conducting such a harmless-error analysis after noting that Coe “drew a distinction between re-weighing and harmless error analysis and held that a federal habeas court is permitted to undertake the latter”
How later courts described this case
- conducting such a harmless-error analysis after noting that Coe “drew a distinction between re-weighing and harmless error analysis and held that a federal habeas court is permitted to undertake the latter”
- concluding the AEDPA standard of review did not apply when no state court had considered the particular issue to be decided
Written by the judges who cited it.
The opinion
ALAN E-. NORRIS, Circuit Judge,
dissenting.
As my concurrence in this court’s initial panel decision makes clear, Cone v. Bell, 243 F.3d 961 (6th Cir.2001), I harbor grave reservations about the appropriateness of the death penalty in this case. However, our analysis was soundly rejected by the Supreme Court. Bell v. Cone, 535 U.S. 685 , 122 S.Ct. 1843 , 152 L.Ed.2d 914 (2002). On remand, the majority concludes that the writ should issue on a ground not reached in our prior opinion. While I am reluctant to part company with *806 my colleagues in this case, I feel obliged to do so because the majority’s construction of Tennessee law with respect to “implicit review” as it applies to wáiver lacks any clear support from the Tennessee courts. I therefore respectfully dissent.
To its credit, the majority candidly acknowledges the tenuousness of its position with respect to whether petitioner has procedurally defaulted his Eighth Amendment claim. For lack of more compelling authority, the majority hitches its wagon to State v. West, 19 S.W.3d 753 (Tenn.2000), a case that it concedes contains a “seeming contradiction” because it holds that defendant’s vagueness claim was both “previously determined” and “waived.” Maj. Op. at 792 (citing West, 19 S.W.3d at 756 ). However, West primarily focuses upon waiver: “[Wjhen West failed to raise the [vagueness] issue on direct appeal, he effectively blocked any consideration of this issue by this Court on post-conviction review.” West, 19 S.W.3d at 756 .
In Coe v. Bell, 161 F.3d 320 (6th Cir. 1998), an opinion in which I also concurred, we reviewed a district court reading of Tennessee Code Ann. § 39-2-205 (1982) for “the notion that, in capital cases, the state supreme court has to review significant errors, whether or not they were raised by the defendant.” Id. at 336. Coe rejected this reading as “too broad, as it would eliminate the entire doctrine of procedural bar in Tennessee capital cases.” Id. As the majority points out, virtually every other circuit that has reviewed analogous state-law provisions has expressed similar concerns. Majority Op. at 789-90 (citing cases). Aware of the potential sweep of its conclusion, the majority seeks to reign it in by drawing the following distinction:
[T]he implicit review doctrine, as we apply it today in this case, does not foreclose the possibility that other death penalty defendants may procedurally default on other constitutional issues not raised on direct appeal. The language of Tennessee’s mandatory review statute provides a basis to distinguish between vagueness challenges and other constitutional claims, since it requires the Tennessee Supreme Court to look specifically for sentences “imposed in any arbitrary fashion.”
Maj. Op. at 793. Given that the scope of procedural default is a matter of state law, I would be much more comfortable if the majority had cited a single Tennessee opinion that explicitly draws this distinction. Frankly, I do not find it in West , and the majority concedes that “[t]he conceptual leap from [reviewing] claims explicitly raised on direct appeal, although not properly preserved, to claims not raised at all is significant and, without West , there would be no Tennessee authority for attempting it.” Maj. op. at 792. Given the inherent contradictions in West , it is a leap that I am unwilling to make without further guidance from the courts of Tennessee.
For the foregoing reasons, I respectfully dissent.