Cone v. Bell

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Authorship: Josh Friedman, a 3L at Stanford Law School.

Contents

[edit] Briefs and Documents

Docket: 07-1114

Issue: Whether a federal habeas claim is “procedurally defaulted” because it has been presented twice to the state courts, and whether a federal habeas court is powerless to recognize that a state court erred in holding that state law precludes reviewing a claim. (Disclosure: Akin Gump represents the petitioner).

Merit briefs

Amicus briefs

Oral Argument: Transcript

Decision: Vacated and remanded in an opinion by Justice Stevens

[edit] Pre-Argument Articles

[edit] Argument Preview

28 U.S.C. 2254 provides, in relevant part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.

[edit] I. Background

Perhaps the clearest recitation of the facts underlying Cone v. Bell is provided by Judge Merritt in his dissent from the Sixth Circuit opinion currently on appeal:

In 1980, Gary Cone, who has a high IQ and a college education, committed an unprovoked brutal murder in Memphis. Before that, he fought in the Viet Nam conflict, received a bronze star for bravery in combat, and came home with a mental illness. He returned addicted to drugs and suffering from a serious post-traumatic, wartime stress disorder.

It is against this factual backdrop that Gary Cone has proceeded through myriad rounds of litigation. In 1982, he was convicted of first-degree and felony murder, among other charges, stemming from his role in the robbery of a Memphis jewelry store. At trial, Cone did not deny that he had committed the crimes, but rather argued that he lacked the necessary mens rea for a capital murder conviction. Specifically, he asserted that his actions were the product of mental illness and drug addiction, both of which were traceable to his experiences in Vietnam. The State’s theory of the case focused solely on attempting to undermine Cone’s argument. Thus, among other things, it called several witnesses to demonstrate that Cone’s claims were “baloney.” The jury found Cone guilty, and, after finding the requisite aggravating factors, sentenced him to death. On direct review, the Tennessee Supreme Court affirmed Cone’s conviction and sentence, specifically noting the lack of evidence to support his mens rea defense.

Cone filed a timely petition for state post-conviction relief in which he asserted, among other claims, that the State had violated Brady v. Maryland (1963) by withholding evidence material to Cone’s mental state. While this petition was pending, Cone gained access to the district attorney’s case file from his prosecution. Cone has consistently maintained that the case file, as well as subsequently discovered FBI documents, contains suppressed evidence material to his defense.

In light of the newly discovered information, Cone amended his petition to include more detailed Brady claims. The State countered that Cone’s Brady claim had already been “previously determined” as part of “a full and fair hearing” conducted by the Tennessee Supreme Court. Although Cone explained that the hearing in question, a direct review of the original conviction by the Tennessee Supreme Court, addressed not the Brady claim but instead the “distinct question whether the State had violated a state procedural rule by not disclosing witness statements prior to cross-examination,” the post-conviction review court denied his application on the ground that the Brady claim was “heretofore determined and denied.”

Cone subsequently sought a timely writ of habeas corpus in federal court, predicating his right to relief in part on the State’s alleged Brady violation. In response, the State contended that Cone’s Brady claim was waived, emphasizing the Tennessee Court of Criminal Appeal’s statement that Cone had waived “all claims raised in his second petition for post-conviction relief which had not been previously determined.” The district court agreed and denied relief.

On appeal, the Sixth Circuit affirmed the denial of the Brady claim. Notably, the court of appeals did not adopt the district court’s waiver rationale but instead concluded that the state court decision was premised upon “‘independent and adequate’ state grounds” that were not cognizable in federal courts. However, the court of appeals granted Cone relief on other grounds in two separate opinions: the first in 2001 on grounds of ineffective assistance of counsel, and the second in 2004 after concluding Tennessee had relied on an unconstitutional aggravating factor in sentencing Cone to death. The Supreme Court reversed both holdings.

In 2007, on his second remand to the Sixth Circuit, Cone again raised his Brady claim. A divided panel again rejected his argument, explaining that “[i]f the state court decides the petitioner’s claims on an adequate and independent state ground, such as a state procedural rule, the petitioner’s claims are considered procedurally defaulted and he is barred from seeking federal habeas relief.” Cone’s Brady claim was of exactly this type, the court of appeals reasoned, because the lower courts had relied on adequate and independent state grounds in concluding that Cone’s Brady claims were either previously determined or waived. In any event, the court of appeals concluded, the documents Cone sought to introduce were not Brady material, as they would be insufficient to “overcome the overwhelming evidence of Cone’s guilt . . . and the persuasive testimony that Cone was not under the influence of drugs.”

Judge Merritt dissented. He argued that because the state courts had “overlooked” Cone’s amendment of his Brady claims in his second state post-conviction application, “four courts – two state courts and two federal courts – have now misconstrued the record and declined to hear the merits after invoking the doctrine of ‘procedural default.’” Judge Merritt emphasized that because of this oversight, “no court, state or federal, has as yet reviewed the claim on the merits.”

Cone sought en banc relief, which was denied over the dissent of seven judges. The dissenters pointed to both the recurring failure to consider Cone’s amended Brady claim as well as the State’s shifting rationale for why the Brady claim should not be adjudicated as reasons to grant en banc review.

Following this denial, Cone petitioned for certiorari.

[edit] II. Petition for Certiorari

Cone filed a petition for certiorari in February, 2008, in which he presented two questions: (1) whether a federal habeas claim is “procedurally defaulted” because it has been presented twice to the state courts; and (2) whether a federal habeas court is powerless to recognize that a state court erred in holding that state law precludes reviewing a claim.

In his petition for certiorari, Cone argued that by implicitly answering “yes” to both these questions, the Sixth Circuit holding conflicts with Supreme Court precedent and the decisions of other circuits.

Addressing the first question presented, Cone argued that the Sixth Circuit’s opinion “gets habeas law exactly backward.” Instead of barring federal adjudication because a habeas petitioner has previously presented his claim in state courts, habeas law requires exhaustion of state law remedies. Thus, while federal courts generally are barred from reviewing a claim denied by the state courts on an “adequate and independent state law ground,” it would present an illogical Catch-22 if such grounds could be found merely because state courts denied rehearing of an already presented claim. In that situation, such “double exhaustion” merely demonstrates that the claim is exactly that—exhausted.

Moreover, Cone continued, the Sixth Circuit’s contrary reading is in tension with Supreme Court precedent as well as the holdings of the Second, Fifth, Seventh, Ninth, and Tenth Circuits. Specifically, Coleman v. Thompson (1991), Ylst v. Nunnemaker (1991), and the holdings of those circuits compel the conclusion “that application of a rule against reconsideration does not amount to a procedural bar.”

Turning to the second question presented, Cone argued that even if the Tennessee courts had actually imposed a procedural bar, the Sixth Circuit was wrong to conclude that a federal habeas court cannot review that holding for error. Certiorari is warranted, Cone contended, because such a holding (as well as a similar holding by the Fourth Circuit) conflicts with both Supreme Court precedent and the decisions of four other circuits, which permit habeas courts to review state court imposition of procedural bars for error.

Moreover, Cone contended, his case presents an ideal vehicle to resolve this entrenched and well-developed split among the circuits, because his Brady claims are both meritorious and properly preserved.

In its brief in opposition, the State of Tennessee focused primarily on recounting the gruesome details of the murders and summarizing the opinions below. These opinions show, argued Tennessee, not only that Cone’s Brady claims were procedurally defaulted, but also that the lower courts have already concluded the claims lack merit. Thus, to the extent there was a procedural bar imposed, it was “not dispositive of petitioner’s appeal.” Accordingly, Tennessee averred, this case presents an improper vehicle to review the questions presented.

In his reply brief, Cone articulated four final reasons as to why certiorari was warranted. First, the Sixth Circuit patently did not reach the merits of his Brady claim, but even assuming it had certiorari would nonetheless be warranted to review–on the merits–what would then be the lower courts’ erroneous and properly presented resolution of Cone’s Brady claim. Second, because the district court neglected to conduct an evidentiary hearing, the Sixth Circuit lacked the factual record necessary to properly adjudicate the Brady claim; accordingly, any decision purporting to reach the merits of that claim is necessarily invalid. Third, even assuming that the Sixth Circuit did reach the merits and had a sufficient factual record, its application of Brady was irreparably flawed. By omitting entirely any discussion of collective “materiality,” the Sixth Circuit contravened Supreme Court mandates. Finally, Cone reiterated that the above errors aside, he has advanced a meritorious Brady claim that the Sixth Circuit was wrong to reject.

Two amicus briefs were also filed in support of certiorari. In the first, Veterans for America wrote “to ensure that the Court understands Petitioner’s Brady claim is a powerful one on the merits.” Specifically, they argued that because the State suppressed “evidence material under any reasonable reading of Brady, there is every reason to think that Cone would obtain relief were he given the opportunity to adjudicate his Brady claim.” In the second amicus brief, a group of former prosecutors argued that the Court should grant certiorari to correct what it characterized as essentially grave prosecutorial misconduct in the withholding of materially exculpatory evidence.

The Supreme Court granted certiorari on June 23, 2008.

[edit] III. Merits Briefs

In his brief on the merits, Cone challenges both the procedural and substantive holdings of the Sixth Circuit’s decision below. The court’s disposition, contends Cone, is “the antithesis” of the principle that “the government’s obligation is to ensure a fair and reliable process,” especially in capital trials.

Cone begins by reviewing the complex procedural history of his case, and in particular the nine different explanations offered by the state as to why his execution should proceed, concluding that “[t]he State has been nothing if not consistent in its inconsistency.” In Cone’s view, however, his case is much simpler than those nine explanations would suggest: the only questions before the Court are first, whether his Brady claim has been “previously determined” by the State courts and is therefore barred because it is “procedurally defaulted”; and second, whether that Brady claim is meritorious.

Cone deems the Sixth Circuit’s holding that he had defaulted his Brady claim because it had been “‘previously determined’ on direct review” “doubly wrong.” First, he explains, his “repeated presentation of his claim to the state courts” rendered it exhausted, rather than defaulted, and thereby satisfied the federal habeas requirement that state courts have the opportunity to correct their own federal constitutional errors. Default, by contrast, only arises when a defendant “prevents adjudication of his constitutional claims in State court.” Moreover, state procedural rules (including Tennessee’s) that prevent claims decided in state courts from being re-adjudicated in state post-conviction review have no bearing on the federal habeas exhaustion doctrine. “Procedural default,” explains Cone, “is a rule of federal law designed to ensure that state courts have at least one full and fair opportunity to consider a claim before federal courts intervene to review a state-court conviction.”

Indeed, Cone contends, the Supreme Court has already decided this question, in Ylst v. Nunnemaker. In that case, the Court – addressing a Miranda claim similar to Cone’s Brady claim – held that the “effect upon the availability of federal habeas” of “a prohibition against further state review – for example, . . . a rule . . . preventing the relitigation on state habeas grounds of claims raised on direct appeal” – “is nil.” Moreover, argues Cone, the Sixth Circuit’s holding “makes no sense,” because it would “disserve, not advance, the principles of ‘comity and federalism’” that motivated the Coleman decision. Finally, the Sixth Circuit’s rule will force habeas petitioners to make the “untenable” guess about when to bring their constitutional challenge. “[E]specially in death penalty cases,” Cone argues, “such procedural roulette . . . would be especially perverse.”

The second reason the Sixth Circuit was “doubly wrong,” urges Cone, is its incorrect holding that “a federal habeas court is powerless to review a state court’s assertion that a federal claim has been defaulted.” Rather, because under Coleman v. Thompson federal courts “must ascertain for themselves” if the lower court’s judgment of the lower court rests on “adequate and independent state grounds,” the Sixth Circuit was obligated to review the “undefended and indefensible rulings” below. Had they done so, they would have realized that there is “absolutely no basis in the record, law, or fact to” conclude his Brady claim “was adjudicated on direct review in the State court system.” A contrary rule would “permit the state courts to thwart access to federal habeas corpus through the erroneous, unreviewable assertion that federal constitutional claims had been defaulted” – a result that would fly in the face of “a long line” of Supreme Court precedent.

Moreover, argues Cone, the federal habeas corpus statute does not impede “the federal courts’ ability to determine whether the state courts erred in refusing to adjudicate petitioner’s federal Brady claim.” First, the record (and the respondent’s failure to defend the state courts’ rulings) overcomes any “presumption” created by 28 U.S.C. § 2254(e)(1), which provides that “a determination of a factual issue made by a State court shall be presumed to be correct.” Second, whether the Brady claim was “previously determined” is a legal issue “and does not even glancingly implicate” the factual matters with which Congress was concerned when it enacted Section 2254(e)(1).

Finally, with regard to whether his claim was procedurally defaulted, Cone contends that “federal review of the adequacy of state court judgments serves two crucial functions.” First, it secures for individuals who properly preserve their constitutional claims the fundamental right to have those claims heard on the merits, at least once, by a federal court. Second, it preserves the Supreme Court’s “role as final arbiter of questions of federal law.” Both of these “crucial functions” are in jeopardy here, especially when the claim that was purportedly “previously decided” is “a Brady claim that did not exist until years after the state courts’ prior rulings.”

Turning to the substantive rulings below, Cone argues as well that the Sixth Circuit was incorrect in its conclusion that his Brady claim lacked merit. The first two elements of a Brady claim – the presence of (i) evidence favorable to the petitioner that was (ii) suppressed by the state – are, according to Cone, not disputed. The only remaining question is whether the evidence is material and its suppression was prejudicial, such that in the absence of the evidence Cone “received a fair trial, understood as a trial resulting in a verdict worth of confidence.” That standard, according to Cone, is easily met. He put on “a single defense,” which the State obstructed by destroying relevant exculpatory evidence and then advancing a theory of the case that was directly contradicted by the evidence it suppressed. Moreover, the Sixth Circuit was incorrect to focus on the evidence individually, rather than “collectively” as set forth by Kyles.

The State counters that the Sixth Circuit correctly held “that Cone procedurally defaulted his Brady claim because the state courts declined to review the merits on state procedural grounds.” Specifically, Cone improperly raised his Brady claim “for the first time in his second state post-conviction proceeding,” and the state court correctly rejected this claim on the ground that “that a merits review was barred under state law.” The State points to the explanation by the Tennessee Court of Criminal Appeals that “the grounds stated in the petition as amended have been either previously determined or presumptively waived as a matter of law.” Because Cone’s “haphazard pleadings” failed to rebut the presumption imposed by state law, Tennessee’s procedural rule serves as an “independent and adequate state ground” that bars his claim from future federal review.

The State concedes that the first post-conviction trial court to consider Cone’s appeal ruled that the Brady claim was “considered and denied,” but it explains that this erroneous conclusion was not “embrace[d], or even address[ed]” by the Tennessee Court of Criminal Appeals. And “because the state appellate court concluded Cone had failed to overcome the statutory presumption of waiver as to any and all new claims,” it did not need to distinguish between claims that had been raised and rejected already, and those raised for the first time on the second appeal.

In any event, the State maintains, because he failed to do so in the Tennessee Court of Criminal Appeals, it is too late for Cone to challenge the correctness of the waiver determination. Allowing him to do so now, for the first time, in the federal courts, “is contrary to the notions of comity and federalism that drive federal habeas jurisprudence.” Moreover, the Supreme Court “has generally upheld a procedural ground as adequate where the defendant has notice of the rule, i.e., the procedure is firmly established and regularly followed, and the State has a legitimate interest in its enforcement” – a test that is easily satisfied in this test.

The State also disputes the merits of Cone’s Brady argument, contending that the Sixth Circuit’s ruling “independently justifies affirmance of the judgment below.” Because “the evidence on which Cone relies” does not speak to his mental state at the time of the crime and would not impeach any “witnesses who observed him during the relevant period,” Cone was not “deprived the defendant of a fair trial” as required by United States v. Agurs, and the decision below should thus be affirmed.

Two amicus briefs were filed in support of Cone. The first, by a group of former prosecutors, argues that “mistaken rulings of procedural default can result in the unwarranted denial of substantive constitutional rights.” Such errors are possible, the prosecutors contend, in cases – such as this one – with complex factual records and procedural histories that are not properly presented by prosecutors. In Cone’s case, an adequate review would have revealed a proper Brady claim by demonstrating that the suppressed evidence “undermine[s] confidence in the verdict.” In the second brief, Veterans for America argues that Cone’s defense—principally that “he suffers from post-traumatic stress disorder brought on by his military service”—is supported by a “well-developed body of empirical evidence” and “decades of practical experience.” The brief points out that it is “particularly shocking” that in this case, the prosecution conceded the that post-traumatic stress disorder exists but then suppressed evidence supporting Cone’s assertion that he suffered from the affliction. The group contends that there is “every reason” to think Cone’s Brady claim is meritorious.

The Criminal Justice Legal Foundation filed the sole amicus brief in support of the State. It argues that Cone’s argument is deficient because, even if he had “good cause” not to raise his Brady claim in his first post-conviction review, he failed to present this argument to the Tennessee Court of Criminal Appeals in his second post-conviction review. In CJLF’s view, the difficulty in this case is partially the result of “scattershot pleading” by the state collateral review counsel, but in any event Cone’s Brady claim was not fairly presented to the state trial court, because it was “never mentioned in the principal brief to the [appeals] court that issued the dispositive decision in this case.” Thus, it is insufficient that Cone’s Brady claim was asserted only in the trial court pleadings. On this reading, CJLF argues, the Brady claim is best understood as being defaulted, but because lower court counsel argued (to the extent they argued it at all) that it was waived, the Tennessee Court of Criminal Appeals was correct. Therefore, although the Sixth Circuit’s justification was erroneous, Cone’s Brady claim “is defaulted.” Finally, the Sixth Circuit’s holding that Cone’s Brady claim lacked merit is correct and not subject to reversal because it is not a question presented in the current appeal.

[edit] Oral Argument Recap

Foreshadowing the course of the argument, Mr. Cone’s lead counsel, Thomas C. Goldstein, was just three sentences into his opening when Chief Justice Roberts turned the Court’s attention to what would be the central issue of the day—specifically, whether Cone’s petition for certiorari properly presented a merits review of Cone’s alleged Brady claim. Indeed, throughout the argument Mr. Goldstein fielded questions centered around the language of the original petition for certiorari and the case’s long and complex procedural history. Throughout the discussion, it was clear that among the litigants and Justices there was a “common ground, and that is it’s time to bring this all to a close.”

From the start, the Court seemed determined to address the specific remedy sought by petitioner Cone. Mr. Goldstein did not state explicitly whether the Court had to reach the Brady claim in order to end this dispute. Instead, responding to a question from Justice Alito whether Cone was asking the Court to “reverse on the procedural default issue and remand the case,” Mr. Goldstein answered affirmatively, explaining that “if the Court believes that the Sixth Circuit has reached the merits, then this Court should address . . . the undefended . .. legal errors in its assessment of the merits.”

Focus soon shifted from the proper remedy to the claims Mr. Cone raised below. Justice Alito and Justice Scalia expressed concern that in light of the large number of claims—51, by Justice Ginsburg’s count—it would only be possible to give what Justice Scalia characterized as a “a lick and a promise” to at least a few. Mr. Goldstein agreed, but explained that the Brady claim was not merely tucked away among 50 other claims: “The Brady claim was point 3 . . . my point is not so that the State, you know, inexplicably behaved horribly . . . . What I’m saying here, though, is that the petitioner right away presented what is a very serious Brady claim to the State courts.” Cone then “didn’t abandon [his Brady claim]; he fully presented it; and what he wants is one shot.” Mr. Goldstein emphasized that in light of inconsistent State court reasoning and “passing observations” by the Sixth Circuit, Mr. Cone has never received that opportunity.

Speaking on behalf of the State of Tennessee, Deputy Attorney General Jennifer L. Smith began her argument by disputing that Mr. Cone had never received resolution on his Brady claim. To the contrary, she explained, “both the district court and the Sixth Circuit now have twice . . . rejected Cone’s Brady claim on the merits.” Justice Stevens, voicing his colleagues’ earlier concern as to the proper scope of the question presented, engaged Ms. Smith on the merits of the Brady claim almost immediately. Pointedly, he asked, “Do you agree that the evidence shows that the evidence was deliberately suppressed?” Ms. Smith conceded that neither the district court nor the Sixth Circuit had answered that question explicitly, but noted, “there is at least a suggestion in the record that some of the evidence on which Petitioner is relying at this point wasn’t actually suppressed.” Justice Breyer spoke next, wondering how the Court should understand the failure to turn over the information. Perhaps, he asked, it “was overlooked by accident?” Justice Kennedy inquired whether it was possible the evidence was simply immaterial, which led the Court into a discussion with Ms. Smith about whether thepProsecution had an ethical obligation to turn over the disputed material.

The argument’s most dramatic moment came shortly thereafter, when Justice Souter asked if the evidence would have been favorable to Mr. Cone. Ms. Smith replied, “I think it added no more than—than what was already before the jury,” and added that the evidence would not have a tendency to favor the defendant. Ending their colloquy, Justice Souter responded, “I will be candid with you that I simply cannot follow your argument because I believe you just made a statement to me that is utterly irrational.”

Shortly thereafter, the Court’s attention turned from the relevance and favorability of the Brady evidence to a series of questions about the grounds on which State courts decided the Brady claim. She explained that, in her estimation, until 2007 the lower courts proceeded as though the Brady claim had been waived. She continued that the recent suggestion that the courts thought the issue was “previously determined” stemmed only from a “red herring” found in a dissenting opinion. And, in regard to the State’s representation to the Court, Ms. Smith argued that Tennessee “has consistently maintained . . . that the Brady claim was either defaulted or waived.” Prompted by Justice Ginsburg, Ms. Smith set forth the State’s theory of how the current situation had arisen: “the bottom line is that [Cone] failed to demonstrate to the State courts why he . . . was properly before the court to begin with.” She continued, “[I]f he had a legitimate claim, he certainly didn’t highlight it as such.”

At the close of her argument, the Court returned once again to the merits of the Brady argument itself. Ms. Smith took issue with Cone’s argument that the lower courts had not properly analyzed the Brady material under a cumulative approach, as required by Kyles v. Whitney. She conceded, however, that the prosecutor “overstated his case” on one point—specifically, in regards to the extent and ramifications of Cone’s drug use. By the State’s estimation, however, “the question of whether he was a drug user or not was really beside the point.” Instead, “the question is what was going on at the time of this murder.” In the end though, Ms. Smith implied the merits of the Brady claim were inapposite, since in Tennessee’s view the Brady claim was not properly presented to the Court.

In his rebuttal, Mr. Goldstein sketched what a ruling in Mr. Cone’s favor could look like. Addressing the “dilemma” facing the Court—that the Court normally does not go “into the weeds” to adjudicate evidentiary claims, but that given the State’s unapologetic suppression of evidence, it may desire to do so— Mr. Goldstein proposed the following disposition: First, reverse the Sixth Circuit’s “wrong” conclusion that the claim was procedurally defaulted; second, resolve the Brady claim narrowly, addressing only the most significant points. That, explained Mr. Goldstein, would most effectively resolve the dilemma that Cone’s appeal raised.

[edit] Opinion Analysis

[edit] Links and further information

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