       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2      Cone v. Bell                               No. 99-5279
    ELECTRONIC CITATION: 2004 FED App. 0064P (6th Cir.)
                File Name: 04a0064p.06                    Appellant. Jennifer L. Smith, Tonya G. Miner, OFFICE OF
                                                          THE ATTORNEY GENERAL, Nashville, Tennessee, for
                                                          Appellee.
UNITED STATES COURT OF APPEALS
                                                            RYAN, J., delivered the opinion of the court. MERRITT,
              FOR THE SIXTH CIRCUIT                       J. (pp. 25-36), delivered a separate concurring opinion.
                _________________                         NORRIS, J. (pp. 37-38), delivered a separate dissenting
                                                          opinion.
 GARY BRADFORD CONE,              X
          Petitioner-Appellant, -                                               _________________
                                   -
                                   -  No. 99-5279                                   OPINION
            v.                     -                                            _________________
                                    >
                                   ,                        RYAN, Circuit Judge. Gary Bradford Cone was sentenced
 RICKY BELL, Warden,               -                      to death in a Tennessee state court for a double murder of an
          Respondent-Appellee. -                          elderly couple and his conviction and death sentence were
                                  N                       affirmed by the Tennessee Supreme Court.
       Appeal from the United States District Court
    for the Western District of Tennessee at Memphis.       On this appeal from the district court’s denial of Cone’s
   No. 97-02312—Jon Phipps McCalla, District Judge.       petition for habeas corpus relief, we are asked to decide

              Argued: September 10, 2003                      • Whether Cone was sentenced to death in violation of
                                                                the prohibition against cruel or unusual punishment of
           Decided and Filed: March 1, 2004                     the Eighth Amendment of the United States
                                                                Constitution.
Before: MERRITT, RYAN, and NORRIS, Circuit Judges.          Before we may reach that question, however, we must
                  _________________                       resolve two rather complex and interrelated questions of state
                                                          procedural law.
                       COUNSEL
                                                              • The first, is whether, under Tennessee law, the state
ARGUED:      Paul R. Bottei, FEDERAL PUBLIC                     supreme court implicitly reviews death penalty
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant.         sentences for arbitrariness, even in cases in which the
Jennifer L. Smith, OFFICE OF THE ATTORNEY                       issue is not raised explicitly.
GENERAL, Nashville, Tennessee, for Appellee.
ON BRIEF:      Paul R. Bottei, FEDERAL PUBLIC                 • The second, is whether the petitioner procedurally
DEFENDER’S OFFICE, Nashville, Tennessee, Robert L.              defaulted, in the state court, the Eighth Amendment
Hutton, GLANKLER BROWN, Memphis, Tennessee, for                 issue he asks us to decide.


                            1
No. 99-5279                                 Cone v. Bell      3    4      Cone v. Bell                               No. 99-5279

  Our answer to the first state law question is yes, and to the    § 39-13-204(i) (2003)). In Cone’s case the jury found four
second, it is no. Given our resolution of these issues, we are     aggravating factors, which were defined in the statute as
authorized to reach the Eighth Amendment issue, for which          follows:
the petitioner has brought this appeal. As to that issue, we
hold that petitioner Cone’s death sentence must be vacated               (2) The defendant was previously convicted of one or
because one of the statutory aggravating circumstances the             more felonies, other than the present charge, which
jury relied upon in imposing the death sentence—that the               involve the use or threat of violence to the person.
murders were “especially heinous, atrocious, or cruel”—is
unconstitutionally vague, and therefore, violates the Eighth             (3) The defendant knowingly created a great risk of
Amendment.                                                             death to two or more persons, other than the victim
                                                                       murdered, during his act of murder.
                               I.
                                                                         ....
  Cone was sentenced to death in a Tennessee court in 1982
following his conviction for the brutal murders of an elderly            (5) The murder was especially heinous, atrocious, or
couple, Shipley and Cleopatra Todd. The facts of the case are          cruel in that it involved torture or depravity of mind.
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                (6) The murder was committed for the purpose of
need not be recounted here. It is necessary, however, to detail        avoiding, interfering with, or preventing a lawful arrest
the procedural history of the case in order to explain why we          or prosecution of the defendant or another.
have the case on appeal for a second time and to explain the
basis for the State’s argument that Cone has procedurally          Tenn. Code Ann. § 39-2404(i) (1981). In its review of the
defaulted the Eighth Amendment issue he now asks us to             jury’s findings, the Tennessee Supreme Court first noted that
decide.                                                            the jury had failed to find one aggravating factor, that the
                                                                   crime was committed in the course of committing another
  Cone challenged his conviction and sentence on direct            felony (felony-murder), even though the evidence clearly
review in the Tennessee Supreme Court, which conducted a           would have supported it. State v. Cone, 665 S.W.2d at 94.
mandatory death penalty review pursuant to Tenn. Code Ann.
§ 39-2-205 (1982) (current version at Tenn. Code Ann. § 39-           The court then reviewed the four aggravators the jury did
13-206 (2003)). State v. Cone, 665 S.W.2d 87 (Tenn. 1984).         find, and concluded (1) that the evidence supported the
The Tennessee court affirmed Cone’s murder convictions,            finding that Cone had been convicted previously of one or
and then, as it was required to do, considered the validity of     more felonies involving violence, id.; (2) that the evidence
the aggravating circumstances relied on by the jury in             supported the finding that the murders were “especially
imposing the death penalty. Id. at 94-96. Under Tennessee          heinous, atrocious, or cruel in that they involved torture or
law as it existed at the time of Cone’s conviction, a jury could   depravity of mind,” id. at 94-95; (3) that the evidence
impose the death penalty only if it found that the prosecution     supported the finding that the murders were committed for the
had proved, beyond a reasonable doubt, the existence of at         purpose of preventing a lawful arrest or prosecution, id. at 95;
least one of twelve aggravating factors. Tenn. Code Ann.           and (4) that the evidence was insufficient to support the jury’s
§ 39-2404(i) (1981) (current version at Tenn. Code Ann.            affirmative finding that the petitioner “‘knowingly created a
No. 99-5279                                   Cone v. Bell       5    6     Cone v. Bell                                 No. 99-5279

great risk of death to two (2) or more persons, other than the        States Supreme Court denied Cone’s petition for a writ of
victim murdered, during [the] act of murder,’” id. (citation          certiorari.
omitted). But the court found this error to be “harmless
beyond a reasonable doubt” in light of the three other                   Cone then filed a motion in federal district court to stay his
aggravating circumstances found by the jury and the court’s           execution. The district court granted the stay and Cone filed
conclusion that the jurors should have found, although they           a petition for a writ of habeas corpus under 28 U.S.C. § 2254.
did not, the additional aggravator, that the petitioner was           The district court denied the § 2254 petition and lifted the
guilty of felony-murder. Id. Accordingly, the court affirmed          stay of execution. We then granted Cone's motion for a
Cone’s death sentence. The constitutionality of the jury’s            certificate of appealability.
finding that the murders were “especially heinous, atrocious,
or cruel,” which we hereafter refer to as the “HAC”                      After briefing and oral argument, we granted Cone’s
aggravator, is a fundamental issue in this case.                      habeas petition with respect to his death sentence because we
                                                                      thought he had been unconstitutionally denied the effective
   Cone filed his first state post-conviction petition in the state   assistance of counsel at sentencing. We found it unnecessary
trial court on June 22, 1984, attacking his conviction and            to decide several of Cone’s other sentencing claims, including
death sentence. He alleged numerous violations of his rights          his “Eighth Amendment cruel and unusual punishment
under the United States Constitution including prosecutorial          argument and his argument concerning the application of
misconduct and the ineffective assistance of counsel at trial.        aggravating circumstances.” Cone, 243 F.3d at 975. In Bell
The trial court held a hearing and denied Cone’s petition. The        v. Cone, 535 U.S. 685 (2002), the U.S. Supreme Court
Tennessee Court of Criminal Appeals affirmed the denial and           reversed our decision on the ineffective assistance of counsel
the Tennessee Supreme Court declined Cone’s request to                issue and remanded to this court for further proceedings,
appeal.                                                               which we understand to mean consideration of the sentencing
                                                                      issues that Cone raised and we did not reach in our previous
   Approximately five years later, in June 1989, Cone filed a         decision.
second state post-conviction petition, followed by several
amendments. In this second petition, Cone alleged numerous                                           II.
constitutional violations including, for the first time, an
Eighth Amendment claim that the language of the HAC                     “An appellate court reviews a district court’s decision to
aggravator considered by the jury in the sentencing phase was         deny or grant a writ of habeas corpus de novo, but it reviews
unconstitutionally vague. The trial court dismissed the               the district court’s factual findings only for clear error.”
second petition as barred by the successive petition                  Barker v. Yukins, 199 F.3d 867, 870 (6th Cir. 1999).
restrictions of Tennessee’s post-conviction statute, Tenn.
Code Ann. § 40-30-111 (1990) (since repealed), holding that                                         III.
all the grounds raised in the second petition were barred
because they either had been previously determined or were              Initially, we must take up the State’s argument that Cone’s
waived. This judgment was affirmed by the Tennessee Court             Eighth Amendment claim that the HAC aggravating factor
of Criminal Appeals, and the Tennessee Supreme Court                  was unconstitutionally vague, first raised in his second
denied an application for permission to appeal. The United            petition for post-conviction relief, had been procedurally
                                                                      defaulted. We address this issue first because, as a general
No. 99-5279                                 Cone v. Bell     7    8      Cone v. Bell                               No. 99-5279

rule, on habeas review, federal courts may not consider             In death penalty cases the Tennessee Supreme Court is
procedurally defaulted claims. Seymour v. Walker, 224 F.3d        required to conduct a mandatory death penalty review to
542, 549-50 (6th Cir. 2000). A claim is procedurally              determine whether:
defaulted if: (1) the petitioner failed to comply with an
applicable state procedural rule; (2) the state courts actually         (1) The sentence of death was imposed in any
enforced the procedural rule; and (3) the state courts’ finding       arbitrary fashion;
of noncompliance is an adequate and independent state
ground for denying relief on the federal constitutional claim.          (2) The evidence supports the jury’s findings of a
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).                   statutory aggravating circumstance or statutory
                                                                      aggravating circumstances;
  Under Tennessee law at the time of Cone’s conviction,
grounds for relief that had been previously determined or                (3) The evidence supports the jury’s finding of the
waived were not cognizable in a state post-conviction action.         absence of any mitigating circumstances sufficiently
Tenn. Code Ann. § 40-30-111 (since repealed). In its                  substantial to outweigh the aggravating circumstance or
consideration on appeal of the denial of Cone’s second post-          circumstances so found; and
conviction petition, the Tennessee Court of Criminal Appeals
refused to address Cone’s constitutional challenge to the HAC           (4) The sentence of death is excessive or
aggravator because, according to the court, it had been either        disproportionate to the penalty imposed in similar cases,
previously determined or waived. Cone v. State, 927 S.W.2d            considering both the nature of the crime and the
579, 582 (Tenn. Crim. App. 1995). Of these two possibilities,         defendant.
“previously determined” or “waived,” we must determine
which one actually describes the status of Cone’s                 Tenn. Code Ann. § 39-2-205(c) (1982) (emphasis added)
constitutional claim in the state courts. If Cone waived his      (current version at Tenn. Code. Ann. § 39-13-206(c)(1)
claim, then such waiver will constitute a procedural default      (2003)).
and will serve as an adequate and independent state ground          Tennessee responds that Cone’s “necessarily reviewed”
barring habeas review in this court. If Cone’s claim was          claim, also known as “implicit review,” proves too much,
previously determined, then we must decide whether the state      since it would eviscerate the procedural default doctrine with
courts’ determination “resulted in a decision that was contrary   respect to all constitutional claims.
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court         The U.S. Courts of Appeals are divided on whether these
of the United States.” 28 U.S.C. § 2254(d)(1) (West Supp.         state mandatory review statutes create an implicit review of
2003).                                                            constitutional challenges not explicitly raised. The Fourth,
                                                                  Eighth, and Eleventh Circuits all have rejected the implicit
  Cone argues that he did not procedurally default on his         review argument. See Mu’min v. Pruett, 125 F.3d 192, 197
Eighth Amendment vagueness challenge to the HAC                   (4th Cir. 1997); Nave v. Delo, 62 F.3d 1024, 1039 (8th Cir.
aggravating factor, because the Tennessee Supreme Court           1995); Julius v. Johnson, 840 F.2d 1533, 1546 (11th Cir.
“necessarily reviewed” the claim as part of its mandatory         1988). The Ninth Circuit reached the opposite conclusion in
death penalty review.                                             an Idaho death penalty case, albeit in dicta. See Beam v.
No. 99-5279                                   Cone v. Bell      9    10   Cone v. Bell                                 No. 99-5279

Paskett, 3 F.3d 1301, 1306 (9th Cir. 1993), overruled on             considered the constitutionality of the HAC aggravator in this
other grounds by Lambright v. Stewart, 191 F.3d 1181 (9th            case, and Cone did not procedurally default on the claim.
Cir. 1999).
                                                                       It is important to frame this preliminary question of state
   This court, in Coe v. Bell, 161 F.3d 320 (6th Cir. 1998), in      law carefully. We understand the question to be whether it is
dicta, expressed discomfort with the implicit review argument        the law in Tennessee that in all capital punishment cases, the
in the context of a challenge to jury instructions on unanimity      Tennessee Supreme Court reviews the sentencing proceedings
in sentencing in a death penalty case in a Tennessee court. Id.      to ensure that the jurors have not imposed the death penalty
at 336. We stated that the argument that “the [Tennessee]            “in any arbitrary fashion,” Tenn. Code Ann. § 39-2-205(c)
supreme court has to review significant errors, whether or not       (1982), even in cases in which the issue is not raised on direct
they were raised by the defendant,” is “too broad, as it would       review.
eliminate the entire doctrine of procedural bar in Tennessee
in capital cases.” Id. Despite these reservations, we                  Just three years ago, in State v. West, 19 S.W.3d 753 (Tenn.
recognized in Coe that Tennessee courts had been moderately          2000), the Tennessee Supreme Court considered whether a
receptive to the implicit review theory. Id. For example, in         defendant could raise an issue in his state post-conviction
State v. Martin, 702 S.W.2d 560 (Tenn. 1985), overruled on           petition that he had not raised on direct review. Id. at 754.
other grounds by State v. Brown, 836 S.W.2d 530 (1992), the          The court prefaced its discussion as follows:
Tennessee Supreme Court stated that it was “required by
statute to review the sentence and to consider significant                In this appeal of a post-conviction proceeding, . . . the
errors whether or not called to the attention of the trial court.”     appellant[] raises for the first time the issue whether
Id. at 564 (emphasis added). We explained in Coe that, based           evidence adduced at the sentencing phase of his trial was
on Martin, a procedural default could not arise under                  sufficient to support the jury’s conclusion that he
Tennessee law when a capital defendant raised an issue on              committed two murders for the purpose of avoiding
appeal which he had failed to preserve properly during trial.          arrest or prosecution. Although [the appellant] casts the
Coe, 161 F.3d at 336. Thus, in Coe, we partially adopted the           issue as concerning the evidentiary sufficiency of the
implicit review theory, but only to the extent of issues that          (i)(6) aggravating circumstance, we think his grievance
were explicitly raised on appeal, even though not properly             involves instead the constitutional issue of whether the
preserved in the trial court. Of course, unlike Coe, Cone’s            aggravating circumstance narrows the class of death
unconstitutional HAC aggravator issue was not explicitly               eligible offenders. He says that it does not, and because
raised either in the trial court or on direct review in the            it does not, he contends that it violates the Eighth
Tennessee Supreme Court.                                               Amendment.

   The cases that divide the circuits on the implicit review         Id. (emphasis added). The court’s reference to “narrow[ing]
theory agree on one point: “The scope of the state court’s           the class of death eligible offenders” is responsive to the rule
mandatory review is, ultimately, a question of state law.”           announced in Zant v. Stephens, 462 U.S. 862 (1983), that in
Nave, 62 F.3d at 1039. Accordingly, if Tennessee construes           capital punishment cases, the “aggravating circumstance must
its mandatory review statute to encompass constitutional             genuinely narrow the class of persons eligible for the death
issues not explicitly raised on direct review, then the              penalty” in order to ensure that the jury’s discretion in
Tennessee Supreme Court must be deemed to have                       imposing the death sentence is “adequately . . . channel[ed].”
No. 99-5279                                  Cone v. Bell     11   12    Cone v. Bell                                 No. 99-5279

Id. at 877. Later Supreme Court cases have characterized           Id. (emphasis added) (internal citations omitted).
death sentences imposed without appropriately narrowing
instructions as having been imposed arbitrarily and upon             Although West appears to stand alone as direct support for
criteria, i.e., statutory aggravating factors, whose language is   the implicit review argument, other Tennessee Supreme Court
unconstitutionally vague. See, e.g., Tuilaepa v. California,       cases lend moderate support. In Martin, discussed above, the
512 U.S. 967, 974-75 (1994); Sawyer v. Whitley, 505 U.S.           court held that it was “required by statute to review the
333, 367 (1992) (Stevens, J., concurring).                         sentence and to consider significant errors whether or not
                                                                   called to the attention of the trial court.” 702 S.W.2d at 564
   The emphasized language in West is significant because the      (emphasis added). Likewise, in State v. Duncan, 698 S.W.2d
court characterized the issue as an Eighth Amendment               63 (Tenn. 1985), the court stated: “in cases where the
vagueness challenge to a statutory aggravating factor, the         defendant is under sentence of death, this court is under the
precise issue raised by Cone. In West, the State argued that       duty to ‘automatically’ review the sentence, which imposes
the defendant could not raise the vagueness issue in his post-     the burden on this court to consider any alleged error, whether
conviction petition for two reasons: (1) he had failed to raise    called to the trial court’s attention or not.” Id. at 67-68
it on direct appeal and thus “waived” it; and, alternatively,      (emphasis added). Finally, in State v. Nesbit, 978 S.W.2d 872
(2) it had been “previously determined” due to the Tennessee       (Tenn. 1998), the court held that the mandatory review statute
Supreme Court’s mandatory review. West, 19 S.W.3d at 756.          gave it jurisdiction to review issues raised by the defendant’s
The court agreed with the State, but, in a seeming                 appeal despite the defendant’s failure to timely file his appeal.
contradiction, held that the vagueness issue had been both         Id. at 880-81. These three cases make clear that the
“previously determined” and “waived” as a result of West’s         Tennessee Supreme Court considers its task when conducting
direct appeal. Id. Specifically, the court stated:                 the required review to be important enough to warrant
                                                                   departures from procedural rules that would normally bar
  Under Tenn. Code Ann. § 40-30-112(b), when [the                  supreme court review. In each of these three cases, however,
  appellant] failed to raise the (i)(6) issue on direct appeal,    unlike this case, the issue was raised by the defendant on
  he effectively blocked any consideration of this issue by        direct review.
  this Court on post-conviction review. Additionally,
  under Tenn. Code Ann. § 39-2-205(c)(3) (1982)                       The conceptual leap from claims explicitly raised on direct
  (repealed 1989), this Court was required in all cases in         appeal, although not properly preserved, to claims not raised
  which the death penalty was imposed to automatically             at all is significant and, without West, there would be no
  consider whether the “evidence supports the jury’s               Tennessee authority for attempting it. Nevertheless, West
  finding of a statutory aggravating circumstance or               cannot be ignored; neither can the Tennessee statute, which
  statutory aggravating circumstances. . . .” Pursuant to          mandates supreme court review to assure that no death
  these mandatory provisions, this Court found that the            sentence is “imposed in any arbitrary fashion.” Tenn. Code
  requirements of the statute had, in fact, been met in [the       Ann. § 39-2-205(c)(1) (1982). It is also significant that the
  appellant’s] case. Thus, we conclude that the issue under        statute does not condition the mandatory review upon the
  discussion has, indeed, been both “previously                    issues named in the statute being properly raised. The
  determined” and “waived,” under the definitions                  following factors in West strongly favor the conclusion that it
  provided in Tenn. Code Ann. § 40-30-112(a) and (b).              is the law in Tennessee that the supreme court “implicitly”
                                                                   reviews death sentences for arbitrariness, even if the issue is
No. 99-5279                                 Cone v. Bell     13    14    Cone v. Bell                                  No. 99-5279

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

   We think that given the holding in West, and the court’s          Finally, we turn to the merits of Cone’s habeas claim that
language explaining it, we must conclude that the Tennessee        the HAC aggravator the jury considered in sentencing him to
Supreme Court implicitly considered and rejected Cone’s            death is unconstitutionally vague, thus invalidating his
unmentioned vagueness “challenge” to the HAC aggravator,           sentence.
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
No. 99-5279                                 Cone v. Bell     15    16   Cone v. Bell                                 No. 99-5279

                              A.                                                                 B.
  Our standard of review is governed by the Antiterrorism            At sentencing, the jurors were instructed that they could not
and Effective Death Penalty Act of 1996 (AEDPA). When a            impose the death penalty unless they unanimously found,
petitioner’s claim has been adjudicated on the merits in a state   beyond a reasonable doubt, at least one of eleven statutory
court, a federal court may not grant a writ of habeas corpus       aggravating factors, including whether “[t]he murder was
with respect to such claim, unless the state court’s               especially heinous, atrocious, or cruel in that it involved
determination:                                                     torture or depravity of mind.” In a limiting instruction, the
                                                                   court then defined some of the terms of this aggravating
    (1) resulted in a decision that was contrary to, or            factor:
  involved an unreasonable application of, clearly
  established Federal law, as determined by the Supreme              “Heinous” means extremely wicked or shockingly evil.
  Court of the United States; or                                     “Atrocious” means outrageously wicked and vile.
                                                                     “Cruel” means designed to inflict a high degree of pain,
    (2) resulted in a decision that was based on an                  utter indifference to, or enjoyment of, the suffering of
  unreasonable determination of the f..acts in light of the          others, pitiless.
  evidence presented in the State court proceeding.
                                                                   The jurors found that Cone’s crime was “especially heinous,
28 U.S.C. § 2254(d) (West Supp. 2003). A state court’s             atrocious, or cruel.” They did not add, on their verdict form,
decision must be evaluated against the clearly established         the words, “in that it involved torture or depravity of mind.”
Supreme Court precedent at the time the petitioner’s               However, we do not think that omitting that verbiage when
conviction became final. Williams v. Taylor, 529 U.S. 362,         announcing the verdict is of any constitutional significance.
380 (2000). Moreover, as we explained recently:
                                                                      Cone argues that the HAC aggravator is “clearly
    A state court decision is “contrary to” Supreme Court          unconstitutional” based upon the holding of Godfrey v.
  precedent “if the state court arrives at a conclusion            Georgia, 446 U.S. 420 (1980). Godfrey held that the Georgia
  opposite to that reached by [the Court] on a question of         statutory aggravator, “that the offense ‘was outrageously or
  law,” or “if the state court confronts facts that are            wantonly vile, horrible or inhuman in that it involved torture,
  materially indistinguishable from a relevant Supreme             depravity of mind, or an aggravated battery to the victim,’” id.
  Court precedent and arrives at a result opposite to” the         at 422 (citation omitted), was unconstitutionally vague,
  Court’s decision. A state court decision involves an             because there was “nothing in these few words, standing
  “unreasonable application” of clearly established                alone, that implies any inherent restraint on the arbitrary and
  Supreme Court precedent when it correctly identifies the         capricious infliction of the death sentence,” id. at 428.
  governing legal standard but applies it to the facts of the
  case before it in an objectively unreasonable manner.              The State responds first, that the language of the Tennessee
                                                                   HAC aggravator, as further defined and limited by the trial
Alley v. Bell, 307 F.3d 380, 385 (6th Cir. 2002) (internal         court, is not the language found to be vague in Godfrey, and
citation omitted) (quoting Williams, 529 U.S. at 405, 409-10),     second, that the HAC aggravator in Cone’s case was not
cert. denied, 124 S. Ct. 99 (2003)                                 “contrary to . . . clearly established” U.S. Supreme Court
No. 99-5279                                 Cone v. Bell     17    18   Cone v. Bell                                No. 99-5279

precedent as it stood at the time of Cone’s direct appeal. That    horrible or inhuman” aggravator) to hold that Oklahoma’s
precedent, the State argues, was established in Proffitt v.        HAC aggravator was unconstitutionally vague, id. at 363-64,
Florida, 428 U.S. 242 (1976), decided eight years before           but implied that had Oklahoma’s HAC aggravator been
Cone’s conviction became final, in which the Court held that       further limited by a “torture or serious physical abuse”
Florida’s HAC aggravator was not unconstitutionally vague          instruction, it might have been constitutional, id. at 365.
in light of the Florida courts’ narrowing construction that the    Nonetheless, two years later, in Shell v. Mississippi, 498 U.S.
term “heinous, atrocious, or cruel” means a “‘conscienceless       1 (1990) (per curiam), the Supreme Court announced that the
or pitiless crime which is unnecessarily torturous to the          “heinous, atrocious, or cruel” language, along with the same
victim.’” Id. at 255-56 (citations omitted). This narrowing        “limiting” definitions as were provided to the jury in Cone’s
language is the identical language the Tennessee Supreme           case, was unconstitutional. Id. at 1. The HAC aggravator in
Court used in narrowing Tennessee’s HAC aggravator in              Shell, however, did not have the “torture or depravity”
State v. Dicks, 615 S.W.2d 126, 132 (Tenn. 1981), a case           qualifier that is attached to the HAC aggravator in Cone’s
decided three years before the court’s “implicit review” of        case. In Walton v. Arizona, 497 U.S. 639 (1990), overruled
Cone’s case. Moreover, the State argues, it must be presumed       on other grounds by Ring v. Arizona, 536 U.S. 584 (2002),
that the Tennessee Supreme Court evaluated the Cone jury’s         the Court stated, “there is no serious argument that Arizona’s
reliance upon the HAC aggravator using the same narrowing          ‘especially heinous, cruel or depraved’ aggravating factor is
construction adopted in Dicks. The State also reminds us that      not facially vague.” Id. at 654.
the U.S. Supreme Court held in Williams, 529 U.S. 362, that
the state court’s decision must be evaluated against the             Despite the confusion resulting from these cases (or
“clearly established” Supreme Court precedent at the time the      perhaps because of it), the Supreme Court, in Stringer v.
petitioner’s conviction became final. Id. at 380.                  Black, 503 U.S. 222 (1992), came at the subject from a
                                                                   different angle. It addressed the “new rule” non-retroactivity
  One thing is clear: No Supreme Court case has addressed          doctrine as respects Godfrey, the pre-Cone decision, and
the precise language at issue in this case. As we will show,       Maynard, the post-Cone decision.
the cases decided after Cone’s conviction became final
indicate clearly that the language of the HAC aggravator the         [T]he language [in Maynard (“especially heinous,
jurors used to sentence Cone to death–“especially heinous,           atrocious or cruel”)] gave no more guidance than did the
atrocious, or cruel in that it involved torture or depravity of      statute in Godfrey [(“outrageously or wantonly vile,
mind”–is unconstitutionally vague. Normally, post-Cone               horrible or inhuman”)]. . . .
decisions would be immaterial, but, as will be seen, the
Supreme Court’s fairly recent application of its doctrine of the       . . . Godfrey and Maynard did indeed involve
“non-retroactivity” of new constitutional rules, in the context      somewhat different language. But it would be a mistake
of an Eighth Amendment vagueness challenge to a death                to conclude that the vagueness ruling of Godfrey was
penalty instruction, makes several post-Cone Supreme Court           limited to the precise language before us in that case. In
decisions not only material, but controlling.                        applying Godfrey to the language before us in Maynard,
                                                                     we did not “brea[k] new ground.”
  In 1988, in Maynard v. Cartwright, 486 U.S. 356, a death
penalty case from Oklahoma, the Supreme Court explicitly           Id. at 228-29 (quoting Butler v. McKellar, 494 U.S. 407, 412
relied upon Godfrey (the “outrageously or wantonly vile,           (1990)). The “break new ground” terminology refers to the
No. 99-5279                                Cone v. Bell    19    20   Cone v. Bell                                 No. 99-5279

rule announced in Teague v. Lane, 489 U.S. 288 (1989), that      very minor variations on the instruction in Maynard and Cone
if a decision announces a “new” constitutional rule, it is not   would not also be dictated by Godfrey.
to be applied retroactively to convictions that have already
become final when the new decision is announced, subject to        There remains, of course, the question whether the
two narrow exceptions not applicable here. A “new                Tennessee Supreme Court’s narrowing construction of
[constitutional] rule” is one that “breaks new ground” or        Tennessee’s HAC aggravator, announced in 1981 in Dicks,
imposes new obligations on the states or federal government.     615 S.W.2d at 132, that Tennessee’s HAC aggravator should
Id. at 301. “[A] case announces a new rule if the result was     be read as meaning “conscienceless or pitiless crime which is
not dictated by precedent existing at the time the defendant’s   unnecessarily torturous to the victim,” the identical language
conviction became final.” Id. (emphasis omitted).                that was approved in Proffitt, 428 U.S. at 255, “saves” the
                                                                 HAC aggravator in Cone’s case.
  Given this old rule/new rule definition, the language of
Stringer, that Maynard did not “break new ground,” strongly        The State argues that if we are to indulge the fiction,
suggests that the Supreme Court considers Godfrey to have        discussed earlier, that the Tennessee Supreme Court
clearly established the unconstitutionality of the HAC           “implicitly reviewed” Cone’s Eighth Amendment vagueness
aggravator as early as 1980. Although Stringer dealt with a      “challenge” to the HAC aggravator, a challenge Cone did not
pre-AEDPA retroactivity issue, the Supreme Court in              explicitly raise, we should also indulge the fiction that the
Williams v. Taylor, 529 U.S. 362, explained that the “clearly    court applied the “pitiless crime” narrowing construction it
established law” requirement codified the old rule/new rule      adopted for Tennessee’s HAC aggravator three years earlier
doctrine of non-retroactivity that prevailed before AEDPA.       in Dicks, 615 S.W.2d at 132. Although this “implicit
Id. at 379-80, 412; see also Harris v. Stovall, 212 F.3d 940,    narrowing construction” argument would provide a nice
944 (6th Cir. 2000). Indeed, the Court cited Stringer as an      symmetry to the earlier “implicit review” argument, we think
example of the old rule/new rule doctrine codified by            the two, on close consideration, are actually asymmetrical.
AEDPA’s “clearly established law” requirement. Williams,         Here’s why: The Tennessee court explicitly reviewed whether
529 U.S. at 412.                                                 the HAC aggravator the jury found was supported by
                                                                 sufficient evidence, but in doing so, it did not apply, or even
   Although none of these Supreme Court decisions is “on all     mention, any narrowing interpretation or cite to Dicks.
fours” with the instruction in Cone’s case, in the final         Instead, the court simply, but explicitly, satisfied itself that
analysis, Stringer’s statement that Maynard’s invalidation of    the labels “heinous, atrocious, or cruel,” without more,
Oklahoma’s HAC aggravator was an “old rule” dictated by          applied to Cone’s crime. State v. Cone, 665 S.W.2d at 94-95.
Godfrey, points ineluctably to the conclusion that Godfrey
represents a “clearly established” Supreme Court precedent         Therefore, we conclude that the Tennessee Supreme
dictating that Tennessee’s HAC aggravator is                     Court’s “implicit decision,” upon mandatory review of
unconstitutionally vague. Although it is true that the HAC       Cone’s death sentence, was that the HAC aggravator relied
aggravator in Cone’s case contained the additional words “in     upon by Cone’s jury in imposing the death sentence was not
that it involved torture or depravity of mind,” all of those     arbitrary and, consequently, not unconstitutionally vague. We
words except “torture” have been held to be too vague, on the    hold that this decision by the Tennessee Supreme Court was
basis of Godfrey. Since Maynard was dictated by Godfrey, it      contrary to clearly established U.S. Supreme Court precedent
is difficult to imagine how any of the other cases addressing
No. 99-5279                                  Cone v. Bell     21    22   Cone v. Bell                                 No. 99-5279

as announced in Maynard and Shell, and made applicable to             The applicable harmless error standard is “whether the error
Cone’s case via the rule of retroactivity explained in Stringer.    ‘had substantial and injurious effect or influence in
                                                                    determining the jury’s verdict.’” Id. (quoting Brecht v.
  We are not in the least comfortable with this “implicit           Abrahamson, 507 U.S. 619, 623 (1993)). The Supreme Court
review” doctrine, but it is a matter of Tennessee, not federal,     elaborated on this standard to some extent in O’Neal v.
law, and we know of no other way to read and understand             McAninch, 513 U.S. 432 (1995), by explaining: “When a
what the Tennessee Supreme Court said in West.                      federal judge in a habeas proceeding is in grave doubt about
                                                                    whether a trial error of federal law had substantial and
                               V.                                   injurious effect or influence in determining the jury's verdict,
                                                                    that error is not harmless.” Id. at 436 (internal quotation
  We must now consider whether the jury’s erroneous                 marks omitted); see also DePew v. Anderson, 311 F.3d 742,
application of two invalid aggravating factors was harmless         751 (6th Cir. 2002), cert. denied, 124 S. Ct. 270 (2003), and
error. The AEDPA standard of review does not apply to this          cert. denied, 124 S. Ct. 83 (2003).
question because no Tennessee court has considered this
question. Thus, this is an independent harmless error inquiry,        In Coe v. Bell, 161 F.3d at 335, we considered whether the
not a review of a state court’s harmless error inquiry.             jury’s reliance on an unconstitutionally vague HAC
                                                                    aggravating factor had a “substantial and injurious effect” on
  Cone contends that this court is not empowered to perform         the sentence. We concluded that it did not because the jury’s
an independent harmless error inquiry; rather, he argues, this      sentencing verdict form indicated that “the jury [had] ignored
court must grant habeas relief so that state courts can perform     the problematic ‘depravity’ factor and limited its finding to
a new sentencing calculus. He insists that prior Sixth Circuit      the appropriately narrowing ‘torture’ factor.” Id. at 336.
cases, Houston v. Dutton, 50 F.3d 381 (6th Cir. 1995), and          Thus, the error was harmless because the jury, effectively, had
Coe v. Bell, 161 F.3d 320, are in conflict on this issue.           “channeled” its own discretion despite the failure of the
                                                                    instructions to do so. Id.
  In Coe v. Bell, we held that this court was “permitted to
perform a harmless-error analysis” to determine whether a               In Abdur’Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000),
Tennessee jury’s reliance on the unconstitutional HAC               cert. denied, 534 U.S. 970 (2001), we again considered the
aggravator required habeas relief. 161 F.3d at 334. We              harmfulness of the jury’s reliance on the unconstitutionally
distinguished our previous decision in Houston v. Dutton, 50        vague HAC aggravator. We remarked that “removing one
F.3d at 387, on the ground that Houston had prohibited a            aggravating circumstance from the sentencing calculus in a
federal habeas court from “re-weighing” but had not                 weighing state normally would require a re-weighing of the
considered whether a federal habeas court could evaluate, in        aggravating and mitigating factors.” Id. at 711. We
the first instance, the harmlessness of the jury’s reliance on an   determined, however, that the jury’s reliance on the HAC
invalid aggravator. Coe, 161 F.3d at 335. Thus, Coe drew a          aggravator was harmless because, “even if the heinous,
distinction between re-weighing and harmless error analysis         atrocious, or cruel aggravator is removed from the calculus,
and held that a federal habeas court is permitted to undertake      there is no mitigating evidence to weigh against the remaining
the latter.                                                         . . . aggravators.” Id.
No. 99-5279                                  Cone v. Bell     23    24    Cone v. Bell                                 No. 99-5279

   In this case, when the jury made its sentencing                                                VI.
determination it found four aggravating circumstances
((1) HAC; (2) great risk of death to others; (3) prior violent         For the foregoing reasons, the district court’s decision is
felonies; and (4) murder for purpose of avoiding                    REVERSED as to the petitioner’s sentence. We REMAND
arrest/prosecution), and weighed those against the mitigating       to the district court with instructions to issue a writ of habeas
evidence offered by the defense. This balancing process was         corpus vacating the petitioner’s death sentence due to the
infected by the weight of two invalid aggravating factors:          jury’s weighing of an unconstitutionally vague aggravating
(1) HAC, which was unconstitutionally vague, and (2) great          factor at sentencing, unless the State conducts a new penalty
risk of death to others, which was not supported by sufficient      phase proceeding within 180 days of remand.
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.
No. 99-5279                                  Cone v. Bell     25    26       Cone v. Bell                                      No. 99-5279

                   ___________________                                The Defendant has not challenged the sufficiency of the
                                                                      evidence to support the aggravating circumstances found
                     CONCURRENCE                                      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
  MERRITT, Circuit Judge, concurring. I agree with the                T.C.A. § 39-2-205(c)(2)], this Court has reviewed the
Court that this death case cannot be disposed of on grounds of        evidence pertaining to the aggravating circumstances and
procedural default, and I agree on the merits of the                  concludes that it is sufficient to support the aggravating
constitutional issue. I believe there are additional reasons that     circumstances found by the jury in this case.
the Court is right and that the State’s position is untenable.
                                                                    Id. at 76. Two dissenting justices would have held that
                   I. Procedural Default                            sentence invalid based on the “heinous, atrocious, or cruel”
                                                                    aggravator as applied to the evidence in the case because the
   In this case, the jury found that the crimes were “especially    instruction did not sufficiently guide the jury’s discretion as
heinous, atrocious, or cruel in that [they] involved torture or     a matter of constitutional law. Noting that the jury’s
depravity of mind.” (J.A. at 235, 237 (verdict forms)).             application of the aggravator could only have been based on
Pursuant to its statutory mandate, the state supreme court          a finding of depravity, the dissenting justices concluded that
automatically reviews, inter alia, whether the sentence of          “the instructions provided no help in guiding the jury to its
death was imposed in any arbitrary fashion and whether the          decision” because the jury “received no guidance in
evidence supported the jury’s finding of a statutory                determining whether the defendant’s mind was materially
aggravating circumstance. See Tenn. Code Ann. § 39-2-               ‘depraved’ beyond that of any first degree murderer, and was
205(c)(1), (2) (1982). On direct review in this case, the state     bestowed unconstitutionally unfettered and unguided
supreme court expressly examined the evidence presented at          discretion in applying this aspect of [the] aggravating
trial and determined that the evidence was sufficient for the       circumstance.” Id. at 83-84 (Reid, C.J. dissenting) (citing
jury to find that the murders were “especially heinous, cruel,      Shell v. Mississippi, 498 U.S. 1 (1990)). The majority
or atrocious in that they involved torture or depravity of          responded to the “dissent[’s] challenge[] [to] the validity in
mind.” State v. Cone, 665 S.W.2d 87, 94-95 (Tenn. 1984).            the present case of the aggravating circumstance” by setting
                                                                    forth evidence in support of the aggravator and holding that
   In State v. Harris, the jury found three aggravating             the jury was “fully and correctly instructed” on the aggravator
circumstances to support the death penalty, including that the      in accord with State v. Williams, 690 S.W.2d 517, 529 (Tenn.
crimes were “especially heinous, atrocious, or cruel in that        1985).1
[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              1
                                                                          Approximately one year after the state supreme court upheld Co ne’s
the aggravator or challenge the sufficiency of the evidence in      death sentence, the Tennessee Supreme Court decided State v. Williams,
support of it. Nevertheless, the state court clearly examined       in which it construed “depravity of mind” in cases where there was no
both aspects of the aggravator as part of its statutory review      evidence of torture. 690 S.W .2d at 529-30. The co nstruction was
of the sufficiency of the evidence:                                 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).
No. 99-5279                                 Cone v. Bell     27    28    Cone v. Bell                                 No. 99-5279

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

wantonly vile, horrible and inhuman” aggravator within             establish cause for the third default, because there is no
constitutional bounds).                                            constitutional right to counsel at post-conviction hearings,
                                                                   according to Coleman, and without such a right ineffective
                  II. Cause and Prejudice                          assistance of counsel cannot constitute cause for a procedural
                                                                   default. 501 U.S. at 752.
   Even if Cone had procedurally defaulted his objection to
the “heinous, atrocious, and cruel” aggravator, this Court can       It is clear from the record that Cone did not waive his
still hear the claim if Cone can establish “cause and              ineffective assistance of counsel claim. Cone raised a general
prejudice” for the default. Coleman, 501 U.S. at 750. Cone         claim of ineffective counsel in his first post-conviction
argues that his failure to raise the objection on direct appeal    petition. Although he did not claim specifically in that first
was due to the ineffectiveness of his counsel. Ineffective         petition that his counsel was ineffective because of the failure
assistance of counsel, if established, can be sufficient to        to object to the vague “heinous, atrocious, and cruel”
establish cause and therefore allow a federal court to reach the   aggravator, he added those grounds in his second post-
merits of a claim defaulted in a state court so long as the        conviction petition. Both the state trial court and the
ineffectiveness rises to the level of a Sixth Amendment            appellate court ruled that under Tennessee law, ineffective
violation resulting in prejudice to the defendant. Murray v.       assistance of counsel is a “single ground for relief” that had
Carrier, 477 U.S. 478, 488 (1986).                                 been “previously determined” in the first post-conviction
                                                                   petition. J.A. at 2001. Therefore, even though Cone did not
  In this case, counsel was allegedly ineffective at two stages    claim that his counsel was ineffective specifically because of
of the proceeding in failing to raise the constitutional           the failure to object to the aggravator until his second post-
objection to the instruction – at trial and on appeal. Before      conviction petition, he has not defaulted that claim because
we can decide if Cone has established ineffective assistance       under Tennessee law it constitutes the same ground that the
of counsel as cause of the failure to object at trial and on       Tennessee courts had previously determined to be without
appeal, we must first decide whether Cone has properly             merit.
exhausted the ineffectiveness claim in the state courts. When
a petitioner claims ineffective assistance of counsel as cause       Still, even though Cone has not procedurally defaulted his
for a procedural default in state court of a substantive           ineffective assistance of counsel claim, the message from
constitutional claim, the allegation of ineffectiveness is a       Edwards is that in order to rely on the ineffectiveness claim
separate claim which must itself be exhausted in state court       as cause for his failure to raise the “heinous, atrocious, and
according to the normal procedures. Edwards v. Carpenter,          cruel” aggravator, the issue must not only have been
529 U.S. 446, 452 (2000); Murray v. Carrier, 477 U.S. 478,         presented to, or at least determined by, the state courts, the
489 (1986) (“[T]he exhaustion doctrine...generally requires        restrictions on federal review from the Anti-Terrorism and
that a claim of ineffective assistance of counsel be presented     Effective Death Penalty Act (“AEDPA”) must be satisfied as
to state courts before it may be used to establish cause for a     well. Specifically, §2254(d) prevents federal courts from
procedural default.”). According to Edwards, the failure to        granting habeas “with respect to any claim that was
exhaust the ineffectiveness claim will itself constitute a         adjudicated on the merits in State court proceedings unless
procedural default of the procedural default defense and,          the adjudication of the claim” was either “contrary to” or an
absent cause and prejudice, will prevent federal courts from       “unreasonable application of” clearly established federal law.
hearing it. 529 U.S. at 452. A petitioner cannot easily            28 U.S.C. §2254(d) (2003); Williams v. Taylor, 529 U.S. 362,
No. 99-5279                                   Cone v. Bell     31    32   Cone v. Bell                                  No. 99-5279

402-13 (2000). Thus, we must determine whether the                   Godfrey mean that the “heinous, atrocious, and cruel”
rejection of Cone’s ineffective assistance of counsel claim by       aggravator was unconstitutional (as explained later in
the Tennessee state courts in his post-conviction petitions was      Maynard v. Cartwright, 486 U.S. 356 (1988)), to rule
contrary to, or an unreasonable application of, clearly              otherwise as the Tennessee Supreme Court did in its
established federal law.                                             mandatory review was contrary to clearly established
                                                                     Supreme Court precedent even according to the high
   The starting point for ineffective assistance of counsel          standards of AEDPA as interpreted in Williams v. Taylor.
claims is Strickland v. Washington, 466 U.S. 668 (1984).             Cone’s defense counsel missed, both at trial and on direct
According to Strickland, in order to establish a claim for the       appeal, a claim of clearly established constitutional
ineffective assistance of counsel, a petitioner must be able to      dimension, the preservation of which would result in having
show both that his counsel was constitutionally deficient and        one of the aggravators on which Cone was sentenced to death
that the deficiency prejudiced his defense. Id. at 687; Wiggins      thrown out. Failing to raise a winning defense is not a
v. Smith, 123 S. Ct. 2527, 2535 (2003); Williams v. Taylor,          strategic decision, and incompetence is the only explanation
529 U.S. 362, 390 (2000). Although the Strickland test is            for the failure to raise it. It appears that Cone’s counsel was
“highly deferential” to the judgment of defense counsel, 466         litigating a capital case while simply unaware of controlling
U.S. at 689, and the mere fact that counsel has failed to            Supreme Court precedent in death penalty cases. It is hard to
recognize or raise a particular claim does not always                imagine a better case for “ineffectiveness in failing properly
constitute cause for a procedural default, Smith v. Murray,          to preserve [a] claim for review in state court.” Edwards, 529
477 U.S. 527, 535 (1986); Carrier, 477 U.S. at 486-87, the           U.S. at 451.
Supreme Court has also made it clear that “the right to
effective assistance of counsel . . . may in a particular case be      This conclusion is further supported by the American Bar
violated by even an isolated error...if that error is sufficiently   Association’s Guidelines for the Appointment and
egregious and prejudicial.” Murray, 477 U.S. at 535 (quoting         Performance of Defense Counsel in Death Penalty Cases. As
Carrier, 477 U.S. at 496); see also Edwards, 529 U.S. at 451         pointed out in Strickland, “[t]he proper measure of attorney
(“Although we have not identified with precision what                performance remains simply reasonableness under prevailing
constitutes ‘cause’ to excuse a procedural default, we have          professional norms.” 466 U.S. at 688. American Bar
acknowledged that in certain circumstances counsel’s                 Association standards are only “guides” and not “rules” for
ineffectiveness in failing properly to preserve the claim for        what constitutes ineffective assistance of counsel, id., but in
review in state court will suffice.”).                               this case the guidelines speak clearly:
  In this case, there can be no doubt that the defense                 One of the most fundamental duties of an attorney
counsel’s error was “sufficiently egregious and prejudicial”           defending a capital case at trial is the preservation of any
to constitute cause for his procedural default. The defense            and all conceivable errors for each stage of appellate and
counsel failed both at trial and on direct appeal to object to         post-conviction review. Failure to preserve an issue may
the “heinous, atrocious, and cruel” aggravator despite the             result in the client being executed even though reversible
then-recent Supreme Court decision in Godfrey v. Georgia,              error occurred at trial. For this reason, trial counsel in a
446 U.S. 420 (1980), in which the Court held similar                   death penalty case must be especially aware not only of
language to be unconstitutionally vague. Indeed, as the Court          strategies for winning at trial, but also of the heightened
here points out, not only did the principle established in             need to fully preserve all potential issues for later review.
No. 99-5279                                           Cone v. Bell       33     34    Cone v. Bell                                 No. 99-5279

ABA Guidelines for the Appointment and Performance of                           established right to effective counsel. See id. (“[I]t can hardly
Defense Counsel in Death Penalty Cases 91-92 (rev. ed.                          be said that recognizing the right to effective counsel breaks
2003) (internal quotations omitted).2 In this case, not only                    new ground or imposes a new obligation on the states.”
did Cone’s counsel fail to preserve “any and all” errors, he                    (internal quotations omitted)).
failed to preserve a claim based on binding Supreme Court
precedent that was a sure winner as a matter of federal law                        The Strickland test requires not only ineffectiveness of
and that, given the role of the “heinous, atrocious, and cruel”                 counsel, but also prejudice to the defendant as a result of that
aggravator in the jury’s deliberation of the death sentence,                    ineffectiveness. 466 U.S. at 687. For the purposes of this
may well have saved his client’s life. There can be no doubt                    test, prejudice amounts to a “reasonable probability that, but
that this error was “sufficiently egregious and prejudicial” to                 for counsel’s unprofessional errors, the result of the
constitute cause for the procedural default of that claim.                      proceeding would have been different.” Id. at 694.
                                                                                Demonstrating such a reasonable probability is not difficult
   III. Contrary to Established Supreme Court Cases                             here. As the Court explains in its harmless error analysis,
                                                                                supra, the prosecutor specifically emphasized the “heinous,
   Finally, I have no trouble finding that the denial of Cone’s                 atrocious, and cruel” aggravator during closing arguments and
claim that his counsel was ineffective due to the failure to                    at the sentencing phase of the trial. Moreover, this is the
object to the “heinous, atrocious, and cruel” aggravator was                    second invalid aggravator found by the jury. Thus, there is at
not only wrong, but contrary to clearly established federal law                 the very least a reasonable probability that had Cone’s
as required by AEDPA and Williams. Although the error at                        counsel preserved the objection to this “heinous, atrocious,
issue here involves the failure to raise a claim rather than the                and cruel” aggravator, his sentence ultimately may well have
failure to investigate at issue in Strickland and Wiggins, the                  been different.
differences do not mean that the Tennessee courts’ rejections
of his valid ineffectiveness claim are not contrary to the                                             IV. The Merits
clearly established test from Strickland. As the Supreme
Court explained in Williams, “ [t]hat the Strickland test ‘of                     As is now typical in death penalty cases, we have spent
necessity requires a case-by-case examination of the                            more time discussing the maze of “door closing” devices such
evidence’ . . . obviates neither the clarity of the rule nor the                as procedural default than the merits. In this case, the merits
extent to which the rule must be seen as ‘established’ by this                  are relatively easy to decide.
Court.” 529 U.S. at 391 (citation omitted). The Strickland
test is well-established, and is itself based on a long                           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
    2                                                                           AEDPA and Williams because similar language was ruled
      Although the above quotation is a recent statement not published at       unconstitutional in Godfrey. The Court cites Maynard for
the time of Cone’s trial, I use it because it is an articulation of long-       support of this proposition, which specifically held that an
established “fundamental” duties of trial counsel. See Ham blin v.
Mitchell, 354 F.3d 4 82, 487 (6th Cir. 2003) (applying 1989 ABA                 identical Oklahoma “heinous, atrocious, and cruel”
guide lines to counsel’s 19 82 rep resentation on the gro unds that “the        aggravator was unconstitutional. Although Maynard was not
standards merely represent a codification of longstanding, co mmo n-sense       decided until 1988 – after the Tennessee Supreme Court
principles of representation understo od b y diligent, comp etent co unsel in   upheld Cone’s conviction – because the Court in Maynard
death penalty cases”).
No. 99-5279                                 Cone v. Bell    35    36   Cone v. Bell                                 No. 99-5279

said that it was only applying the clear principle of Godfrey        For these reasons, as well as those articulated by the Court,
and not establishing new law, this Court today cites it for the   I agree with the Court’s ruling.
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.
No. 99-5279                                 Cone v. Bell    37    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
                        DISSENT                                   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
   ALAN E. NORRIS, Circuit Judge, dissenting. As my               conclusion, the majority seeks to reign it in by drawing the
concurrence in this court’s initial panel decision makes clear,   following distinction:
Cone v. Bell, 243 F.3d 961 (6th Cir. 2001), I harbor grave
reservations about the appropriateness of the death penalty in      [T]he implicit review doctrine, as we apply it today in
this case. However, our analysis was soundly rejected by the        this case, does not foreclose the possibility that other
Supreme Court. Bell v. Cone, 535 U.S. 685 (2002). On                death penalty defendants may procedurally default on
remand, the majority concludes that the writ should issue on        other constitutional issues not raised on direct appeal.
a ground not reached in our prior opinion. While I am               The language of Tennessee’s mandatory review statute
reluctant to part company with my colleagues in this case, I        provides a basis to distinguish between vagueness
feel obliged to do so because the majority’s construction of        challenges and other constitutional claims, since it
Tennessee law with respect to “implicit review” as it applies       requires the Tennessee Supreme Court to look
to waiver lacks any clear support from the Tennessee courts.        specifically for sentences “imposed in any arbitrary
I therefore respectfully dissent.                                   fashion.”

  To its credit, the majority candidly acknowledges the           Maj. Op. at 13. Given that the scope of procedural default is
tenuousness of its position with respect to whether petitioner    a matter of state law, I would be much more comfortable if
has procedurally defaulted his Eighth Amendment claim. For        the majority had cited a single Tennessee opinion that
lack of more compelling authority, the majority hitches its       explicitly draws this distinction. Frankly, I do not find it in
wagon to State v. West, 19 S.W.3d 753 (Tenn. 2000), a case        West, and the majority concedes that “[t]he conceptual leap
that it concedes contains a “seeming contradiction” because       from [reviewing] claims explicitly raised on direct appeal,
it holds that defendant’s vagueness claim was both                although not properly preserved, to claims not raised at all is
“previously determined” and “waived.” Maj. Op. at 11              significant and, without West, there would be no Tennessee
(citing West, 19 S.W.3d at 756). However, West primarily          authority for attempting it.” Maj. op. at 12. Given the
focuses upon waiver: “[W]hen West failed to raise the             inherent contradictions in West, it is a leap that I am unwilling
[vagueness] issue on direct appeal, he effectively blocked any    to make without further guidance from the courts of
consideration of this issue by this Court on post-conviction      Tennessee.
review.” West, 19 S.W.3d at 756.
                                                                    For the foregoing reasons, I respectfully dissent.
  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
