"what We Meant Was ..." the Supreme Court Clarifies Two Ineffective Assistance Cases in Bell v. Cone - Stuart E. Walker

• Jurisdiction: United States,Federal
• Citation: Vol. 54 No. 3
• Publication year: 2003
• topic: Constitutional Law,Criminal Law

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"What We Meant Was . . ." The Supreme

Court Clarifies Two Ineffective Assistance

Cases in Bell v. Cone^*

In Bell v. Cone,¹ the Supreme Court held that an ineffective assistance claim premised on attorney errors made at "specific points" during a trial was governed by the performance and prejudice standard set forth in Strickland v. Washington.² In doing so, the Court refused to extend its holding in United States v. Cronicf which allows prejudice to be presumed in certain ineffective assistance challenges, beyond a narrow class of cases, including those in which an attorney demonstrates a "complete failure."⁴ Consequently, because most ineffective assistance claims target specific decisions made by trial counsel, the Strickland standard will continue to govern in most instances. Due to the arduous task of satisfying Strickland's prejudice component, the Court's decision in Bell solidifies the practical difficulty of obtaining federal habeas corpus relief for ineffective assistance claims.

I. Factual Background

On August 9, 1980, Gary Bradford Cone shocked the city of Memphis, Tennessee by embarking on a two-day crime spree resulting in two brutal murders. The crimes began with the burglary of a local jewelry store, from which Cone stole nearly $112,000 in merchandise. In an attempt to evade authorities, he led a police officer on a high-speed chase through mid-town Memphis, finally abandoning his car in a residential neighborhood. While fleeing the scene, Cone shot both an officer who was assisting in the apprehension and a citizen who challenged his flight. He then drew a gun on a second citizen in an effort to steal his automobile.⁵

Cone managed to elude law enforcement officials for the rest of the night, only to reemerge the next morning at the door of a resident in the same neighborhood where the chase ended. He left after the resident refused to let him inside to use the telephone, but not before brandishing a gun once again. That same afternoon, Cone broke into the home of Shipley and Cleopatra Todd, an elderly couple who lived several blocks away. When the Todds refused to help Cone escape, he savagely beat them to death. Cone stole enough money from the Todds home to fly to Florida, where he was later apprehended. Authorities found the mutilated bodies of Mr. and Mrs. Todd three days later, after worried family members instigated an investigation.⁶

At trial, a jury convicted Cone of first degree murder and murder in the perpetration of a burglary. The jury also convicted him of three charges of assault with intent to commit murder and robbery by use of deadly force. For each of the two murders, Cone received the death penalty. On direct appeal to the Tennessee Supreme Court, Cone's attorney sought reversal on numerous grounds, including selective prosecution, improper voir dire, improper jury instructions, and prosecutorial misconduct. The court, however, found these arguments unpersuasive and affirmed Cone's conviction and sentence.⁷

After the United States Supreme Court denied certiorari to hear the appeal, Cone petitioned the state for post conviction relief.⁸ Cone argued that his counsel rendered ineffective assistance by failing to introduce mitigating evidence or make a final argument to plead for his life during the sentencing phase of the initial trial.⁹ However, the trial judge at the post conviction proceeding found that these decisions did not constitute ineffective assistance.¹⁰ The Court of Criminal Appeals of Tennessee agreed with the lower court, holding that competent attorneys could reasonably disagree about tactical questions such as witness selection and waiver of final argument.¹¹ The appellate court, therefore, affirmed the denial of post conviction relief.¹² Thereafter, the Tennessee Supreme Court refused to hear the appeal,¹³ and the United States Supreme Court denied further review.¹⁴

In 1997 Cone filed a petition in federal district court for a writ of habeas corpus under 28 U.S.C. Sec. 2254,¹⁵ which permits federal courts to hear habeas claims on behalf of persons in custody "pursuant to the judgment of a State court."¹⁶ The district court denied Cone's petition on grounds that he failed to meet the requirements of Sec. 2254(d).¹⁷ The Court of Appeals for the Sixth Circuit affirmed the district court's denial of Cone's habeas claim with respect to his conviction, but reversed the denial with respect to his death sentence.¹⁸ The court reasoned that the egregiousness of his attorney's failure to introduce mitigating factors and make a final argument at the sentencing phase "amount[ed] to a virtual abandonment of the adversarial process."¹⁹ The court disagreed with the district court's application of the Strickland test for ineffective assistance claims, which requires a showing of both deficient representation and prejudice to the defense.²⁰ Instead, the court of appeals applied the Cronic standard,²¹ holding that Cone was entitled to a presumption of prejudice because his counsel failed to subject the prosecution's case to "meaningful adversarial testing."²² According to the court of appeals, the district court unreasonably applied the Strickland standard to Cone's case.²³ Hence, relying on Sec. 2254(d)(1)'s "unreasonable application" provision, the Sixth Circuit partially granted Cone s petition for habeas corpus.²⁴

The United States Supreme Court granted certiorari to correct what it perceived to be a misreading of Cronic by the Sixth Circuit.²⁵ The Court determined that because Cone challenged his attorney s performance only at "specific points" during his trial, he was not entitled to the Cronic prejudice exception, which is reserved primarily for instances in which an attorney's failure is complete with respect to the whole trial.²⁶ The Court held that the Strickland standard governed because Cone s allegations were similar to those in other cases in which the Court applied the performance and prejudice test.²⁷ In addition, the Court pointed out that to prevail, Cone must show that the state court s application of Strickland was "objectively unreasonable," which he failed to do.²⁸ Thus, the Supreme Court reversed the Sixth Circuit, denying Cones habeas petition.²⁹

II. Legal Background

A. Writ of Habeas Corpus

State criminal defendants may vindicate their constitutional rights in federal court by seeking a writ of habeas corpus through a collateral attack.³⁰ The writ of habeas corpus, or the "Great Writ" as Blackstone referred to it, is part of America s legal heritage, tracing its origin back to thirteenth century England.³¹ Both the United States Constitu-tion³² and the Judiciary Act of 1789³³ mention the writ expressly. At the time, however, habeas writs applied to only federal prisoners. In 1867 Congress passed the Habeas Corpus Act,³⁴ which broadened the scope of habeas jurisdiction to include state prisoners.³⁵ The Act permitted federal courts to issue the writ in "all cases where any person may be restrained of his or her liberty in violation of the constitu- tion."³⁶

The modern authority for federal courts to issue habeas writs is codified at 28 U.S.C. Sec. 2241-2255.³⁷ Specifically, Sec. 2254 provides certain procedural guidelines for issuing the writ to state prisoners. Interestingly, however, Congress did not pass legislation designed to flesh out the substantive contours of federal habeas procedure until the mid-1990s.³⁸ On April 24, 1996, President Clinton signed the Antiter- rorism and Effective Death Penalty Act³⁹ ("AEDPA") into law.⁴⁰ One of the avowed purposes of the Act was "to curb the abuse of the statutory writ of habeas corpus, and to address the acute problems of unnecessary delay and abuse in capital cases."⁴¹ In fact, President Clinton, in his signing statement, declared that "[f]or too long, and in too many cases, endless death row appeals have stood in the way of justice being served."⁴² In an effort to streamline the federal appeals process and give more finality to state court proceedings, the AEDPA amended several provisions of the United States Code dealing with the issuance of writs of habeas corpus.⁴³ The amendment of Sec. 2254(d) brought the most important substantive change. For thirty years prior to the passage of the AEDPA, Sec. 2254(d) required federal courts to presume the correctness of issues determined in state courts, but listed numerous exceptions a defendant could rely on to rebut the general presumption.⁴⁴

The current version of Sec. 2254(d) no longer permits defendants such broad latitude; instead, it significantly restricts their ability to obtain a habeas writ. It provides that a writ based on a state court proceeding shall not be granted unless the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."⁴⁵ While federal courts still have independent authority to review cases adjudicated in state courts, the AEDPA makes clear that such cases must be given full effect to the extent they are consistent with federal law.

Prior to congressional efforts to restrict habeas practice, case law in this area revealed a similar attitude in the Supreme Court. In 1989 the Court decided Teague v. Lane,⁴⁶ perhaps, according to one source, the most significant habeas decision in the last fifteen years.⁴⁷ The Court in Teague significantly limited the scope of habeas relief, holding that an individual involved in a collateral attack may not rely on a federal rule of law that was not in existence at the time his state conviction became final.⁴⁸ The Court based its decision not to extend new constitutional rules retroactively on considerations of finality in the criminal context.⁴⁹ It noted the fundamental importance of finality to our system of criminal justice and commented that "[w]ithout [it], the criminal law is deprived of much of its deterrent effect."⁵⁰

Eleven years after that...