Whether the Eighth Amendment prohibits the execution of an individual with intellectual disability when their IQ scores and diagnostic evidence demonstrate significant cognitive impairment

No question identified. : To the Honorable Brett M. Kavanaugh, Associate Justice of the Supreme Court of the United States and Circuit Justice for the Sixth Circuit: Byron Black is scheduled to be executed on August 5, 2025, at 10:00 AM. Mr. Black respectfully requests a stay of his execution pending this Court’s disposition of his petition for a writ of certiorari. STANDARDS FOR A STAY OF EXECUTION Mr. Black respectfully requests that this Court stay his execution pursuant to Supreme Court Rule 23 and 28 U.S.C. 2101(f), pending consideration of his concurrently filed petition for a writ of certiorari (the “Petition”). See Barefoot v. Estelle, 463 U.S. 880, 889 (1983) (‘Approving the execution of a defendant before his [petition] is decided on the merits would clearly be improper.”); see also Lonchar v. Thomas, 517 U.S. 314, 320 (1996) (holding that a court may stay an execution if needed to resolve issues raise in initial petition). The standards for granting a stay of execution are well established. Relevant considerations include the prisoner’s likelihood of success on the merits, the relative harm to the parties, the extent to which the prisoner has unnecessarily delayed his or her claims, and the public interest. See Hill v. McDonough, 547 U.S. 573, 584 (2006); Nelson v. Campbell, 541 U.S. 637, 649-50 (2004); Barefoot, 463 U.S. at 895. All four factors weigh strongly in Mr. Black’s favor. MR. BLACK SHOULD BE GRANTED A STAY OF EXECUTION A. Mr. Black is likely to succeed on the merits. As detailed in Mr. Black’s petition for a writ of certiorari, every expert who has evaluated Mr. Black has concluded that he is a person living with intellectual disability. Indeed, his IQ scores on gold-standard individually administered objective measures (57, 67, 69, 73, and 76) all meet the criteria to establish significantly 2 subaverage intellectual functioning. The very question that this Court is considering in Hamm v. Smith, No. 24-872, is the same question that has bedeviled courts in Mr. Black’s case: “Whether and how courts may consider the cumulative effect of multiple IQ scores in assessing an Atkins claim.” Hamm, 2025 WL 1603602, at *1 (June 6, 2025) (order granting certiorari). In fact, the petitioner in Hamm relies on Mr. Black’s 2017 case as evidence of the split in the circuits. As the issue in the lower courts percolated, Mr. Black obtained new evidence proving that prior decisions rejecting his Atkins claim are legally and factually erroneous—including the fact that the state’s key expert now admits that Mr. Black meets current medical standards for the diagnosis of intellectual disability. His new evidence is so compelling that it resulted in a stipulation from the State of Tennessee that Mr. Black is indeed ineligible for the death penalty and his capital sentence should be set aside. Mr. Black attempted to avail himself of a state-created right to establish his ineligibility for the death penalty through a motion to recall the mandate. The Tennessee Supreme Court refused to permit him access to this process by relying on decisions which are premised on legal analysis that conflicts with this Court’s decisions in Hall v. Florida; 572 U.S. 701 (2014), Brumfield v. Cain, 576 U.S. 305 (2015), and Moore v. Texas, 586 U.S. 133 (2019). The Tennessee Supreme Court’s action deprived Mr. Black of a protected liberty interest to establish his innocence of the death penalty conflicting with this Court’s decisions. Gutierrez v. Saenz, 145 S. Ct. 2258 (2025); Reed v. Goertz, 598 U.S. 230 (2023); Skinner v. Switzer, 562 U.S. 521 (2011); District Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 3 68 (2009); Evitts v. Lucey, 469 U.S. 387, 401 (1985); Wolff v. McDonnell, 418 U.S. 539, 558 (1974). Given that the Court is already considering a related issue in Hamm and for the reasons detailed in his petition, Mr. Black has established he is likely to succeed on the merits of his claim. B. Mr. Black has been timel