days ago, February 13, 2020, the Tennessee Supreme Court issued an order refusing Sutton’s application for permissive appeal. As had all other Tennessee appellate courts, the Sutton court addressed only whether Tennessee decisions applying the prior violent felony aggravating circumstance suffered from the same failings as the pre-Johnson decisions this Court had overruled. As had all other Tennessee appellate courts, it neither inquired, resolved, or mentioned whether Tennessee’s facially-vague prior violent felony aggravating circumstance provided Sutton with the fair notice Johnson found lacking in the federal statute and the Fifth Amendment requires. In short, it simply read the Fifth and Fourteenth Amendments’ notice requirement out of this Court’s clear guidance announced in Johnson. Despite multiple requests to address both of Johnson’s requirements, one Tennessee court after another has failed to look past the manner in which its facially-vague aggravating circumstance is applied. Only one Court is left to restore Johnson to its original meaning. That is the Court which issued it. Accordingly, the following question is presented: ii Did Tennessee decisions applying the facially-vague prior violent felony aggravating circumstance, not handed down until after Sutton committed his capital offense, provide Sutton the fair notice required under Johnson v. United States and the Fifth and Fourteenth Amendments to the Constitution? iii