Gary Bradford Cone v. RICKY BELL, Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0064P (6th Cir.)
File Name: 04a0064p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GARY BRADFORD CONE,
Petitioner-Appellant,
v.
RICKY BELL, Warden,
Respondent-Appellee.
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No. 99-5279
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 97-02312—Jon Phipps McCalla, District Judge.
Argued: September 10, 2003
Decided and Filed: March 1, 2004
Before: MERRITT, RYAN, and NORRIS, Circuit Judges.
_________________
COUNSEL
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
2 Cone v. Bell No. 99-5279
Appellant. Jennifer L. Smith, Tonya G. Miner, OFFICE OF
THE ATTORNEY GENERAL, Nashville, Tennessee, for
Appellee.
RYAN, J., 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.
_________________
OPINION
_________________
RYAN, Circuit Judge. 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.

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No. 99-5279 Cone v. Bell 3
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 (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.
4 Cone v. Bell No. 99-5279
§ 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

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No. 99-5279 Cone v. Bell 5
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
6 Cone v. Bell No. 99-5279
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 (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

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No. 99-5279 Cone v. Bell 7
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, 138 (6th Cir. 1986).
Under Tennessee law at the time of Cone’s conviction,
grounds for relief that had been previously determined or
waived were not cognizable in a state post-conviction action.
Tenn. Code Ann. § 40-30-111 (since repealed). In its
consideration on appeal of the denial of Cone’s second post-
conviction petition, the Tennessee Court of Criminal Appeals
refused to address Cone’s constitutional challenge to the HAC
aggravator because, according to the court, it had been either
previously determined or waived. Cone v. State, 927 S.W.2d
579, 582 (Tenn. Crim. App. 1995). Of these two possibilities,
“previously determined” or “waived,” we must determine
which one actually describes the status of Cone’s
constitutional claim in the state courts. If Cone waived his
claim, then such waiver will constitute a procedural default
and will serve as an adequate and independent state ground
barring habeas review in this court. If Cone’s claim was
previously determined, then we must decide whether the state
courts’ determination “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) (West Supp.
2003).
Cone argues that he did not procedurally default on his
Eighth Amendment vagueness challenge to the HAC
aggravating factor, because the Tennessee Supreme Court
“necessarily reviewed” the claim as part of its mandatory
death penalty review.
8 Cone v. Bell No. 99-5279
In death penalty cases the Tennessee Supreme Court is
required to conduct a mandatory death penalty review to
determine whether:
(1) The sentence of death was imposed in any
arbitrary fashion;
(2) The evidence supports the jury’s findings of a
statutory aggravating circumstance or statutory
aggravating circumstances;
(3) The evidence supports the jury’s finding of the
absence of any mitigating circumstances sufficiently
substantial to outweigh the aggravating circumstance or
circumstances so found; and
(4) The sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the nature of the crime and the
defendant.
Tenn. Code Ann. § 39-2-205(c) (1982) (emphasis added)
(current version at Tenn. Code. Ann. § 39-13-206(c)(1)
(2003)).
Tennessee responds that Cone’s “necessarily reviewed”
claim, also known as “implicit review,” proves too much,
since it would eviscerate the procedural default doctrine with
respect to all constitutional claims.
The U.S. Courts of Appeals are divided on whether these
state mandatory review statutes create an implicit review of
constitutional challenges not explicitly raised. The Fourth,
Eighth, and Eleventh Circuits all have rejected the implicit
review argument. See Mu’min v. Pruett, 125 F.3d 192, 197
(4th Cir. 1997); Nave v. Delo, 62 F.3d 1024, 1039 (8th Cir.
1995); Julius v. Johnson, 840 F.2d 1533, 1546 (11th Cir.
1988). The Ninth Circuit reached the opposite conclusion in
an Idaho death penalty case, albeit in dicta. See Beam v.

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No. 99-5279 Cone v. Bell 9
Paskett, 3 F.3d 1301, 1306 (9th Cir. 1993), overruled on
other grounds by Lambright v. Stewart, 191 F.3d 1181 (9th
Cir. 1999).
This court, in Coe v. Bell, 161 F.3d 320 (6th Cir. 1998), in
dicta, expressed discomfort with the implicit review argument
in the context of a challenge to jury instructions on unanimity
in sentencing in a death penalty case in a Tennessee court. Id.
at 336. We stated that the argument that “the [Tennessee]
supreme court has to review significant errors, whether or not
they were raised by the defendant,” is “too broad, as it would
eliminate the entire doctrine of procedural bar in Tennessee
in capital cases.” Id. Despite these reservations, we
recognized in Coe that Tennessee courts had been moderately
receptive to the implicit review theory. Id. For example, in
State v. Martin, 702 S.W.2d 560 (Tenn. 1985), overruled on
other grounds by State v. Brown, 836 S.W.2d 530 (1992), the
Tennessee Supreme Court stated that it was “required by
statute to review the sentence and to consider significant
errors whether or not called to the attention of the trial court.”
Id. at 564 (emphasis added). We explained in Coe that, based
on Martin, a procedural default could not arise under
Tennessee law when a capital defendant raised an issue on
appeal which he had failed to preserve properly during trial.
Coe, 161 F.3d at 336. Thus, in Coe, we partially adopted the
implicit review theory, but only to the extent of issues that
were explicitly raised on appeal, even though not properly
preserved in the trial court. Of course, unlike Coe, Cone’s
unconstitutional HAC aggravator issue was not explicitly
raised either in the trial court or on direct review in the
Tennessee Supreme Court.
The cases that divide the circuits on the implicit review
theory agree on one point: “The scope of the state court’s
mandatory review is, ultimately, a question of state law.”
Nave, 62 F.3d at 1039. Accordingly, if Tennessee construes
its mandatory review statute to encompass constitutional
issues not explicitly raised on direct review, then the
Tennessee Supreme Court must be deemed to have
10 Cone v. Bell No. 99-5279
considered the constitutionality of the HAC aggravator in this
case, and Cone did not procedurally default on the claim.
It is important to frame this preliminary question of state
law carefully. We understand the question to be whether it is
the law in Tennessee that in all capital punishment cases, the
Tennessee Supreme Court reviews the sentencing proceedings
to ensure that the jurors have not imposed the death penalty
“in any arbitrary fashion,” Tenn. Code Ann. § 39-2-205(c)
(1982), even in cases in which the issue is not raised on direct
review.
Just three years ago, in State v. West, 19 S.W.3d 753 (Tenn.
2000), the Tennessee Supreme Court considered whether a
defendant could raise an issue in his state post-conviction
petition that he had not raised on direct review. Id. at 754.
The court prefaced its discussion as follows:
In this appeal of a post-conviction proceeding, . . . the
appellant[] raises for the first time the issue whether
evidence adduced at the sentencing phase of his trial was
sufficient to support the jury’s conclusion that he
committed two murders for the purpose of avoiding
arrest or prosecution. Although [the appellant] casts the
issue as concerning the evidentiary sufficiency of the
(i)(6) aggravating circumstance, we think his grievance
involves instead the constitutional issue of whether the
aggravating circumstance narrows the class of death
eligible offenders. He says that it does not, and because
it does not, he contends that it violates the Eighth
Amendment.
Id. (emphasis added). The court’s reference to “narrow[ing]
the class of death eligible offenders” is responsive to the rule
announced in Zant v. Stephens, 462 U.S. 862 (1983), that in
capital punishment cases, the “aggravating circumstance must
genuinely narrow the class of persons eligible for the death
penalty” in order to ensure that the jury’s discretion in
imposing the death sentence is “adequately . . . channel[ed].”

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No. 99-5279 Cone v. Bell 11
Id. at 877. Later Supreme Court cases have characterized
death sentences imposed without appropriately narrowing
instructions as having been imposed arbitrarily and upon
criteria, i.e., statutory aggravating factors, whose language is
unconstitutionally vague. See, e.g., Tuilaepa v. California,
512 U.S. 967, 974-75 (1994); Sawyer v. Whitley, 505 U.S.
333, 367 (1992) (Stevens, J., concurring).
The emphasized language in West is significant because the
court characterized the issue as an Eighth Amendment
vagueness challenge to a statutory aggravating factor, the
precise issue raised by Cone. In West, the State argued that
the defendant could not raise the vagueness issue in his post-
conviction petition for two reasons: (1) he had failed to raise
it on direct appeal and thus “waived” it; and, alternatively,
(2) it had been “previously determined” due to the Tennessee
Supreme Court’s mandatory review. West, 19 S.W.3d at 756.
The court agreed with the State, but, in a seeming
contradiction, held that the vagueness issue had been both
“previously determined” and “waived” as a result of West’s
direct appeal. Id. Specifically, the court stated:
Under Tenn. Code Ann. § 40-30-112(b), when [the
appellant] failed to raise the (i)(6) issue on direct appeal,
he effectively blocked any consideration of this issue by
this Court on post-conviction review. Additionally,
under Tenn. Code Ann. § 39-2-205(c)(3) (1982)
(repealed 1989), this Court was required in all cases in
which the death penalty was imposed to automatically
consider whether the “evidence supports the jury’s
finding of a statutory aggravating circumstance or
statutory aggravating circumstances. . . .” Pursuant to
these mandatory provisions, this Court found that the
requirements of the statute had, in fact, been met in [the
appellant’s] case. Thus, we conclude that the issue under
discussion has, indeed, been both “previously
determined” and “waived,” under the definitions
provided in Tenn. Code Ann. § 40-30-112(a) and (b).
12 Cone v. Bell No. 99-5279
Id. (emphasis added) (internal citations omitted).
Although West appears to stand alone as direct support for
the implicit review argument, other Tennessee Supreme Court
cases lend moderate support. In Martin, discussed above, the
court held that it was “required by statute to review the
sentence and to consider significant errors whether or not
called to the attention of the trial court.” 702 S.W.2d at 564
(emphasis added). Likewise, in State v. Duncan, 698 S.W.2d
63 (Tenn. 1985), the court stated: “in cases where the
defendant is under sentence of death, this court is under the
duty to ‘automatically’ review the sentence, which imposes
the burden on this court to consider any alleged error, whether
called to the trial court’s attention or not.” Id. at 67-68
(emphasis added). Finally, in State v. Nesbit, 978 S.W.2d 872
(Tenn. 1998), the court held that the mandatory review statute
gave it jurisdiction to review issues raised by the defendant’s
appeal despite the defendant’s failure to timely file his appeal.
Id. at 880-81. These three cases make clear that the
Tennessee Supreme Court considers its task when conducting
the required review to be important enough to warrant
departures from procedural rules that would normally bar
supreme court review. In each of these three cases, however,
unlike this case, the issue was raised by the defendant on
direct review.
The conceptual leap from claims explicitly raised on direct
appeal, although not properly preserved, to claims not raised
at all is significant and, without West, there would be no
Tennessee authority for attempting it. Nevertheless, West
cannot be ignored; neither can the Tennessee statute, which
mandates supreme court review to assure that no death
sentence is “imposed in any arbitrary fashion.” Tenn. Code
Ann. § 39-2-205(c)(1) (1982). It is also significant that the
statute does not condition the mandatory review upon the
issues named in the statute being properly raised. The
following factors in West strongly favor the conclusion that it
is the law in Tennessee that the supreme court “implicitly”
reviews death sentences for arbitrariness, even if the issue is

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No. 99-5279 Cone v. Bell 13
not explicitly raised on direct appeal: (1) the language that in
“all” death penalty cases, the court “automatically” complies
with the mandatory review statute; (2) the court’s re-
characterization of the appellant’s “evidentiary sufficiency”
challenge as a vagueness (i.e., arbitrariness) challenge; and
(3) its holding that the same was “previously determined”
(although never raised by the appellant). We can find no
other logical construction to put upon the court’s language in
West.
We note, in passing, that the implicit review doctrine, as we
apply it today in this case, does not foreclose the possibility
that other death penalty defendants may procedurally default
on other constitutional issues not raised on direct appeal. The
language of Tennessee’s mandatory review statute provides
a basis to distinguish between vagueness challenges and other
constitutional claims, since it requires the Tennessee Supreme
Court to look specifically for sentences “imposed in any
arbitrary fashion.” The “evil” of vague sentencing
instructions is, precisely, that they invite arbitrary decision-
making. As the U.S. Supreme Court has stated: “our cases
have insisted that the channeling and limiting of the
sentencer’s discretion in imposing the death penalty is a
fundamental constitutional requirement for sufficiently
minimizing the risk of wholly arbitrary and capricious
action.” Maynard v. Cartwright, 486 U.S. 356, 362 (1988).
Because there are other constitutional violations that do not
pose this same risk, the implicit review principle we have
applied today would not necessarily save those claims from
procedural default.
We think that given the holding in West, and the court’s
language explaining it, we must conclude that the Tennessee
Supreme Court implicitly considered and rejected Cone’s
unmentioned vagueness “challenge” to the HAC aggravator,
in the course of its mandatory review. As such, Cone’s claim
must be deemed to have been decided on the merits during the
direct appeal and, therefore, when the Tennessee lower courts
disposed of the claim on procedural grounds they did so not
14 Cone v. Bell No. 99-5279
because the claim was “waived” but because it was
“previously determined.”
This conclusion would seem to be confirmed by the written
findings of the state trial court dismissing Cone’s second
amended petition for post-conviction review. Referring to the
specific paragraph of the petition in which Cone raised his
vagueness challenge for the first time, the trial court stated:
“grounds . . . [appearing in paragraph] 18 . . . involve[] a
potpourri of various errors by the court at the trial all of which
grounds have been considered and denied in direct appeal or
the First Post Conviction Petition.” Cone v. State, No. P-
06874, slip op. at 4 (Crim. Ct. Tenn., 13th Judicial Dist., Dec.
16, 1993) (emphasis added). The Tennessee Court of
Criminal Appeals, the last state court to render an opinion on
Cone’s petition, affirmed the holding of the trial court and, in
fact, commended the trial court judge for his “exemplary and
meticulous treatment of the appellant’s petition.” Cone v.
State, 927 S.W.2d at 581. These statements by the lower state
courts are in accordance with our holding today: that, under
Tennessee law, Cone’s vagueness challenge was not
“waived,” but “previously determined.”
Therefore, although Cone failed to explicitly raise the
vagueness challenge to the HAC aggravator, that claim was
nonetheless implicitly decided on the merits by the Tennessee
Supreme Court and it is a proper subject for federal habeas
review.
IV.
Finally, we turn to the merits of Cone’s habeas claim that
the HAC aggravator the jury considered in sentencing him to
death is unconstitutionally vague, thus invalidating his
sentence.

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No. 99-5279 Cone v. Bell 15
A.
Our standard of review is governed by the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). When a
petitioner’s claim has been adjudicated on the merits in a state
court, a federal court may not grant a writ of habeas corpus
with respect to such claim, unless the state court’s
determination:
(1) 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; or
(2) resulted in a decision that was based on an
unreasonable determination of the f..acts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d) (West Supp. 2003). A state court’s
decision must be evaluated against the clearly established
Supreme Court precedent at the time the petitioner’s
conviction became final. Williams v. Taylor, 529 U.S. 362,
380 (2000). Moreover, as we explained recently:
A state court decision is “contrary to” Supreme Court
precedent “if the state court arrives at a conclusion
opposite to that reached by [the Court] on a question of
law,” or “if the state court confronts facts that are
materially indistinguishable from a relevant Supreme
Court precedent and arrives at a result opposite to” the
Court’s decision. A state court decision involves an
“unreasonable application” of clearly established
Supreme Court precedent when it correctly identifies the
governing legal standard but applies it to the facts of the
case before it in an objectively unreasonable manner.
Alley v. Bell, 307 F.3d 380, 385 (6th Cir. 2002) (internal
citation omitted) (quoting Williams, 529 U.S. at 405, 409-10),
cert. denied, 124 S. Ct. 99 (2003)
16 Cone v. Bell No. 99-5279
B.
At sentencing, the jurors were instructed that they could not
impose the death penalty unless they unanimously found,
beyond a reasonable doubt, at least one of eleven statutory
aggravating factors, including whether “[t]he murder was
especially heinous, atrocious, or cruel in that it involved
torture or depravity of mind.” In a limiting instruction, the
court then defined some of the terms of this aggravating
factor:
“Heinous” means extremely wicked or shockingly evil.
“Atrocious” means outrageously wicked and vile.
“Cruel” means designed to inflict a high degree of pain,
utter indifference to, or enjoyment of, the suffering of
others, pitiless.
The jurors found that Cone’s crime was “especially heinous,
atrocious, or cruel.” They did not add, on their verdict form,
the words, “in that it involved torture or depravity of mind.”
However, we do not think that omitting that verbiage when
announcing the verdict is of any constitutional significance.
Cone argues that the HAC aggravator is “clearly
unconstitutional” based upon the holding of Godfrey v.
Georgia, 446 U.S. 420 (1980). Godfrey held that the Georgia
statutory aggravator, “that the offense ‘was outrageously or
wantonly vile, horrible or inhuman in that it involved torture,
depravity of mind, or an aggravated battery to the victim,’” id.
at 422 (citation omitted), was unconstitutionally vague,
because there was “nothing in these few words, standing
alone, that implies any inherent restraint on the arbitrary and
capricious infliction of the death sentence,” id. at 428.
The State responds first, that the language of the Tennessee
HAC aggravator, as further defined and limited by the trial
court, is not the language found to be vague in Godfrey, and
second, that the HAC aggravator in Cone’s case was not
“contrary to . . . clearly established” U.S. Supreme Court

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No. 99-5279 Cone v. Bell 17
precedent as it stood at the time of Cone’s direct appeal. That
precedent, the State argues, was established in Proffitt v.
Florida, 428 U.S. 242 (1976), decided eight years before
Cone’s conviction became final, in which the Court held that
Florida’s HAC aggravator was not unconstitutionally vague
in light of the Florida courts’ narrowing construction that the
term “heinous, atrocious, or cruel” means a “‘conscienceless
or pitiless crime which is unnecessarily torturous to the
victim.’” Id. at 255-56 (citations omitted). This narrowing
language is the identical language the Tennessee Supreme
Court used in narrowing Tennessee’s HAC aggravator in
State v. Dicks, 615 S.W.2d 126, 132 (Tenn. 1981), a case
decided three years before the court’s “implicit review” of
Cone’s case. Moreover, the State argues, it must be presumed
that the Tennessee Supreme Court evaluated the Cone jury’s
reliance upon the HAC aggravator using the same narrowing
construction adopted in Dicks. The State also reminds us that
the U.S. Supreme Court held in Williams, 529 U.S. 362, that
the state court’s decision must be evaluated against the
“clearly established” Supreme Court precedent at the time the
petitioner’s conviction became final. Id. at 380.
One thing is clear: No Supreme Court case has addressed
the precise language at issue in this case. As we will show,
the cases decided after Cone’s conviction became final
indicate clearly that the language of the HAC aggravator the
jurors used to sentence Cone to death–“especially heinous,
atrocious, or cruel in that it involved torture or depravity of
mind”–is unconstitutionally vague. Normally, post-Cone
decisions would be immaterial, but, as will be seen, the
Supreme Court’s fairly recent application of its doctrine of the
“non-retroactivity” of new constitutional rules, in the context
of an Eighth Amendment vagueness challenge to a death
penalty instruction, makes several post-Cone Supreme Court
decisions not only material, but controlling.
In 1988, in Maynard v. Cartwright, 486 U.S. 356, a death
penalty case from Oklahoma, the Supreme Court explicitly
relied upon Godfrey (the “outrageously or wantonly vile,
18 Cone v. Bell No. 99-5279
horrible or inhuman” aggravator) to hold that Oklahoma’s
HAC aggravator was unconstitutionally vague, id. at 363-64,
but implied that had Oklahoma’s HAC aggravator been
further limited by a “torture or serious physical abuse”
instruction, it might have been constitutional, id. at 365.
Nonetheless, two years later, in Shell v. Mississippi, 498 U.S.
1 (1990) (per curiam), the Supreme Court announced that the
“heinous, atrocious, or cruel” language, along with the same
“limiting” definitions as were provided to the jury in Cone’s
case, was unconstitutional. Id. at 1. The HAC aggravator in
Shell, however, did not have the “torture or depravity”
qualifier that is attached to the HAC aggravator in Cone’s
case. In Walton v. Arizona, 497 U.S. 639 (1990), overruled
on other grounds by Ring v. Arizona, 536 U.S. 584 (2002),
the Court stated, “there is no serious argument that Arizona’s
‘especially heinous, cruel or depraved’ aggravating factor is
not facially vague.” Id. at 654.
Despite the confusion resulting from these cases (or
perhaps because of it), the Supreme Court, in Stringer v.
Black, 503 U.S. 222 (1992), came at the subject from a
different angle. It addressed the “new rule” non-retroactivity
doctrine as respects Godfrey, the pre-Cone decision, and
Maynard, the post-Cone decision.
[T]he language [in Maynard (“especially heinous,
atrocious or cruel”)] gave no more guidance than did the
statute in Godfrey [(“outrageously or wantonly vile,
horrible or inhuman”)]. . . .
. . . Godfrey and Maynard did indeed involve
somewhat different language. But it would be a mistake
to conclude that the vagueness ruling of Godfrey was
limited to the precise language before us in that case. In
applying Godfrey to the language before us in Maynard,
we did not “brea[k] new ground.”
Id. at 228-29 (quoting Butler v. McKellar, 494 U.S. 407, 412
(1990)). The “break new ground” terminology refers to the

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No. 99-5279 Cone v. Bell 19
rule announced in Teague v. Lane, 489 U.S. 288 (1989), that
if a decision announces a “new” constitutional rule, it is not
to be applied retroactively to convictions that have already
become final when the new decision is announced, subject to
two narrow exceptions not applicable here. A “new
[constitutional] rule” is one that “breaks new ground” or
imposes new obligations on the states or federal government.
Id. at 301. “[A] case announces a new rule if the result was
not dictated by precedent existing at the time the defendant’s
conviction became final.” Id. (emphasis omitted).
Given this old rule/new rule definition, the language of
Stringer, that Maynard did not “break new ground,” strongly
suggests that the Supreme Court considers Godfrey to have
clearly established the unconstitutionality of the HAC
aggravator as early as 1980. Although Stringer dealt with a
pre-AEDPA retroactivity issue, the Supreme Court in
Williams v. Taylor, 529 U.S. 362, explained that the “clearly
established law” requirement codified the old rule/new rule
doctrine of non-retroactivity that prevailed before AEDPA.
Id. at 379-80, 412; see also Harris v. Stovall, 212 F.3d 940,
944 (6th Cir. 2000). Indeed, the Court cited Stringer as an
example of the old rule/new rule doctrine codified by
AEDPA’s “clearly established law” requirement. Williams,
529 U.S. at 412.
Although none of these Supreme Court decisions is “on all
fours” with the instruction in Cone’s case, in the final
analysis, Stringer’s statement that Maynard’s invalidation of
Oklahoma’s HAC aggravator was an “old rule” dictated by
Godfrey, points ineluctably to the conclusion that Godfrey
represents a “clearly established” Supreme Court precedent
dictating that Tennessee’s HAC aggravator is
unconstitutionally vague. Although it is true that the HAC
aggravator in Cone’s case contained the additional words “in
that it involved torture or depravity of mind,” all of those
words except “torture” have been held to be too vague, on the
basis of Godfrey. Since Maynard was dictated by Godfrey, it
is difficult to imagine how any of the other cases addressing
20 Cone v. Bell No. 99-5279
very minor variations on the instruction in Maynard and Cone
would not also be dictated by Godfrey.
There remains, of course, the question whether the
Tennessee Supreme Court’s narrowing construction of
Tennessee’s HAC aggravator, announced in 1981 in Dicks,
615 S.W.2d at 132, that Tennessee’s HAC aggravator should
be read as meaning “conscienceless or pitiless crime which is
unnecessarily torturous to the victim,” the identical language
that was approved in Proffitt, 428 U.S. at 255, “saves” the
HAC aggravator in Cone’s case.
The State argues that if we are to indulge the fiction,
discussed earlier, that the Tennessee Supreme Court
“implicitly reviewed” Cone’s Eighth Amendment vagueness
“challenge” to the HAC aggravator, a challenge Cone did not
explicitly raise, we should also indulge the fiction that the
court applied the “pitiless crime” narrowing construction it
adopted for Tennessee’s HAC aggravator three years earlier
in Dicks, 615 S.W.2d at 132. Although this “implicit
narrowing construction” argument would provide a nice
symmetry to the earlier “implicit review” argument, we think
the two, on close consideration, are actually asymmetrical.
Here’s why: The Tennessee court explicitly reviewed whether
the HAC aggravator the jury found was supported by
sufficient evidence, but in doing so, it did not apply, or even
mention, any narrowing interpretation or cite to Dicks.
Instead, the court simply, but explicitly, satisfied itself that
the labels “heinous, atrocious, or cruel,” without more,
applied to Cone’s crime. State v. Cone, 665 S.W.2d at 94-95.
Therefore, we conclude that the Tennessee Supreme
Court’s “implicit decision,” upon mandatory review of
Cone’s death sentence, was that the HAC aggravator relied
upon by Cone’s jury in imposing the death sentence was not
arbitrary and, consequently, not unconstitutionally vague. We
hold that this decision by the Tennessee Supreme Court was
contrary to clearly established U.S. Supreme Court precedent

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No. 99-5279 Cone v. Bell 21
as announced in Maynard and Shell, and made applicable to
Cone’s case via the rule of retroactivity explained in Stringer.
We are not in the least comfortable with this “implicit
review” doctrine, but it is a matter of Tennessee, not federal,
law, and we know of no other way to read and understand
what the Tennessee Supreme Court said in West.
V.
We must now consider whether the jury’s erroneous
application of two invalid aggravating factors was harmless
error. The AEDPA standard of review does not apply to this
question because no Tennessee court has considered this
question. Thus, this is an independent harmless error inquiry,
not a review of a state court’s harmless error inquiry.
Cone contends that this court is not empowered to perform
an independent harmless error inquiry; rather, he argues, this
court must grant habeas relief so that state courts can perform
a new sentencing calculus. He insists that prior Sixth Circuit
cases, Houston v. Dutton, 50 F.3d 381 (6th Cir. 1995), and
Coe v. Bell, 161 F.3d 320, are in conflict on this issue.
In Coe v. Bell, we held that this court was “permitted to
perform a harmless-error analysis” to determine whether a
Tennessee jury’s reliance on the unconstitutional HAC
aggravator required habeas relief. 161 F.3d at 334. We
distinguished our previous decision in Houston v. Dutton, 50
F.3d at 387, on the ground that Houston had prohibited a
federal habeas court from “re-weighing” but had not
considered whether a federal habeas court could evaluate, in
the first instance, the harmlessness of the jury’s reliance on an
invalid aggravator. Coe, 161 F.3d at 335. Thus, Coe drew a
distinction between re-weighing and harmless error analysis
and held that a federal habeas court is permitted to undertake
the latter.
22 Cone v. Bell No. 99-5279
The applicable harmless error standard is “whether the error
‘had substantial and injurious effect or influence in
determining the jury’s verdict.’” Id. (quoting Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993)). The Supreme Court
elaborated on this standard to some extent in O’Neal v.
McAninch, 513 U.S. 432 (1995), by explaining: “When a
federal judge in a habeas proceeding is in grave doubt about
whether a trial error of federal law had substantial and
injurious effect or influence in determining the jury's verdict,
that error is not harmless.” Id. at 436 (internal quotation
marks omitted); see also DePew v. Anderson, 311 F.3d 742,
751 (6th Cir. 2002), cert. denied, 124 S. Ct. 270 (2003), and
cert. denied, 124 S. Ct. 83 (2003).
In Coe v. Bell, 161 F.3d at 335, we considered whether the
jury’s reliance on an unconstitutionally vague HAC
aggravating factor had a “substantial and injurious effect” on
the sentence. We concluded that it did not because the jury’s
sentencing verdict form indicated that “the jury [had] ignored
the problematic ‘depravity’ factor and limited its finding to
the appropriately narrowing ‘torture’ factor.” Id. at 336.
Thus, the error was harmless because the jury, effectively, had
“channeled” its own discretion despite the failure of the
instructions to do so. Id.
In Abdur’Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000),
cert. denied, 534 U.S. 970 (2001), we again considered the
harmfulness of the jury’s reliance on the unconstitutionally
vague HAC aggravator. We remarked that “removing one
aggravating circumstance from the sentencing calculus in a
weighing state normally would require a re-weighing of the
aggravating and mitigating factors.” Id. at 711. We
determined, however, that the jury’s reliance on the HAC
aggravator was harmless because, “even if the heinous,
atrocious, or cruel aggravator is removed from the calculus,
there is no mitigating evidence to weigh against the remaining
. . . aggravators.” Id.

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No. 99-5279 Cone v. Bell 23
In this case, when the jury made its sentencing
determination it found four aggravating circumstances
((1) HAC; (2) great risk of death to others; (3) prior violent
felonies; and (4) murder for purpose of avoiding
arrest/prosecution), and weighed those against the mitigating
evidence offered by the defense. This balancing process was
infected by the weight of two invalid aggravating factors:
(1) HAC, which was unconstitutionally vague, and (2) great
risk of death to others, which was not supported by sufficient
evidence.
The prosecutor specifically emphasized the HAC
aggravator during his closing arguments at the sentencing
phase of the trial. In contrast to Coe, 161 F.3d at 336, the jury
here did not “channel[]” its discretion by ignoring the
vagueness inherent in the HAC aggravator. Moreover,
although the defense here offered no mitigating evidence at
sentencing, the Supreme Court stated in Bell v. Cone, 535
U.S. at 699, that the defense put before the jury “the most
compelling mitigating evidence in the case” during the guilt
phase. The Court’s observation thus distinguishes this case
from Abdur’Rahman, in which we concluded that the HAC
aggravator, if unconstitutionally vague, did not substantially
affect the sentence due to the total absence of mitigating
evidence.
The second invalid aggravator, “great risk of death to
others,” was found by the jury despite insufficient evidence,
State v. Cone, 665 S.W.2d at 95, even though the prosecutor
did not request the jury to find this aggravator. One could
argue that this aggravator must have influenced the
sentencing decision, since the jury found it without sufficient
evidence and without being asked to do so by the prosecution.
In any event, we conclude that these two invalid aggravators,
together, if not individually, “‘had substantial and injurious
effect or influence in determining’” the jury’s sentence.
Brecht, 507 U.S. at 631 (citation omitted). The error,
therefore, is not harmless.
24 Cone v. Bell No. 99-5279
VI.
For the foregoing reasons, the district court’s decision is
REVERSED as to the petitioner’s sentence. We REMAND
to the district court with instructions to issue a writ of habeas
corpus vacating the petitioner’s death sentence due to the
jury’s weighing of an unconstitutionally vague aggravating
factor at sentencing, unless the State conducts a new penalty
phase proceeding within 180 days of remand.

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No. 99-5279 Cone v. Bell 25
___________________
CONCURRENCE
___________________
MERRITT, Circuit Judge, concurring. I agree with the
Court that this death case cannot be disposed of on grounds of
procedural default, and I agree on the merits of the
constitutional issue. I believe there are additional reasons that
the Court is right and that the State’s position is untenable.
I. Procedural Default
In this case, the jury found that the crimes were “especially
heinous, atrocious, or cruel in that [they] involved torture or
depravity of mind.” (J.A. at 235, 237 (verdict forms)).
Pursuant to its statutory mandate, the state supreme court
automatically reviews, inter alia, whether the sentence of
death was imposed in any arbitrary fashion and whether the
evidence supported the jury’s finding of a statutory
aggravating circumstance. See Tenn. Code Ann. § 39-2-
205(c)(1), (2) (1982). On direct review in this case, the state
supreme court expressly examined the evidence presented at
trial and determined that the evidence was sufficient for the
jury to find that the murders were “especially heinous, cruel,
or atrocious in that they involved torture or depravity of
mind.” State v. Cone, 665 S.W.2d 87, 94-95 (Tenn. 1984).
In State v. Harris, the jury found three aggravating
circumstances to support the death penalty, including that the
crimes were “especially heinous, atrocious, or cruel in that
[they] involved torture or depravity of mind.” 839 S.W.2d
54, 59-60 & n.1 (Tenn. 1992). On direct appeal, the
defendant did not raise any specific vagueness challenge to
the aggravator or challenge the sufficiency of the evidence in
support of it. Nevertheless, the state court clearly examined
both aspects of the aggravator as part of its statutory review
of the sufficiency of the evidence:
26 Cone v. Bell No. 99-5279
1Approximately one year after the state supreme court upheld Co ne’s
death sentence, the Tennessee Supreme Court decided State v. Williams,
in which it construed “depravity of mind” in cases where there was no
evidence of torture. 690 S.W .2d at 529-30. The co nstruction was
intended to comport with constitutional requirements by sufficiently
narrowing the class o f perso ns eligible for the death penalty as required
by Go dfrey v. Georgia, 446 U.S. 420 (1980).
The Defendant has not challenged the sufficiency of the
evidence to support the aggravating circumstances found
by the jury to warrant imposition of the death penalty in
this case. Nonetheless, as in all capital cases, under the
directive of T.C.A. § 39-13-206(c)(1)(B) [formerly
T.C.A. § 39-2-205(c)(2)], this Court has reviewed the
evidence pertaining to the aggravating circumstances and
concludes that it is sufficient to support the aggravating
circumstances found by the jury in this case.
Id. at 76. Two dissenting justices would have held that
sentence invalid based on the “heinous, atrocious, or cruel”
aggravator as applied to the evidence in the case because the
instruction did not sufficiently guide the jury’s discretion as
a matter of constitutional law. Noting that the jury’s
application of the aggravator could only have been based on
a finding of depravity, the dissenting justices concluded that
“the instructions provided no help in guiding the jury to its
decision” because the jury “received no guidance in
determining whether the defendant’s mind was materially
‘depraved’ beyond that of any first degree murderer, and was
bestowed unconstitutionally unfettered and unguided
discretion in applying this aspect of [the] aggravating
circumstance.” Id. at 83-84 (Reid, C.J. dissenting) (citing
Shell v. Mississippi, 498 U.S. 1 (1990)). The majority
responded to the “dissent[’s] challenge[] [to] the validity in
the present case of the aggravating circumstance” by setting
forth evidence in support of the aggravator and holding that
the jury was “fully and correctly instructed” on the aggravator
in accord with State v. Williams, 690 S.W.2d 517, 529 (Tenn.
1985).1

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No. 99-5279 Cone v. Bell 27
Harris demonstrates that, in a death penalty case, the state
supreme court’s mandatory review of the sufficiency of the
evidence to support the jury’s finding of an aggravator
necessarily includes an affirmative examination of whether
the aggravator, either as instructed or as viewed by the
reviewing court through a narrowing construction, sufficiently
narrowed the class of persons eligible for the death penalty.
As a result, there can be no doubt in this case that the state
court reviewed the “heinous, atrocious, and cruel” aggravator
on the merits and determined that it was not
unconstitutionally vague.
Moreover, there is nothing in the record that would
constitute a clear and express statement that the state court
disposed of this issue on state procedural grounds, a
prerequisite to the deference to state decisionmaking that our
federal doctrine of procedural default aims to protect. Cone
first presented his challenge to the constitutionality of the
aggravator in paragraph 18 of his second amended post-
conviction petition. In dismissing the ground, the trial court
did not state that the claim had been waived, as the State
asserts in its brief before this Court, but that “grounds 17, 18
[which included his challenge to the constitutionality of the
aggravator], 19, 21, 22, 23, 34, 35, 26, 27, 28, 29, 30, 31, 32,
33, 34, 35, and 36 involve[] a potpourri of various errors by
the court at the trial all of which grounds have been
considered and denied in direct appeal or the First Post
Conviction Petition.” Cone v. State, No. P-06874, slip op. at
4 (Crim. Ct. Tenn., 13th Judicial Dist., Dec. 16, 1993). In
affirming the trial court’s ruling, the Tennessee Court of
Appeals did not expressly address Cone’s claim for relief
based on the “heinous, atrocious, or cruel” aggravator, but
agreed with the trial court that all of Cone’s claims had been
“previously determined or waived.” This language, in light
of the state supreme court’s mandatory review on direct
appeal, “gives a federal court good reason to question whether
there is an adequate and independent state ground for the
decision.” O’Guinn v. Dutton, 88 F.3d 1409, 1423 (6th Cir.
1996) (Merritt, J., concurring).
28 Cone v. Bell No. 99-5279
To the extent that the decision of the state court of appeals
can be read as an “unexplained ruling” due to its failure to
specify that a procedural default has been expressly invoked
to dispose of this particular claim, we must refer to the only
reasoned state court judgment addressing the aggravator,
which in Cone’s case is the state supreme court’s express
consideration of the aggravator on direct appeal. See Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991) (“If an earlier opinion
‘fairly appears[] to rest primarily on federal law,’ . . . we will
presume that no procedural default has been invoked by a
subsequent unexplained order that leaves the judgment or its
consequences in place”); O’Guinn, 88 F.3d at 1423. As
explained above, we can presume that, in ruling that the
evidence supported the jury’s finding that the crimes were
“especially heinous, atrocious or cruel,” the state supreme
court, as in Harris, fulfilled its statutory duty to test the
constitutionality of the aggravator. Further, contrary to the
State’s assertion, no state court has clearly and expressly
stated that its disposition on the issue was based on the
independent and adequate state ground of waiver, as required
by Harris v. Reed, 489 U.S. 255, 263 (1989), and Coleman v.
Thompson, 501 U.S. 722, 735 (1991).
Our view is reinforced by State v. West, 19 S.W.3d 753
(Tenn. 2000), in which the constitutionality of an aggravator
was raised. The state supreme court ruled that it had
previously determined the constitutionality of the aggravator
on direct appeal pursuant to its statutory mandate “to
automatically consider whether the ‘evidence supports the
jury’s finding of a statutory aggravating circumstance or
statutory aggravating circumstances.’” Id. at 756. West
demonstrates that the Tennessee Supreme Court understands
its statutory obligation to review death sentences as carrying
with it the affirmative responsibility to keep the application
of the statutory aggravators within constitutional bounds. See
Godfrey v. Georgia, 446 U.S. 420, 429 (1980) (noting the
Georgia Supreme Court’s previous exercise of its
responsibility to keep the application of the “outrageously or

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No. 99-5279 Cone v. Bell 29
wantonly vile, horrible and inhuman” aggravator within
constitutional bounds).
II. Cause and Prejudice
Even if Cone had procedurally defaulted his objection to
the “heinous, atrocious, and cruel” aggravator, this Court can
still hear the claim if Cone can establish “cause and
prejudice” for the default. Coleman, 501 U.S. at 750. Cone
argues that his failure to raise the objection on direct appeal
was due to the ineffectiveness of his counsel. Ineffective
assistance of counsel, if established, can be sufficient to
establish cause and therefore allow a federal court to reach the
merits of a claim defaulted in a state court so long as the
ineffectiveness rises to the level of a Sixth Amendment
violation resulting in prejudice to the defendant. Murray v.
Carrier, 477 U.S. 478, 488 (1986).
In this case, counsel was allegedly ineffective at two stages
of the proceeding in failing to raise the constitutional
objection to the instruction – at trial and on appeal. Before
we can decide if Cone has established ineffective assistance
of counsel as cause of the failure to object at trial and on
appeal, we must first decide whether Cone has properly
exhausted the ineffectiveness claim in the state courts. When
a petitioner claims ineffective assistance of counsel as cause
for a procedural default in state court of a substantive
constitutional claim, the allegation of ineffectiveness is a
separate claim which must itself be exhausted in state court
according to the normal procedures. Edwards v. Carpenter,
529 U.S. 446, 452 (2000); Murray v. Carrier, 477 U.S. 478,
489 (1986) (“[T]he exhaustion doctrine...generally requires
that a claim of ineffective assistance of counsel be presented
to state courts before it may be used to establish cause for a
procedural default.”). According to Edwards, the failure to
exhaust the ineffectiveness claim will itself constitute a
procedural default of the procedural default defense and,
absent cause and prejudice, will prevent federal courts from
hearing it. 529 U.S. at 452. A petitioner cannot easily
30 Cone v. Bell No. 99-5279
establish cause for the third default, because there is no
constitutional right to counsel at post-conviction hearings,
according to Coleman, and without such a right ineffective
assistance of counsel cannot constitute cause for a procedural
default. 501 U.S. at 752.
It is clear from the record that Cone did not waive his
ineffective assistance of counsel claim. Cone raised a general
claim of ineffective counsel in his first post-conviction
petition. Although he did not claim specifically in that first
petition that his counsel was ineffective because of the failure
to object to the vague “heinous, atrocious, and cruel”
aggravator, he added those grounds in his second post-
conviction petition. Both the state trial court and the
appellate court ruled that under Tennessee law, ineffective
assistance of counsel is a “single ground for relief” that had
been “previously determined” in the first post-conviction
petition. J.A. at 2001. Therefore, even though Cone did not
claim that his counsel was ineffective specifically because of
the failure to object to the aggravator until his second post-
conviction petition, he has not defaulted that claim because
under Tennessee law it constitutes the same ground that the
Tennessee courts had previously determined to be without
merit.
Still, even though Cone has not procedurally defaulted his
ineffective assistance of counsel claim, the message from
Edwards is that in order to rely on the ineffectiveness claim
as cause for his failure to raise the “heinous, atrocious, and
cruel” aggravator, the issue must not only have been
presented to, or at least determined by, the state courts, the
restrictions on federal review from the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”) must be satisfied as
well. Specifically, §2254(d) prevents federal courts from
granting habeas “with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim” was either “contrary to” or an
“unreasonable application of” clearly established federal law.
28 U.S.C. §2254(d) (2003); Williams v. Taylor, 529 U.S. 362,

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No. 99-5279 Cone v. Bell 31
402-13 (2000). Thus, we must determine whether the
rejection of Cone’s ineffective assistance of counsel claim by
the Tennessee state courts in his post-conviction petitions was
contrary to, or an unreasonable application of, clearly
established federal law.
The starting point for ineffective assistance of counsel
claims is Strickland v. Washington, 466 U.S. 668 (1984).
According to Strickland, in order to establish a claim for the
ineffective assistance of counsel, a petitioner must be able to
show both that his counsel was constitutionally deficient and
that the deficiency prejudiced his defense. Id. at 687; Wiggins
v. Smith, 123 S. Ct. 2527, 2535 (2003); Williams v. Taylor,
529 U.S. 362, 390 (2000). Although the Strickland test is
“highly deferential” to the judgment of defense counsel, 466
U.S. at 689, and the mere fact that counsel has failed to
recognize or raise a particular claim does not always
constitute cause for a procedural default, Smith v. Murray,
477 U.S. 527, 535 (1986); Carrier, 477 U.S. at 486-87, the
Supreme Court has also made it clear that “the right to
effective assistance of counsel . . . may in a particular case be
violated by even an isolated error...if that error is sufficiently
egregious and prejudicial.” Murray, 477 U.S. at 535 (quoting
Carrier, 477 U.S. at 496); see also Edwards, 529 U.S. at 451
(“Although we have not identified with precision what
constitutes ‘cause’ to excuse a procedural default, we have
acknowledged that in certain circumstances counsel’s
ineffectiveness in failing properly to preserve the claim for
review in state court will suffice.”).
In this case, there can be no doubt that the defense
counsel’s error was “sufficiently egregious and prejudicial”
to constitute cause for his procedural default. The defense
counsel failed both at trial and on direct appeal to object to
the “heinous, atrocious, and cruel” aggravator despite the
then-recent Supreme Court decision in Godfrey v. Georgia,
446 U.S. 420 (1980), in which the Court held similar
language to be unconstitutionally vague. Indeed, as the Court
here points out, not only did the principle established in
32 Cone v. Bell No. 99-5279
Godfrey mean that the “heinous, atrocious, and cruel”
aggravator was unconstitutional (as explained later in
Maynard v. Cartwright, 486 U.S. 356 (1988)), to rule
otherwise as the Tennessee Supreme Court did in its
mandatory review was contrary to clearly established
Supreme Court precedent even according to the high
standards of AEDPA as interpreted in Williams v. Taylor.
Cone’s defense counsel missed, both at trial and on direct
appeal, a claim of clearly established constitutional
dimension, the preservation of which would result in having
one of the aggravators on which Cone was sentenced to death
thrown out. Failing to raise a winning defense is not a
strategic decision, and incompetence is the only explanation
for the failure to raise it. It appears that Cone’s counsel was
litigating a capital case while simply unaware of controlling
Supreme Court precedent in death penalty cases. It is hard to
imagine a better case for “ineffectiveness in failing properly
to preserve [a] claim for review in state court.” Edwards, 529
U.S. at 451.
This conclusion is further supported by the American Bar
Association’s Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases. As
pointed out in Strickland, “[t]he proper measure of attorney
performance remains simply reasonableness under prevailing
professional norms.” 466 U.S. at 688. American Bar
Association standards are only “guides” and not “rules” for
what constitutes ineffective assistance of counsel, id., but in
this case the guidelines speak clearly:
One of the most fundamental duties of an attorney
defending a capital case at trial is the preservation of any
and all conceivable errors for each stage of appellate and
post-conviction review. Failure to preserve an issue may
result in the client being executed even though reversible
error occurred at trial. For this reason, trial counsel in a
death penalty case must be especially aware not only of
strategies for winning at trial, but also of the heightened
need to fully preserve all potential issues for later review.

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No. 99-5279 Cone v. Bell 33
2Although the above quotation is a recent statement not published at
the time of Cone’s trial, I use it because it is an articulation of long-
established “fundamental” duties of trial counsel. See Ham blin v.
Mitchell, 354 F.3d 4 82, 487 (6th Cir. 2003) (applying 1989 ABA
guide lines to counsel’s 1982 rep resentation on the gro unds that “the
standards merely represent a codification of longstanding, co mmo n-sense
principles of representation understo od b y diligent, comp etent co unsel in
death penalty cases”).
ABA Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases 91-92 (rev. ed.
2003) (internal quotations omitted).2 In this case, not only
did Cone’s counsel fail to preserve “any and all” errors, he
failed to preserve a claim based on binding Supreme Court
precedent that was a sure winner as a matter of federal law
and that, given the role of the “heinous, atrocious, and cruel”
aggravator in the jury’s deliberation of the death sentence,
may well have saved his client’s life. There can be no doubt
that this error was “sufficiently egregious and prejudicial” to
constitute cause for the procedural default of that claim.
III. Contrary to Established Supreme Court Cases
Finally, I have no trouble finding that the denial of Cone’s
claim that his counsel was ineffective due to the failure to
object to the “heinous, atrocious, and cruel” aggravator was
not only wrong, but contrary to clearly established federal law
as required by AEDPA and Williams. Although the error at
issue here involves the failure to raise a claim rather than the
failure to investigate at issue in Strickland and Wiggins, the
differences do not mean that the Tennessee courts’ rejections
of his valid ineffectiveness claim are not contrary to the
clearly established test from Strickland. As the Supreme
Court explained in Williams, “ [t]hat the Strickland test ‘of
necessity requires a case-by-case examination of the
evidence’ . . . obviates neither the clarity of the rule nor the
extent to which the rule must be seen as ‘established’ by this
Court.” 529 U.S. at 391 (citation omitted). The Strickland
test is well-established, and is itself based on a long
34 Cone v. Bell No. 99-5279
established right to effective counsel. See id. (“[I]t can hardly
be said that recognizing the right to effective counsel breaks
new ground or imposes a new obligation on the states.”
(internal quotations omitted)).
The Strickland test requires not only ineffectiveness of
counsel, but also prejudice to the defendant as a result of that
ineffectiveness. 466 U.S. at 687. For the purposes of this
test, prejudice amounts to a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
Demonstrating such a reasonable probability is not difficult
here. As the Court explains in its harmless error analysis,
supra, the prosecutor specifically emphasized the “heinous,
atrocious, and cruel” aggravator during closing arguments and
at the sentencing phase of the trial. Moreover, this is the
second invalid aggravator found by the jury. Thus, there is at
the very least a reasonable probability that had Cone’s
counsel preserved the objection to this “heinous, atrocious,
and cruel” aggravator, his sentence ultimately may well have
been different.
IV. The Merits
As is now typical in death penalty cases, we have spent
more time discussing the maze of “door closing” devices such
as procedural default than the merits. In this case, the merits
are relatively easy to decide.
The Court concludes that applying the “heinous, atrocious,
and cruel” aggravator to Cone’s case was not only wrong but
contrary to clearly established federal law as required by
AEDPA and Williams because similar language was ruled
unconstitutional in Godfrey. The Court cites Maynard for
support of this proposition, which specifically held that an
identical Oklahoma “heinous, atrocious, and cruel”
aggravator was unconstitutional. Although Maynard was not
decided until 1988 – after the Tennessee Supreme Court
upheld Cone’s conviction – because the Court in Maynard

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No. 99-5279 Cone v. Bell 35
said that it was only applying the clear principle of Godfrey
and not establishing new law, this Court today cites it for the
proposition that Tennessee’s upholding the “heinous,
atrocious, and cruel” aggravator was contrary to clearly
established federal law.
I agree with the Court despite the state counsel’s objection
to reliance on a later case to determine what law had been
then clearly established. I would only add that the Supreme
Court recently did precisely the same thing in Wiggins v.
Smith, 123 S. Ct. 2527, 2535-36 (2003), despite an identical
objection by the dissenting justices in that case. Id. at 2546-
47. In that case, the Court applied the rule of Strickland v.
Washington, which was decided before Wiggins’ state court
ruling, but also cited Williams v. Taylor, which was decided
after Wiggins’ state court decision. Id. Since the Court in
Williams had “made no new law in resolving Williams’
ineffectiveness claim,” id. at 2535, the Wiggins Court was
free to cite Williams in determining whether or not the state
court ruling against Wiggins was contrary to clearly
established federal law, even though Williams was decided
after the state court ruled against Wiggins. Similarly, as the
Supreme Court later said when discussing non-retroactivity,
“[i]n applying Godfrey to the language before us in Maynard,
we did not “break[] new ground.” Stringer v. Black, 503 U.S.
222, 228-29 (1992) (quoting Butler v. McKellar, 494 U.S.
407, 412 (1990)). Therefore, Wiggins reinforces our reliance
on Maynard’s application of Godfrey when determining what
was “clearly established federal law” at the time of Cone’s
state court decision even though Maynard was not yet
decided. In Houston v. Dutton, 50 F.3d 381 (6th Cir. 1995),
our Court did the same thing in invalidating the same
Tennessee instruction. We cited Richmond v. Lewis, 506 U.S.
40, 46 (1992), a case decided after Houston’s last state court
decision, to find the same “heinous, atrocious, or cruel”
aggravator unconstitutional because Richmond simply applied
the principle enunciated in Godfrey and Maynard.
36 Cone v. Bell No. 99-5279
For these reasons, as well as those articulated by the Court,
I agree with the Court’s ruling.

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No. 99-5279 Cone v. Bell 37
_____________
DISSENT
_____________
ALAN E. NORRIS, Circuit Judge, dissenting. As my
concurrence in this court’s initial panel decision makes clear,
Cone v. Bell, 243 F.3d 961 (6th Cir. 2001), I harbor grave
reservations about the appropriateness of the death penalty in
this case. However, our analysis was soundly rejected by the
Supreme Court. Bell v. Cone, 535 U.S. 685 (2002). On
remand, the majority concludes that the writ should issue on
a ground not reached in our prior opinion. While I am
reluctant to part company with my colleagues in this case, I
feel obliged to do so because the majority’s construction of
Tennessee law with respect to “implicit review” as it applies
to waiver lacks any clear support from the Tennessee courts.
I therefore respectfully dissent.
To its credit, the majority candidly acknowledges the
tenuousness of its position with respect to whether petitioner
has procedurally defaulted his Eighth Amendment claim. For
lack of more compelling authority, the majority hitches its
wagon to State v. West, 19 S.W.3d 753 (Tenn. 2000), a case
that it concedes contains a “seeming contradiction” because
it holds that defendant’s vagueness claim was both
“previously determined” and “waived.” Maj. Op. at 11
(citing West, 19 S.W.3d at 756). However, West primarily
focuses upon waiver: “[W]hen West failed to raise the
[vagueness] issue on direct appeal, he effectively blocked any
consideration of this issue by this Court on post-conviction
review.” West, 19 S.W.3d at 756.
In Coe v. Bell, 161 F.3d 320 (6th Cir. 1998), an opinion in
which I also concurred, we reviewed a district court reading
of Tennessee Code Ann. § 39-2-205 (1982) for “the notion
that, in capital cases, the state supreme court has to review
significant errors, whether or not they were raised by the
defendant.” Id. at 336. Coe rejected this reading as “too
38 Cone v. Bell No. 99-5279
broad, as it would eliminate the entire doctrine of procedural
bar in Tennessee capital cases.” Id. As the majority points
out, virtually every other circuit that has reviewed analogous
state-law provisions has expressed similar concerns. Majority
Op. at 7-8 (citing cases). Aware of the potential sweep of its
conclusion, the majority seeks to reign it in by drawing the
following distinction:
[T]he implicit review doctrine, as we apply it today in
this case, does not foreclose the possibility that other
death penalty defendants may procedurally default on
other constitutional issues not raised on direct appeal.
The language of Tennessee’s mandatory review statute
provides a basis to distinguish between vagueness
challenges and other constitutional claims, since it
requires the Tennessee Supreme Court to look
specifically for sentences “imposed in any arbitrary
fashion.”
Maj. Op. at 13. Given that the scope of procedural default is
a matter of state law, I would be much more comfortable if
the majority had cited a single Tennessee opinion that
explicitly draws this distinction. Frankly, I do not find it in
West, and the majority concedes that “[t]he conceptual leap
from [reviewing] claims explicitly raised on direct appeal,
although not properly preserved, to claims not raised at all is
significant and, without West, there would be no Tennessee
authority for attempting it.” Maj. op. at 12. Given the
inherent contradictions in West, it is a leap that I am unwilling
to make without further guidance from the courts of
Tennessee.
For the foregoing reasons, I respectfully dissent.

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