I have finally gotten around to posting an in-depth analysis of Cone v. Bell, a Supreme Court habeas decision from April. My initial take on the decision back when it was issued was that the unusual factual scenario in the case rendered it of little value.
However, after reading it closely, I realized that it actually had some hidden gems with huge importance to habeas petitioners. I am actually surprised that these hidden gems didn’t get more attention.
On its surface, the case is about the procedural bar known as the “independent and adequate state law ground” (“IASLG”). An IASLG means that, if the state refused to reach the merits of a federal claim based on a state procedural ground, then this procedural ground will bar habeas review so long as it is independent of the federal question and adequate to support the judgment. If the procedural ground is independent and adequate, the petitioner would have to show cause and prejudice for the procedural default, or that a miscarriage of justice has occurred, in order to have the claim reviewed in a habeas proceeding.
The decision in Cone v. Bell focused on what makes a procedural rule “adequate” to support the judgment. Courts have articulated several different ways in which a procedural ground may not be adequate: was it firmly established, had it been consistently or regularly and strictly applied, does it rest on a fair or substantial basis.
An interesting question in this context is whether a misapplication of a state procedural rule represents an inadequate state law ground?
The petitioner in Cone had asked the Court to address this question. Unfortunately, the Supreme Court did not directly address the issue. But the Court’s analysis does strongly suggest that a federal court should indeed look to see how the state court has applied a procedural rule in determining whether it is adequate.
But to my surprise, the case went beyond this issue and I found at least two hidden gems that are really helpful to habeas petitioners.
So, follow me below the fold as I discuss the Supreme Court’s decision in Cone v. Bell . . .
However, after reading it closely, I realized that it actually had some hidden gems with huge importance to habeas petitioners. I am actually surprised that these hidden gems didn’t get more attention.
On its surface, the case is about the procedural bar known as the “independent and adequate state law ground” (“IASLG”). An IASLG means that, if the state refused to reach the merits of a federal claim based on a state procedural ground, then this procedural ground will bar habeas review so long as it is independent of the federal question and adequate to support the judgment. If the procedural ground is independent and adequate, the petitioner would have to show cause and prejudice for the procedural default, or that a miscarriage of justice has occurred, in order to have the claim reviewed in a habeas proceeding.
The decision in Cone v. Bell focused on what makes a procedural rule “adequate” to support the judgment. Courts have articulated several different ways in which a procedural ground may not be adequate: was it firmly established, had it been consistently or regularly and strictly applied, does it rest on a fair or substantial basis.
An interesting question in this context is whether a misapplication of a state procedural rule represents an inadequate state law ground?
The petitioner in Cone had asked the Court to address this question. Unfortunately, the Supreme Court did not directly address the issue. But the Court’s analysis does strongly suggest that a federal court should indeed look to see how the state court has applied a procedural rule in determining whether it is adequate.
But to my surprise, the case went beyond this issue and I found at least two hidden gems that are really helpful to habeas petitioners.
So, follow me below the fold as I discuss the Supreme Court’s decision in Cone v. Bell . . .
In Cone v. Bell, the petitioner was convicted of murder and a jury sentenced him to death.
On appeal, Cone argued that the prosecution had violated state law by failing to disclose a tape-recorded statement and police reports relating to several trial witnesses. The state courts rejected this claim. Several years later, Cone obtained access to the prosecutor’s complete file and obtained evidence that had been previously withheld from him that helped to support his defense to both the conviction and the death sentence.
Based on this new evidence, he raised a Brady claim in a state court post-conviction proceeding. The state court dismissed this claim on the ground that that it had previously been determined in a prior proceeding.
He filed his habeas petition raising, among other issues the Brady claim. The case embarked on a long and tortured path through the federal court system, which I am not going to recount here. Eventually, the Sixth Circuit decided the Brady claim, concluding that the claim was procedurally defaulted based on the state court’s determination in the post-conviction proceeding that it had been decided in a prior proceeding.
The Supreme Court granted cert. to resolve the question of whether a federal habeas claim is “procedurally defaulted” when it is “twice presented” to the state courts.
The Court definitively answered “no” to this question. That’s a win for habeas petitioners, but not much of one since every circuit, except for the Sixth, had answered this question in the petitioner’s favor.
But what’s great about Cone is the additional nuggets contained in the opinion.
After defining what constitutes an IASLG, the Court emphasized that federal habeas review is not “barred every time a state court invokes a procedural rule to limit its review of a state prisoner’s claim.” The Court stated that “adequacy” is not up to the States. “‘[R]ather, adequacy “is itself a federal question.”’” This is not new law, but it’s always nice when the Court restates it.
Then, in the context of analyzing whether a “twice presented” claim has become defaulted, the Court actually took issue with how the State applied its procedural rules. It concluded that Tennessee did not properly apply this procedural default rule since it “rested on a false premise: Contrary to the state court’s finding, Cone had not presented his Brady claim in earlier proceedings and, consequently, the state courts had not passed on it.” Thus, it concluded that the Sixth Circuit’s conclusion that the claim was barred because it was twice presented could not be defended.
The Court then shifted focus and went on to show that a “twice presented” procedural default is not an adequate procedural rule and does not bar federal review.
But taking a step back here, if the Court was going to conclude that the “twice presented” rule was inadequate all on its own, why did it take issue with the state court’s incorrect application of its own procedural rule? It’s irrelevant to the analysis entirely. Even if the state court had applied it correctly, it wouldn’t have been adequate. So who cares if they applied it incorrectly?
This does suggest that it was important to the Supreme Court, as an initial matter, that the state court had incorrectly applied its procedural rules. It may not automatically mean that the Supreme Court will now say that adequacy can be judged in this way. But it is a step in the right direction. Especially since the Supreme Court was critical of the Sixth Circuit’s reliance upon a procedural bar that had been incorrectly applied in the state court.
Not convinced? Just keep reading. You’ll see, there’s more. Pay close attention to the first golden nugget.
So let me turn to those golden nuggets.
First, the State had argued as an alternative procedural bar that petitioner had waived the Brady claim. The Supreme Court roundly rejected it, finding that the state courts simply had not held that petitioner had waived it.
The court then explained that it had no independent obligation to determine whether it had in fact been waived. If the state court did not conclude that it was waived, that’s the end of it. The Court stated, “Although we have an independent duty to scrutinize the application of state rules that bar our review of federal claims, we have no concomitant duty to apply state procedural bars where state courts have themselves declined to do so.”
For New York petitioners, this is great news. It means that if an appellate court decides to address the merits of a claim, even though there may be preservation questions, the State cannot go into federal court and argue that federal review is barred because the claim was not properly preserved. If the state court does not find a procedural default, the federal courts will not “second-guess” its judgment. The Second Circuit had held that way (actually, it was decisin written by Sotomayor, I believe), but now the Supreme Court has confirmed it. So that’s good news. It’s now rock solid law.
Further, that quote up there is pretty broad language: “duty to scrutinize the application of state rules.” It is critical to note that it does not appear that the Supreme Court has ever framed adequacy that way. When this sentence is put together with the Court’s finding that the state court had not properly applied its own rule, it further supports the idea that federal courts should now be asking whether the state courts misapplied procedural rules in order to determine adequacy. This is pretty big.
The other big, golden nugget seems to answer the whole de novo vs. deference question I had previously discussed here and here. In fact, I am not sure what the debate over Miryance was all about. At least, I seem to have mischaracterized the debate.
In Cone, after finding that the claim was reviewable on habeas, the Court went on to review the merits. Incredibly, it stated, “Because the Tennessee courts did not reach the merits of Cone’s Brady claim, federal habeas review is not subject to the deferential standard that applies under AEDPA to ‘any claim that was adjudicated on the merits in State court proceedings.’ 28 U.S.C. § 2254(d). Instead, the claim is reviewed de novo.”
Wow! This really is a big deal and I have not seen much mentioned about it. It’s so important, that I am going to save my thoughts for a separate post. It’s pretty exciting in my mind.
So, in the end, Cone is a really interesting case. On its surface, it settles a question that was already pretty much settled. However, underneath that surface, the Court drops some gems that are really favorable to habeas petitioners.
On appeal, Cone argued that the prosecution had violated state law by failing to disclose a tape-recorded statement and police reports relating to several trial witnesses. The state courts rejected this claim. Several years later, Cone obtained access to the prosecutor’s complete file and obtained evidence that had been previously withheld from him that helped to support his defense to both the conviction and the death sentence.
Based on this new evidence, he raised a Brady claim in a state court post-conviction proceeding. The state court dismissed this claim on the ground that that it had previously been determined in a prior proceeding.
He filed his habeas petition raising, among other issues the Brady claim. The case embarked on a long and tortured path through the federal court system, which I am not going to recount here. Eventually, the Sixth Circuit decided the Brady claim, concluding that the claim was procedurally defaulted based on the state court’s determination in the post-conviction proceeding that it had been decided in a prior proceeding.
The Supreme Court granted cert. to resolve the question of whether a federal habeas claim is “procedurally defaulted” when it is “twice presented” to the state courts.
The Court definitively answered “no” to this question. That’s a win for habeas petitioners, but not much of one since every circuit, except for the Sixth, had answered this question in the petitioner’s favor.
But what’s great about Cone is the additional nuggets contained in the opinion.
After defining what constitutes an IASLG, the Court emphasized that federal habeas review is not “barred every time a state court invokes a procedural rule to limit its review of a state prisoner’s claim.” The Court stated that “adequacy” is not up to the States. “‘[R]ather, adequacy “is itself a federal question.”’” This is not new law, but it’s always nice when the Court restates it.
Then, in the context of analyzing whether a “twice presented” claim has become defaulted, the Court actually took issue with how the State applied its procedural rules. It concluded that Tennessee did not properly apply this procedural default rule since it “rested on a false premise: Contrary to the state court’s finding, Cone had not presented his Brady claim in earlier proceedings and, consequently, the state courts had not passed on it.” Thus, it concluded that the Sixth Circuit’s conclusion that the claim was barred because it was twice presented could not be defended.
The Court then shifted focus and went on to show that a “twice presented” procedural default is not an adequate procedural rule and does not bar federal review.
But taking a step back here, if the Court was going to conclude that the “twice presented” rule was inadequate all on its own, why did it take issue with the state court’s incorrect application of its own procedural rule? It’s irrelevant to the analysis entirely. Even if the state court had applied it correctly, it wouldn’t have been adequate. So who cares if they applied it incorrectly?
This does suggest that it was important to the Supreme Court, as an initial matter, that the state court had incorrectly applied its procedural rules. It may not automatically mean that the Supreme Court will now say that adequacy can be judged in this way. But it is a step in the right direction. Especially since the Supreme Court was critical of the Sixth Circuit’s reliance upon a procedural bar that had been incorrectly applied in the state court.
Not convinced? Just keep reading. You’ll see, there’s more. Pay close attention to the first golden nugget.
So let me turn to those golden nuggets.
First, the State had argued as an alternative procedural bar that petitioner had waived the Brady claim. The Supreme Court roundly rejected it, finding that the state courts simply had not held that petitioner had waived it.
The court then explained that it had no independent obligation to determine whether it had in fact been waived. If the state court did not conclude that it was waived, that’s the end of it. The Court stated, “Although we have an independent duty to scrutinize the application of state rules that bar our review of federal claims, we have no concomitant duty to apply state procedural bars where state courts have themselves declined to do so.”
For New York petitioners, this is great news. It means that if an appellate court decides to address the merits of a claim, even though there may be preservation questions, the State cannot go into federal court and argue that federal review is barred because the claim was not properly preserved. If the state court does not find a procedural default, the federal courts will not “second-guess” its judgment. The Second Circuit had held that way (actually, it was decisin written by Sotomayor, I believe), but now the Supreme Court has confirmed it. So that’s good news. It’s now rock solid law.
Further, that quote up there is pretty broad language: “duty to scrutinize the application of state rules.” It is critical to note that it does not appear that the Supreme Court has ever framed adequacy that way. When this sentence is put together with the Court’s finding that the state court had not properly applied its own rule, it further supports the idea that federal courts should now be asking whether the state courts misapplied procedural rules in order to determine adequacy. This is pretty big.
The other big, golden nugget seems to answer the whole de novo vs. deference question I had previously discussed here and here. In fact, I am not sure what the debate over Miryance was all about. At least, I seem to have mischaracterized the debate.
In Cone, after finding that the claim was reviewable on habeas, the Court went on to review the merits. Incredibly, it stated, “Because the Tennessee courts did not reach the merits of Cone’s Brady claim, federal habeas review is not subject to the deferential standard that applies under AEDPA to ‘any claim that was adjudicated on the merits in State court proceedings.’ 28 U.S.C. § 2254(d). Instead, the claim is reviewed de novo.”
Wow! This really is a big deal and I have not seen much mentioned about it. It’s so important, that I am going to save my thoughts for a separate post. It’s pretty exciting in my mind.
So, in the end, Cone is a really interesting case. On its surface, it settles a question that was already pretty much settled. However, underneath that surface, the Court drops some gems that are really favorable to habeas petitioners.
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