Bell, Ricky (Warden) v. Cone, Gary (01/24/2005)

By: Linda Lou, Medill News Service

/ 01-02

Questions presented

(1) May an appeals court apply a de novo standard of review in granting habeas relief to state prisoners on claims that have been previously adjudicated on the merits in state court? (2) May an appeals court presume prejudice in finding a 6th Amendment violation of the right to counsel in a case in which state and district courts have previously determined that there was no actual prejudice from any of the deficiencies identified in a defense counsel's performance?

On Aug. 9, 1980, Cone robbed a jewelry store in Memphis, Tennessee, and took approximately $112,000 worth of items. Police chased him. Cone abandoned his car in a residential neighborhood, shot the pursuing officer and a resident, and escaped on foot. The following day, Cone asked a senior couple in the same residential neighborhood to help him evade police. When they refused, he beat them to death and mutilated their bodies. Cone was eventually arrested in Florida.

In 1982, Cone was convicted of first-degree murder, assault with intent to commit murder, and robbery by use of deadly force.

At the sentencing hearing, Cones lawyer failed to make any attempts to persuade the jury his client didnt deserve the death penalty and provided no evidence in mitigation to keep Cone from a death sentence. In fact, the late John Dice never bothered to address the jury during sentencing, except to say he ""rested."" Dices silence left Cone without a last-minute plea, while prosecutors asked jurors for a death sentence. The jury sentenced Cone to death for the double murders.

Cones multiple appeals first to the Tennessee Supreme Court, then through post-conviction petitions, were unsuccessful. In those state appeals, he raised issues of prosecutorial misconduct and ineffective assistance of counsel.

Cone then sought relief in the federal courts, first to stay his execution, then through a federal habeas corpus petition. The federal court denied the petition and lifted the stay of execution. A date for Cones death was set.

On March 22, 2001, a unanimous 6th Circuit Court of Appeals panel reversed, holding that Cone was denied his 6th Amendment right to the effective assistance of counsel.

Judge James Ryan wrote, "[W]e think a reasonable attorney would have realized the absolute necessity of arguing for his clients life by making a closing argument. In addition, counsel had plenty of mitigating evidence at his fingertips; yet he failed to present it at the sentencing phase."

At Cones post-conviction hearing, Dice testified that his strategy was to purposely remain silent during closing arguments. It was not necessary to bring up mitigating factors a second time because he already presented them to the jury during trial, he said. Cones lawyer also said he waived giving a closing argument to prevent a prosecutor, who was well-known for delivering "very devastating" closing arguments, from launching one in rebuttal.

The trial judge, at that hearing, found no fault with the defense attorneys strategy, ruling "from the facts and circumstances that [defense counsel] put a great deal of thought and preparation in this case; further, he pointed out he interviewed numerous family members and relatives whose testimony was contradictory and generally not helpful."

The appeals court found Cones lawyers strategy to be deficient and prejudiced the defense, two requirements to satisfy a claim of ineffective assistance of counsel. The panel said the strategy was illogical.

""We can only imagine the effect on the jurors when Cones defense counsel refused even to ask them to spare his clients life,"" Ryan wrote. "They could only have inferred that Cones counsel was, by his silence, acquiescing to the prosecutors plea that Cone be sentenced to death."

Still, the appeals court noted that as a federal court reviewing the state proceedings, it "may not disturb that ruling unless we are convinced that it constitutes a Ôdecision that is contrary to, or involved an unreasonable application of, clearly established Federal law."

It concluded that that standard had indeed been met. "Cone's counsel's refusal to offer any evidence in mitigation and refusal even to address the jurors to ask them to spare Cone's life because counsel feared the prosecutor might make a devastating argument denied Cone his Sixth Amendment right to counsel at sentencing."

On Dec. 10, 2001, the U.S. Supreme Court granted certiorari in the case, and May 28, 2002, the Court, by an 8-1 vote held against Cone's claim that incompetent lawyering should be enough to keep him from being executed.

Chief Justice William Rehnquist wrote the majority opinion; Justice John Paul Stevens wrote the lone dissent.

On remand, the 6th Circuit addressed a different issue, and concluded in Cone's favor that the "especially heinous, atrocious, or cruel" aggravating circumstance found by the jury at the sentencing phase of his trial was unconstitutionally vague. The 6th Circuit granted Cone's petition for a writ of habeas corpus.

The Supreme Court took another crack at the case, and on Jan. 24, 2005, issued a per curiam opinion, holding against Cone that even if the 6th Circuit was correct to conclude that Tennessee's statutory aggravating circumstance was facially vague, the appeals court erred in presuming that the Tennessee Supreme Court failed to cure the vagueness by applying a narrowing construction on direct appeal.

In finding that the 6th Circuit was without power to issue a writ of habeas corpus, the Court remanded the case yet again to the appeals court.

Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer concurred.