Does the judicial override of a life sentence settlement agreement result in an arbitrary and capricious death sentence in violation of the Eighth and Fourteenth Amendments?

QUESTIONS PRESENTED The death sentence in this case is supported by only one aggravating circumstance, Tennessee’s prior violent felony conviction aggravator. The elected prosecutor recently assessed this case, including the problematic prior felony aggravator, and determined the death sentence is unjust. The parties prepared an agreed settlement where Mr. Nichols would move to dismiss his then-newly reopened post-conviction petition in exchange for a life sentence. Mr. Nichols would today be serving a life sentence, instead of facing an August 4th execution date, if the post-conviction judge had not overridden the prosecutor’s life sentence determination. Moreover, Mr. Nichols should not be facing execution because he is not death eligible—the prior violent felony aggravator is facially vague and fails to provide defendants with fair notice of the consequences for subsequently committing the crime of first-degree murder. There is a close likeness between Tennessee’s prior violent felony aggravator and those sentencing statutes struck down as facially vague in Johnson and its progeny.! Under Tennessee’s aggravating circumstance, punishment can be increased from life imprisonment to the death penalty if “[t]he defendant was previously convicted of one or more felonies, other than the present charge, which involve the use or threat of violence to the person.”? Like the residual 1 Johnson v. United States, 135 S. Ct. 2551 (2015); see also Sessions v. Dimaya, 138 S. Ct. 1204 (2018) and United States v. Davis, 139 S. Ct. 2319 (2019). 2 Tenn. Code Ann. § 39-13-204(i)(2) (1988). ‘ clause at issue in Johnson, this language is not defined and a prior conviction need not include violence as an element to qualify as a predicate crime for enhanced punishment. The Tennessee court below rejected Mr. Nichols’ constitutional challenge to the aggravator for the reason that the state “courts are to look to the actual facts of the prior felony [conviction] to determine the use of violence when such cannot be determined by the elements of the offense alone.”? Accordingly, the following questions are presented: (1) Does the judicial override of a life sentence settlement agreement result in an arbitrary and capricious death sentence in violation of the Eighth and Fourteenth Amendments? (2) Is Tennessee’s prior violent felony conviction aggravating circumstance unconstitutional under Johnson v. United States, 135 S. Ct. 2551 (2015), because its language is vague and it is applied based on an after-the-fact examination of the conduct involved in a prior conviction? (3) Is Mr. Nichols actually innocent of the death penalty because the sole aggravating circumstance is void for vagueness? 3 Nichols v. State, No. 2019 WL 5079357, at *6 (Tenn. Crim. App. Oct. 10, 2019) (Attached as