*1 BELL v. CONE No. 04-394. Decided January Per Curiam.
The United States for the Sixth Circuit a writ of granted habeas corpus Bradford respondent Gary Cone after heinous, concluding atrocious, “especially found at the unconstitutionally vague, sentencing phase of his trial was any *2 to cure and that the Tennessee Court failed 785, 3d constitutional deficiencies on 359 F. to fails to accord state court Because this result the 2254(d), § grant required by the deference S. C. petition proceed respondent’s in certiorari and motion pauperis and reverse. forma Respondent killed Shipley 93, and his wife Cleo- Todd,
I patra, August their home at the conclusion 79, 10,1980, in accomplished 2-day killings spree. in a were of a crime The “repeat- elderly victims were brutal and callous fashion: The edly they Cone, died,” the head until beaten about (Tenn. 1984), and bodies were 90-91 their 665 W. cruelly subsequently “horribly and discovered mutilated respondent jury id., convicted beaten,” at 90. A Tennessee degree in the first and of, alia, inter two counts of murder degree perpetration in the of murder in the first two counts phase penalty burglary. of re- of a At the conclusion the aggravat- jury unanimously spondent’s four trial, found they outweighed ing and circumstances1 concluded Respondent mitigating was sentenced death. evidence. con- affirmed The Tennessee here, Id., at As relevant victions and sentence. aggravating circumstances found three of the held that jury clearly by Id., at evidence.” “were shown (1) respond aggravating circumstances: jury following The found the involving the use or threat felonies been convicted of one or more ent had heinous, (2) atro “especially person, the murders were violence to (3) mind,” cious, depravity they involved torture or cruel preventing a lawful for the purpose murders respondent committed the created a risk of death respondent knowingly prosecution, arrest or murdered, mur during the other than the victim persons, to two or more 1984). Cone, W. 2d 94-95 der. See State 665 S. respect jury’s finding 94.2 With that the murders “especially heinous, atrocious, were cruel,” the court said: question
“The also found that the murders especially they were heinous, atrocious, or cruel in that depravity provided involved torture or of mind as 2—203(i)(5). [Tenn. Ann.] Code The evidence abun 39 — dantly elderly established that both of the victims had brutally by multiple been to death crushing beaten spattered throughout blows to the skulls. Blood was apparently attempted house, and both victims had resist, because numerous defensive wounds were only persons. found on their excuse offered in the unspeakably entire record for this brutal conduct elderly point accused was these victims had at some *3 ‘cooperate’ ceased to ransacking with him in his their of home and in pre his effort to flee from arrest. As viously stipulated by [respond stated, it was counsel for ent] that there was no issue of self-defense even remotely suggested. The deaths of the victims were obviously instantaneous, and one had to be killed before the fright other. The terror, and horror elderly helpless these citizens must have endured was certainly something could have taken into finding aggravating account in Id., circumstance.” at 94-95.
Respondent sought twice relief from his conviction and proceedings in sentence collateral court, to no avail. petition postconviction In his second amended relief, respondent independent raised claims of constitutional “ The state rejected jury’s court finding respondent ‘knowingly created a risk of death great to two or more other persons, than the ” murdered, murder,’ victim during his act of on the ground that the con respondent siderable threat posed to others day earlier was not sufficiently close in time to the murders. Based on the strength of the aggravating other jury, circumstances before the the court held this error Id., beyond be “harmless a reasonable doubt.” “especially including heinous,
error, a contention that atrocious, unconsti or cruel” circumstance was tutionally Eighth vague The state under the Amendment. respondent’s Tenn. trial held each claims barred §40-30-111 grounds which limited Ann. Code may not waived be on collateral to those raised review previous proceedings. The previously determined in chal explained constitutional trial court lenge cir “heinous, atrocious, to the “clearly [a] along many claims, with cumstance, grounds re-statemen[t] previous heretofore determined upon Direct Court the Tennessee denied Appeals upon Appeal the First Peti or the Criminal Court Dec. State, Ct., Crim. tion.” No. P-06874 Cone 1993), p. af of Criminal 6. The Tennessee Court grounds. State, 927 Cone v. the denial of on all firmed relief denied W. 2d respondent permission to corpus respondent sought habeas under In 1997,
II a writ of for the States District Court 2254 the United U. S. C. asserting again a multitude Tennessee, Western District respond- relief; it held District denied of claims. The “especially vagueness challenge heinous, atro- ent’s procedurally to be cious, *4 appeal it on direct by respondent’s to raise failure barred Appeals for the Circuit Sixth The Court of in state court. on respondent to relief subsequently was entitled held that challenges respondent’s ground and did not consider another jury. Cone found circumstances to the (2001). judg- We reversed Bell, 961, 243 F. 3d 975 v. (2002). Cone, 685, 535 702 ment. Bell v. again panel Circuit remand, the same Sixth
On corpus, this time with granted respondent writ of habeas “especially hei- dissenting, ground judge on the one
451 nous, atrocious, or cruel” unconstitutionally vague Eighth under Amendment. The court first re jected petitioner’s argument respondent proeedurally defaulted the claim in state court. Based on its understand ing of state law, the court concluded that the State statutorily Court’s review of each .mandated death sentence, 39-2-205(c)(1) § see Tenn. Code Ann. necessarily in cluded the consideration of constitutional deficiencies circumstances found and therefore “fairly presented” that the issue was court, even respondent if did not raise it himself.3 359 3d, F. at 791-793. Judge Norris point. dissented on this Id., at 806.
Turning to the merits, the Sixth Circuit held that the state
affirmance
light
sentence in
of the “es-
pecially heinous, atrocious, or
circum-
“contrary
stance was
clearly
to” the
principles
established
Godfrey
set forth in
Georgia,
decision
our
v.
fours’ with the Godfrey and series light concluded, nevertheless Cartwright, S. 486 U. 356 Maynard v. it, that followed cases (1988), (1990), and Shell 639 Arizona, 497 v. Walton curiam), (1990) federal (per that Mississippi, 1 “especially hein- the State’s that the conclusion law dictated unconstitutionally aggravator was atrocious, or ous, peti- rejected Lastly, the court vague.5 3d, F. 359 cured argument the Tennessee tioner’s direct on aggravating circumstance any deficiency in the finding the narrowed jury’s under reviewing by appeal adopted that it construction at 797. 3d, 359 F. 615 S. W. Dicks,
hHt-H corpus based may grant habeas writ of court A federal state-court if the adjudicated court a state a claim ap- unreasonable an contrary or involved to, “was decision law, as determined clearly Federal plication established of, 28 U. S. C. United States.” “contrary . . 2254(d)(1). to . decision A state applies court clearly “if the state law” Federal established circumstance aggravated to this respect with instructed was follows: as “ evil. shockingly extremely wicked or ‘Heinous’ means “ and vile. wicked outrageously means ‘Atrocious’ “ indifference utter pain, high degree of designed inflict means ‘Cruel’ 3d, F. at 794. others, pitiless.” of, suffering of enjoyment to, Tennessee postdated these cases recognized 5 The Stringer but, relying on appeal, on direct 1984 decision Court’s Cartwright did (which held Black, was its resolution law because constitutional rule” of a “new announce only ma “not were cases these later by Godfrey), concluded dictated “hei that Tennessee’s conclusion required the terial, controlling” but unconstitutionally atrocious, nous, deciding, that assume, without We F. on its face. vague in this conclusion. correct Court of *6 rule that governing contradicts the law set forth in our cases,” or “if the state court confronts facts that are materi- ally indistinguishable from Supreme prece- relevant dent and arrives opposite result to ours.” Williams v. Taylor, 529 governing vagueness law challenges statutory to aptly circumstances was in Walton, summarized
supra, grounds, overruled on Ring Arizona, v. (2002): U. 584 S.
“When a federal court is asked to review a state
application
statutory
an
aggravat-
individual
ing mitigating
or
particular
in
case, it
must first
statutory
determine
language
whether
de-
fining the
vague
provide
circumstance is
any
itself too
to
guidance to the
If so,
sentencer.
then the federal court
attempt
must
to determine whether the state courts
have further
vague
defined the
they
terms
if
and,
have
so,
done
whether those definitions
constitutionally
are
sufficient,
they provide
e.,
i. whether
guidance
some
to
Walton,
sentencer.”
principles
plain
These
enough
were
at the time the Court decided
Proffitt
Florida,
(1976),
upheld
the “
circumstance that the
‘especially
murder heinous, atro-
”
express
or cruel’
ground
cious,
on the
that a
con-
adopted
struction had
been
that State’s
Court.
(joint
Id.,
opinion
at 255
Stewart,
Powell, and Stevens,
JJ.).
Gregg
And, in
Georgia,
We lightly do not think that a federal court can so apply that a state court failed to its own law. As we have “ 2254(d) said ‘highly before, dictates a deferential standard evaluating rulings, Murphy, state-court Lindh v. 320, 333, n. 7 which demands that state-court given decisions be benefit the doubt.” Woodford curiam). Visciotti, (per To the ex tent that the Court of rested its decision on the state court’s failure to Dicks, cite it was mistaken. Federal presume courts are not free to that a state court did comply with constitutional nothing dictates on the basis of more than a Esparza, lack of citation. See Mitchell v. *8 (2003) curiam); (per Early 12, Packer, 537 U. S. curiam). (per 3, importantly,
More however, we find no basis for the Court Appeals’ statement “simply, that the state court but ex- plicitly, satisfied itself that the ‘heinous, atrocious, labels applied” more, without to the 3d, murder. 359 at F. cruel/ opinion application 797. The state does not disclaim that court’s established construction of the Ring Summerlin, Schriro does not apply retroactively, 348, this case present question does not the appellate whether an Ring, may, consistently court with finding vague aggravating cure the of a by a narrower construction. applying “explicitly” thing is that only it states that circumstance; the finding jury’s of the supported the in this case the evidence (stating at statutory aggravator. Cone, 665 S. W. See “indisputably estab aggravating circumstance the that record”). explain the State below, As we the lished aggravating circumstance the Court had construed times; precedent narrowly numerous had followed that and contrary, pre we must absent an affirmative indication supra, thing Visciotti, See here. that it did the same sume and “know (stating presumption state courts at 24 the law”); Walton, 497 4;n. Lambrix, follow especially such as this true in a case S., at 653. That is U. recognized that its one, where state court has compelled has affirma constitutionally and construction aggra tively responsibility to ensure assumed the constitutionally in applied each case. vating circumstance is 1981). (Tenn. 127, 139, 140 Pritchett, 621 S. W. 2d State v. presumption favor, state court’s Even absent such case the state however, would still.conclude “heinous, applied the narrower construction court circumstance. atrocious, or closely tracked its reasoning in this case Court’s eases in affirming sentences the death rationale for construction applied a narrowed expressly which it aggravator. Accord, atrocious, “heinous, same “[t]he (holding Godfrey, supra, circumstances at 432 torture] [for satisfy laid criteria case ... do not of this con in its cases Georgia itself” out circumstance). the court The facts struing elderly vic jury’s verdict—that affirm the on to relied not instanta deaths were attempted that their resist, tims “un were toward them neous, that actions fright they “terror, endured speakably brutal,” and 95—match, o being 2d,W. killed, 665 S. horror” before alm gave it held when exactly, the state the reasons st Melson, 638 W. in State v. the evidence *9 1982), satisfy prong to be sufficient to the torture nar “heinous, atrocious, rowed circum supra, (finding Pritchett, stance. See also at 139 the evi satisfy dence to be insufficient to a narrowed construction of aggravator where the victim’s death was “instanta (Tenn. 1984) neous”); Campbell, 281, 284 State v. 664 S. W. 2d (holding aggravator that evidence of the was “overwhelm ing” elderly where an murder victim was beaten to death object with a blunt and his hands showed that he had at himself). tempted Similarly, to defend findings “brutally victims had been beaten by multiple crushing skulls,” to death blows to the “[bjlood spattered throughout house,” and that the helpless, 94-95, victims were 665 S. W. with the accord previously reasons that the state court had found sufficient support findings depravity Melson, of mind. See (Tenn. 367; Groseclose, 142, 151 State v. 615 W.2d 1999). (Tenn. 1981); State, 999 Strouth v. S. W. 2d previous sum, review of state court’s decisions inter preting applying the narrowed construction of the “hei nous, atrocious, or cruel” leaves little doubt that applied the State that same construction in respondent’s case.7 only remaining question narrowing is whether the applied
construction that the Tennessee
7We find
in the fact
support
respond
additional
for this conclusion
Court relied
on a case
argument
squarely
ent’s
to the State
construc
expressly
narrowing
which that court had
formulated its
tion of the
that construction
applied
circumstance and had
in No.
Appellant
benefit of the defendant.
See Brief
for
1983),
based on
(Sup.
p.
(arguing,
02C019403CR00052
Ct. Tenn.
Pritchett,
1981),
“Although the Tennessee cruel] atrocious, or [that heinous, [sic] was the murder battery aggravated phrase, 'an the not contain does construction that a constitutional it is clear victim[,]’ the requires evidence aggravating circumstance of before victim on the torture inflicted defendant the evincing a committed acts [the] or that defendant death mind depraved of state mind; depraved heinous, test meet inflicted must torture (ci- 2d, Pritchett, W. 621 S. or cruel.” atrocious, omitted). tation held the court meaning “torture,” respect to
With in- victim dies where not satisfied was uncontradicted where “the stantly, that it was ibid., but injuries her victim] had [the defensive proof shows that real- for her to time proving that there hands, arms try happening, protect fear, and to ize what to feel Cartwright, Accord, herself,” Melson, 638 S. W. (approving S., at 364-365 the limitation of the “hei kill nous, atrocious, or cruel” circumstance to ings in which the victim suffered “some kind of torture murder). physical prior serious abuse” As to “de pravity mind,” the court held fact that defendant shotgun fired a second blast into a victim after he was dead law, Pritchett, to be a matter of insufficient as see *11 (explaining depravity 139 in such an action falls by Godfrey, supra), short of that exhibited the defendant in killing up but concluded that, “a wherein the victim is struck thirty causing times, an entire room to be covered with a spray flying causing blood, of and the victim’s brains to ex through gaping trude skull,” Melson, hole her sufficed, light holdings, at In 367.8 of these we are satisfied circumstance, State’s as construed Supreme the Tennessee Court, ensured that a there was “principled distinguishing basis” for between those cases penalty which the death was assessed those cases in and Creech, which it was 463, 474 not. Arave v. assuming sum, even that the Court of was cor- statutory aggravating rect conclude that the State’s cir- facially vague, presuming cumstance the court erred in vagueness State failed cure this Court by applying narrowing a The construction on direct apply state court did construction, such and that 151 (Tenn.1981) Groseclose, 142, State See also W. 615 S. 2d (holding victim, that raping stabbing killing and before her her in a locking summer, “heinous, atrocious, car trunk in the aggra satisfied the State, (Tenn. 1999) circumstance); Strouth vating S. W. 2d (quoting opinion State Court’s 1981 which denying rehearing, cutting held that the throat of a victim already rendered unconscious dem “cold-blooded, intentional, “depravity onstrated of mind” in that it was Dicks, pitiless”); and conscienceless 615 S. W. 2d 1981) “heinous, atrocious, (affirming jury’s application crime). to the same by ensuring demands constitutional construction satisfied arbitrary an to death in respondent not sentenced Godfrey, supra, The capricious manner. See on this sentence state court’s affirmance “contrary clearly established ground to... was therefore §2254(d)(1), Ap- and 28 U. S. C. law,” Federal peals corpus. power to a writ of habeas issue was without judgment remand the Sixth and We reverse the Circuit opinion. proceedings with this consistént for further the case It so ordered. Souter with whom Justice Ginsburg, Justice Breyer Justice join, concurring. that the Tennessee assumed Sixth Circuit respond adjudicated appeal, the merits of
Court, direct (2004);see vagueness 785, 791-794 359 F. ent’s claim. See assumption. indulges same ante, also This Court agree page. with the and this I ante, 456-457, dispositively highest has that, once the court of State court to point on that it is not incumbent law, decided a pre every precedential thereafter case cite its decision *12 senting its adherence issue in order to demonstrate the same pathmarking decision. comprehend to the situ-
Today’s it, is confined I decision, as the state posited, one in which Circuit ation the Sixth prior governed an issue confronted and decided has emphasis, opinion, does ruling. bears it This Court’s peti- prisoner following A grapple scenario: state with exhausting his state after federal habeas review tions for prisoner proceeding, the state In the anterior remedies. disposing multiple court, issues. raised There unaddressed. of the issues left one or more case, assumption that for an case, in such a be no warrant, would re- the issue silentio, considered court, the state sub relevant accord with the State’s on the it merits solved possibil- Nothing would discount record in the law. the issue was A overlooked. federal court ity simply would act if it assumed that an issue raised arbitrarily state court was there, decided the ab- necessarily despite sence of indication that the state court itself any adverted to the point.