Whether the procedural bar prevents federal habeas courts from reviewing habeas petitions that state courts dismissed based on state procedural rules against re-litigating fully adjudicated claims, and whether federal courts can review state application of such rules.
Gary Cone was convicted and sentenced to death in the Criminal Court of Shelby County, Tennessee, for the murder of two people. Subsequent to Cone’s direct appeal, the state made available documents that both supported Cone’s defense that he was a drug addict at the time of the killings and impeached the testimonies of several witnesses. Respondent Bell argues for the state that Cone is procedurally barred from raising his grounds for relief in a federal habeas corpus review, as state courts already rejected it and Cone failed to properly argue it in the state courts. Petitioner Cone, however, argues that there should not be a procedural bar in this case because he did not receive the new information until his second request for post-conviction review, so the courts erroneously found that his claim had been previously decided. He also argues that it is the federal court’s duty in federal habeas review to examine grounds for relief based on federal law. The Supreme Court’s decision in this case could implicate the methods by which individuals convicted in state court can litigate their claims, both in state courts and upon federal habeas corpus review. Additionally, the Court’s decision could clarify the roles of state and federal courts in an area of law with implications for the federalist structure.
Questions as Framed for the Court by the Parties
The question presented is whether petitioner is entitled to federal habeas review of his claim that the State suppressed material evidence in violation of Brady v. Maryland, which encompasses two sub-questions:
1. Is a federal habeas claim “procedurally defaulted” because it has been presented twice to the state courts?
2. Is a federal habeas court powerless to recognize that a state court erred in holding that state law precludes reviewing a claim?
In 1982, Gary Bradford Cone, a Vietnam veteran, was found guilty and sentenced to death in a Tennessee criminal court for the murder of two elderly people during the commission of a robbery. Under Tennessee law, the sentencing body balances the aggravating factors and the mitigating factors in determining whether the death penalty should be imposed. In sentencing Cone to death, the jury relied on four aggravating factors: Cone had “previously [been] convicted of one or more felonies…which involved the use or threat of violence to the person”; he “knowingly created a great risk of death to two or more persons, other than the victim murdered, during his act of murder”; “the murder was especially heinous, atrocious, or cruel…in that it involved torture of depravity of mind”; and he “committed [the murder] for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another.” At trial, the issue of Cone’s drug addiction as a mitigating factor was addressed. Members of the Memphis Police Department and the FBI testified that they found no evidence of drug addiction. However, the jury also heard evidence indicating that Cone was a drug user, including the testimony of two expert witnesses, photographic evidence, drugs found in his car, and the testimony of his mother. Before trial, Cone filed a Motion for Production of Exculpatory Evidence and a Motion for Disclosure of Impeaching Information. Under Brady v. Maryland, the government must “turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment.”
After a 1992 Tennessee Court of Appeals decision, which held that police records must be made available under the Tennessee Public Records Act, Cone’s lawyers re-examined the records and discovered mitigating evidence that the prosecutor had failed to disclose at trial. The records showed that while Sergeant Roby of the Memphis Police Department had testified that he was unaware of Cone’s drug use, he had in fact sent out three bulletins to other police departments calling Cone a “heavy drug user” whose “car contained ‘a large quantity of drugs.’” Similarly, while an FBI agent also had testified that he “found no evidence of drug addiction,” reports containing multiple FBI teletypes had been distributed nationwide prior to Cone’s arrest, indicating that he was a “believed heavy drug user.”
Soon after Cone learned of these documents, he filed an amendment to his second petition for post-conviction relief asserting a Brady claim. Paragraph 41 of the amendment stated that Cone had been denied his rights under the federal and Tennessee state constitutions “because the state withheld exculpatory evidence which demonstrated that [Cone]…did in fact suffer drug problems and/or drug withdrawal or psychosis both at the time of the offense and in the past…” It went on to state that “[s]uch evidence was highly exculpatory and exculpatory to both the jury’s determination of [Cone’s] guilt and its consideration of the proper sentence.” The criminal court judge ruled that the Brady grounds for relief, along with eleven other grounds, were “clearly re-statements of previous grounds heretofore determined and denied.”
After Cone’s appeals were all denied in Tennessee state court, he filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Tennessee. Under 28 U.S.C. § 2254, an individual in state custody after being found guilty of a crime in state court may file a petition for a writ of habeas corpus, requesting that the federal court order the state to release the individual on the grounds that he is being held in violation of federal laws or the Constitution. A federal court may grant the writ if the adjudication of the claim in state court “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.” Several situations may prevent the writ from being granted. For instance, a judicially-imposed “procedural default”or “bar” prevents review of constitutional claims that the state court dismissed based on state procedural rules. Furthermore, a writ cannot be granted unless the applicant has exhausted all remedies available in the state courts. Finally, under the exhaustion principle, the applicant must have presented all his claims in state court before raising them in a federal habeas proceeding;
Cone claimed that the prosecution’s failure to disclose all relevant evidence, as required under Brady, resulted in an incorrect balancing of aggravating and mitigating factors by the sentencing body. After several appeals, including two trips to the United States Supreme Court and subsequent remands, the Sixth Circuit denied Cone’s petition for writ of habeas corpus. Cone then sought, and was granted, certiorari in the Supreme Court on June 23, 2008.
Under 28 U.S.C. § 2254, those being held for crimes committed in state court may seek a writ of habeas corpus in the federal courts to challenge their detention as a violation of federal law or the Constitution. However, to uphold the federalist structure, certain procedural mandates must be observed. Petitioner Cone argues that he followed these procedural guidelines and therefore should have his Brady v. Maryland claim heard in federal court. In Brady, the Supreme Court held that the state’s withholding of material exculpatory evidence from the defense is a violation of the defendant’s constitutional right to due process. Respondent Bell argues for the state that Cone is barred from raising the claim in federal court because he procedurally defaulted by not properly raising the claim in state court. Cone, however, argues that his Brady claim has merit, and that consequently the Supreme Court should remand the case to the district court for an evidentiary hearing.
The Federalism Question
Cone contends that his Brady claim was not procedurally barred from being raised in federal court because he properly raised it in state court in his second post-conviction review. Under the habeas corpus doctrine, once a defendant has properly presented his claim in state court, the oddities of state law should not prevent him from asserting it in a federal habeas corpus proceeding. Cone points out that six other circuit courts have rejected the argument that repeated presentation of a claim in state courts constitutes a procedural bar to raising the claim in federal court. Rather than procedurally barring a claim that has been raised multiple times in state court, the principles of comity and federalism only act to bar a defendant from violating state procedural rules by raising a claim for the first time in a post-conviction federal habeas proceeding. Cone argues, therefore, that because he raised his Brady claim in state court, it would not offend the principles of comity and federalism to allow him to reassert the claim in the federal proceeding.
Because a Brady claim is an issue of federal law, Cone argues, federal courts are “obligated to determine whether a procedural bar was properly applied by a state court.” This federal habeas review “protects the fundamental right of individuals…to have [their constitutional] claims considered on the merits by a federal habeas court.” Thus, Cone contends, if the Supreme Court were to refuse to examine the Brady claim here, it would be abdicating its role in the federalist structure and allowing state courts to be the final authority on issues of federal constitutional law.
Bell counters that the principles of comity and federalism demand that a defendant comply with state procedural requirements for presenting federal claims. Because states have “significant…interests” in promulgating their own procedural rules, federal courts do not inquire whether the rule applied in state court is correct, so long as there is “fair support for the non-federal basis of the decision and no evasion of the constitutional issue by the state court.”
Furthermore, according to Bell, the state court denied relief on the basis of a state procedural rule. Because the state court’s judgment rested on grounds that were “independent of the merits of the federal claim” and “an adequate basis for the state court’s decision,” the federal court cannot reexamine the claim. Bell argues that to do otherwise would allow federal courts to scrutinize state court decisions based on state laws and violate the appropriate division between federal and state courts.
The State Courts’ Review of Cone’s Brady Claim
Cone argues that the state courts failed to review properly his Brady claim, either when he raised it in the second post-conviction review or subsequently. Cone contends that when he originally raised the claim, the judge was clearly erroneous in ruling that the claim had been previously determined since the claim did not exist until the disclosure of the documents, which was just before Cone filed the amendment to the second petition for post-conviction review. Because the errors by the state court are so readily apparent, Cone contends, even the most deferential standard of review must lead the federal court to take up his Brady claim.
Bell rebuts Cone’s argument by pointing out that there is already a “procedural safety valve” in place that allows courts to review procedurally barred claims “where a prisoner can show cause for his state-court default and actual prejudice from the alleged federal-law violation or that failure to review the claim would result in a fundamental miscarriage of justice.” In the state proceedings, Bell argues, Cone did not attempt to rebut the presumption of waiver of his Brady claim. Therefore, Bell contends, Cone is barred from raising the Brady claim in federal court since he failed to take advantage of this procedural protection in state court.
The Merits of Cone’s Brady Claim
Cone argues that no court has ever properly ruled on his Brady claim, and therefore the issue should be remanded to the district court for a hearing to determine whether the suppression of evidence by law enforcement would have changed the jury’s balancing in determining guilt and punishment. Because Cone’s sole defense at trial was his drug-induced psychosis at the time of the murders, the undisclosed evidence bears directly on the jury’s determination of both his guilt and the proper punishment. Cone argues that when the Supreme Court previously upheld the constitutionality of the sentencing phase of Cone’s trial, it did so by finding that the jury had all the relevant facts it needed to make the decision. According to Cone, the Brady claim directly rebuts this determination, as the jury was not given crucial information that directly supported his sole defense. Furthermore, Cone contends, while the Sixth Circuit addressed the merits of the Brady claim in its opinion, it did so in the dicta and only after determining that the claim could not be raised in federal court.
Bell, however, disagrees with Cone’s characterization of the Sixth Circuit’s decision on the merits as dicta. Rather, Bell argues, the Sixth Circuit expressly referred to the merits decision as its “alternative holding.” Bell argues that even supposing that the Sixth Circuit addressed the merits of the Brady claim in its dicta only, the undisclosed evidence does not add anything substantial to the jury’s understanding of the case. Because the jury heard detailed evidence that Cone was a drug user, including testimony by two experts and Cone’s mother, the evidence in the file calling Cone a drug addict would not have revealed anything to the jury that it did not already know. Under Brady, Cone’s claim only has merit if the evidence would serve to place the “whole case in a different light.” According to Bell, the evidence contained in the undisclosed file was simply a repetition of the evidence that the jury heard, and so fails this test under Brady.
According to the U.S. Department of Justice, the state remedy exhaustion doctrine and the procedural bar are the two most common grounds for dismissal of federal habeas corpus petitions. As of 1995, they accounted for 57% and 12% of federal habeas dismissals, respectively. Because exhausting state remedies takes about five years, federal review is generally available only to prisoners serving long sentences. Thus, the availability of federal review is primarily a concern for defendants and convicts charged with serious, violent crimes.
Here, the Supreme Court will clarify whether state rules against re-litigating claims constitute an exception to the procedural bar, and whether state dismissals based on rules against re-litigation are subject to federal habeas review. Petitioner Gary Cone seeks answers in the affirmative on both counts. Respondent Ricky Bell, however, favors a more restricted federal review of petitions that have been dismissed at the state level, based on rules against re-litigation.
Implications of denying a procedural bar exception and federal review of state procedural dismissals
Cone warns that if the Court affirms the Sixth Circuit, and state court dismissals based on rules against reviewing fully litigated claims could trigger the procedural bar, then prisoners could be denied federal review whether they petitioned in state or federal court. Cone notes that it can be unclear whether a claim has been fully litigated and, correspondingly, whether one’s state remedies have been fully exhausted. Under the Sixth Circuit’s rule, petitioners who are unsure about the status of their claims could face a catch-22: diligently pursuing all possible state remedies could lead to procedural dismissal and preclude federal review, but seeking federal review could result in dismissal for failure to exhaust state remedies. Cone argues that a petitioner’s right to federal review would then hinge on his lawyer’s ability to predict how courts would resolve a complex question of law.
In addition, Cone argues that upholding the Sixth Circuit’s decision to deny federal courts the power to review the application of state rules against re-litigation would prevent some prisoners from vindicating their rights. Cone contends that even meritorious claims that were erroneously dismissed on procedural grounds would be ineligible for federal review. Furthermore, a group of former prosecutors forecasts that this injustice would occur frequently, because post-conviction procedures are complex and susceptible to erroneous rulings.
Cone also cautions that immunity from federal review would reduce state habeas courts’ incentives to correct improper convictions and sentences. State habeas courts could head off federal review of previous proceedings by improperly dismissing based on rules against re-litigation. Thus, Cone argues, more violations of defendants’ constitutional rights could go unchecked.
Implications of more liberal access to federal habeas review
On the other hand, Bell counters that carving out an exception to the procedural bar as Cone proposes would undermine state law enforcement. Noting that procedural rules enable states to enforce substantive laws such as ones that criminalize violence, Bell implies that failing to give procedural rules full effect in federal court would weaken important, substantive laws.
Bell also warns that allowing federal courts to review state procedural dismissals would signal federal disrespect for state authority. By violating the practice of deferring to state courts on matters of state law, Bell argues, this would disrupt the delicate balance of power between state and federal courts and increase friction between the two court systems.
Moreover, Bell contends that a decision for Cone would not affect federal courts’ ability to uphold petitioners’ rights because federal habeas courts can already review procedurally dismissed claims where the failure to do so would result in fundamental injustice. By implication, adopting Cone’s proposals would instead waste federal judicial resources on petitions that have been fully adjudicated, found to lack merit, and properly denied further state review. Similarly, the Criminal Justice Legal Foundation (“CJLF”) suggests that increasing access to federal habeas review would allow guilty, properly sentenced criminals to delay the finality of their punishment.
This case will determine (1) whether the procedural bar to federal habeas review applies when state courts dismiss habeas petitions based on rules against re-litigating claims, and (2) whether federal habeas courts are powerless to review state application of such rules against re-litigation. Bell maintains that both questions are moot because the courts below determined Cone’s claim lacked merit, even if Tennessee’s rule against re-litigation did not apply to procedurally bar federal review. Cone, however, seeks answers in the negative on both counts. First, Cone finds support in six circuit courts; moreover, he argues, state dismissals that signal the exhaustion of state remedies fulfill a prerequisite for federal habeas review and cannot, logically, preclude federal review. Second, Cone contends that erroneous state court decisions should not dissolve habeas petitioners’ right to present constitutional questions in federal court, or federal authority over those questions. The outcome will further define the availability of federal habeas review, which is relevant for prisoners serving long sentences that afford time to seek federal review. In addition, the decision may reduce tensions between state and federal courts by clarifying their relative authority over the application of state law, as it affects substantive federal rights.