Is the 'prior violent felony conviction' aggravating factor in Tennessee's death penalty statutes unconstitutional under Johnson v. United States, 135 S. Ct. 2551 (2015)?

QUESTIONS PRESENTED FOR REVIEW The Petitioner, Terry Lynn King, was sentenced to death by a Tennessee Court. This death sentence relies in part on the jury having found the aggravating factor that he was previously convicted of one or more felonies involving the use or threat of violence to the person of another. Following this Honorable Court’s decision in Johnson v. United States, Mr. King challenged his death sentence on the grounds that the statutory language of the Tennessee prior violent felony aggravating factor, as it existed at the time Mr. King was sentenced to death, was unconstitutionally vague.! Under Tennessee law at the time of Mr. King’s sentencing, a jury could impose a death sentence if the 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.”2 This prior violent felony aggravator is applied to increase the potential minimum punishment for the offense from life imprisonment to death. Just as with the residual clause dealt with in Johnson, this statutory language is not defined and does not require that the prior conviction include violence as an element. The Tennessee courts rejected Mr. King’s claims on the basis that Johnson does not apply to Mr. King’s death sentence because the Tennessee Courts eschew an elements-based categorical approach and instead look to the facts of the underlying 1 Johnson v. United States, 135 8. Ct. 2551 (2015). 2 Tenn. Code Ann. § 39-2-208 (i)(2) (1982) (repealed). i prior conviction. This is a clear misapplication of the jurisprudence of this Honorable Court, which deprives Mr. King of his constitutional rights. Mr. King’s death sentence, and the death sentences of others who are awaiting execution by the State of Tennessee based on this same aggravating factor, are founded upon an unconstitutional aggravating factor. Mr. King asserts in this petition that this Honorable Court should grant certiorari because the Tennessee state courts are acting contrary to this Honorable Court’s precedent with the result that persons are currently under unconstitutional death sentences. To that end, he presents the following question: (1) Is the ‘prior violent felony conviction’ aggravating factor in Tennessee’s death penalty statutes unconstitutional under Johnson v. United States, 135 S. Ct. 2551 (2015), because the language of that aggravator is vague and because Tennessee has, in practice, rejected an elements-based categorial approach in favor of examining the specific underlying conduct of the prior conviction? ii