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?