Cone v. Bell

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 1, 2004
• Docket: 99-5279
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Cone v. Bell No. 99-5279 ELECTRONIC CITATION: 2004 FED App. 0064P (6th Cir.) File Name: 04a0064p.06 Appellant. Jennifer L. Smith, Tonya G. Miner, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. UNITED STATES COURT OF APPEALS RYAN, J., delivered the opinion of the court. MERRITT, FOR THE SIXTH CIRCUIT J. (pp. 25-36), delivered a separate concurring opinion. _________________ NORRIS, J. (pp. 37-38), delivered a separate dissenting opinion. GARY BRADFORD CONE, X Petitioner-Appellant, - _________________ - - No. 99-5279 OPINION v. - _________________ > , RYAN, Circuit Judge. Gary Bradford Cone was sentenced RICKY BELL, Warden, - to death in a Tennessee state court for a double murder of an Respondent-Appellee. - elderly couple and his conviction and death sentence were N affirmed by the Tennessee Supreme Court. Appeal from the United States District Court for the Western District of Tennessee at Memphis. On this appeal from the district court’s denial of Cone’s No. 97-02312—Jon Phipps McCalla, District Judge. petition for habeas corpus relief, we are asked to decide

Argued: September 10, 2003 • Whether Cone was sentenced to death in violation of the prohibition against cruel or unusual punishment of Decided and Filed: March 1, 2004 the Eighth Amendment of the United States Constitution. Before: MERRITT, RYAN, and NORRIS, Circuit Judges. Before we may reach that question, however, we must _________________ resolve two rather complex and interrelated questions of state procedural law. COUNSEL • The first, is whether, under Tennessee law, the state ARGUED: Paul R. Bottei, FEDERAL PUBLIC supreme court implicitly reviews death penalty DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. sentences for arbitrariness, even in cases in which the Jennifer L. Smith, OFFICE OF THE ATTORNEY issue is not raised explicitly. GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Paul R. Bottei, FEDERAL PUBLIC • The second, is whether the petitioner procedurally DEFENDER’S OFFICE, Nashville, Tennessee, Robert L. defaulted, in the state court, the Eighth Amendment Hutton, GLANKLER BROWN, Memphis, Tennessee, for issue he asks us to decide.

1 No. 99-5279 Cone v. Bell 3 4 Cone v. Bell No. 99-5279

Our answer to the first state law question is yes, and to the § 39-13-204(i) (2003)). In Cone’s case the jury found four second, it is no. Given our resolution of these issues, we are aggravating factors, which were defined in the statute as authorized to reach the Eighth Amendment issue, for which follows: the petitioner has brought this appeal. As to that issue, we hold that petitioner Cone’s death sentence must be vacated (2) The defendant was previously convicted of one or because one of the statutory aggravating circumstances the more felonies, other than the present charge, which jury relied upon in imposing the death sentence—that the involve the use or threat of violence to the person. murders were “especially heinous, atrocious, or cruel”—is unconstitutionally vague, and therefore, violates the Eighth (3) The defendant knowingly created a great risk of Amendment. death to two or more persons, other than the victim murdered, during his act of murder. I. .... Cone was sentenced to death in a Tennessee court in 1982 following his conviction for the brutal murders of an elderly (5) The murder was especially heinous, atrocious, or couple, Shipley and Cleopatra Todd. The facts of the case are cruel in that it involved torture or depravity of mind. fully detailed in our previous decision in Cone v. Bell, 243 F.3d 961 (6th Cir. 2001), rev’d, 535 U.S. 685 (2002), and (6) The murder was committed for the purpose of need not be recounted here. It is necessary, however, to detail avoiding, interfering with, or preventing a lawful arrest the procedural history of the case in order to explain why we or prosecution of the defendant or another. have the case on appeal for a second time and to explain the basis for the State’s argument that Cone has procedurally Tenn. Code Ann. § 39-2404(i) (1981). In its review of the defaulted the Eighth Amendment issue he now asks us to jury’s findings, the Tennessee Supreme Court first noted that decide. the jury had failed to find one aggravating factor, that the crime was committed in the course of committing another Cone challenged his conviction and sentence on direct felony (felony-murder), even though the evidence clearly review in the Tennessee Supreme Court, which conducted a would have supported it. State v. Cone, 665 S.W.2d at 94. mandatory death penalty review pursuant to Tenn. Code Ann. § 39-2-205 (1982) (current version at Tenn. Code Ann. § 39- The court then reviewed the four aggravators the jury did 13-206 (2003)). State v. Cone, 665 S.W.2d 87 (Tenn. 1984). find, and concluded (1) that the evidence supported the The Tennessee court affirmed Cone’s murder convictions, finding that Cone had been convicted previously of one or and then, as it was required to do, considered the validity of more felonies involving violence, id.; (2) that the evidence the aggravating circumstances relied on by the jury in supported the finding that the murders were “especially imposing the death penalty. Id. at 94-96. Under Tennessee heinous, atrocious, or cruel in that they involved torture or law as it existed at the time of Cone’s conviction, a jury could depravity of mind,” id. at 94-95; (3) that the evidence impose the death penalty only if it found that the prosecution supported the finding that the murders were committed for the had proved, beyond a reasonable doubt, the existence of at purpose of preventing a lawful arrest or prosecution, id. at 95; least one of twelve aggravating factors. Tenn. Code Ann. and (4) that the evidence was insufficient to support the jury’s § 39-2404(i) (1981) (current version at Tenn. Code Ann. affirmative finding that the petitioner “‘knowingly created a No. 99-5279 Cone v. Bell 5 6 Cone v. Bell No. 99-5279

great risk of death to two (2) or more persons, other than the States Supreme Court denied Cone’s petition for a writ of victim murdered, during [the] act of murder,’” id. (citation certiorari. omitted). But the court found this error to be “harmless beyond a reasonable doubt” in light of the three other Cone then filed a motion in federal district court to stay his aggravating circumstances found by the jury and the court’s execution. The district court granted the stay and Cone filed conclusion that the jurors should have found, although they a petition for a writ of habeas corpus under 28 U.S.C. § 2254. did not, the additional aggravator, that the petitioner was The district court denied the § 2254 petition and lifted the guilty of felony-murder. Id. Accordingly, the court affirmed stay of execution. We then granted Cone's motion for a Cone’s death sentence. The constitutionality of the jury’s certificate of appealability. finding that the murders were “especially heinous, atrocious, or cruel,” which we hereafter refer to as the “HAC” After briefing and oral argument, we granted Cone’s aggravator, is a fundamental issue in this case. habeas petition with respect to his death sentence because we thought he had been unconstitutionally denied the effective Cone filed his first state post-conviction petition in the state assistance of counsel at sentencing. We found it unnecessary trial court on June 22, 1984, attacking his conviction and to decide several of Cone’s other sentencing claims, including death sentence. He alleged numerous violations of his rights his “Eighth Amendment cruel and unusual punishment under the United States Constitution including prosecutorial argument and his argument concerning the application of misconduct and the ineffective assistance of counsel at trial. aggravating circumstances.” Cone, 243 F.3d at 975. In Bell The trial court held a hearing and denied Cone’s petition. The v. Cone, 535 U.S. 685 (2002), the U.S. Supreme Court Tennessee Court of Criminal Appeals affirmed the denial and reversed our decision on the ineffective assistance of counsel the Tennessee Supreme Court declined Cone’s request to issue and remanded to this court for further proceedings, appeal. which we understand to mean consideration of the sentencing issues that Cone raised and we did not reach in our previous Approximately five years later, in June 1989, Cone filed a decision. second state post-conviction petition, followed by several amendments. In this second petition, Cone alleged numerous II. constitutional violations including, for the first time, an Eighth Amendment claim that the language of the HAC “An appellate court reviews a district court’s decision to aggravator considered by the jury in the sentencing phase was deny or grant a writ of habeas corpus de novo, but it reviews unconstitutionally vague. The trial court dismissed the the district court’s factual findings only for clear error.” second petition as barred by the successive petition Barker v. Yukins, 199 F.3d 867, 870 (6th Cir. 1999). restrictions of Tennessee’s post-conviction statute, Tenn. Code Ann. § 40-30-111 (1990) (since repealed), holding that III. all the grounds raised in the second petition were barred because they either had been previously determined or were Initially, we must take up the State’s argument that Cone’s waived. This judgment was affirmed by the Tennessee Court Eighth Amendment claim that the HAC aggravating factor of Criminal Appeals, and the Tennessee Supreme Court was unconstitutionally vague, first raised in his second denied an application for permission to appeal. The United petition for post-conviction relief, had been procedurally defaulted. We address this issue first because, as a general No. 99-5279 Cone v. Bell 7 8 Cone v. Bell No. 99-5279

rule, on habeas review, federal courts may not consider In death penalty cases the Tennessee Supreme Court is procedurally defaulted claims. Seymour v. Walker, 224 F.3d required to conduct a mandatory death penalty review to 542, 549-50 (6th Cir. 2000). A claim is procedurally determine whether: defaulted if: (1) the petitioner failed to comply with an applicable state procedural rule; (2) the state courts actually (1) The sentence of death was imposed in any enforced the procedural rule; and (3) the state courts’ finding arbitrary fashion; of noncompliance is an adequate and independent state ground for denying relief on the federal constitutional claim. (2) The evidence supports the jury’s findings of a Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). statutory aggravating circumstance or statutory aggravating circumstances; Under Tennessee law at the time of Cone’s conviction, grounds for relief that had been previously determined or (3) The evidence supports the jury’s finding of the waived were not cognizable in a state post-conviction action. absence of any mitigating circumstances sufficiently Tenn. Code Ann. § 40-30-111 (since repealed). In its substantial to outweigh the aggravating circumstance or consideration on appeal of the denial of Cone’s second post- circumstances so found; and conviction petition, the Tennessee Court of Criminal Appeals refused to address Cone’s constitutional challenge to the HAC (4) The sentence of death is excessive or aggravator because, according to the court, it had been either disproportionate to the penalty imposed in similar cases, previously determined or waived. Cone v. State, 927 S.W.2d considering both the nature of the crime and the 579, 582 (Tenn. Crim. App. 1995). Of these two possibilities, defendant. “previously determined” or “waived,” we must determine which one actually describes the status of Cone’s Tenn. Code Ann. § 39-2-205(c) (1982) (emphasis added) constitutional claim in the state courts. If Cone waived his (current version at Tenn. Code. Ann. § 39-13-206(c)(1) claim, then such waiver will constitute a procedural default (2003)). and will serve as an adequate and independent state ground Tennessee responds that Cone’s “necessarily reviewed” barring habeas review in this court. If Cone’s claim was claim, also known as “implicit review,” proves too much, previously determined, then we must decide whether the state since it would eviscerate the procedural default doctrine with courts’ determination “resulted in a decision that was contrary respect to all constitutional claims. to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court The U.S. Courts of Appeals are divided on whether these of the United States.” 28 U.S.C. § 2254(d)(1) (West Supp. state mandatory review statutes create an implicit review of 2003). constitutional challenges not explicitly raised. The Fourth, Eighth, and Eleventh Circuits all have rejected the implicit Cone argues that he did not procedurally default on his review argument. See Mu’min v. Pruett, 125 F.3d 192, 197 Eighth Amendment vagueness challenge to the HAC (4th Cir. 1997); Nave v. Delo, 62 F.3d 1024, 1039 (8th Cir. aggravating factor, because the Tennessee Supreme Court 1995); Julius v. Johnson, 840 F.2d 1533, 1546 (11th Cir. “necessarily reviewed” the claim as part of its mandatory 1988). The Ninth Circuit reached the opposite conclusion in death penalty review. an Idaho death penalty case, albeit in dicta. See Beam v. No. 99-5279 Cone v. Bell 9 10 Cone v. Bell No. 99-5279

Paskett, 3 F.3d 1301, 1306 (9th Cir. 1993), overruled on considered the constitutionality of the HAC aggravator in this other grounds by Lambright v. Stewart, 191 F.3d 1181 (9th case, and Cone did not procedurally default on the claim. Cir. 1999). It is important to frame this preliminary question of state This court, in Coe v. Bell, 161 F.3d 320 (6th Cir. 1998), in law carefully. We understand the question to be whether it is dicta, expressed discomfort with the implicit review argument the law in Tennessee that in all capital punishment cases, the in the context of a challenge to jury instructions on unanimity Tennessee Supreme Court reviews the sentencing proceedings in sentencing in a death penalty case in a Tennessee court. Id. to ensure that the jurors have not imposed the death penalty at 336. We stated that the argument that “the [Tennessee] “in any arbitrary fashion,” Tenn. Code Ann. § 39-2-205(c) supreme court has to review significant errors, whether or not (1982), even in cases in which the issue is not raised on direct they were raised by the defendant,” is “too broad, as it would review. eliminate the entire doctrine of procedural bar in Tennessee in capital cases.” Id. Despite these reservations, we Just three years ago, in State v. West, 19 S.W.3d 753 (Tenn. recognized in Coe that Tennessee courts had been moderately 2000), the Tennessee Supreme Court considered whether a receptive to the implicit review theory. Id. For example, in defendant could raise an issue in his state post-conviction State v. Martin, 702 S.W.2d 560 (Tenn. 1985), overruled on petition that he had not raised on direct review. Id. at 754. other grounds by State v. Brown, 836 S.W.2d 530 (1992), the The court prefaced its discussion as follows: Tennessee Supreme Court stated that it was “required by statute to review the sentence and to consider significant In this appeal of a post-conviction proceeding, . . . the errors whether or not called to the attention of the trial court.” appellant[] raises for the first time the issue whether Id. at 564 (emphasis added). We explained in Coe that, based evidence adduced at the sentencing phase of his trial was on Martin, a procedural default could not arise under sufficient to support the jury’s conclusion that he Tennessee law when a capital defendant raised an issue on committed two murders for the purpose of avoiding appeal which he had failed to preserve properly during trial. arrest or prosecution. Although [the appellant] casts the Coe, 161 F.3d at 336. Thus, in Coe, we partially adopted the issue as concerning the evidentiary sufficiency of the implicit review theory, but only to the extent of issues that (i)(6) aggravating circumstance, we think his grievance were explicitly raised on appeal, even though not properly involves instead the constitutional issue of whether the preserved in the trial court. Of course, unlike Coe, Cone’s aggravating circumstance narrows the class of death unconstitutional HAC aggravator issue was not explicitly eligible offenders. He says that it does not, and because raised either in the trial court or on direct review in the it does not, he contends that it violates the Eighth Tennessee Supreme Court. Amendment.

The cases that divide the circuits on the implicit review Id. (emphasis added). The court’s reference to “narrow[ing] theory agree on one point: “The scope of the state court’s the class of death eligible offenders” is responsive to the rule mandatory review is, ultimately, a question of state law.” announced in Zant v. Stephens, 462 U.S. 862 (1983), that in Nave, 62 F.3d at 1039. Accordingly, if Tennessee construes capital punishment cases, the “aggravating circumstance must its mandatory review statute to encompass constitutional genuinely narrow the class of persons eligible for the death issues not explicitly raised on direct review, then the penalty” in order to ensure that the jury’s discretion in Tennessee Supreme Court must be deemed to have imposing the death sentence is “adequately . . . channel[ed].” No. 99-5279 Cone v. Bell 11 12 Cone v. Bell No. 99-5279

Id. at 877. Later Supreme Court cases have characterized Id. (emphasis added) (internal citations omitted). death sentences imposed without appropriately narrowing instructions as having been imposed arbitrarily and upon Although West appears to stand alone as direct support for criteria, i.e., statutory aggravating factors, whose language is the implicit review argument, other Tennessee Supreme Court unconstitutionally vague. See, e.g., Tuilaepa v. California, cases lend moderate support. In Martin, discussed above, the 512 U.S. 967, 974-75 (1994); Sawyer v. Whitley, 505 U.S. court held that it was “required by statute to review the 333, 367 (1992) (Stevens, J., concurring). sentence and to consider significant errors whether or not called to the attention of the trial court.” 702 S.W.2d at 564 The emphasized language in West is significant because the (emphasis added). Likewise, in State v. Duncan, 698 S.W.2d court characterized the issue as an Eighth Amendment 63 (Tenn. 1985), the court stated: “in cases where the vagueness challenge to a statutory aggravating factor, the defendant is under sentence of death, this court is under the precise issue raised by Cone. In West, the State argued that duty to ‘automatically’ review the sentence, which imposes the defendant could not raise the vagueness issue in his post- the burden on this court to consider any alleged error, whether conviction petition for two reasons: (1) he had failed to raise called to the trial court’s attention or not.” Id. at 67-68 it on direct appeal and thus “waived” it; and, alternatively, (emphasis added). Finally, in State v. Nesbit, 978 S.W.2d 872 (2) it had been “previously determined” due to the Tennessee (Tenn. 1998), the court held that the mandatory review statute Supreme Court’s mandatory review. West, 19 S.W.3d at 756. gave it jurisdiction to review issues raised by the defendant’s The court agreed with the State, but, in a seeming appeal despite the defendant’s failure to timely file his appeal. contradiction, held that the vagueness issue had been both Id. at 880-81. These three cases make clear that the “previously determined” and “waived” as a result of West’s Tennessee Supreme Court considers its task when conducting direct appeal. Id. Specifically, the court stated: the required review to be important enough to warrant departures from procedural rules that would normally bar Under Tenn. Code Ann. § 40-30-112(b), when [the supreme court review. In each of these three cases, however, appellant] failed to raise the (i)(6) issue on direct appeal, unlike this case, the issue was raised by the defendant on he effectively blocked any consideration of this issue by direct review. this Court on post-conviction review. Additionally, under Tenn. Code Ann. § 39-2-205(c)(3) (1982) The conceptual leap from claims explicitly raised on direct (repealed 1989), this Court was required in all cases in appeal, although not properly preserved, to claims not raised which the death penalty was imposed to automatically at all is significant and, without West, there would be no consider whether the “evidence supports the jury’s Tennessee authority for attempting it. Nevertheless, West finding of a statutory aggravating circumstance or cannot be ignored; neither can the Tennessee statute, which statutory aggravating circumstances. . . .” Pursuant to mandates supreme court review to assure that no death these mandatory provisions, this Court found that the sentence is “imposed in any arbitrary fashion.” Tenn. Code requirements of the statute had, in fact, been met in [the Ann. § 39-2-205(c)(1) (1982). It is also significant that the appellant’s] case. Thus, we conclude that the issue under statute does not condition the mandatory review upon the discussion has, indeed, been both “previously issues named in the statute being properly raised. The determined” and “waived,” under the definitions following factors in West strongly favor the conclusion that it provided in Tenn. Code Ann. § 40-30-112(a) and (b). is the law in Tennessee that the supreme court “implicitly” reviews death sentences for arbitrariness, even if the issue is No. 99-5279 Cone v. Bell 13 14 Cone v. Bell No. 99-5279

not explicitly raised on direct appeal: (1) the language that in because the claim was “waived” but because it was “all” death penalty cases, the court “automatically” complies “previously determined.” with the mandatory review statute; (2) the court’s re- characterization of the appellant’s “evidentiary sufficiency” This conclusion would seem to be confirmed by the written challenge as a vagueness (i.e., arbitrariness) challenge; and findings of the state trial court dismissing Cone’s second (3) its holding that the same was “previously determined” amended petition for post-conviction review. Referring to the (although never raised by the appellant). We can find no specific paragraph of the petition in which Cone raised his other logical construction to put upon the court’s language in vagueness challenge for the first time, the trial court stated: West. “grounds . . . [appearing in paragraph] 18 . . . involve[] a potpourri of various errors by the court at the trial all of which We note, in passing, that the implicit review doctrine, as we grounds have been considered and denied in direct appeal or apply it today in this case, does not foreclose the possibility the First Post Conviction Petition.” Cone v. State, No. P- that other death penalty defendants may procedurally default 06874, slip op. at 4 (Crim. Ct. Tenn., 13th Judicial Dist., Dec. on other constitutional issues not raised on direct appeal. The 16, 1993) (emphasis added). The Tennessee Court of language of Tennessee’s mandatory review statute provides Criminal Appeals, the last state court to render an opinion on a basis to distinguish between vagueness challenges and other Cone’s petition, affirmed the holding of the trial court and, in constitutional claims, since it requires the Tennessee Supreme fact, commended the trial court judge for his “exemplary and Court to look specifically for sentences “imposed in any meticulous treatment of the appellant’s petition.” Cone v. arbitrary fashion.” The “evil” of vague sentencing State, 927 S.W.2d at 581. These statements by the lower state instructions is, precisely, that they invite arbitrary decision- courts are in accordance with our holding today: that, under making. As the U.S. Supreme Court has stated: “our cases Tennessee law, Cone’s vagueness challenge was not have insisted that the channeling and limiting of the “waived,” but “previously determined.” sentencer’s discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently Therefore, although Cone failed to explicitly raise the minimizing the risk of wholly arbitrary and capricious vagueness challenge to the HAC aggravator, that claim was action.” Maynard v. Cartwright, 486 U.S. 356, 362 (1988). nonetheless implicitly decided on the merits by the Tennessee Because there are other constitutional violations that do not Supreme Court and it is a proper subject for federal habeas pose this same risk, the implicit review principle we have review. applied today would not necessarily save those claims from procedural default. IV.

We think that given the holding in West, and the court’s Finally, we turn to the merits of Cone’s habeas claim that language explaining it, we must conclude that the Tennessee the HAC aggravator the jury considered in sentencing him to Supreme Court implicitly considered and rejected Cone’s death is unconstitutionally vague, thus invalidating his unmentioned vagueness “challenge” to the HAC aggravator, sentence. in the course of its mandatory review. As such, Cone’s claim must be deemed to have been decided on the merits during the direct appeal and, therefore, when the Tennessee lower courts disposed of the claim on procedural grounds they did so not No. 99-5279 Cone v. Bell 15 16 Cone v. Bell No. 99-5279

A. B. Our standard of review is governed by the Antiterrorism At sentencing, the jurors were instructed that they could not and Effective Death Penalty Act of 1996 (AEDPA). When a impose the death penalty unless they unanimously found, petitioner’s claim has been adjudicated on the merits in a state beyond a reasonable doubt, at least one of eleven statutory court, a federal court may not grant a writ of habeas corpus aggravating factors, including whether “[t]he murder was with respect to such claim, unless the state court’s especially heinous, atrocious, or cruel in that it involved determination: torture or depravity of mind.” In a limiting instruction, the court then defined some of the terms of this aggravating (1) resulted in a decision that was contrary to, or factor: involved an unreasonable application of, clearly established Federal law, as determined by the Supreme “Heinous” means extremely wicked or shockingly evil. Court of the United States; or “Atrocious” means outrageously wicked and vile. “Cruel” means designed to inflict a high degree of pain, (2) resulted in a decision that was based on an utter indifference to, or enjoyment of, the suffering of unreasonable determination of the f..acts in light of the others, pitiless. evidence presented in the State court proceeding. The jurors found that Cone’s crime was “especially heinous, 28 U.S.C. § 2254(d) (West Supp. 2003). A state court’s atrocious, or cruel.” They did not add, on their verdict form, decision must be evaluated against the clearly established the words, “in that it involved torture or depravity of mind.” Supreme Court precedent at the time the petitioner’s However, we do not think that omitting that verbiage when conviction became final. Williams v. Taylor, 529 U.S. 362, announcing the verdict is of any constitutional significance. 380 (2000). Moreover, as we explained recently: Cone argues that the HAC aggravator is “clearly A state court decision is “contrary to” Supreme Court unconstitutional” based upon the holding of Godfrey v. precedent “if the state court arrives at a conclusion Georgia, 446 U.S. 420 (1980). Godfrey held that the Georgia opposite to that reached by [the Court] on a question of statutory aggravator, “that the offense ‘was outrageously or law,” or “if the state court confronts facts that are wantonly vile, horrible or inhuman in that it involved torture, materially indistinguishable from a relevant Supreme depravity of mind, or an aggravated battery to the victim,’” id. Court precedent and arrives at a result opposite to” the at 422 (citation omitted), was unconstitutionally vague, Court’s decision. A state court decision involves an because there was “nothing in these few words, standing “unreasonable application” of clearly established alone, that implies any inherent restraint on the arbitrary and Supreme Court precedent when it correctly identifies the capricious infliction of the death sentence,” id. at 428. governing legal standard but applies it to the facts of the case before it in an objectively unreasonable manner. The State responds first, that the language of the Tennessee HAC aggravator, as further defined and limited by the trial Alley v. Bell, 307 F.3d 380, 385 (6th Cir. 2002) (internal court, is not the language found to be vague in Godfrey, and citation omitted) (quoting Williams, 529 U.S. at 405, 409-10), second, that the HAC aggravator in Cone’s case was not cert. denied, 124 S. Ct. 99 (2003) “contrary to . . . clearly established” U.S. Supreme Court No. 99-5279 Cone v. Bell 17 18 Cone v. Bell No. 99-5279

precedent as it stood at the time of Cone’s direct appeal. That horrible or inhuman” aggravator) to hold that Oklahoma’s precedent, the State argues, was established in Proffitt v. HAC aggravator was unconstitutionally vague, id. at 363-64, Florida, 428 U.S. 242 (1976), decided eight years before but implied that had Oklahoma’s HAC aggravator been Cone’s conviction became final, in which the Court held that further limited by a “torture or serious physical abuse” Florida’s HAC aggravator was not unconstitutionally vague instruction, it might have been constitutional, id. at 365. in light of the Florida courts’ narrowing construction that the Nonetheless, two years later, in Shell v. Mississippi, 498 U.S. term “heinous, atrocious, or cruel” means a “‘conscienceless 1 (1990) (per curiam), the Supreme Court announced that the or pitiless crime which is unnecessarily torturous to the “heinous, atrocious, or cruel” language, along with the same victim.’” Id. at 255-56 (citations omitted). This narrowing “limiting” definitions as were provided to the jury in Cone’s language is the identical language the Tennessee Supreme case, was unconstitutional. Id. at 1. The HAC aggravator in Court used in narrowing Tennessee’s HAC aggravator in Shell, however, did not have the “torture or depravity” State v. Dicks, 615 S.W.2d 126, 132 (Tenn. 1981), a case qualifier that is attached to the HAC aggravator in Cone’s decided three years before the court’s “implicit review” of case. In Walton v. Arizona, 497 U.S. 639 (1990), overruled Cone’s case. Moreover, the State argues, it must be presumed on other grounds by Ring v. Arizona, 536 U.S. 584 (2002), that the Tennessee Supreme Court evaluated the Cone jury’s the Court stated, “there is no serious argument that Arizona’s reliance upon the HAC aggravator using the same narrowing ‘especially heinous, cruel or depraved’ aggravating factor is construction adopted in Dicks. The State also reminds us that not facially vague.” Id. at 654. the U.S. Supreme Court held in Williams, 529 U.S. 362, that the state court’s decision must be evaluated against the Despite the confusion resulting from these cases (or “clearly established” Supreme Court precedent at the time the perhaps because of it), the Supreme Court, in Stringer v. petitioner’s conviction became final. Id. at 380. Black, 503 U.S. 222 (1992), came at the subject from a different angle. It addressed the “new rule” non-retroactivity One thing is clear: No Supreme Court case has addressed doctrine as respects Godfrey, the pre-Cone decision, and the precise language at issue in this case. As we will show, Maynard, the post-Cone decision. the cases decided after Cone’s conviction became final indicate clearly that the language of the HAC aggravator the [T]he language [in Maynard (“especially heinous, jurors used to sentence Cone to death–“especially heinous, atrocious or cruel”)] gave no more guidance than did the atrocious, or cruel in that it involved torture or depravity of statute in Godfrey [(“outrageously or wantonly vile, mind”–is unconstitutionally vague. Normally, post-Cone horrible or inhuman”)]. . . . decisions would be immaterial, but, as will be seen, the Supreme Court’s fairly recent application of its doctrine of the . . . Godfrey and Maynard did indeed involve “non-retroactivity” of new constitutional rules, in the context somewhat different language. But it would be a mistake of an Eighth Amendment vagueness challenge to a death to conclude that the vagueness ruling of Godfrey was penalty instruction, makes several post-Cone Supreme Court limited to the precise language before us in that case. In decisions not only material, but controlling. applying Godfrey to the language before us in Maynard, we did not “brea[k] new ground.” In 1988, in Maynard v. Cartwright, 486 U.S. 356, a death penalty case from Oklahoma, the Supreme Court explicitly Id. at 228-29 (quoting Butler v. McKellar, 494 U.S. 407, 412 relied upon Godfrey (the “outrageously or wantonly vile, (1990)). The “break new ground” terminology refers to the No. 99-5279 Cone v. Bell 19 20 Cone v. Bell No. 99-5279

rule announced in Teague v. Lane, 489 U.S. 288 (1989), that very minor variations on the instruction in Maynard and Cone if a decision announces a “new” constitutional rule, it is not would not also be dictated by Godfrey. to be applied retroactively to convictions that have already become final when the new decision is announced, subject to There remains, of course, the question whether the two narrow exceptions not applicable here. A “new Tennessee Supreme Court’s narrowing construction of [constitutional] rule” is one that “breaks new ground” or Tennessee’s HAC aggravator, announced in 1981 in Dicks, imposes new obligations on the states or federal government. 615 S.W.2d at 132, that Tennessee’s HAC aggravator should Id. at 301. “[A] case announces a new rule if the result was be read as meaning “conscienceless or pitiless crime which is not dictated by precedent existing at the time the defendant’s unnecessarily torturous to the victim,” the identical language conviction became final.” Id. (emphasis omitted). that was approved in Proffitt, 428 U.S. at 255, “saves” the HAC aggravator in Cone’s case. Given this old rule/new rule definition, the language of Stringer, that Maynard did not “break new ground,” strongly The State argues that if we are to indulge the fiction, suggests that the Supreme Court considers Godfrey to have discussed earlier, that the Tennessee Supreme Court clearly established the unconstitutionality of the HAC “implicitly reviewed” Cone’s Eighth Amendment vagueness aggravator as early as 1980. Although Stringer dealt with a “challenge” to the HAC aggravator, a challenge Cone did not pre-AEDPA retroactivity issue, the Supreme Court in explicitly raise, we should also indulge the fiction that the Williams v. Taylor, 529 U.S. 362, explained that the “clearly court applied the “pitiless crime” narrowing construction it established law” requirement codified the old rule/new rule adopted for Tennessee’s HAC aggravator three years earlier doctrine of non-retroactivity that prevailed before AEDPA. in Dicks, 615 S.W.2d at 132. Although this “implicit Id. at 379-80, 412; see also Harris v. Stovall, 212 F.3d 940, narrowing construction” argument would provide a nice 944 (6th Cir. 2000). Indeed, the Court cited Stringer as an symmetry to the earlier “implicit review” argument, we think example of the old rule/new rule doctrine codified by the two, on close consideration, are actually asymmetrical. AEDPA’s “clearly established law” requirement. Williams, Here’s why: The Tennessee court explicitly reviewed whether 529 U.S. at 412. the HAC aggravator the jury found was supported by sufficient evidence, but in doing so, it did not apply, or even Although none of these Supreme Court decisions is “on all mention, any narrowing interpretation or cite to Dicks. fours” with the instruction in Cone’s case, in the final Instead, the court simply, but explicitly, satisfied itself that analysis, Stringer’s statement that Maynard’s invalidation of the labels “heinous, atrocious, or cruel,” without more, Oklahoma’s HAC aggravator was an “old rule” dictated by applied to Cone’s crime. State v. Cone, 665 S.W.2d at 94-95. Godfrey, points ineluctably to the conclusion that Godfrey represents a “clearly established” Supreme Court precedent Therefore, we conclude that the Tennessee Supreme dictating that Tennessee’s HAC aggravator is Court’s “implicit decision,” upon mandatory review of unconstitutionally vague. Although it is true that the HAC Cone’s death sentence, was that the HAC aggravator relied aggravator in Cone’s case contained the additional words “in upon by Cone’s jury in imposing the death sentence was not that it involved torture or depravity of mind,” all of those arbitrary and, consequently, not unconstitutionally vague. We words except “torture” have been held to be too vague, on the hold that this decision by the Tennessee Supreme Court was basis of Godfrey. Since Maynard was dictated by Godfrey, it contrary to clearly established U.S. Supreme Court precedent is difficult to imagine how any of the other cases addressing No. 99-5279 Cone v. Bell 21 22 Cone v. Bell No. 99-5279

as announced in Maynard and Shell, and made applicable to The applicable harmless error standard is “whether the error Cone’s case via the rule of retroactivity explained in Stringer. ‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Id. (quoting Brecht v. We are not in the least comfortable with this “implicit Abrahamson, 507 U.S. 619, 623 (1993)). The Supreme Court review” doctrine, but it is a matter of Tennessee, not federal, elaborated on this standard to some extent in O’Neal v. law, and we know of no other way to read and understand McAninch, 513 U.S. 432 (1995), by explaining: “When a what the Tennessee Supreme Court said in West. federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had substantial and V. injurious effect or influence in determining the jury's verdict, that error is not harmless.” Id. at 436 (internal quotation We must now consider whether the jury’s erroneous marks omitted); see also DePew v. Anderson, 311 F.3d 742, application of two invalid aggravating factors was harmless 751 (6th Cir. 2002), cert. denied, 124 S. Ct. 270 (2003), and error. The AEDPA standard of review does not apply to this cert. denied, 124 S. Ct. 83 (2003). question because no Tennessee court has considered this question. Thus, this is an independent harmless error inquiry, In Coe v. Bell, 161 F.3d at 335, we considered whether the not a review of a state court’s harmless error inquiry. jury’s reliance on an unconstitutionally vague HAC aggravating factor had a “substantial and injurious effect” on Cone contends that this court is not empowered to perform the sentence. We concluded that it did not because the jury’s an independent harmless error inquiry; rather, he argues, this sentencing verdict form indicated that “the jury [had] ignored court must grant habeas relief so that state courts can perform the problematic ‘depravity’ factor and limited its finding to a new sentencing calculus. He insists that prior Sixth Circuit the appropriately narrowing ‘torture’ factor.” Id. at 336. cases, Houston v. Dutton, 50 F.3d 381 (6th Cir. 1995), and Thus, the error was harmless because the jury, effectively, had Coe v. Bell, 161 F.3d 320, are in conflict on this issue. “channeled” its own discretion despite the failure of the instructions to do so. Id. In Coe v. Bell, we held that this court was “permitted to perform a harmless-error analysis” to determine whether a In Abdur’Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000), Tennessee jury’s reliance on the unconstitutional HAC cert. denied, 534 U.S. 970 (2001), we again considered the aggravator required habeas relief. 161 F.3d at 334. We harmfulness of the jury’s reliance on the unconstitutionally distinguished our previous decision in Houston v. Dutton, 50 vague HAC aggravator. We remarked that “removing one F.3d at 387, on the ground that Houston had prohibited a aggravating circumstance from the sentencing calculus in a federal habeas court from “re-weighing” but had not weighing state normally would require a re-weighing of the considered whether a federal habeas court could evaluate, in aggravating and mitigating factors.” Id. at 711. We the first instance, the harmlessness of the jury’s reliance on an determined, however, that the jury’s reliance on the HAC invalid aggravator. Coe, 161 F.3d at 335. Thus, Coe drew a aggravator was harmless because, “even if the heinous, distinction between re-weighing and harmless error analysis atrocious, or cruel aggravator is removed from the calculus, and held that a federal habeas court is permitted to undertake there is no mitigating evidence to weigh against the remaining the latter. . . . aggravators.” Id. No. 99-5279 Cone v. Bell 23 24 Cone v. Bell No. 99-5279

In this case, when the jury made its sentencing VI. determination it found four aggravating circumstances ((1) HAC; (2) great risk of death to others; (3) prior violent For the foregoing reasons, the district court’s decision is felonies; and (4) murder for purpose of avoiding REVERSED as to the petitioner’s sentence. We REMAND arrest/prosecution), and weighed those against the mitigating to the district court with instructions to issue a writ of habeas evidence offered by the defense. This balancing process was corpus vacating the petitioner’s death sentence due to the infected by the weight of two invalid aggravating factors: jury’s weighing of an unconstitutionally vague aggravating (1) HAC, which was unconstitutionally vague, and (2) great factor at sentencing, unless the State conducts a new penalty risk of death to others, which was not supported by sufficient phase proceeding within 180 days of remand. evidence. The prosecutor specifically emphasized the HAC aggravator during his closing arguments at the sentencing phase of the trial. In contrast to Coe, 161 F.3d at 336, the jury here did not “channel[]” its discretion by ignoring the vagueness inherent in the HAC aggravator. Moreover, although the defense here offered no mitigating evidence at sentencing, the Supreme Court stated in Bell v. Cone, 535 U.S. at 699, that the defense put before the jury “the most compelling mitigating evidence in the case” during the guilt phase. The Court’s observation thus distinguishes this case from Abdur’Rahman, in which we concluded that the HAC aggravator, if unconstitutionally vague, did not substantially affect the sentence due to the total absence of mitigating evidence. The second invalid aggravator, “great risk of death to others,” was found by the jury despite insufficient evidence, State v. Cone, 665 S.W.2d at 95, even though the prosecutor did not request the jury to find this aggravator. One could argue that this aggravator must have influenced the sentencing decision, since the jury found it without sufficient evidence and without being asked to do so by the prosecution. In any event, we conclude that these two invalid aggravators, together, if not individually, “‘had substantial and injurious effect or influence in determining’” the jury’s sentence. Brecht, 507 U.S. at 631 (citation omitted). The error, therefore, is not harmless. No. 99-5279 Cone v. Bell 25 26 Cone v. Bell No. 99-5279

___________________ The Defendant has not challenged the sufficiency of the evidence to support the aggravating circumstances found CONCURRENCE by the jury to warrant imposition of the death penalty in ___________________ this case. Nonetheless, as in all capital cases, under the directive of T.C.A. § 39-13-206(c)(1)(B) [formerly MERRITT, Circuit Judge, concurring. I agree with the T.C.A. § 39-2-205(c)(2)], this Court has reviewed the Court that this death case cannot be disposed of on grounds of evidence pertaining to the aggravating circumstances and procedural default, and I agree on the merits of the concludes that it is sufficient to support the aggravating constitutional issue. I believe there are additional reasons that circumstances found by the jury in this case. the Court is right and that the State’s position is untenable. Id. at 76. Two dissenting justices would have held that I. Procedural Default sentence invalid based on the “heinous, atrocious, or cruel” aggravator as applied to the evidence in the case because the In this case, the jury found that the crimes were “especially instruction did not sufficiently guide the jury’s discretion as heinous, atrocious, or cruel in that [they] involved torture or a matter of constitutional law. Noting that the jury’s depravity of mind.” (J.A. at 235, 237 (verdict forms)). application of the aggravator could only have been based on Pursuant to its statutory mandate, the state supreme court a finding of depravity, the dissenting justices concluded that automatically reviews, inter alia, whether the sentence of “the instructions provided no help in guiding the jury to its death was imposed in any arbitrary fashion and whether the decision” because the jury “received no guidance in evidence supported the jury’s finding of a statutory determining whether the defendant’s mind was materially aggravating circumstance. See Tenn. Code Ann. § 39-2- ‘depraved’ beyond that of any first degree murderer, and was 205(c)(1), (2) (1982). On direct review in this case, the state bestowed unconstitutionally unfettered and unguided supreme court expressly examined the evidence presented at discretion in applying this aspect of [the] aggravating trial and determined that the evidence was sufficient for the circumstance.” Id. at 83-84 (Reid, C.J. dissenting) (citing jury to find that the murders were “especially heinous, cruel, Shell v. Mississippi, 498 U.S. 1 (1990)). The majority or atrocious in that they involved torture or depravity of responded to the “dissent[’s] challenge[] [to] the validity in mind.” State v. Cone, 665 S.W.2d 87, 94-95 (Tenn. 1984). the present case of the aggravating circumstance” by setting forth evidence in support of the aggravator and holding that In State v. Harris, the jury found three aggravating the jury was “fully and correctly instructed” on the aggravator circumstances to support the death penalty, including that the in accord with State v. Williams, 690 S.W.2d 517, 529 (Tenn. crimes were “especially heinous, atrocious, or cruel in that 1985).1 [they] involved torture or depravity of mind.” 839 S.W.2d 54, 59-60 & n.1 (Tenn. 1992). On direct appeal, the defendant did not raise any specific vagueness challenge to 1 Approximately one year after the state supreme court upheld Co ne’s the aggravator or challenge the sufficiency of the evidence in death sentence, the Tennessee Supreme Court decided State v. Williams, support of it. Nevertheless, the state court clearly examined in which it construed “depravity of mind” in cases where there was no both aspects of the aggravator as part of its statutory review evidence of torture. 690 S.W .2d at 529-30. The co nstruction was of the sufficiency of the evidence: intended to comport with constitutional requirements by sufficiently narrowing the class o f perso ns eligible for the death penalty as required by Go dfrey v. Georgia, 446 U.S. 420 (1980). No. 99-5279 Cone v. Bell 27 28 Cone v. Bell No. 99-5279

Harris demonstrates that, in a death penalty case, the state To the extent that the decision of the state court of appeals supreme court’s mandatory review of the sufficiency of the can be read as an “unexplained ruling” due to its failure to evidence to support the jury’s finding of an aggravator specify that a procedural default has been expressly invoked necessarily includes an affirmative examination of whether to dispose of this particular claim, we must refer to the only the aggravator, either as instructed or as viewed by the reasoned state court judgment addressing the aggravator, reviewing court through a narrowing construction, sufficiently which in Cone’s case is the state supreme court’s express narrowed the class of persons eligible for the death penalty. consideration of the aggravator on direct appeal. See Ylst v. As a result, there can be no doubt in this case that the state Nunnemaker, 501 U.S. 797, 803 (1991) (“If an earlier opinion court reviewed the “heinous, atrocious, and cruel” aggravator ‘fairly appears[] to rest primarily on federal law,’ . . . we will on the merits and determined that it was not presume that no procedural default has been invoked by a unconstitutionally vague. subsequent unexplained order that leaves the judgment or its consequences in place”); O’Guinn, 88 F.3d at 1423. As Moreover, there is nothing in the record that would explained above, we can presume that, in ruling that the constitute a clear and express statement that the state court evidence supported the jury’s finding that the crimes were disposed of this issue on state procedural grounds, a “especially heinous, atrocious or cruel,” the state supreme prerequisite to the deference to state decisionmaking that our court, as in Harris, fulfilled its statutory duty to test the federal doctrine of procedural default aims to protect. Cone constitutionality of the aggravator. Further, contrary to the first presented his challenge to the constitutionality of the State’s assertion, no state court has clearly and expressly aggravator in paragraph 18 of his second amended post- stated that its disposition on the issue was based on the conviction petition. In dismissing the ground, the trial court independent and adequate state ground of waiver, as required did not state that the claim had been waived, as the State by Harris v. Reed, 489 U.S. 255, 263 (1989), and Coleman v. asserts in its brief before this Court, but that “grounds 17, 18 Thompson, 501 U.S. 722, 735 (1991). [which included his challenge to the constitutionality of the aggravator], 19, 21, 22, 23, 34, 35, 26, 27, 28, 29, 30, 31, 32, Our view is reinforced by State v. West, 19 S.W.3d 753 33, 34, 35, and 36 involve[] a potpourri of various errors by (Tenn. 2000), in which the constitutionality of an aggravator the court at the trial all of which grounds have been was raised. The state supreme court ruled that it had considered and denied in direct appeal or the First Post previously determined the constitutionality of the aggravator Conviction Petition.” Cone v. State, No. P-06874, slip op. at on direct appeal pursuant to its statutory mandate “to 4 (Crim. Ct. Tenn., 13th Judicial Dist., Dec. 16, 1993). In automatically consider whether the ‘evidence supports the affirming the trial court’s ruling, the Tennessee Court of jury’s finding of a statutory aggravating circumstance or Appeals did not expressly address Cone’s claim for relief statutory aggravating circumstances.’” Id. at 756. West based on the “heinous, atrocious, or cruel” aggravator, but demonstrates that the Tennessee Supreme Court understands agreed with the trial court that all of Cone’s claims had been its statutory obligation to review death sentences as carrying “previously determined or waived.” This language, in light with it the affirmative responsibility to keep the application of the state supreme court’s mandatory review on direct of the statutory aggravators within constitutional bounds. See appeal, “gives a federal court good reason to question whether Godfrey v. Georgia, 446 U.S. 420, 429 (1980) (noting the there is an adequate and independent state ground for the Georgia Supreme Court’s previous exercise of its decision.” O’Guinn v. Dutton, 88 F.3d 1409, 1423 (6th Cir. responsibility to keep the application of the “outrageously or 1996) (Merritt, J., concurring). No. 99-5279 Cone v. Bell 29 30 Cone v. Bell No. 99-5279

wantonly vile, horrible and inhuman” aggravator within establish cause for the third default, because there is no constitutional bounds). constitutional right to counsel at post-conviction hearings, according to Coleman, and without such a right ineffective II. Cause and Prejudice assistance of counsel cannot constitute cause for a procedural default. 501 U.S. at 752. Even if Cone had procedurally defaulted his objection to the “heinous, atrocious, and cruel” aggravator, this Court can It is clear from the record that Cone did not waive his still hear the claim if Cone can establish “cause and ineffective assistance of counsel claim. Cone raised a general prejudice” for the default. Coleman, 501 U.S. at 750. Cone claim of ineffective counsel in his first post-conviction argues that his failure to raise the objection on direct appeal petition. Although he did not claim specifically in that first was due to the ineffectiveness of his counsel. Ineffective petition that his counsel was ineffective because of the failure assistance of counsel, if established, can be sufficient to to object to the vague “heinous, atrocious, and cruel” establish cause and therefore allow a federal court to reach the aggravator, he added those grounds in his second post- merits of a claim defaulted in a state court so long as the conviction petition. Both the state trial court and the ineffectiveness rises to the level of a Sixth Amendment appellate court ruled that under Tennessee law, ineffective violation resulting in prejudice to the defendant. Murray v. assistance of counsel is a “single ground for relief” that had Carrier, 477 U.S. 478, 488 (1986). been “previously determined” in the first post-conviction petition. J.A. at 2001. Therefore, even though Cone did not In this case, counsel was allegedly ineffective at two stages claim that his counsel was ineffective specifically because of of the proceeding in failing to raise the constitutional the failure to object to the aggravator until his second post- objection to the instruction – at trial and on appeal. Before conviction petition, he has not defaulted that claim because we can decide if Cone has established ineffective assistance under Tennessee law it constitutes the same ground that the of counsel as cause of the failure to object at trial and on Tennessee courts had previously determined to be without appeal, we must first decide whether Cone has properly merit. exhausted the ineffectiveness claim in the state courts. When a petitioner claims ineffective assistance of counsel as cause Still, even though Cone has not procedurally defaulted his for a procedural default in state court of a substantive ineffective assistance of counsel claim, the message from constitutional claim, the allegation of ineffectiveness is a Edwards is that in order to rely on the ineffectiveness claim separate claim which must itself be exhausted in state court as cause for his failure to raise the “heinous, atrocious, and according to the normal procedures. Edwards v. Carpenter, cruel” aggravator, the issue must not only have been 529 U.S. 446, 452 (2000); Murray v. Carrier, 477 U.S. 478, presented to, or at least determined by, the state courts, the 489 (1986) (“[T]he exhaustion doctrine...generally requires restrictions on federal review from the Anti-Terrorism and that a claim of ineffective assistance of counsel be presented Effective Death Penalty Act (“AEDPA”) must be satisfied as to state courts before it may be used to establish cause for a well. Specifically, §2254(d) prevents federal courts from procedural default.”). According to Edwards, the failure to granting habeas “with respect to any claim that was exhaust the ineffectiveness claim will itself constitute a adjudicated on the merits in State court proceedings unless procedural default of the procedural default defense and, the adjudication of the claim” was either “contrary to” or an absent cause and prejudice, will prevent federal courts from “unreasonable application of” clearly established federal law. hearing it. 529 U.S. at 452. A petitioner cannot easily 28 U.S.C. §2254(d) (2003); Williams v. Taylor, 529 U.S. 362, No. 99-5279 Cone v. Bell 31 32 Cone v. Bell No. 99-5279

402-13 (2000). Thus, we must determine whether the Godfrey mean that the “heinous, atrocious, and cruel” rejection of Cone’s ineffective assistance of counsel claim by aggravator was unconstitutional (as explained later in the Tennessee state courts in his post-conviction petitions was Maynard v. Cartwright, 486 U.S. 356 (1988)), to rule contrary to, or an unreasonable application of, clearly otherwise as the Tennessee Supreme Court did in its established federal law. mandatory review was contrary to clearly established Supreme Court precedent even according to the high The starting point for ineffective assistance of counsel standards of AEDPA as interpreted in Williams v. Taylor. claims is Strickland v. Washington, 466 U.S. 668 (1984). Cone’s defense counsel missed, both at trial and on direct According to Strickland, in order to establish a claim for the appeal, a claim of clearly established constitutional ineffective assistance of counsel, a petitioner must be able to dimension, the preservation of which would result in having show both that his counsel was constitutionally deficient and one of the aggravators on which Cone was sentenced to death that the deficiency prejudiced his defense. Id. at 687; Wiggins thrown out. Failing to raise a winning defense is not a v. Smith, 123 S. Ct. 2527, 2535 (2003); Williams v. Taylor, strategic decision, and incompetence is the only explanation 529 U.S. 362, 390 (2000). Although the Strickland test is for the failure to raise it. It appears that Cone’s counsel was “highly deferential” to the judgment of defense counsel, 466 litigating a capital case while simply unaware of controlling U.S. at 689, and the mere fact that counsel has failed to Supreme Court precedent in death penalty cases. It is hard to recognize or raise a particular claim does not always imagine a better case for “ineffectiveness in failing properly constitute cause for a procedural default, Smith v. Murray, to preserve [a] claim for review in state court.” Edwards, 529 477 U.S. 527, 535 (1986); Carrier, 477 U.S. at 486-87, the U.S. at 451. Supreme Court has also made it clear that “the right to effective assistance of counsel . . . may in a particular case be This conclusion is further supported by the American Bar violated by even an isolated error...if that error is sufficiently Association’s Guidelines for the Appointment and egregious and prejudicial.” Murray, 477 U.S. at 535 (quoting Performance of Defense Counsel in Death Penalty Cases. As Carrier, 477 U.S. at 496); see also Edwards, 529 U.S. at 451 pointed out in Strickland, “[t]he proper measure of attorney (“Although we have not identified with precision what performance remains simply reasonableness under prevailing constitutes ‘cause’ to excuse a procedural default, we have professional norms.” 466 U.S. at 688. American Bar acknowledged that in certain circumstances counsel’s Association standards are only “guides” and not “rules” for ineffectiveness in failing properly to preserve the claim for what constitutes ineffective assistance of counsel, id., but in review in state court will suffice.”). this case the guidelines speak clearly: In this case, there can be no doubt that the defense One of the most fundamental duties of an attorney counsel’s error was “sufficiently egregious and prejudicial” defending a capital case at trial is the preservation of any to constitute cause for his procedural default. The defense and all conceivable errors for each stage of appellate and counsel failed both at trial and on direct appeal to object to post-conviction review. Failure to preserve an issue may the “heinous, atrocious, and cruel” aggravator despite the result in the client being executed even though reversible then-recent Supreme Court decision in Godfrey v. Georgia, error occurred at trial. For this reason, trial counsel in a 446 U.S. 420 (1980), in which the Court held similar death penalty case must be especially aware not only of language to be unconstitutionally vague. Indeed, as the Court strategies for winning at trial, but also of the heightened here points out, not only did the principle established in need to fully preserve all potential issues for later review. No. 99-5279 Cone v. Bell 33 34 Cone v. Bell No. 99-5279

ABA Guidelines for the Appointment and Performance of established right to effective counsel. See id. (“[I]t can hardly Defense Counsel in Death Penalty Cases 91-92 (rev. ed. be said that recognizing the right to effective counsel breaks 2003) (internal quotations omitted).2 In this case, not only new ground or imposes a new obligation on the states.” did Cone’s counsel fail to preserve “any and all” errors, he (internal quotations omitted)). failed to preserve a claim based on binding Supreme Court precedent that was a sure winner as a matter of federal law The Strickland test requires not only ineffectiveness of and that, given the role of the “heinous, atrocious, and cruel” counsel, but also prejudice to the defendant as a result of that aggravator in the jury’s deliberation of the death sentence, ineffectiveness. 466 U.S. at 687. For the purposes of this may well have saved his client’s life. There can be no doubt test, prejudice amounts to a “reasonable probability that, but that this error was “sufficiently egregious and prejudicial” to for counsel’s unprofessional errors, the result of the constitute cause for the procedural default of that claim. proceeding would have been different.” Id. at 694. Demonstrating such a reasonable probability is not difficult III. Contrary to Established Supreme Court Cases here. As the Court explains in its harmless error analysis, supra, the prosecutor specifically emphasized the “heinous, Finally, I have no trouble finding that the denial of Cone’s atrocious, and cruel” aggravator during closing arguments and claim that his counsel was ineffective due to the failure to at the sentencing phase of the trial. Moreover, this is the object to the “heinous, atrocious, and cruel” aggravator was second invalid aggravator found by the jury. Thus, there is at not only wrong, but contrary to clearly established federal law the very least a reasonable probability that had Cone’s as required by AEDPA and Williams. Although the error at counsel preserved the objection to this “heinous, atrocious, issue here involves the failure to raise a claim rather than the and cruel” aggravator, his sentence ultimately may well have failure to investigate at issue in Strickland and Wiggins, the been different. differences do not mean that the Tennessee courts’ rejections of his valid ineffectiveness claim are not contrary to the IV. The Merits clearly established test from Strickland. As the Supreme Court explained in Williams, “ [t]hat the Strickland test ‘of As is now typical in death penalty cases, we have spent necessity requires a case-by-case examination of the more time discussing the maze of “door closing” devices such evidence’ . . . obviates neither the clarity of the rule nor the as procedural default than the merits. In this case, the merits extent to which the rule must be seen as ‘established’ by this are relatively easy to decide. Court.” 529 U.S. at 391 (citation omitted). The Strickland test is well-established, and is itself based on a long The Court concludes that applying the “heinous, atrocious, and cruel” aggravator to Cone’s case was not only wrong but contrary to clearly established federal law as required by 2 AEDPA and Williams because similar language was ruled Although the above quotation is a recent statement not published at unconstitutional in Godfrey. The Court cites Maynard for the time of Cone’s trial, I use it because it is an articulation of long- support of this proposition, which specifically held that an established “fundamental” duties of trial counsel. See Ham blin v. Mitchell, 354 F.3d 4 82, 487 (6th Cir. 2003) (applying 1989 ABA identical Oklahoma “heinous, atrocious, and cruel” guide lines to counsel’s 19 82 rep resentation on the gro unds that “the aggravator was unconstitutional. Although Maynard was not standards merely represent a codification of longstanding, co mmo n-sense decided until 1988 – after the Tennessee Supreme Court principles of representation understo od b y diligent, comp etent co unsel in upheld Cone’s conviction – because the Court in Maynard death penalty cases”). No. 99-5279 Cone v. Bell 35 36 Cone v. Bell No. 99-5279

said that it was only applying the clear principle of Godfrey For these reasons, as well as those articulated by the Court, and not establishing new law, this Court today cites it for the I agree with the Court’s ruling. proposition that Tennessee’s upholding the “heinous, atrocious, and cruel” aggravator was contrary to clearly established federal law. I agree with the Court despite the state counsel’s objection to reliance on a later case to determine what law had been then clearly established. I would only add that the Supreme Court recently did precisely the same thing in Wiggins v. Smith, 123 S. Ct. 2527, 2535-36 (2003), despite an identical objection by the dissenting justices in that case. Id. at 2546- 47. In that case, the Court applied the rule of Strickland v. Washington, which was decided before Wiggins’ state court ruling, but also cited Williams v. Taylor, which was decided after Wiggins’ state court decision. Id. Since the Court in Williams had “made no new law in resolving Williams’ ineffectiveness claim,” id. at 2535, the Wiggins Court was free to cite Williams in determining whether or not the state court ruling against Wiggins was contrary to clearly established federal law, even though Williams was decided after the state court ruled against Wiggins. Similarly, as the Supreme Court later said when discussing non-retroactivity, “[i]n applying Godfrey to the language before us in Maynard, we did not “break[] new ground.” Stringer v. Black, 503 U.S. 222, 228-29 (1992) (quoting Butler v. McKellar, 494 U.S. 407, 412 (1990)). Therefore, Wiggins reinforces our reliance on Maynard’s application of Godfrey when determining what was “clearly established federal law” at the time of Cone’s state court decision even though Maynard was not yet decided. In Houston v. Dutton, 50 F.3d 381 (6th Cir. 1995), our Court did the same thing in invalidating the same Tennessee instruction. We cited Richmond v. Lewis, 506 U.S. 40, 46 (1992), a case decided after Houston’s last state court decision, to find the same “heinous, atrocious, or cruel” aggravator unconstitutional because Richmond simply applied the principle enunciated in Godfrey and Maynard. No. 99-5279 Cone v. Bell 37 38 Cone v. Bell No. 99-5279

_____________ broad, as it would eliminate the entire doctrine of procedural bar in Tennessee capital cases.” Id. As the majority points DISSENT out, virtually every other circuit that has reviewed analogous _____________ state-law provisions has expressed similar concerns. Majority Op. at 7-8 (citing cases). Aware of the potential sweep of its ALAN E. NORRIS, Circuit Judge, dissenting. As my conclusion, the majority seeks to reign it in by drawing the concurrence in this court’s initial panel decision makes clear, following distinction: Cone v. Bell, 243 F.3d 961 (6th Cir. 2001), I harbor grave reservations about the appropriateness of the death penalty in [T]he implicit review doctrine, as we apply it today in this case. However, our analysis was soundly rejected by the this case, does not foreclose the possibility that other Supreme Court. Bell v. Cone, 535 U.S. 685 (2002). On death penalty defendants may procedurally default on remand, the majority concludes that the writ should issue on other constitutional issues not raised on direct appeal. a ground not reached in our prior opinion. While I am The language of Tennessee’s mandatory review statute reluctant to part company with my colleagues in this case, I provides a basis to distinguish between vagueness feel obliged to do so because the majority’s construction of challenges and other constitutional claims, since it Tennessee law with respect to “implicit review” as it applies requires the Tennessee Supreme Court to look to waiver lacks any clear support from the Tennessee courts. specifically for sentences “imposed in any arbitrary I therefore respectfully dissent. fashion.”

To its credit, the majority candidly acknowledges the Maj. Op. at 13. Given that the scope of procedural default is tenuousness of its position with respect to whether petitioner a matter of state law, I would be much more comfortable if has procedurally defaulted his Eighth Amendment claim. For the majority had cited a single Tennessee opinion that lack of more compelling authority, the majority hitches its explicitly draws this distinction. Frankly, I do not find it in wagon to State v. West, 19 S.W.3d 753 (Tenn. 2000), a case West, and the majority concedes that “[t]he conceptual leap that it concedes contains a “seeming contradiction” because from [reviewing] claims explicitly raised on direct appeal, it holds that defendant’s vagueness claim was both although not properly preserved, to claims not raised at all is “previously determined” and “waived.” Maj. Op. at 11 significant and, without West, there would be no Tennessee (citing West, 19 S.W.3d at 756). However, West primarily authority for attempting it.” Maj. op. at 12. Given the focuses upon waiver: “[W]hen West failed to raise the inherent contradictions in West, it is a leap that I am unwilling [vagueness] issue on direct appeal, he effectively blocked any to make without further guidance from the courts of consideration of this issue by this Court on post-conviction Tennessee. review.” West, 19 S.W.3d at 756. For the foregoing reasons, I respectfully dissent. In Coe v. Bell, 161 F.3d 320 (6th Cir. 1998), an opinion in which I also concurred, we reviewed a district court reading of Tennessee Code Ann. § 39-2-205 (1982) for “the notion that, in capital cases, the state supreme court has to review significant errors, whether or not they were raised by the defendant.” Id. at 336. Coe rejected this reading as “too