New Cert. Petition: Cone v. Bell
Yesterday, in conjunction with the Stanford Supreme Court Litigation Clinic, Akin Gump filed this cert. petition in the case of Cone v. Bell (the appendix is here). The full Question Presented in this habeas case is reproduced after the jump.
Tom is counsel of record, and along with him on the brief are Patricia Millett, also of Akin Gump; Paul Bottei of the Office of the Federal Public Defender of the Middle District of Tennessee; Amy Howe and Kevin Russell of Howe & Russell; and Pam Karlan and Jeff Fisher of the Stanford Clinic. The students in the Clinic who so ably assisted are Scott Stewart, Barbara Thomas, and Alan Mouristen.
On state post-conviction review, the Tennessee courts refused to consider petitioner’s claim under Brady v. Maryland, 373 U.S. 83 (1963), on the ground that the claim had already been “previously determined” in the state system. On federal habeas, a divided panel of the Sixth Circuit held that the state courts’ ruling precluded consideration of the Brady claim. The court of appeals reasoned (in conflict with decisions of five other circuits) that the claim had been “procedurally defaulted.” The court of appeals further reasoned (widening an existing four-to-two circuit split) that the state courts’ ruling was unreviewable. Seven judges dissented from the denial of rehearing en banc. The question presented is whether petitioner is entitled to federal habeas review of his claim that the State suppressed material evidence in violation of Brady v. Maryland, which encompasses two subquestions:
1. Is a federal habeas claim “procedurally defaulted” because it has been presented twice to the state courts?
2. Is a federal habeas court powerless to recognize that a state court erred in holding that state law precludes reviewing a claim?
The answer to Question 2 as phrased is “yes.” In some cases, though, a federal court may decide that a state court decision is such a departure from prior law as to make the state ground “inadequate.”
Of course, Question 2 is moot if the answer to Question 1 is “yes.”
Comment by Kent Scheidegger — February 26, 2008 @ 5:48 pm
Way to Go guys!
Comment by Major Mori — February 26, 2008 @ 6:18 pm
Kent — Wrong. 2254 provides for the grant of the writ “contrary to … clearly established Federal law.” Sounds like simple error to me, so long as the error concerns federal law and is clearly established by the Supreme Court. Last I heard, Brady vas a Supreme Court decision involving federal law. Of course if you mean by “clearly established” what we call a white-horse case, Bell’s name isn’t Brady and Tennessee isn’t Maryland, but that’s Scalia’s line.
Comment by Roger Friedman — February 26, 2008 @ 6:23 pm
Question: Would a “Clearly erroneous” application or interpretation of state law be such independent but inadequate state grounds warranting review? I hate hypothetical questions, don’t you? But for instance, what if petitioner’s claim was not defaulted or waived? Or is that only matter of opinion which can’t be reviewed? Where is the line to be drawn?
Comment by Major Mori — February 26, 2008 @ 6:41 pm
Roger, do you understand the difference between the procedural default rule and the 2254(d) deference standard? Do you understand that Question 2 is about the former and the latter is irrelevant?
Comment by Kent Scheidegger — February 27, 2008 @ 10:25 am