Cyntoia Brown v. Order Certifying Question of Law To the Supreme Court of Tennessee Carolyn Jordan

# NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

Case No. 16-6738

## UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

CYNTOIA BROWN,

)
)

Petitioner-Appellant,

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)

V.

)

)

ORDER CERTIFYING QUESTION
OF LAW TO THE SUPREME
COURT OF TENNESSEE

CAROLYN JORDAN,

)

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Respondent-Appellee.

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)

FILED
Aug 01, 2018
DEBORAH S. HUNT, Clerk

BEFORE: GIBBONS, THAPAR, and LARSEN, Circuit Judges.

PER CURIAM. Cyntoia Brown shot and killed Johnny Allen when she was sixteen years
old. The state of Tennessee tried her as an adult, and a jury convicted her of first-degree murder,
felony murder, and aggravated robbery. Under Tennessee law, when a juvenile is convicted of
first-degree murder, a trial judge can impose one of two sentences: (1) life in prison without the
possibility of parole, or (2) life in prison. Tenn. Code Ann. § 39-13-202(c)(3); see also Roper v.
Simmons, 543 U.S. 551 (2005) (holding that juveniles cannot be sentenced to death). The judge
chose the lesser of the two options and sentenced Brown to life.

Brown now seeks a writ of habeas corpus. She claims, among other things, that her
sentence is unconstitutional in light of the Supreme Court's decision in Miller v. Alabama,
567 U.S. 460 (2012). In Miller, the Court held that states cannot sentence juvenile offenders to
life without the possibility of parole unless they first consider whether the individual's youth and

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Case No. 16-6738
Brown v. Jordan

its attendant characteristics warrant a lesser sentence. Id. at 479, 483. Brown acknowledges that
she was not formally sentenced to life without the possibility of parole, but she nevertheless
contends that Miller applies to her case because it remains unclear whether she will ever become
eligible for release.

Understanding why requires some background on Tennessee's sentencing law. Prior to
1995, Tennessee Code Annotated § 40-35-501(h)(1) governed release eligibility for defendants
convicted of first-degree murder and sentenced to life in prison. That subsection provides that a
life sentence for first-degree murder amounts to sixty years and that a defendant will become
eligible for release after serving sixty percent of that sixty-year term, less any sentence credits
earned and retained. Id. Accordingly, a defendant like Brown would become eligible after thirty-
six years' time. In 1995, however, the Tennessee legislature amended the statute. It added a new
subsection-Tennessee Code Annotated § 40-35-501(i)-which provides that "[t]here shall be no
release eligibility for a person" sentenced for "[m]urder in the first degree." Id. (emphasis added).
The provision makes clear that such a person "shall serve one hundred percent (100%) of the
sentence imposed by the court less sentence credits earned and retained" and that "no sentence
reduction credits . .. shall operate to reduce the sentence imposed by the court by more than fifteen
percent (15%)." Id.

When the state legislature added the second subsection (§ 40-35-501(i), "no release
eligibility"), it did not repeal or make any changes to the first one (§ 40-35-501(h)(1), release
eligibility after thirty-six years). Both are currently in effect and appear to conflict regarding
whether a person sentenced to life for first-degree murder will ever become eligible for release.
Brown argues that the Tennessee appellate courts have not consistently interpreted § 40-35-501(i).
Compare State v. Polochak, No. M2013-02712-CCA-R3-CD, 2015 WL 226566, at *34 (Tenn.

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Case No. 16-6738
Brown v. Jordan

Crim. App. Jan. 16, 2015), with Myrick v. State, No. M2013-02352-COA-R3-CV, 2014 WL
5089347, at *3 (Tenn. Ct. App. Oct. 8, 2014) (involving second-degree murder). As such, Brown
asks that we certify the question to the Tennessee Supreme Court before determining whether she
is entitled to relief under Miller.

The state does not object to certification but maintains that the law is not as unclear as
Brown suggests. Tennessee argues that we should read the two provisions together, and that after
we do, it becomes clear that a defendant sentenced to life in prison for first-degree murder will
become eligible for release after serving one-hundred percent of a sixty-year life term, less any
credits earned and retained. For its part, the state cites the Tennessee Attorney General's opinion
from 1997, which reached the same conclusion, and the Tennessee Supreme Court's decision in
Vaughn v. State, which endorsed the Attorney General's opinion in the context of an ineffective-
assistance-of-counsel claim. 202 S.W.3d 106, 118-19 (Tenn. 2006). Based on these sources, the
state argues that Brown will become eligible for release in sixty years and in perhaps as early as
fifty-one.

While the state's position is a reasonable one, the Tennessee Supreme Court has never
squarely held that it is correct. And because Miller would entitle Brown to relief if she will never
become eligible for release, see 567 U.S. at 489, we believe the proper course is to CERTIFY the
following question to the Tennessee Supreme Court before we issue a ruling in Brown's case. The
panel STAYS consideration of the remaining issues on appeal pending a response.

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## CERTIFICATION TO THE SUPREME COURT OF TENNESSEE A.

Having set out in detail the factual and legal basis for Brown's claim on appeal and
demonstrated that it is governed by rules of Tennessee state law, we respectfully certify to the
Supreme Court of Tennessee the following question:

Will a defendant convicted of first-degree murder committed on or after July 1,
1995, and sentenced to life in prison under Tennessee Code Annotated § 39-13-
202(c)(3) become eligible for release and, if so, after how many years?

B.

In accordance with Rule 23 of the Supreme Court of Tennessee, we provide the following
required information:

(A) Style of the Case: Brown v. Jordan, No. 16-6738

(B) Facts and Questions of Law: The facts out of which the questions of Tennessee state law
arise and the questions themselves are discussed above.

(C) Names of Each Party: Cyntoia Brown and Carolyn Jordan, Warden

(D) Names, Addresses, and Telephone Numbers of Counsel:

a. Counsel for Cyntoia Brown:

Charles Mark Pickrell
5701 Old Harding Pike, Suite 200
Nashville, Tennessee 37205
(615) 352-9588

Charles W. Bone
511 Union Street, Suite 1600
Nashville, Tennessee 37219
(615) 238-6300

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Case No. 16-6738
Brown v. Jordan

b. Counsel for Carolyn Jordan:

John H. Bledsoe
500 Charlotte Avenue
Nashville, Tennessee 37243
(615) 741-4351

(E) Designation of One of the Parties as the Moving Party:

a. Moving party (Petitioner): Cyntoia Brown

b. Adverse party (Respondent): Carolyn Jordan

C.

Accordingly, it is ORDERED that the above question be certified to the Supreme Court
of Tennessee. In accordance with Rule 23, we instruct Ms. Deborah S. Hunt, Clerk of the United
States Court of Appeals for the Sixth Circuit, to serve copies of this certification order upon
counsel for the parties and to file this certification order under the seal of this Court with the clerk
of the Supreme Court of Tennessee, along with appropriate proof of service.

This Order of Certification is entered by Judge Julia Smith Gibbons, as the Judge presiding
in this Court.

FOR THE COURT:

Julia Smith Dillons

Julia Smith Gibbons
United States Circuit Judge