Gary Bradford Cone v. Ricky Bell
Criminal Law and Procedure, Habeas Corpus
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 sub-questions:
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?
Jennifer L. Smith
Associate Deputy Attorney General
Office of the Attorney General of Tennessee
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