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Remand in a Quirky Capital Case

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The AP reports, "The Supreme Court has thrown out a death sentence for a Tennessee death row inmate who was deprived of key evidence at his trial."* Actually, the high court remanded the case of Cone v. Bell to a lower court to decide whether to throw out the death sentence, and whether the evidence is "key" remains disputed and undecided. The opinion is available here.

Chief Justice Roberts, concurring in the judgment, notes:

The Court's decision is grounded in unusual facts that necessarily limit its reach....  If [a] claim has been waived under state rules, that waiver typically precludes federal review. If the claim has been decided in the state system, federal review is restricted in light of the state court's legal and factual conclusions. The unique procedural posture of this case presents a Brady claim neither barred under state rules for failure to raise it nor decided in the state system.


The opinion of the Court by Justice Stevens recounts the procedural missteps of several state and federal courts reviewing the case. On state postconviction review, the state trial court mistakenly held that the claim of nondisclosure of exculpatory evidence in the hands of the prosecution (the Brady claim) had been previously decided by the state high court in the direct appeal. It had not. The federal courts subsequently issued rather muddled opinions dismissing the Brady claim on the ground it had been defaulted in state court, in addition to being without merit because the nondisclosed evidence was unlikely to have made a difference.

Justice Stevens barely mentions the opinion of the one court that did the best job in this case: the Tennessee Court of Criminal Appeals. That court correctly answered the arguments made to it. It did not address the Brady claim or the trial court's incorrect basis for dismissing it for the perfectly valid reason that the petitioner did not argue those points. Under well established rules of appellate review, claims not made in the appellate brief are defaulted, even if they were properly preserved and improperly dismissed in the trial court.

So, if a state court dismisses a claim in state postconviction on the ground it was resolved on direct appeal, that holding "creates no bar to federal habeas review." (p.17) Yes, of course. We have known that for a long time, and despite the awkward wording of its opinion, I don't think the Sixth Circuit really thought to the contrary. Most of the time, the issue will proceed to federal habeas, where the state court holding on direct appeal will be reviewed under the deferential standard of 28 U.S.C. ยง2254(d). This case is quirky because the "previously determined" holding was mistaken and there is no direct appeal decision to which the federal court can defer. As the Chief says, this is a narrow holding on odd facts. It will not do much damage.

The more worrisome part of the opinion is footnote 13 on pages 18-19, addressing Justice Alito's opinion.

Similarly, while JUSTICE ALITO's parsing of the record persuades him that Cone failed to adequately raise his Brady claim to the Tennessee Court of Criminal Appeals, he does not argue that the court expressly held that Cone waived the claim. A review of Cone's opening brief reveals that he made a broad challenge to the postconviction court's dismissal of his petition and plainly asserted that the court erred by dismissing claims as previously determined on direct appeal or in his initial postconviction petition.

Well, up to now, a state appellate court has not needed to expressly hold that a petitioner or appellant has "expressly waived" a claim he did not make on appeal. A failure to specifically make the claim or even a failure to specify federal as opposed to state grounds for a claim has been sufficient to default it for the purpose of federal habeas review. See, e.g., Baldwin v. Reese, 541 U.S. 27 (2004). The notion that an appellant can preserve points without any argument on them simply by making sweeping statements in his appellate brief is contrary to established law and practice. This footnote may well be a source of trouble in courts that love to bypass the procedural default rule.

Justice Alito gets it right in his concurring/dissenting opinion. CJLF's brief is here. Justices Thomas and Scalia dissent on the merits: Cone's drug use is not sufficiently mitigating that it is likely to have made a difference.

Other posts on the case are at SCOTUSblog and SL&P.

*Update: Take 2 of the AP story begins, "The Supreme Court granted a new hearing in federal court for a Tennessee death row inmate who was deprived of key evidence at his trial." Better, but the word "key" still implies that the materiality element of the Brady claim was decided today. It was not.

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