PER CURIAM
BELL V. CONE
543 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
RICKY BELL, WARDEN
v. GARY BRADFORD
CONE
on petition for writ of certiorari to the united
states court of appeals for the sixth circuit
No. 04–394.Decided January 24, 2005
Per Curiam.
The United States Court of
Appeals for the Sixth Circuit granted a writ of habeas corpus to
respondent Gary Bradford Cone after concluding that the “especially
heinous, atrocious, or cruel” aggravating circumstance found by the
jury at the sentencing phase of his trial was unconstitutionally
vague, and that the Tennessee Supreme Court failed to cure any
constitutional deficiencies on appeal. 359 F. 3d 785, 799
(2004). Because this result fails to accord to the state court the
deference required by 28 U. S. C. §2254(d), we grant the
petition for certiorari and respondent’s motion to proceed
in
forma pauperis and reverse.
I
Respondent killed Shipley Todd,
93, and his wife Cleopatra, 79, on August 10, 1980, in their home
at the conclusion of a 2-day crime spree. The killings were
accomplished in a brutal and callous fashion: The elderly victims
were “repeatedly beaten about the head until they died,”
State v.
Cone, 665 S. W. 2d 87, 90–91 (Tenn.
1984), and their bodies were subsequently discovered “horribly
mutilated and cruelly beaten,”
id., at 90. A Tennessee
jury convicted respondent of,
inter alia, two counts of
murder in the first degree and two counts of murder in the first
degree in the perpetration of a burglary. At the conclusion of the
penalty phase of respondent’s trial, the jury unanimously found
four aggravating circumstances[
Footnote 1] and concluded that they outweighed the
mitigating evidence. Respondent was sentenced to death.
The Tennessee Supreme Court
affirmed respondent’s convictions and sentence.
Id., at
96. As relevant here, the court held that three of the aggravating
circumstances found by the jury “were clearly shown by the
evidence.”
Id., at 94.[
Footnote 2] With respect to the jury’s finding that the
murder was “especially heinous, atrocious, or cruel,” the court
said:
“The jury also found that the
murders in question were especially heinous, atrocious, or cruel in
that they involved torture or depravity of mind as provided in
[Tenn. Code Ann.] §39–2–203(i)(5). The evidence abundantly
established that both of the elderly victims had been brutally
beaten to death by multiple crushing blows to the skulls. Blood was
spattered throughout the house, and both victims apparently had
attempted to resist, because numerous defensive wounds were found
on their persons. The only excuse offered in the entire record for
this unspeakably brutal conduct by the accused was that these
elderly victims had at some point ceased to ‘cooperate’ with him in
his ransacking of their home and in his effort to flee from arrest.
As previously stated, it was stipulated by counsel for [respondent]
that there was no issue of self-defense even remotely suggested.
The deaths of the victims were not instantaneous, and obviously one
had to be killed before the other. The terror, fright and horror
that these elderly helpless citizens must have endured was
certainly something that the jury could have taken into account in
finding this aggravating circumstance.”
Id., at 94–95.
Respondent twice sought relief
from his conviction and sentence in collateral proceedings in state
court, to no avail. In his second amended petition for
postconviction relief, respondent raised 52 independent claims of
constitutional error, including a contention that the “especially
heinous, atrocious, or cruel” aggravating circumstance was
unconstitutionally vague under the Eighth Amendment. The state
trial court held each of respondent’s claims barred by Tenn. Code
Ann. §40–30–111 (Lexis 1990), which limited the grounds that may be
raised on collateral review to those not waived or previously
determined in previous proceedings. The trial court explained that
respondent’s constitutional challenge to the “heinous, atrocious,
or cruel” aggravating circumstance, along with many other claims,
was “clearly [a] re-statemen[t] of previous grounds heretofore
determined and denied by the Tennessee Supreme Court upon Direct
Appeal or the Court of Criminal Appeals upon the First Petition.”
Cone v.
State, No. P–06874 (Tenn. Crim. Ct., Dec.
16, 1993), p. 6. The Tennessee Court of Criminal Appeals affirmed
the denial of relief on all grounds.
Cone v.
State, 927 S. W. 2d 579, 582 (1995). The State Supreme
Court denied respondent permission to appeal.
II
In 1997, respondent sought a writ
of habeas corpus under 28 U. S. C. §2254 in the United States
District Court for the Western District of Tennessee, again
asserting a multitude of claims. The District Court denied relief;
it held respondent’s vagueness challenge to the “especially
heinous, atrocious, or cruel” aggravating circumstance to be
procedurally barred by respondent’s failure to raise it on direct
appeal in state court. The Court of Appeals for the Sixth Circuit
subsequently held that respondent was entitled to relief on another
ground and did not consider respondent’s challenges to the
aggravating circumstances found by the jury.
Cone v. Bell, 243 F. 3d 961, 975 (2001).
We reversed that judgment. Bell v. Cone, 535 U. S. 685, 702
(2002).
On remand, the same
panel of the Sixth Circuit again granted respondent a writ of
habeas corpus, this time with one judge dissenting, on the ground
that the “especially heinous, atrocious, or cruel” aggravator was
unconstitutionally vague under the Eighth Amendment. The court
first rejected petitioner’s argument that respondent procedurally
defaulted the claim in state court. Based on its understanding of
state law, the court concluded that the State Supreme Court’s
statutorily mandated review of each death sentence, see Tenn. Code
Ann. §39–2–205(c)(1) (Lexis 1982), necessarily included the
consideration of constitutional deficiencies in the aggravating
circumstances found by the jury and therefore that the issue was
“fairly presented” to the state court, even if respondent did not
raise it himself.[Footnote 3]
359 F. 3d, at 791–793. Judge Norris dissented on this point.
Id., at 806.
Turning to the merits, the Sixth
Circuit held that the state court’s affirmance of respondent’s
sentence in light of the “especially heinous, atrocious, or cruel”
aggravating circumstance was “contrary to” the clearly established
principles set forth in our decision in Godfrey v.
Georgia, 446 U. S. 420 (1980). The Court of
Appeals allowed that “[n]o Supreme Court case has addressed the
precise language at issue,” 359 F. 3d, at 795, and that no
“Supreme Court decision is ‘on all fours’ with the instruction in
Cone’s case,”[Footnote 4]
id., at 796, but nevertheless concluded, in light of
Godfrey and the series of cases that followed it,
Maynard v. Cartwright, 486 U. S. 356 (1988),
Walton v. Arizona, 497 U. S.639 (1990), and
Shell v. Mississippi, 498 U. S. 1 (1990)
(per curiam), that federal law dictated the conclusion
that the State’s “especially heinous, atrocious, or cruel”
aggravator was unconstitutionally vague.[Footnote 5] 359 F. 3d, at 797. Lastly, the court
rejected petitioner’s argument that the Tennessee Supreme Court
cured any deficiency in the aggravating circumstance on direct
appeal by reviewing the jury’s finding under the narrowed
construction of the aggravator that it adopted in State v.
Dicks, 615 S. W. 2d 126 (1981). 359 F. 3d, at
797.
III
A federal court may
grant a writ of habeas corpus based on a claim adjudicated by a
state court if the state-court decision “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U. S. C. §2254(d)(1). A state court’s decision is
“contrary to . . . clearly established Federal law” “if the state
court applies a rule that contradicts the governing law set forth
in our cases,” or “if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court
precedent and arrives at a result opposite to ours.”
Williams v. Taylor, 529 U. S. 362, 405
(2000).
The law governing
vagueness challenges to statutory aggravating circumstances was
summarized aptly in Walton v. Arizona,
supra, overruled on other grounds, Ring v.
Arizona, 536 U. S. 584 (2002):
“When a federal court
is asked to review a state court’s application of an individual
statutory aggravating or mitigating circumstance in a particular
case, it must first determine whether the statutory language
defining the circumstance is itself too vague to provide any
guidance to the sentencer. If so, then the federal court must
attempt to determine whether the state courts have further defined
the vague terms and, if they have done so, whether those
definitions are constitutionally sufficient, i.e., whether
they provide some guidance to the sentencer.”
Walton, supra, at 654.
These principles were plain enough at
the time the State Supreme Court decided respondent’s appeal. In
Proffitt v. Florida, 428 U. S. 242 (1976), we
upheld the aggravating circumstance that the murder was
“ ‘especially heinous, atrocious or cruel’ ” on the
express ground that a narrowing construction had been adopted by
that State’s Supreme Court. Id., at 255 (joint opinion of
Stewart, Powell, and Stevens, JJ.). And, in Gregg v.
Georgia, 428 U. S. 153 (1976), we
refused to invalidate the aggravating circumstance that the murder
was “ ‘outrageously or wantonly vile, horrible or inhuman in
that it involved torture, depravity of mind, or an aggravated
battery to the victim,’ ” because “there [was] no reason to
assume that the Supreme Court of Georgia will adopt . . . an
open-ended construction” that is potentially applicable to any
murder. Id., at 201 (joint opinion of Stewart, Powell, and
Stevens, JJ.). See generally Lewis v. Jeffers,
497 U. S. 764,
774–777 (1990) (reviewing cases).
Indeed, in Godfrey,
446 U. S. 420, the case on which the
Court of Appeals relied in declaring the aggravating circumstance
to be unconstitutionally vague, the controlling plurality opinion
followed precisely this procedure. Like the court below, the
plurality looked first to the language of the aggravating
circumstance found by the jury and concluded that there “was
nothing in these few words, standing alone, that implies any
inherent restraint on the arbitrary and capricious infliction of
the death sentence.” Id., at 428. But the plurality did
not stop there: It next evaluated whether the Georgia Supreme Court
“applied a constitutional construction” of the aggravating
circumstance on appeal. Id., at 432. Because the facts of
the case did not resemble those in which the state court had
previously applied a narrower construction of the aggravating
circumstance and because the state court gave no explanation for
its decision other than to say that the verdict was “factually
substantiated,” the plurality concluded that it did not.
Id., at 432–433. As we have subsequently explained, this
conclusion was the linchpin of the Court’s holding: “Had the
Georgia Supreme Court applied a narrowing construction of the
aggravator, we would have rejected the Eighth Amendment challenge
to Godfrey’s sentence, notwithstanding the failure to instruct the
jury on that narrowing construction.” Lambrix v.
Singletary, 520 U. S. 518, 531
(1997). See also Walton, 497 U. S., at 653–654;
Cartwright, 486 U. S., at 363–365 (refusing to countenance
the Oklahoma Court of Criminal Appeals’ affirmance of a death
sentence based on a facially vague aggravating circumstance where
that court had not adopted a narrowing construction of its
aggravator when it affirmed the prisoner’s sentence).[Footnote 6]
In this case, however, the Sixth
Circuit rejected the possibility that the Tennessee Supreme Court
cured any error in the jury instruction by applying a narrowing
construction of the statutory “heinous, atrocious, or cruel”
aggravator. The court asserted that the State Supreme Court “did
not apply, or even mention, any narrowing interpretation or cite to
[sic] Dicks,” the case in which the State Supreme
Court had adopted a narrowing construction of the aggravating
circumstance. 359 F. 3d, at 797. “Instead,” the court said,
“the [state] court simply, but explicitly, satisfied itself that
the labels ‘heinous, atrocious, or cruel,’ without more, applied to
[respondent’s] crime.” Ibid.
We do not think that a federal
court can presume so lightly that a state court failed to apply its
own law. As we have said before, §2254(d) dictates a “ ‘highly
deferential standard for evaluating state-court rulings,’
Lindh v. Murphy, 521 U. S. 320, 333
n. 7 (1997), which demands that state-court decisions be given
the benefit of the doubt.” Woodford v. Viscotti,
537 U. S. 19, 24
(2002) (per curiam). To the extent that the Court of
Appeals rested its decision on the state court’s failure to cite
Dicks, it was mistaken. Federal courts are not free to
presume that a state court did not comply with constitutional
dictates on the basis of nothing more than a lack of citation. See
Mitchell v. Esparza, 540 U. S. 12, 16 (2003)
(per curiam); Early v. Packer, 537 U. S. 3, 8 (2002)
(per curiam).
More importantly, however, we find
no basis for the Court of Appeals’ statement that the state court
“simply, but explicitly, satisfied itself that the labels ‘heinous,
atrocious, or cruel,’ without more, applied” to the murder. 359
F. 3d, at 797. The state court’s opinion does not disclaim
application of that court’s established construction of the
aggravating circumstance; the only thing that it states
“explicitly” is that the evidence in this case supported the jury’s
finding of the statutory aggravator. See Cone, 665 S. W.
2d, at 95 (stating that the aggravating circumstance was
“indisputably established by the record”). As we explain below, the
State Supreme Court had construed the aggravating circumstance
narrowly and had followed that precedent numerous times; absent an
affirmative indication to the contrary, we must presume that it did
the same thing here. See Viscotti, supra, at 24
(stating the presumption that state courts “know and follow the
law”); Lambrix, supra, at 532, n. 4;
Walton, supra, at 653. That is especially true in
a case such as this one, where the state court has recognized that
its narrowing construction is constitutionally compelled and has
affirmatively assumed the responsibility to ensure that the
aggravating circumstance is applied constitutionally in each case.
See State v. Pritchett, 621 S. W. 2d 127, 139,
140 (Tenn. 1981).
Even absent such a presumption in
the state court’s favor, however, we would still conclude in this
case that the state court applied the narrower construction of the
“heinous, atrocious, or cruel” aggravating circumstance. The State
Supreme Court’s reasoning in this case closely tracked its
rationale for affirming the death sentences in other cases in which
it expressly applied a narrowed construction of the same “heinous,
atrocious, or cruel” aggravator. Accord, Godfrey, 446 U.
S., at 432 (holding that “the circumstances of this case … do not
satisfy the criteria [for torture] laid out by the Georgia Supreme
Court itself” in its cases construing the aggravating
circumstance). The facts the court relied on to affirm the jury’s
verdict—that the elderly victims attempted to resist, that their
deaths were not instantaneous, that respondent’s actions towards
them were “unspeakably brutal” and that they endured “terror,
fright and horror” before being killed, 665 S. W. 2d, at
95—match, almost exactly, the reasons the state court gave when it
held the evidence in State v. Melson, 638
S. W. 2d 342, 367 (1982), to be sufficient to satisfy the
torture prong of the narrowed “heinous, atrocious, or cruel”
aggravating circumstance. See also Pritchett,
supra, at 139 (finding the evidence to be insufficient to
satisfy a narrowed construction of the aggravator where the
victim’s death was “instantaneous”); State v.
Campbell, 664 S. W. 2d 281, 284 (Tenn. 1984) (holding
that evidence of the aggravator was “overwhelming” where an elderly
murder victim was beaten to death with a blunt object and his hands
showed that he had attempted to defend himself). Similarly, the
state court’s findings that respondent’s victims had been “brutally
beaten to death by multiple crushing blows to the skulls,” that
“[b]lood was spattered throughout the house,” and that the victims
were helpless, 665 S. W. 2d, at 94–95, accord with the reasons
that the state court had previously found sufficient to support
findings of depravity of mind. See Melson, supra,
at 367; State v. Groseclose, 615 S. W. 2d
142, 151 (Tenn. 1981); Strouth v. State, 999
S. W. 2d 759, 766 (Tenn. 1999). In sum, a review of the state
court’s previous decisions interpreting and applying the narrowed
construction of the “heinous, atrocious, or cruel” aggravator
leaves little doubt that the State Supreme Court applied that same
construction in respondent’s case.[Footnote 7]
The only remaining question is
whether the narrowing construction that the Tennessee Supreme Court
applied was itself unconstitutionally vague. See Walton,
497 U. S., at 654; Godfrey, supra, at 428. It was
not. In State v. Dicks, 615 S. W. 2d 126
(Tenn. 1981), the state court adopted the exact construction of the
aggravator that we approved in Proffitt, 428 U. S., at
255: that the aggravator was “directed at ‘the conscienceless or
pitiless crime which is unnecessarily torturous to the
victim,’ ” Dicks, supra, at 132. See also
Sochor v. Florida, 504 U. S. 527, 536
(1992). In light of Proffitt, we think this interpretation
of the aggravator, standing alone, would be sufficient to overcome
the claim that the aggravating circumstance applied by the state
court was “contrary to” clearly established federal law under 28 U.
S. C. §2254(d)(1).
The State Supreme Court’s
subsequent application of this aggravating circumstance, as
construed in Dicks, stands as further proof that it could
be applied meaningfully to narrow the class of death-eligible
offenders. Later in the year that Dicks was decided, the
court elaborated on the meaning of the aggravator:
“Although the
Tennessee aggravating circumstances [sic] [that the murder
was heinous, atrocious, or cruel], does not contain the phrase, ‘an
aggravated battery to the victim’ it is clear that a constitutional
construction of this aggravating circumstance requires evidence
that the defendant inflicted torture on the victim before death or
that [the] defendant committed acts evincing a depraved state of
mind; that the depraved state of mind or the torture inflicted must
meet the test of heinous, atrocious, or cruel.” Pritchett,
621 S. W. 2d, at 139 (citation omitted).
With respect to the meaning of
“torture,” the court held that the aggravator was not satisfied
where the victim dies instantly, ibid., but that it was
where “the uncontradicted proof shows that [the victim] had
defensive injuries to her arms and hands, proving that there was
time for her to realize what was happening, to feel fear, and to
try to protect herself,” Melson, supra, at 367.
Accord, Cartwright, 486 U. S., at 364–365 (approving the
limitation of the “heinous, atrocious, or cruel” aggravating
circumstance to killings in which the victim suffered “some kind of
torture or serious physical abuse” prior to the murder). As to
“depravity of mind,” the court held the fact that the defendant
fired a second shotgun blast into a victim after he was dead to be
insufficient as a matter of law, see Pritchett, 621
S. W. 2d, at 139 (explaining that the depravity in such an
action falls short of that exhibited by the defendant in
Godfrey, supra), but concluded that, “a killing
wherein the victim is struck up to thirty times, causing an entire
room to be covered with a spray of flying blood, and causing the
victim’s brains to extrude through the gaping hole in her skull,”
sufficed, Melson, 638 S. W. 2d, at 367.[Footnote 8] In light of these holdings, we
are satisfied that the State’s aggravating circumstance, as
construed by the Tennessee Supreme Court, ensured that there was a
“principled basis” for distinguishing between those cases in which
the death penalty was assessed and those cases in which it was not.
Arave v. Creech, 507 U. S. 463, 474
(1993).
In sum, even assuming that the
Court of Appeals was correct to conclude that the State’s statutory
aggravating circumstance was facially vague, the court erred in
presuming that the State Supreme Court failed to cure this
vagueness by applying a narrowing construction on direct appeal.
The state court did apply such a narrowing construction, and that
construction satisfied constitutional demands by ensuring that
respondent was not sentenced to death in an arbitrary or capricious
manner. See Godfrey, 446 U. S., at 428. The state court’s
affirmance of respondent’s sentence on this ground was therefore
not “contrary to … clearly established Federal law,” 28 U.
S. C. §2254(d)(1), and the Court of Appeals was without power
to issue a writ of habeas corpus. We reverse the judgment of the
Sixth Circuit and remand the case for further proceedings
consistent with this opinion.
It is so ordered.
Footnote 1
The jury found the following
aggravating circumstances: (1) respondent had been convicted of one
or more felonies involving the use or threat of violence to a
person, (2) the murders were “especially heinous, atrocious, or
cruel in that they involved torture or depravity of mind,” (3)
respondent committed the murders for the purpose of preventing a
lawful arrest or prosecution, and (4) respondent knowingly created
a risk of death to two or more persons, other than the victim
murdered, during the murder. See State v. Cone,
665 S. W. 2d 87, 94–95 (Tenn. 1984).
Footnote 2
The state court rejected the
jury’s finding that respondent “ ‘knowingly created a risk of
death to two (2) or more persons, other than the victim murdered,
during his act of murder,’ ” on the ground that the
considerable threat respondent posed to others earlier in the day
was not sufficiently close in time to the murders. Based on the
strength of the other aggravating circumstances before the jury,
the court held this error to be “harmless beyond a reasonable
doubt.” Id., at 95.
Footnote 3
Petitioner argues that the Sixth
Circuit’s conclusion in this regard is in tension with the
decisions of other Courts of Appeals, which have held that a
petitioner must raise his constitutional claim in state court in
order to preserve it, notwithstanding the existence of a
mandatory-review statute. See Mu’min v. Pruett,
125 F. 3d 192, 197 (CA4 1997) (Virginia);
Martinez-Villareal v. Lewis, 80 F. 3d 1301,
1306 (CA9 1996) (Arizona); Kornahrens v. Evatt,
66 F. 3d 1350, 1362 (CA4 1995) (South Carolina); Nave
v. Delo, 62 F. 3d 1024, 1039 (CA8 1995) (Missouri);
Julius v. Johnson, 840 F. 2d 1533, 1546
(CA11 1988) (Alabama). We find it unnecessary to express a view on
this point. See 28 U. S. C. §2254(b)(2) (an application for
habeas corpus may be denied on the merits, notwithstanding a
petitioner’s failure to exhaust in state court). We do emphasize
that, as a general matter, the burden is on the petitioner to raise
his federal claim in the state courts at a time when state
procedural law permits its consideration on the merits, even if the
state court could have identified and addressed the federal
question without its having been raised. See Baldwin v.
Reese, 541
U. S. 27, 30–32 (2004).
Footnote 4
The jury was instructed with
respect to this aggravated circumstance as follows:
“ ‘Heinous’ means extremely wicked or
shockingly evil.
‘Atrocious’ means outrageously wicked and
vile.
‘Cruel’ means designed to inflict a high degree of
pain, utter indifference to, or enjoyment of, the suffering of
others, pitiless.” 359 F. 3d, at 794.
Footnote 5
The court recognized that these
cases post-dated the Tennessee Supreme Court’s 1984 decision on
direct appeal, but, relying on Stringer v. Black,
503 U. S. 222,
225 (1992) (which held that Cartwright did not announce a
“new rule” of constitutional law because its resolution was
dictated by Godfrey), concluded that these later cases
were “not only material, but controlling” and required the
conclusion that Tennessee’s “heinous, atrocious, or cruel”
aggravating circumstance was unconstitutionally vague on its face.
359 F. 3d, at 795. We assume, without deciding, that the Court
of Appeals was correct in this conclusion.
Footnote 6
In Ring v.
Arizona, 536 U. S. 584 (2002), we held that the
Sixth Amendment requires a jury, rather than a judge, to find the
aggravating circumstance that renders a defendant death-eligible.
Id., at 609. Because Ring does not apply
retroactively, Schriro v. Summerlin, 542 U. S.
___ (2004) (slip op., at 10), this case does not present the
question whether an appellate court may, consistently with
Ring, cure the finding of a vague aggravating circumstance
by applying a narrower construction.
Footnote 7
We find additional support for
this conclusion in the fact that respondent’s argument to the State
Supreme Court relied squarely on a case in which that court had
expressly formulated its narrowing construction of the aggravating
circumstance and had applied that construction to the benefit of
the defendant. See Brief for Appellant in No. 02C019403CR00052
(Sup. Ct. Tenn. 1983), p. 20 (arguing, based on State v.
Pritchett, 621 S. W. 2d 127 (Tenn. 1981), that “the
State did not show . . . that the victims suffered”). Likewise, the
two cases the State relied upon in response to respondent’s
argument also expressly applied a narrowing construction of the
“heinous, atrocious, or cruel” aggravator. See Brief for Appellee
in No. 02C019403CR00052 (Sup. Ct. Tenn. 1983), p. 34 (citing
Pritchett, supra, and State v.
Melson, 638 S. W. 2d 342, 367 (Tenn.
1982)).
Footnote 8
See also State v.
Groseclose, 615 S. W. 2d 142, 151 (Tenn. 1981) (holding
that raping and stabbing a victim, before killing her by locking
her in a car trunk in the summer, satisfied the “heinous,
atrocious, or cruel” aggravating circumstance); Strouth v.
State, 999 S. W. 2d 759, 766 (Tenn. 1999) (quoting the
State Supreme Court’s 1981 opinion denying rehearing, which held
that cutting the throat of a victim already rendered unconscious
demonstrated “depravity of mind” in that it was “cold-blooded,
intentional, conscienceless and pitiless”); State v.
Dicks, 615 S. W. 2d 126, 132 (Tenn. 1981) (affirming
the jury’s application of the “heinous, atrocious, or cruel”
aggravator to the same crime).
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