Cone v. Bell

• Decision Date: 01 March 2004
• Docket Number: No. 99-5279.,99-5279.
• Citation: 359 F.3d 785
• Parties: Gary Bradford CONE, Petitioner-Appellant, v. Ricky BELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

359 F.3d 785

Gary Bradford CONE, Petitioner-Appellant, v. Ricky BELL, Warden, Respondent-Appellee.

No. 99-5279.

United States Court of Appeals, Sixth Circuit.

Argued: September 10, 2003.

Decided and Filed: March 1, 2004.

Petition for Rehearing Denied En Banc: June 22, 2004. Pursuant to Sixth Circuit Rule 206.

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ARGUED: Paul R. Bottei, FEDERAL PUBLIC DEFENDER'S OFFICE, Nashville, Tennessee, for Appellant.

Jennifer L. Smith, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

ON BRIEF: Paul R. Bottei, FEDERAL PUBLIC DEFENDER'S OFFICE, Nashville, Tennessee, Robert L. Hutton, GLANKLER BROWN, Memphis, Tennessee, for Appellant.

Jennifer L. Smith, Tonya G. Miner, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

Before MERRITT, RYAN, and NORRIS, Circuit Judges.

OPINION

RYAN, Circuit Judge, delivered the opinion of the court. MERRITT, J. (pp. 25-36), delivered a separate concurring opinion. NORRIS, J. (pp. 37-38), delivered a separate dissenting opinion.

Gary Bradford Cone was sentenced to death in a Tennessee state court for a double murder of an elderly couple and his conviction and death sentence were affirmed by the Tennessee Supreme Court.

On this appeal from the district court's denial of Cone's petition for habeas corpus relief, we are asked to decide

• Whether Cone was sentenced to death in violation of the prohibition against cruel or unusual punishment of the Eighth Amendment of the United States Constitution.

Before we may reach that question, however, we must resolve two rather complex and interrelated questions of state procedural law.

• The first, is whether, under Tennessee law, the state supreme court implicitly reviews death penalty sentences for arbitrariness, even in cases in which the issue is not raised explicitly.

• The second, is whether the petitioner procedurally defaulted, in the state court, the Eighth Amendment issue he asks us to decide.

Our answer to the first state law question is yes, and to the second, it is no. Given our resolution of these issues, we are authorized to reach the Eighth Amendment issue, for which the petitioner has brought this appeal. As to that issue, we hold that petitioner Cone's death sentence must be vacated because one of the statutory aggravating circumstances the jury relied upon in imposing the death sentence — that the murders were "especially heinous, atrocious, or cruel" — is unconstitutionally vague, and therefore, violates the Eighth Amendment.

I.

Cone was sentenced to death in a Tennessee court in 1982 following his conviction for the brutal murders of an elderly couple, Shipley and Cleopatra Todd. The facts of the case are fully detailed in our previous decision 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), and need not be recounted here. It is necessary, however, to detail the procedural history of the case in order to explain why we have the case on appeal for a second time and to explain the basis for the State's argument that Cone has procedurally defaulted the Eighth Amendment issue he now asks us to decide.

Cone challenged his conviction and sentence on direct review in the Tennessee Supreme Court, which conducted a mandatory death penalty review pursuant to Tenn. Code Ann. § 39-2-205 (1982) (current version at Tenn.Code Ann. § 39-13-206 (2003)). State v. Cone, 665 S.W.2d 87 (Tenn.1984). The Tennessee court affirmed Cone's murder convictions, and then, as it was required to do, considered the validity of the aggravating circumstances relied on by the jury in imposing the death penalty. Id. at 94-96. Under Tennessee law as it existed at the time of Cone's conviction, a jury could impose the death penalty only if it found that the prosecution had proved, beyond a reasonable doubt, the existence of at least one of twelve aggravating factors. Tenn.Code Ann. § 39-2404(i) (1981) (current version at Tenn.Code Ann. § 39-13-204(i) (2003)). In Cone's case the jury found four aggravating factors, which were defined in the statute as follows:

(2) The defendant was previously convicted of one or more felonies, other than the present charge, which involve the use or threat of violence to the person.

(3) The defendant knowingly created a great risk of death to two or more persons, other than the victim murdered, during his act of murder.

....

(5) The murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.

(6) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another.

Tenn.Code Ann. § 39-2404(i) (1981). In its review of the jury's findings, the Tennessee Supreme Court first noted that the jury had failed to find one aggravating factor, that the crime was committed in the course of committing another felony (felony-murder), even though the evidence clearly would have supported it. State v. Cone, 665 S.W.2d at 94.

The court then reviewed the four aggravators the jury did find, and concluded (1) that the evidence supported the finding that Cone had been convicted previously of one or more felonies involving violence, id.; (2) that the evidence supported the finding that the murders were "especially heinous, atrocious, or cruel in that they involved torture or depravity of mind," id. at 94-95; (3) that the evidence supported the finding that the murders were committed for the purpose of preventing a lawful arrest or prosecution, id. at 95; and (4) that the evidence was insufficient to support the jury's affirmative finding that the petitioner "`knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during [the] act of murder,'" id. (citation omitted). But the court found this error to be "harmless beyond a reasonable doubt" in light of the three other aggravating circumstances found by the jury and the court's conclusion that the jurors should have found, although they did not, the additional aggravator, that the petitioner was guilty of felony-murder. Id. Accordingly, the court affirmed Cone's death sentence. The constitutionality of the jury's finding that the murders were "especially heinous, atrocious, or cruel," which we hereafter refer to as the "HAC" aggravator, is a fundamental issue in this case.

Cone filed his first state post-conviction petition in the state trial court on June 22, 1984, attacking his conviction and death sentence. He alleged numerous violations of his rights under the United States Constitution including prosecutorial misconduct and the ineffective assistance of counsel at trial. The trial court held a hearing and denied Cone's petition. The Tennessee Court of Criminal Appeals affirmed the denial and the Tennessee Supreme Court declined Cone's request to appeal.

Approximately five years later, in June 1989, Cone filed a second state post-conviction petition, followed by several amendments. In this second petition, Cone alleged numerous constitutional violations including, for the first time, an Eighth Amendment claim that the language of the HAC aggravator considered by the jury in the sentencing phase was unconstitutionally vague. The trial court dismissed the second petition as barred by the successive petition restrictions of Tennessee's post-conviction statute, Tenn.Code Ann. § 40-30-111 (1990) (since repealed), holding that all the grounds raised in the second petition were barred because they either had been previously determined or were waived. This judgment was affirmed by the Tennessee Court of Criminal Appeals, and the Tennessee Supreme Court denied an application for permission to appeal. The United States Supreme Court denied Cone's petition for a writ of certiorari.

Cone then filed a motion in federal district court to stay his execution. The district court granted the stay and Cone filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the § 2254 petition and lifted the stay of execution. We then granted Cone's motion for a certificate of appealability.

After briefing and oral argument, we granted Cone's habeas petition with respect to his death sentence because we thought he had been unconstitutionally denied the effective assistance of counsel at sentencing. We found it unnecessary to decide several of Cone's other sentencing claims, including his "Eighth Amendment cruel and unusual punishment argument and his argument concerning the application of aggravating circumstances." Cone, 243 F.3d at 975. In Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), the U.S. Supreme Court reversed our decision on the ineffective assistance of counsel issue and remanded to this court for further proceedings, which we understand to mean consideration of the sentencing issues that Cone raised and we did not reach in our previous decision.

II.

"An appellate court reviews a district court's decision to deny or grant a writ of habeas corpus de novo, but it reviews the district court's factual findings only for clear error." Barker v. Yukins, 199 F.3d 867, 870 (6th Cir.1999).

III.

Initially, we must take up the State's argument that Cone's Eighth Amendment claim that the HAC aggravating factor was unconstitutionally vague, first raised in his second petition for post-conviction relief, had been procedurally defaulted. We address this issue first because, as a general rule, on habeas review, federal courts may not consider procedurally defaulted claims. Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir.2000). A claim is procedurally defaulted if: (1) the petitioner failed to comply with an applicable state procedural rule; (2) the state courts actually enforced the procedural rule; and (3) the state courts' finding of noncompliance is an adequate and independent state ground for denying relief on the federal constitutional claim. Maupin v. Smith, 785 F.2d 135,...