Cone v. Bell

Decision Date19 June 2007
Docket NumberNo. 99-5279.,99-5279.
Citation492 F.3d 743
PartiesGary Bradford CONE, Petitioner-Appellant, v. Ricky BELL, Warden, Riverbend Maximum Security Institution, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

the Attorney General, Nashville, Tennessee, for Appellee. ON BRIEF: Paul R. Bottei, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Jennifer L. Smith, Michael E. Moore, Office of the Attorney General, Nashville, Tennessee, for Appellee.

Before: MERRITT, RYAN, and NORRIS, Circuit Judges.

RYAN, J., delivered the opinion of the court, in which NORRIS, J., joined. MERRITT, J. (pp. 759-66), delivered a separate dissenting opinion.

OPINION

RYAN, Circuit Judge.

In 1982, a Tennessee state court sentenced Gary Bradford Cone to death after convicting him of two counts of first degree murder, two counts of murder in the perpetration of a burglary, three counts of assault with intent to commit murder, and one count of robbery by use of deadly force. The jury found Cone had bludgeoned two elderly persons to death while hiding out after a robbery. The Tennessee courts upheld Cone's conviction and sentence on direct appeal and denied his petitions for post-conviction relief. Then, in 2000, Cone filed a petition for a writ of habeas corpus in federal district court, which, in due course, was denied. He appealed.

We have now heard Cone's appeal three times because the United States Supreme Court has twice reversed our decisions granting relief. This third time around, Cone raises a number of claims, none of which, in our judgment, has merit. Therefore, we will affirm the district court's original judgment denying Cone's petition.

I.
A.

The details of Cone's brutal crimes are not material to the issues we address in this appeal, but they are fully set forth in Cone v. Bell, 243 F.3d 961 (6th Cir.2001), rev'd, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (Cone I). However, the details of this case's procedural history are material to the issues before us on this appeal and we recount them now.

At the time of Cone's conviction, under Tennessee law a jury could impose the death penalty only if it found that the government had proved, beyond a reasonable doubt, the existence of at least one of twelve statutory aggravating factors. Tenn.Code Ann. § 39-2404(i) (1981) (current version at Tenn.Code Ann. § 39-13-204(i) (2006)). In sentencing Cone to death, the jury found four aggravating factors: "[1] The defendant was previously convicted of one or more felonies, other than the present charge, which involve[d] the use or threat of violence to the person[; 2] The defendant knowingly created a great risk of death to two or more persons, other than the victim murdered, during his act of murder [(`great risk of death' factor);] . . . [3] The murder was especially heinous, atrocious, or cruel [(HAC)] in that it involved torture or depravity of mind [(HAC factor); and] [4] The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another." Id.; State v. Cone, 665 S.W.2d 87, 94-95 (Tenn.1984).

On direct appeal, the Tennessee Supreme Court found that the evidence did not support the jury's finding of the "great risk of death" factor. Cone, 665 S.W.2d at 95. However, the court found this error was "harmless beyond a reasonable doubt" because Cone's death sentence was supported by the other three aggravating factors found by the jury and by still another aggravating factor the jury did not find, but which the evidence supported; viz. that the murders were committed in perpetration of a burglary. Id. The court held that the death sentence was "not in any way disproportionate under all of the circumstances," and affirmed. Id. at 95-96. After Tennessee courts denied two post-conviction petitions, Cone v. State, 927 S.W.2d 579, 580 (Tenn.Crim.App.1995), Cone filed a habeas corpus petition in federal district court under 28 U.S.C. § 2254, alleging numerous federal constitutional violations. As we have said, the federal district court denied Cone's petition on all claims and Cone appealed.

In 2001, after hearing Cone's first habeas appeal, we directed the district court to vacate the death sentence because Cone had been denied constitutionally guaranteed effective assistance of counsel at his sentencing hearing. Cone, 243 F.3d at 975-76. We also held that: (1) Cone's allegations that the prosecution had withheld evidence from him in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), had been procedurally defaulted and that Cone had not shown cause and prejudice to overcome this default; (2) even if these Brady claims were not procedurally defaulted, the allegedly withheld documents were not Brady material; and (3) statements made by the prosecutor during closing argument did not rise to the level of prosecutorial misconduct. Cone, 243 F.3d at 968-73. We specifically declined to address Cone's arguments that death by electrocution violates the Eight Amendment's prohibition on cruel and unusual punishment and that the Tennessee jury improperly considered the "great risk of death" and HAC aggravating factors in sentencing him to death. Id. at 975. The United States Supreme Court reversed our decision that the assistance provided by Cone's attorney did not meet constitutional minimums and remanded the case back to this court. Cone I, 535 U.S. at 702, 122 S.Ct. 1843.

We heard Cone's second appeal, on remand, in 2004. We held that the statutorily defined HAC aggravating factor found by the sentencing jury was unconstitutionally vague. Cone v. Bell, 359 F.3d 785, 797-99 (6th Cir.2004), rev'd, 543 U.S. 447, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005) (Cone II). Since this error was not harmless, particularly in light of the jurors' erroneous reliance on the "great risk of death" aggravating factor, we granted Cone's petition for habeas relief, without addressing any of Cone's other claims. Id. at 799. The United States Supreme Court again reversed, holding that even if Tennessee's HAC aggravating factor was facially vague, the Tennessee Supreme Court is presumed to have "cure[d] this vagueness by applying a narrowing construction on direct appeal." Cone II, 543 U.S. at 459, 125 S.Ct. 847. The Supreme Court did not address any other issues and remanded, once again. Id. at 460, 125 S.Ct. 847.

B.

In this, his third appearance before us, Cone argues that several of his claims for relief remain unresolved. Without conceding any other claims, Cone's brief focuses on two main claims: (1) that the jury's improper consideration of the HAC and "great risk of death" aggravating factors at sentencing has not been cured and so he deserves a new sentencing hearing; and (2) that we should revisit our first decision's holding that Cone's Brady claims are procedurally defaulted, because the Supreme Court has since decided Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). Cone also makes six additional claims: (3) death by electrocution violates the Eighth Amendment; (4) the prosecutor made false arguments to the jury; (5) Cone received ineffective assistance of counsel; (6) the judge gave misleading jury instructions; (7) women were systematically underrepresented as grand jury forepersons when Cone was indicted; and (8) he was denied the right to counsel during trial. We address each claim below.

II.

We review the district court's disposition of a petition for habeas relief de novo, but review the court's factual findings for clear error only. Carter v. Bell, 218 F.3d 581, 590 (6th Cir.2000).

Our scope of review is also subject to the law of the case doctrine. Under that doctrine, when a court explicitly decides an issue of law, that decision should govern the same issue raised in subsequent stages of the same litigation. Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983); Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir.2006). In other words, when a court resolves an issue by a final decision, that decision binds future court decisions in the same litigation, even those by that same court. Bowles v. Russell, 432 F.3d 668, 676-77 (6th Cir.2005), cert. granted, ___ U.S. ___, 127 S.Ct. 763, 166 L.Ed.2d 590 (2006). However, the doctrine does not preclude reconsideration of decided issues if the court finds "exceptional circumstances." Westside Mothers, 454 F.3d at 538 (citing Hanover Ins. Co. v. Am. Eng'g Co., 105 F.3d 306, 312 (6th Cir.1997)). "Exceptional circumstances" include: "(1) where substantially different evidence is raised on subsequent trial; (2) where a subsequent contrary view of the law is decided by the controlling authority; or (3) where a decision is clearly erroneous and would work a manifest injustice." Id.

We also note that when the Supreme Court remands to our court, "`whatever was before [the Supreme Court], and disposed of by its decree, is considered as finally settled'" and not in our power to rehear. Vendo Co. v. Lektro-Vend Corp., 434 U.S. 425, 427-28, 98 S.Ct. 702, 54 L.Ed.2d 659 (1978) (quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 40 L.Ed. 414 (1895)).

III.

As a general proposition, we have authority to grant habeas relief on a claim adjudicated by a state court if the state court decision "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." 28 U.S.C. § 2254(d)(1). The "contrary to" clause means a federal court "may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supre...

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