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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the constitutional protections of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

This case involves the proper interpretation of Congress's landmark reform of habeas corpus law in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). This law, if properly implemented, will greatly reduce unnecessary delay in the enforcement of capital punishment and reduce the number of correct criminal judgments erroneously overturned on federal habeas. These changes would advance the rights of victims and society which CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

On August 10, 1980, Gary Cone murdered Shipley O. Todd, age 93, and his wife Cleopatra Todd, age 79. State v. Cone, 665 S. W. 2d 87, 89-90 (Tenn. 1984). Over twenty-one years later, justice remains on hold, even though Cone's identity as the perpetrator has never been in doubt. See id., at 90.

This senseless and brutal crime was the culmination of a series of crimes in which Cone endangered and injured numerous people. First, he robbed a jewelry store. Then he led police on a high-speed chase through mid-town Memphis and into a residential neighborhood. Then he shot a police officer. Then he shot a civilian, John Clark, who challenged him. Then he carjacked a car. Even though the owner of that car fled, Cone tried to shoot him as well. Fortunately, he was out of ammunition. He drew a pistol on Lucille Tuech when she refused to let him into her apartment. Ibid.

Cone broke into the Todds' home, beat them to death, and ransacked the house. He used the proceeds of this crime to make his escape to Florida. Ibid.

Cone made a mental defense in the guilt phase. The jury rejected it based on contrary expert testimony and evidence contradicting the factual basis of Cone's experts' diagnosis. Id., at 91-92. Cone was sentenced to death, id., at 90, and the Tennessee Supreme Court affirmed on direct appeal. Id., at 92.

The state then provided extensive post-conviction review. The trial court held an evidentiary hearing to consider Cone's claims, including his ineffective assistance claim. Among other contentions, he claimed it was ineffective for trial counsel not to introduce mitigating evidence in the penalty phase and to waive oral argument. See Findings of Fact and Conclusions of Law 4, J. A. 82.

The trial court credited the testimony of defense counsel that the additional testimony of family members "was contradictory and generally not helpful." Id., at 5, J. A. 84. His strategy had been to get the mitigation evidence in during the guilt phase. Ibid. As notedsupra, defense counsel did introduce the mental defense evidence in that phase. The court further credited the testimony of defense counsel that waiver of closing argument was a strategic choice, which precluded a final argument by a prosecutor with a "reputation for devastating closing arguments." Ibid. Applying Strickland v. Washington, 466 U. S. 668 (1984) and Darden v. Wainwright, 477 U. S. 168 (1986), the court found that counsel's performance was not deficient. Id., at 5-6, J. A. 84. The state intermediate appellate court affirmed on similar reasoning, noting in addition, "the finding of guilt and the imposition of the death penalty were based upon the facts and the law--not by shortcomings of counsel." Cone v. State, 747 S. W. 2d 353, 357-358 (Tenn. Crim. App. 1987).

Extended litigation over a successive petition followed, ultimately concluding in a decision that all the claims in it were either previously determined or defaulted. Cone v. State, 927 S. W. 2d 579, 580, 582 (Tenn. Crim. App. 1995), cert. denied, 519 U. S. 934 (1996).

Cone filed the present petition in Federal District Court on July 1, 1997. Cone v. Bell, 243 F. 3d 961, 966 (CA6 2001). The District Court denied the writ and denied a certificate of appealability in an extensive opinion. The District Court agreed with the state courts that counsel had made a strategic decision not to introduce evidence he believed would hurt more than help, that the available mitigating evidence had been introduced in the guilt phase, and that there is no reasonable probability that the evidence not introduced would have changed the result. App. to Pet. for Cert. 77-80. Regarding waiver of closing argument, the District Court noted that the prosecutor's closing remarks dealt only with the undisputed existence of aggravating circumstances, rather than an effective argument for the death penalty. Trial counsel therefore had a tactical basis for waiving argument and thereby precluding the prosecution's rebuttal, where he expected a far more effective argument to be made. Further, the District Court concluded that the state court's application of the law to the facts was reasonable. App. to Pet. for Cert. 81.

On appeal, the Sixth Circuit "reject[ed] out of hand" the unanimous conclusion of all the state and federal jurists who had examined the case to that point, that counsel had made a strategic choice. 243 F. 3d, at 979. The court found that a presumption of prejudice was raised and that "Cone need not show actual prejudice." Ibid.

On December 10, 2001, this Court granted the state's petition for certiorari.

SUMMARY OF ARGUMENT

The statute at the center of this case, 28 U. S. C. §2254(d), was the centerpiece of the habeas reform portion of the Antiterrorism and Effective Death Penalty Act of 1996. It should be interpreted and applied in a way that will achieve the objectives of Congress: to speed up the processing of habeas cases and to greatly reduce, if not eliminate, the erroneous nullification of correct state judgments by the federal district and circuit courts.

The question of whether §2254(d) bars habeas relief should be decided as a threshold matter, at the same time as any retroactivity question. In most cases, this resolution will make it unnecessary to address the underlying claim, reducing the delay in habeas cases.

The "unreasonable application" prong of a §2254(d)(1) analysis need only consider whether the state court's application of the law to the facts reached a reasonable result. There is no need to inquire whether the state court was reasonable in extending or not extending Supreme Court precedent to a new context. That issue is included in the analysis of what rule of law is "clearly established."

The state courts in the present case correctly recognized and applied the two-part test of Strickland v. Washington, including its requirement that the habeas petitioner affirmatively show prejudice. The Sixth Circuit's rule of presumed prejudice in the context of the present case is not "clearly established"; the contrary rule is clearly established.

Under the "unreasonable application" prong of §2254(d)(1), the state court decision should stand if the outcome of applying the law to the facts of the case is "susceptible to debate among reasonable minds," the standard from Butler v. McKellar. This standard is consistent not only with the Teague line of cases, but also the qualified immunity cases and United States v. Leon. It is consistent with the interpretation of Williams v. Taylor, emphasizing the objective nature of the test but otherwise accepting it as a Teague-like inquiry.

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.