cone bell warden argued december decided april state discredited petitioner cone defense killed two people suffering acute psychosis caused drug addiction convicted sentenced death tennessee affirmed direct appeal state courts denied postconviction relief later second petition state postconviction relief cone raised claim state violated brady maryland suppressing witness statements police reports corroborated insanity defense bolstered case mitigation death penalty postconviction denied hearing ground brady claim previously determined either direct appeal earlier collateral proceedings state criminal appeals affirmed cone filed petition writ habeas corpus federal district denied relief holding brady claim procedurally barred state courts disposition rested adequate independent state grounds cone waived failing present claim state even defaulted claim ruled fail merits none withheld evidence cast doubt guilt sixth circuit agreed latter conclusion considered barred reaching claim merits state courts ruled claim previously determined waived state law held state courts rejection cone brady claim rest ground bars federal review neither state asserted justifications bar claim decided state direct review cone waived never properly raising state provides independent adequate state ground denying review cone federal claim state postconviction denial brady claim ground previously determined state rested false premise cone presented claim earlier proceedings consequently state courts passed sixth circuit rejection claim procedurally defaulted twice presented tennessee courts thus erroneous also unpersuasive state alternative argument federal review barred brady claim properly dismissed state postconviction courts waived courts held claim previously determined judgment claim properly preserved exhausted state defaulted pp lower federal courts failed adequately consider whether withheld documents material cone sentence quantity quality suppressed evidence lend support cone trial position habitually used excessive amounts drugs addiction affected behavior murders state contrary arguments false misleading nevertheless even viewed light favorable cone evidence sustain insanity defense behavior crimes inconsistent contention lacked substantial capacity either appreciate wrongfulness conduct conform requirements law likelihood suppressed evidence affected jury verdict insanity issue remote sixth circuit err denying habeas relief ground evidence immaterial jury guilt finding said summary treatment cone claim suppressed evidence influenced jury sentencing recommendation suppressed evidence might material jury assessment proper punishment full review evidence effect sentencing verdict warranted pp vacated remanded stevens delivered opinion kennedy souter ginsburg breyer joined roberts filed opinion concurring judgment alito filed opinion concurring part dissenting part thomas filed dissenting opinion scalia joined gary bradford cone petitioner ricky bell warden writ certiorari appeals sixth circuit april justice stevens delivered opinion right fair trial guaranteed state criminal defendants due process clause fourteenth amendment imposes certain duties consistent sovereign obligation ensure shall criminal prosecutions agurs quoting berger brady maryland held state suppresses evidence favorable accused material guilt punishment state violates defendant right due process irrespective good faith bad faith prosecution case gary cone vietnam veteran sentenced death contends state tennessee violated right due process suppressing witness statements police reports corroborated trial defense bolstered case mitigation death penalty trial cone asserted insanity defense contending killed two people suffering acute amphetamine psychosis disorder caused drug addiction state tennessee discredited defense alleging cone drug addiction baloney ten years later cone learned state suppressed evidence supporting claim drug addiction cone presented new evidence state courts petition postconviction relief tennessee courts denied hearing ground brady claim previously determined either direct appeal conviction earlier collateral proceedings application writ habeas corpus pursuant federal district concluded state courts disposition rested adequate independent state ground barred review federal appeals sixth circuit agreed doubt concerning correctness holding coupled conflicting decisions courts appeals prompted grant certiorari complete review trial postconviction proceedings conclude tennessee courts rejection petitioner brady claim rest ground bars federal review furthermore although district appeals passed briefly merits cone claim neither distinguished materiality suppressed evidence respect cone guilt materiality evidence respect punishment agree withheld documents material question whether cone committed murder requisite mental state lower courts failed adequately consider whether evidence material cone sentence therefore vacate decision appeals remand case district determine first instance whether reasonable probability withheld evidence altered least one juror assessment appropriate penalty cone crimes afternoon saturday august cone robbed jewelry store downtown memphis tennessee fleeing scene car led police chase residential neighborhood abandoned vehicle shot police bystander tried impede escape cone shot escaping foot short time later cone tried hijack nearby car attempt failed driver refused surrender keys cone tried shoot driver hovering police helicopter realizing run ammunition fled scene although police conducted thorough search cone nowhere found early next morning cone reappeared neighborhood door elderly woman asked use telephone refused drew gun able gain entry woman slammed door called police time officers arrived however cone disappeared afternoon cone gained entry home shipley todd wife cleopatra todd cone beat couple death blunt instrument ransacked first floor home later shaved beard escaped airport without caught cone traveled florida arrested several days later robbing drugstore pompano beach tennessee grand jury charged cone two counts murder two counts murder perpetration burglary three counts assault intent murder one count robbery use deadly force jury trial cone challenge overwhelming physical testimonial evidence supporting charges sole defense guilty reason insanity cone counsel portrayed client suffering severe drug addiction attributable trauma cone experienced vietnam counsel argued cone committed crimes suffering chronic amphetamine psychosis disorder brought drug abuse defense supported testimony three witnesses first cone mother described son honorably discharged vietnam veteran changed following return service recalled cone describing terrible handle bodies dead soldiers explained cone slept restlessly sometimes holler ed sleep tr apr also described one occasion following cone return service package shipped contained marijuana war asserted cone used drugs kind two expert witnesses testified cone behalf matthew jaremko clinical psychologist testified cone suffered substance abuse posttraumatic stress disorders related military service vietnam jaremko testified cone expressed remorse murders opined cone mental disorder rendered substantially incapable conforming conduct law jonathan lipman neuropharmacologist recounted length cone history illicit drug use began cone joined army escalated point cone consuming rather horrific quantities drugs daily app according lipman cone drug abuse led chronic amphetamine psychosis disorder manifested hallucinations ongoing paranoia prevented cone obeying law appreciating wrongfulness actions rebutting cone insanity defense state strategy throughout trial present cone calculating intelligent criminal fully control decisions actions time crimes key component strategy involved discrediting cone claims drug state established defense experts opinions based solely cone representations drug use rather independently corroborated sources medical records interviews family friends prosecution also adduced expert lay testimony establish cone addicted drugs acted rationally intentionally todd murders particularly damaging cone defense testimony rebuttal witness ilene blankman spent time cone several months murders whose home cone stayed days leading arrest florida blankman admitted former heroin addict testified longer used drugs tried stay away people testified never seen cone use drugs never observed track marks body never seen exhibit signs paranoia emphasizing state position respect cone alleged addiction prosecutor told jury closing argument ou dealing crazy person insane man man mind dealing submit premeditated cool deliberate even cowardly really murderer tr apr pointing quantity drugs found cone car prosecutor suggested far drug addict cone actually drug dealer prosecutor argued trying absurd says drug addict say baloney drug seller proof show jury rejected cone insanity defense found guilty counts penalty hearing prosecution asked jury find cone crime met criteria four different statutory aggravating factors one render eligible capital cone counsel called witnesses instead rested evidence adduced guilt phase proceedings acknowledging prosecution experts disputed existence cone alleged mental disorder counsel nevertheless urged jury consider cone drug addiction weighing aggravating mitigating factors jury found four aggravating factors unanimously returned sentence ii direct appeal cone raised numerous challenges conviction sentence among claim prosecution violated state law failing disclose statement police reports relating several trial witnesses see app tennessee rejected cone claims affirmed conviction sentence state cone cone filed petition postconviction relief primarily raising claims trial counsel ineffective tennessee criminal appeals affirmed denial petition cone state cone acting pro se filed second petition postconviction relief raising myriad claims error among claim state failed disclose evidence violation rights constitution state behest postconviction summarily denied petition concluding claims raised either previously determined waived order dismissing petition relief cone state crim shelby time specify claims fell category cone appealed denial petition tennessee criminal appeals asserting postconviction erred dismissing claims brady claim among previously determined fact previously addressed determined brief gary bradford cone pp addition cone urged remand case allow assistance counsel rebut presumption waived claims raising earlier stage litigation agreed remanded case proceedings remand counsel appointed amended petition filed state urged postconviction dismiss cone petition apparently conflating disclosure claim cone raised direct appeal newly filed brady claim state represented tennessee already decided brady issue cone therefore barred relitigating see app petition remained pending postconviction tennessee appeals held first time state public records act allowed criminal defendant review prosecutor file case see capital case resource center woodall wl based holding cone obtained access prosecutor files found proof evidence indeed withheld trial among undisclosed documents cone discovered statements witnesses seen several days several days murders witnesses described cone appearance wild eyed app behavior real weird one witness affirmed cone appeared drunk high ibid file also contained police report describing cone arrest florida following murders report police officer described cone looking around frenzied manner walking agitated manner prior apprehension multiple police bulletins describing cone drug user heavy drug user also among undisclosed evidence see newly discovered evidence hand cone amended postconviction petition october expanding brady claim allege specifically state withheld exculpatory evidence demonstrating fact suffer drug problems drug withdrawal psychosis time offense past app cone pointed specific examples evidence withheld alleging evidence exculpatory jury determination petitioner guilt consideration proper sentence reasonable probability evidence withheld jurors convicted sentenced death lengthy affidavit submitted amended petition cone explained raised brady claim earlier proceedings facts underlying ha revealed disclosure state files occurred first proceeding app denying cone request evidentiary hearing postconviction denied relief claim presented amended petition many claims dismissed ground waived cone failure raise earlier proceedings however consistent position urged state dismissed many others including brady claim mere previous grounds heretofore determined denied tennessee upon direct appeal criminal appeals upon first petition app noting findings trial hearings conclusive appeal unless evidence preponderates judgment tennessee criminal appeals affirmed cone state concluded cone failed rebut presumption waiver claims raised second petition relief previously determined emphasis added cone unsuccessfully petitioned review tennessee denied certiorari cone tennessee iii cone filed petition federal writ habeas corpus without disclosing district contrary position taken proceedings state acknowledged cone brady claim raised prior filing second postconviction petition however wrenching context state appellate holding cone waived claims previously determined state asserted brady claim waived app quoting cone may district denied cone request evidentiary hearing brady claim lamenting consideration cone claims made difficult parties failure articulate state procedural rules cone claims allegedly defaulted app pet cert district nevertheless held brady claim procedurally barred parsing claim separate subclaims based pieces withheld evidence identified habeas petition district concluded cone waived subclaim failing present adequately develop state app pet cert moreover concluded even cone defaulted brady claim fail merits none withheld evidence cast doubt cone guilt app pet cert throughout opinion district repeatedly referenced factual allegations contained early versions cone second petition postconviction relief rather amended version petition upon state decision rested see district dismissed remainder cone federal claims appeals sixth circuit granted permission appeal several issues including alleged suppression brady material appeals state shifted procedural default argument time contending cone simply never raised brady claim state failed make adequate factual allegations support claim second petition postconviction relief app repeating district error state directed appeals attention cone pro se petition petition cone counsel filed gained access prosecution case file words instead citing october amended petition state decision based order explicitly referred state pointed earlier less developed versions claim appeals concluded cone procedurally defaulted brady claim failed show cause prejudice overcome default cone bell acknowledged cone raised brady claim nevertheless considered barred reaching merits claim tennessee courts concluded claim previously determined waived code ann ibid briefly mentioning several isolated pieces suppressed evidence summarily concluded even cone brady claim defaulted suppressed evidence undermine confidence verdict hence brady material overwhelming evidence cone guilt discuss whether undisclosed evidence material respect cone sentencing proceedings although appeals rejected cone brady claim held entitled death sentence vacated counsel ineffective assistance sentencing see reversed holding concluding tennessee courts rejection cone claim objectively unreasonable within meaning antiterrorism effective death penalty act aedpa see bell cone following remand appeals entered judgment ordering new sentencing hearing time based purported invalidity aggravating circumstance found jury cone bell granted certiorari reversed relying part deferential standard governs review decisions aedpa see bell cone per curiam following second remand appeals revisited cone brady claim time divided claim four separate subclaims evidence regarding cone drug use evidence might useful impeach testimony credibility prosecution witness sergeant ralph roby fbi reports evidence showing prosecution witness ilene blankman untruthful biased noting previously found four subclaims procedurally defaulted declined reconsider earlier decision see ibid citing cone time reiterated withheld evidence overcome overwhelming evidence cone guilt committing brutal double murder persuasive testimony cone influence drugs summarily discounting cone contention withheld evidence material respect sentence concluded introduction suppressed evidence altered jurors finding cone alleged drug use vitiate specific intent murder victims mitigate culpability sufficient avoid death sentence judge merritt dissented castigated state withholding documents relevant cone sole defense plea mitigation also falsification procedural record concerning state procedural default defense brady claim dissent seven judges cone petition rehearing en banc denied granted certiorari answer question whether federal habeas claim procedurally defaulted twice presented state courts iv state federal proceedings state tennessee offered two different justifications denying review merits cone brady claim first connection cone amended petition state postconviction relief state argued brady claim barred decided direct appeal see app connection cone federal habeas petition state argued cone claim waived never properly raised state courts see district appeals agreed cone claim procedurally barred different reasons district held claim waived app pet cert appeals held claim either waived previously determined cone conclude neither prior determination waiver provides independent adequate state ground denying cone review federal claim well established federal courts review questions federal law presented habeas petition state decision rests upon ground independent federal question adequate support judgment coleman thompson lee kemna context federal habeas proceedings independent adequate state ground doctrine designed ensur interest correcting mistakes respected federal habeas cases coleman petitioner fails properly raise federal claims state deprives state opportunity address claims first instance frustrates state ability honor constitutional rights therefore consistent longstanding requirement habeas petitioners must exhaust available state remedies seeking relief federal held petitioner fails raise federal claims compliance relevant state procedural rules state refusal adjudicate claim ordinarily qualifies independent adequate state ground denying federal review see mean however federal habeas review barred every time state invokes procedural rule limit review state prisoner claims recognized adequacy state procedural bars assertion federal questions within state prerogative finally decide rather adequacy federal question lee quoting douglas alabama see also coleman ederal habeas courts must ascertain petitioner custody pursuant state judgment rests independent adequate state grounds question us whether federal review cone brady claim procedurally barred either claim twice presented state courts waived thus presented first address contention repeated presentation claim state bars later federal review tennessee postconviction denied cone brady claim concluding previously determined following full fair hearing state see code ann conclusion rested false premise contrary state courts finding cone presented brady claim earlier proceedings consequently state courts passed sixth circuit recognized cone brady claim decided direct appeal see cone felt constrained state courts refusal reach merits claim postconviction review appeals concluded state postconviction courts applied state procedural law avoid reaching merits cone brady claim adequate state ground barred federal habeas review state defend aspect appeals holding rightly state declines review merits petitioner claim ground done already creates bar federal habeas review ylst nunnemaker observed passing state declines revisit claim already adjudicated effect later decision upon availability federal habeas nil later state decision based upon ineligibility state review neither rests upon procedural default lifts procedural default state refuses readjudicate claim ground previously determined decision indicate claim procedurally defaulted contrary provides strong evidence claim already given full consideration state courts thus ripe federal adjudication see permitting issuance writ habeas corpus applicant exhausted remedies available courts state claim procedurally barred fairly presented state courts initial consideration claim presented accordingly insofar appeals rejected cone brady claim procedurally defaulted claim twice presented tennessee courts decision erroneous alternative contradictory ground barring review cone brady claim state argued cone claim properly dismissed state postconviction ground waived persuaded state appellate affirmed denial cone brady claim mistaken ground offered lower claim previously contrary state assertion tennessee appellate hold cone brady claim waived state declines find claim waived petitioner alleged failure comply state procedural rules respect judgment counsels us although independent duty scrutinize application state rules bar review federal claims lee concomitant duty apply state procedural bars state courts declined tennessee courts hold cone waived brady claim state procedural objections federal review merits cone claim resulted significant delay bringing unusually protracted case conclusion ultimately however provide obstacle judicial review cone properly preserved exhausted brady claim state therefore defaulted turn merits claim although state obliged prosecute earnestness vigor much duty refrain improper methods calculated produce wrongful conviction use every legitimate means bring one berger accordingly held state withholds criminal defendant evidence material guilt punishment violates right due process law violation fourteenth amendment see brady bagley opinion blackmun explained evidence material within meaning brady reasonable probability evidence disclosed result proceeding different words favorable evidence subject constitutionally mandated disclosure reasonably taken put whole case different light undermine confidence verdict kyles whitley accord banks dretke strickler greene documents suppressed state vary kind share common feature strengthens inference cone impaired use drugs around time crimes committed suppressed evidence includes statements witnesses acknowledging cone appeared drunk high app acted real weird looked wild eyed two days preceding also includes documents used impeach witnesses whose trial testimony cast doubt cone drug addiction example memphis police officer ralph roby testified trial cone needle marks body arrested observation bolstered state argument cone drug user suppressed evidence reveals however roby authorized multiple teletypes law enforcement agencies days following murders described cone drug user heavy drug user see suppressed statement made chief police cone hometown also describes cone serious drug user see cone undisclosed notes police interview ilene blankman conducted several days murders reveal discrepancies initial statement trial testimony relevant cone alleged drug use app sum quantity quality suppressed evidence lends support cone position trial habitually used excessive amounts drugs addiction affected behavior crime spree state arguments contrary false misleading thus federal question must decided whether suppression probative evidence deprived cone right fair trial see agurs tennessee courts reach merits cone brady claim federal habeas review subject deferential standard applies aedpa claim adjudicated merits state proceedings instead claim reviewed de novo see rompilla beard de novo review state courts reach prejudice prong strickland washington wiggins smith contending federal district appeals adequately correctly resolved merits claim state urges us affirm sixth circuit denial habeas relief assessing materiality evidence suppressed state appeals suggested two facts outweighed potential force suppressed evidence first evidence cone guilt overwhelming second evidence cone drug use cumulative jury heard evidence cone alleged addiction witnesses officers interviewed cone recovered drugs appeals thoroughly review suppressed evidence consider cumulative effect jury moreover concluding suppressed evidence material within meaning brady distinguish materiality evidence respect guilt materiality evidence respect punishment omission find significant evidence material guilt often material sentencing purposes well converse always true however brady demonstrates seminal case disclosure prosecutorial evidence defendant john brady indicted robbery capital murder trial brady took stand confessed robbing victim present murder testified accomplice actually strangled victim brady state md brady convicted sentenced death discovered state suppressed confession accomplice included incriminating statements consistent brady version events maryland appeals concluded brady due process rights violated suppression accomplice confession declined order new trial guilt observing nothing accomplice confession reduced brady offense murder first degree state ordered new trial question punishment granted certiorari affirmed rejecting brady contention state limited remand violated constitutional rights brady distinction materiality suppressed evidence respect guilt punishment significant case guilt phase cone trial dispute whether cone sane law tr apr counsel described issue criminally responsible conduct app prosecutor argued tennessee law cone held criminally responsible murders time conduct result mental disease defect lack ed substantial capacity either appreciate wrongfulness conduct conform conduct requirements law graham state although take exception appeals failure assess effect suppressed evidence collectively rather item item see kyles nevertheless agree even viewed light favorable cone evidence falls short sufficient sustain insanity defense cone experts testified drug addiction posttraumatic stress disorder originated service vietnam years todds murdered years despite cone drug use mental disorder managed successfully complete education travel incarcerated function civil society suppressed evidence may strengthened inference cone drugs suffering withdrawal time murders behavior crimes inconsistent contention lacked substantial capacity either appreciate wrongfulness conduct conform conduct requirements law see graham likelihood suppressed evidence affected jury verdict issue insanity therefore remote accordingly conclude sixth circuit err denying habeas relief ground suppressed evidence immaterial jury finding guilt said appeals summary treatment cone claim suppressed evidence influenced jury sentencing recommendation critical difference high standard cone required satisfy establish insanity matter tennessee law far lesser standard defendant must satisfy qualify evidence mitigating penalty hearing capital case see bell stevens dissenting vast difference insanity defense utterly failed prove possible mitigating effect drug addiction incurred result honorable service military defense counsel emphasized brief opening statement penalty phase proceedings jury statutorily required consider whether cone capacity appreciate wrongfulness conduct conform conduct requirements law substantially impaired result mental disease defect intoxication insufficient establish defense crime substantially affected judgment code ann possible suppressed evidence viewed cumulatively may persuaded jury cone far serious drug problem prosecution prepared acknowledge cone drug use played mitigating though exculpating role crimes evidence might also rebutted state suggestion cone manipulated expert witnesses falsely believing drug addict fact struggle substance abuse neither appeals district fully considered whether suppressed evidence might persuaded one jurors cone drug addiction especially attributable honorable service country vietnam sufficiently serious justify decision imprison life rather sentence death evidence suppressed cone trial may well material jury assessment proper punishment case conclude full review suppressed evidence effect warranted vi years since gary cone convicted murder sentenced death tennessee reached merits claim state prosecutors withheld evidence bolstered defense rebutted state attempts cast doubt alleged drug addiction today hold tennessee courts procedural rejection cone brady claim bar federal habeas review merits claim although conclude suppressed evidence material cone conviction murder lower courts erred failing assess cumulative effect suppressed evidence respect cone capital sentence accordingly judgment appeals vacated case remanded district instructions give full consideration merits cone brady claim ordered gary bradford cone petitioner ricky bell warden writ certiorari appeals sixth circuit april chief justice roberts concurring judgment decision grounded unusual facts necessarily limit reach issues brady maryland presented federal habeas usually previously addressed state proceedings federal review accordingly sharply limited established principles deference claim waived state rules waiver typically precludes federal review claim decided state system federal review restricted light state legal factual conclusions unique procedural posture case presents brady claim neither barred state rules failure raise decided state system comes claim specifies appropriate legal standard one set forth kyles whitley whether favorable evidence reasonably taken put whole case different light undermine confidence verdict see ante understand majority depart standard majority certainly purport leaves application accepted legal standard particular facts highly unusual engage enterprise see kyles supra scalia dissenting asserted basis case dubious see post thomas dissenting event review facts lead conclude cone entitled relief courts adequately consider claim respect sentencing see ante neither appeals district fully considered whether suppressed evidence undermines confidence cone sentence simply reviews facts light favorable cone concludes evidence undermine confidence jury determination cone guilty sends case back full consideration whether true jury sentence death ante left determination established legal standard viewing unique facts favor defendant brady claim fails respect guilt might merit sentencing light see reason quarrel ruling brady claim considering remand whether facts establish brady violation clear lower courts analyze issue constitutional standards set forth whatever standards american bar association may established aba standards wholly irrelevant disposition case majority passing citation taken suggest otherwise see ante gary bradford cone petitioner ricky bell warden writ certiorari appeals sixth circuit april justice thomas justice scalia joins dissenting affirms gary cone conviction beating elderly couple death blunt object majority correctly rejects cone argument guilty verdict secured violation rights brady maryland majority declines however decide whether evidence insufficient brady overturn conviction provides basis overturning death sentence majority instead remands question district consideration finds appeals engaged summary treatment cone brady sentencing claim see ante respectfully dissent appeals allegedly summary treatment cone sentencing claim justify remand district cone failed establish reasonable probability evidence disclosed defense result sentencing proceeding different kyles whitley quoting bagley opinion blackmun result affirm judgment appeals case arises crime spree years ago began cone robbery jewelry store memphis tennessee concluded robbery drugstore pompano beach florida along way cone shot police officer bystander trying escape first robbery attempted shoot another man failed carjacking attempt unsuccessfully tried force way woman apartment gunpoint murdered shipley todd wife cleopatra tried two counts murder cone sole defense requisite intent commit murder grip chronic amphetamine psychosis jury rejected defense convicted cone murders sentencing tennessee jury found beyond reasonable doubt four statutory aggravating factors applied cone offense cone convicted one previous felonies involving use threat violence knowingly created great risk death two persons victim act murder murder especially heinous atrocious cruel involved torture depravity mind murder committed purpose avoiding lawful arrest tr apr see also state cone code ann cone argued jury sentencing capacity appreciate wrongfulness conduct conform conduct requirements law substantially impaired result mental disease defect intoxication insufficient establish defense crime substantially affected judgment see jury found neither mitigating factor outweighed aggravating factors jury required tennessee law unanimously sentenced cone death see almost three decades cone case traveled tennessee federal courts twice reversed decisions appeals invalidated cone conviction sentence see bell cone bell cone per curiam remand latest decision appeals directly considered whether handful police reports law enforcement bulletins notes allegedly withheld cone trial attorneys changed result cone trial sentencing second time appeals held evidence altered jury conclusion cone prior drug use vitiate specific intent murder victims mitigate culpability sufficient avoid death sentence appeals therefore held neither cone conviction sentence invalid see ibid cone bell affirm appeals put end litigation ii according majority appeals decision affirming cone death sentence summary ante facts examination cone might able demonstrate possible contested evidence persuaded jury spare life ante reasoning majority remands case directly district full consideration merits cone sentencing claim ante disagree counts remanding sentencing issue district unusual step take house bell roberts concurring judgment part dissenting part furthermore case step legally factually unjustified reasonable probability evidence disclosed defense result proceeding different kyles quoting bagley opinion blackmun majority criticism appeals allegedly summary treatment sentencing question misplaced appeals cone dedicated eight pages opening brief arguing implicated evidence material guilt innocence spent one paragraph arguing materiality death sentence see brief appellant pp appeals focus guilt phase rather sentencing phase simply followed cone lead see recent brief claiming receiving withheld evidence resulted different sentence cone made conclusory arguments nothing defective judicial decision summarily rejects abbreviated legal argument especially burden proving materiality contested evidence remanding matter district majority makes two critical errors one legal one factual leave false impression cone brady claim chance success first majority possible suppressed evidence may convinced jury cone substance abuse played mitigating role crime evidence might also rebutted state suggestion cone experts inaccurately depicting depth impairment ante emphasis added see also ante remanding ecause evidence suppressed cone trial may well material jury assessment proper punishment case emphasis added majority implicitly acknowledges see ante correct legal test evaluating brady claim mere possibility item undisclosed information might helped defense might affected outcome trial establish constitutional sense agurs emphasis added rather made clear legal standard adjudicating claim whether reasonable probability jury persuaded allegedly withheld evidence kyles supra bagley supra opinion blackmun simply sufficient therefore claim reasonable possibility testimony might produced different result etitioner burden establish reasonable probability different result strickler greene emphasis original satisfy reasonable probability standard cone must show favorable evidence reasonably taken put whole case different light undermine confidence jury sentencing determination kyles supra must view record whole sawyer whitley stevens concurring judgment determine whether absence disclosure prevented cone receiving trial resulting sentence worthy confidence strickler supra quoting kyles context case cone establish reasonable probability evidence disclosed defense result sentencing proceeding different must demonstrate withheld evidence established substantially impaired result drug abuse withdrawal cone also must establish addition allegedly withheld evidence ultimately led jury conclude mitigating factors including substantial impairment outweighed established aggravating factors see code ann second majority incorrectly claims prevail brady claim cone must demonstrate simply withheld evidence supported inference impaired use drugs around time crimes committed see ante factually inaccurate already significant evidence cone drug use trial establish allegedly withheld evidence reasonably impact case cone must instead show evidence supported claim substantial mental impairment drug use extensive evidence trial supported inference cone longstanding drug user fact using drugs time crimes state presented significant evidence point example presented proof officers found marijuana cigarette butts empty drug vials loose syringes car cone abandoned immediately jewelry store robbery tr apr state also challenge testimony cone mother cone used drugs apr tellingly state introduced evidence cone abusing three drugs cocaine dilaudid demerol time arrest suffering slight withdrawal symptoms apr appeals explained news jurors cone user contrast contested state trial cone defense drug use significant caused suffer extreme amphetamine psychosis time murders one cone expert witnesses neuropharmacologist testified summer crimes occurred cone ingesting ferociously large doses drugs increasing tolerance use amphetamines caused chronic amphetamine psychosis tr apr expert testified person chronic amphetamine psychosis go withdrawal suffer extreme mood swings crashing depression state weakness severe barely lift expert view symptoms cause person lose mind state contradicted testimony significant evidence cone act like someone mind commission crimes rather state argued cone behaved rationally initial tennessee robbery subsequent escape flight tennessee florida todd murders florida robbery subsequent arrest see apr substantiate argument state called fbi special agent eugene flynn stand agent flynn testified captured cone coherently detailed travel tennessee florida explained efforts evade detection shaving beard buying new clothes initiated negotiations plea bargain state also presented testimony friend cone ilene blankman saw indication cone influence drugs severe withdrawal days immediately following murder todds apr viewing record whole apparent contested issue trial sentencing whether cone used drugs rather quantity cone drug use effect mental state evidence allegedly withheld cone relevant question whether cone suffered extreme amphetamine psychosis substantial impairment evidence exculpatory purposes brady see order denying motion evidentiary hearing order partial dismissal cone bell wd may app pet cert explaining issue trial whether cone ever abused drugs clearly whether mind amphetamines time murders tr apr iii legal factual issues correctly framed becomes clear cone establish reasonable probability admission evidence viewed either individually cumulatively caused jury alter sentence cone first argues improperly denied police reports included witness statements regarding cone behavior around time crime spree first statement given convenience store employee robert mckinney saw cone day robbed tennessee jewelry store asked whether cone appeared drunk high anything mckinney answered ell acted real weird wandered around store app mckinney subsequently clarified cone sound drunk reason cone attracted attention acting like regular customer kinda wandering around store motion expand record wd exh pp contrary majority assertion interview convincing evidence cone appeared mckinney saw ante mckinney clarification characterized cone behavior weird cone appeared killing time rather acting like normal shopper undermines implication mckinney earlier statement cone looked weird might drunk drugs thus little chance mckinney statement provided significant additional evidence cone using drugs let alone provide evidence substantially impaired due amphetamine psychosis second statement given charles debbie slaughter witnessed cone fleeing police jewelry store robbery reportedly told police looked wild eyed app cone robbed jewelry store shot police officer bystander still fleeing police seen slaughters thus unlikely observation wild eyed man interpreted jury mean cone suffering chronic amphetamine psychosis time crimes ante rather mean cone looked like man run third statement contained police report authored officer helped apprehend cone florida drugstore robbery reported saw suspect rear sambos restaurant subject observed looking frenzied manner also appeared looking place run app nothing police report either connects cone drug use appears otherwise capable altering jury understanding cone mental state time crimes certainly makes perfect sense cone looking frenzied manner ibid robbed drugstore engage gun battle police order evade arrest police officer description cone appearance circumstances thus undermine confidence cone sentence kyles next category documents cone relies upon establish brady claim police bulletins bulletins sent memphis police sergeant roby neighboring jurisdictions day todd murders day bulletins sought cone apprehension alternatively described drug user heavy drug user app cone asserts used bulletins impeach sergeant roby trial testimony sergeant see track marks visiting cone jail week later tr apr cone reasoning faulty two key reasons first sergeant roby never testified cone drug user trial testimony point simply observed needle marks cone arm taking hair samples days cone apprehension ibid second bulletins establish police initially cautious regarding characteristics person committed several heinous crimes app pet cert bulletins tended prove fugitive cone fact heavy drug user let alone mind otherwise substantially impaired due amphetamine psychosis time cone also argues material withheld used impeach ilene blankman testimony cone appear high withdrawal helped obtain florida driver license efforts evade arrest florida tr apr fails meet standard exculpatory evidence set brady cone first points police notes interview blankman reflect statement gave trial saw track marks cone arm app blankman questioned trial failure initially disclose fact police tr apr jury fully aware omission disclosure original copy police notes thus material effect jury deliberations moreover missing notes also recorded damning statement blankman cone never used drugs around never saw cone drug paraphernalia app thus difficult accept cone argument benefited introduction notes blackman pretrial interview anything police notes undermined mitigation argument cone next relies report describes woman confrontation prosecution team blankman restaurant trial encounter woman accused blankman lying stand order frame cone murders report indicates prosecutors politely declined woman numerous attempts discuss merits case blankman said nothing nothing encounter raises doubts blankman credibility last cone points correspondence district attorney files suggest ing prosecution unusually solicitous blankman testimony brief petitioner correspondence completely innocuous one notes sent response blankman request copy prior statement expressed blankman cooperation particular matter appreciated app prosecutor sent letter confirm blankman testify trial finally trial prosecutor sent note inform blankman verdict indicate certainly appreciate cooperation trial gary bradford cone nothing notes tend prove fact favorable cone material guilt punishment app pet cert viewing record whole cone come close demonstrating reasonable probability withheld evidence analyzed individually cumulatively changed result sentencing much impeachment evidence identified cone probative value whatsoever police bulletins contradict trial testimony restaurant encounter innocuous correspondence sent prosecutors blankman undermine testimony call cone mental state doubt remaining evidence value cone marginal best testimony blankman initially tell police cone lacked track marks see tr apr mckinney clarified statement cone activity store consistent person killing time use drugs alcohol behavior described slaughters florida police officer naturally attributable circumstances cone flight police inference cone mind otherwise substantially impaired due amphetamine psychosis countering trivial value alleged brady material clear overwhelming evidence cone crime spree neither sufficiently insane avoid conviction murder substantially impaired drug use psychosis substantial evidence cone carefully planned jewelry store robbery calm carrying tr apr apr apr apr successfully eluded police engaging shootout apr hiding overnight concocted ruse try gain illegal entry residence apr murdered todds declined cooperate efforts elude police apr took steps change appearance todd residence successfully fled florida apr arrived florida exhibiting signs drug use severe withdrawal apr obtained false identification effort avoid apprehension denied memory lapses described undergoing minor drug withdrawal police arrested apr given wealth evidence reasonable probability jury found cone entitled substantial impairment mitigator evidence seeks made available even cone presented evidence jury sentencing established entitlement mitigator still demonstrated reasonable probability outweighed aggravating factors supporting jury death sentence see apr decision direct appeal tennessee well aware evidence regarding degree extent cone drug abuse cone part required independent review whether mitigation evidence sufficiently substantial outweigh aggravating factors see code ann tennessee nevertheless concluded sentence way disproportionate circumstances including brutal murders two elderly defenseless persons escaping armed robber terrorized residential neighborhood hours none cone proffered evidence places conclusion made jury tennessee different light undermine confidence cone sentence kyles see also strickler iv vacate remand lower decisions based nothing vague suspicion error might present clear especially record adequate evaluate cone brady claims respect guilt sentencing phases trial willingness return sentencing issue district without firm conviction error committed appeals inconsistent established practice disrespectful lower courts considered case worse still inevitable result years additional delay execution death sentence lawfully imposed tennessee jury affirm judgment respectfully dissent gary bradford cone petitioner ricky bell warden writ certiorari appeals sixth circuit april justice alito concurring part dissenting part granted certiorari case answer two questions federal habeas claim defaulted presented twice state courts federal habeas powerless recognize state erred holding state law precludes reviewing claim pet cert questions based factually incorrect premise namely tennessee criminal appeals highest state entertain petitioner appeal denial second petition state postconviction rejected petitioner claim ground claim previously decided tennessee petitioner direct appeal petitioner argument state decide brady issue direct appeal tennessee criminal appeals erred holding otherwise sixth circuit erred concluding brady claim procedurally defaulted ground petitioner quite correct brady claim decided direct appeal present case clearly correct holding second attempt litigate claim state necessarily bar subsequent federal habeas review see ante beside point tennessee criminal appeals reject petitioner brady claim ground claim previously determined direct appeal rather petitioner brady claim simply never raised tennessee criminal appeals rule claim sixth circuit decision issue procedural default rests mistaken premise tennessee criminal appeals rejected petitioner brady claim ground previously determined entirely agree majority sixth circuit decision issue sustained remand required join opinion however two chief reasons first without explanation cone properly preserved exhausted brady claim state therefore claim defaulted ante cone never fairly raised claim tennessee criminal appeals claim either exhausted cone raise claim state procedurally defaulted state law provides avenue review leave questions resolution first instance remand second without explanation remands case district appeals see justification step order understand tangled procedural default issue presented case necessary review manner attorneys petitioner respondent litigated brady claim state courts direct appeal petitioner raise brady claim notes petitioner claim state violated state discovery rule failing provide prior statements given certain witnesses therefore testimony witnesses stricken app state cone although claim concerned state failure turn information clear brady claim first appearance anything resembling claim issue occurred petitioner experienced attorneys filed amendment second petition postconviction relief shelby county criminal petition included long litany tangled claims paragraph amended petition claimed among things state wrongfully withheld information demonstrating one particular prosecution witness testified falsely concerning petitioner drug use app nondisclosure petition stated violated fifth fourteenth amendments constitution protect due process right brady based also fourth sixth eighth amendments constitution four provisions tennessee constitution two months later counsel petitioner filed amendment adding claims including one alleging state abridged petitioner rights failing disclose evidence petitioner suffered drug problems according new submission nondisclosure violated addition previously cited provisions federal state constitutions five provisions state constitution including provisions regarding double jeopardy see tenn art ex post facto laws indictment open courts shelby county criminal faced task wading morass presented amended petition code ann repealed claim raised postconviction proceeding claim previously determined waived citing state rejection direct appeal petitioner claim prosecution violated state discovery rule failing turn witness statements state incorrectly informed claim set previously determined direct appeal app shelby county criminal rejected claim ground held petitioner claims either previously determined waived given importance assigned petitioner brady claim one might think petitioner attorneys stressed claim opening brief filed tennessee criminal appeals pointed lower clear error concluding claim decided direct appeal explained information supporting claim recently come light due production documents state public records act counsel none things fact brady claim mentioned brady cited reply brief filed attorneys reply brief contain passing reference withholding exculpatory evidence brief elaborate claim failed mention claim never previously decided supported newly discovered tennessee criminal appeals affirmed decision lower state appellate made mention brady claim see basis concluding regarded issue raised appeal appellate courts generally reach decide issues raised appellant snell tunnell see powers hamilton cty public defender see also galvan alaska dept corrections courts generally decide issues raised parties granted relief petitioners grounds urged petitioners respondents deprived fair opportunity respond courts deprived benefit briefing omitted generally consider issues first mentioned reply brief physicians comm responsible medicine johnson doe beaumont independent school garza dissenting doolin security sav bank office thrift supervision cadc boone carlsbad bancorporation common practice appellate courts refuse consider issues mentioned passing reynolds wagner citing authorities tennessee criminal appeals follows standard practices rule quite specifically issues supported argument citation authorities appropriate references record treated waived applied rule capital cases state dellinger appendix majority opinion brimmer state others see state faulkner wl crim sentence murder capital noncapital cases refused entertain arguments raised first time reply brief see state gerhardt wl crim capital case carruthers state crim app capital case cammon state wl crim noncapital case thus unless tennessee criminal appeals departed substantially general practice regard petitioner brady claim raised appeal decision review sixth circuit held tennessee courts found cone brady claims determined therefore cognizable state action judgment however basis concluding tennessee criminal appeals thought brady issue contrary interpretation mean tennessee criminal appeals disregarding rules standard practice entertained issue mentioned appellant main brief mentioned passing without development reply brief mean tennessee criminal appeals chosen delve brady issue ruled issue without even mentioning opinion without bothering check record determine whether fact brady issue decided direct appeal interpretation utterly implausible telling majority case cites support interpretation opinion tennessee criminal appeals opinion sixth circuit decision question procedural default rests erroneous premise must therefore vacated ii also agree affirm decision ground brady claim lacks substantive merit erroneous discussion procedural default sixth circuit went discuss merits petitioner brady claim opinion appeals recognized prosecution brady obligation extends evidence material guilt also evidence material punishment see cone bell citing pennsylvania ritchie neither opinion opinion address materiality information question relation petitioner punishment see review allegedly withheld documents shows evidence overcome overwhelming evidence cone guilt committing brutal double murder persuasive testimony cone influence drugs emphasis added therefore despite strength arguments justice thomas dissent leave question decided sixth circuit remand iii however simply vacate remand sixth circuit goes first without elaboration petitioner preserved exhausted brady claim state ante explained petitioner fairly present brady claim prior appeal tennessee criminal appeals therefore claim either unexhausted procedurally barred state foreclosed relying failure exhaust see procedural questions may decided remand second remands case district rather appeals remand district course necessary petitioner entitled evidentiary hearing hold evidentiary hearing either required permitted view unless evidentiary hearing reason remand case district purpose remand require evaluation petitioner brady claim light present record district superior position conduct review even review conducted first instance district decision subject de novo review appeals cone bell see graham miller phillip accordingly see good reason remanding district rather appeals majority reason one chosen keep reasons vacate decision appeals remand footnotes abandoned vehicle police recovered stolen jewelry large quantities illegal prescription drugs approximately cash much cash later connected grocery store robbery occurred previous day state also cast doubt cone defense eliciting testimony cone enrolled college following return vietnam graduated high honors later serving time prison armed robbery cone gained admission university arkansas law school state suggested cone academic success provided proof impaired following return war closing rebuttal argument prosecutor continued press point asserting charges drug sales mean ca look question deciding whether man fact drug user drugs drugs drugs thousands dollars car among drugs drugs used know used drugs thing ever used drugs period fact drugs car told people told people according even told people drugs even use tr apr jury impose capital sentence unanimously determined one statutory aggravating circumstances proved state beyond reasonable doubt mitigating circumstances case outweigh statutory aggravating factors code ann defense counsel emphasized jury one statutory mitigating factors required consider whether capacity defendant appreciate wrongfulness conduct conform conduct requirements law substantially impaired result mental disease defect intoxication insufficient establish defense crime substantially affected judgment specifically jury found cone committed one prior felonies involving use threat violence see murders committed purpose avoiding interfering preventing cone lawful arrest prosecution see murders especially heinous atrocious cruel involved torture depravity mind see cone knowingly created risk death two persons victim murdered act murder see tennessee later observed finding cone guilty murder first degree perpetration burglary jury implicitly found existence additional statutory aggravating factor murders occurred cone committing burglary state cone summarizing trial proceedings tennessee observed defense interposed cone behalf insanity lack mental capacity due drug abuse stress arising previous service vietnamese war eleven years prior events involved case proved tenuous defense best since neither expert witnesses testified behalf ever seen heard weeks prior trial neither medical doctor psychiatrist neither purported treat patient testimony lacked mental capacity based purely upon personal recitation history military service drug abuse tennessee law effect time criminal defendant entitled collateral relief conviction sentence violated right guaranteed constitution tennessee constitution code ann see also hearing petition postconviction relief limited however claims waived previously determined see ground relief previously determined competent jurisdiction ha ruled merits claim full fair hearing claim waived petitioner knowingly understandingly failed present determination proceeding competent jurisdiction ground presented see swanson state courts dismiss postconviction petitions technical grounds unless petitioner first reasonable opportunity aid counsel file amendments rebut presumption waiver internal quotation marks omitted examples evidence withheld cone pointed statements charles debbie slaughter statements sue cone statements lucille tuech statements herschel dalton patrolman collins statements contained official police reports app course federal habeas proceedings cone obtained access files federal bureau investigation found additional previously undisclosed evidence contained state prosecutor case file suppressed fbi documents make repeated reference cone drug use corroborate expert representation used drugs prior incarceration armed robbery see exception sixth circuit courts appeals directly confronted question ylst agreed state successive rejection federal claim bar federal habeas review see page frank brecheen reynolds bennett whitley silverstein henderson see also lambright stewart recounted earlier cone state postconviction petition contained numerous claims error state postconviction dismissed claims waived others including brady claim previously determined affirming denial cone petition tennessee criminal appeals summarily stated cone failed rebut presumption waiver claims raised second petition relief previously determined cone state pointing language state asserts tennessee criminal appeals denied cone brady claim previously determined waived postconviction proceedings without questioning trial finding cone brady claim previously determined criminal appeals affirmed denial cone postconviction petition entirety nothing decision suggests appellate believed brady claim waived similarly justice alito parsing record persuades cone failed adequately raise brady claim tennessee criminal appeals argue expressly held cone waived claim review cone opening brief reveals made broad challenge postconviction dismissal petition plainly asserted erred dismissing claims previously determined direct appeal initial postconviction petition see brief crim app pp state appellate state suggest cone waived brady claim rather commending postconviction exemplary meticulous treatment appellant petition cone appellate simply adopted without modification lower findings respect application code ann facts case best reading tennessee criminal appeals decision based approval postconviction reasoning rather unmentioned failure cone adequately challenge dismissal brady claim appeal setting aside state courts mistaken belief cone brady claim previously determined many reasons state courts might rejected state waiver argument record establishes suppressed documents form basis cone claim available tennessee appeals decision interpreting state public records act authorizing disclosure prosecutorial records soon obtaining access prosecutor file discovering within documents disclosed prior trial cone amended petition postconviction relief adding detailed allegations regarding suppressed evidence recovered file along affidavit explaining reason claim filed sooner see app state oppose amendment cone petition ground untimely appears undisputed basis state law see brief petitioner although due process clause fourteenth amendment interpreted brady mandates disclosure material evidence obligation disclose evidence favorable defense may arise broadly prosecutor ethical statutory obligations see kyles rule bagley hence brady requires less prosecution aba standards criminal justice prosecution function defense function ed see also aba model rule professional conduct prosecutor criminal case shall make timely disclosure defense evidence information known prosecutor tends negate guilt accused mitigates offense connection sentencing disclose defense tribunal unprivileged mitigating information known prosecutor except prosecutor relieved responsibility protective order tribunal often observed prudent prosecutor err side transparency resolving doubtful questions favor disclosure see kyles bagley stevens dissenting agurs state contends statements made witnesses observed cone immediately committed robberies therefore surprising cone appeared less serene see brief respondent although jury free infer cone behavior attributable criminal activity evidence also consistent cone assertion suffering chronic amphetamine psychosis time crimes dissent points roby testify directly cone drug user fbi agent eugene flynn testified time cone arrest pompano beach cone reported used cocaine dilaudid demerol suffering slight withdrawal symptoms see post see also tr apr important note however neither flynn roby corroborated cone account alleged drug use taken context roby statement observed needle marks cone body invited jury infer cone drug use either minimal contrived see therefore although suppressed evidence directly contradict roby trial testimony place different light pointing trial evidence cone drug use appeals made mention fact state discredited testimony cone experts ground independent evidence corroborated cone alleged addiction state argued drugs cone car intended resale rather personal use agree dissent standard applied district evaluating merits cone brady claim remand whether reasonable probability suppressed evidence disclosed result proceeding different see post neither district appeals considered merits cone claim respect effect withheld evidence sentence appropriate district rather first instance footnotes affirm basis appeals alternative holding reach issues procedural default resolved majority see atlantic research ayotte planned parenthood northern new ardestani ins tennessee later concluded record cone case doubtful evidence supporting second circumstance given lapse time initial events escape todd murders cone however determined existence three factors rendered possible error factor harmless beyond reasonable doubt ibid assertion majority ante justice alito ante opinion concurring part dissenting part appeals address merits sentencing issue flatly wrong see rejecting cone brady claim proffered evidence altered jury conclusion cone prior drug use vitiate specific intent murder victims mitigate culpability sufficient avoid death sentence emphasis added majority attempt justify remand contending necessary record insufficient decide claim persuasively contend remand necessary district hold evidentiary hearing hearing shed additional light trial proceedings relative impeachment value withheld documents cone agrees resolve merits brady claim reply brief petitioner see also brief respondent majority asserts standard tennessee law demonstrating mental defect intoxication mitigating factor sentencing far lesser standard demonstrating insanity guilt phase criminal trial ante mitigating factor still requires showing cone mental capacity substantially impaired result mental defect code ann event authority cited majority assertion standard far lesser insanity justice stevens lone dissent prior appeal case ante although two occasions closing arguments prosecutors intimated cone drug user see tr apr state argument otherwise consistently focused real issue case cone significantly affected drug use around time crimes mind drug crazy critical days august see majority focus two brief excerpts state closing argument fails faithfully view record whole purposes brady analysis see sawyer whitley stevens concurring judgment see also strickler greene finding reasonable probability different result even prosecutor closing argument relied testimony impeached withheld material alert bulletins sent fbi similarly identified cone believed heavy drug user drug user app cone argues bulletins used impeach fbi agent flynn testimony cone arrest florida bulletins constituted material impeachment evidence however second reason identified addition bulletins contradicted fbi agent flynn testimony fact stated trial cone reported using three drugs undergoing mild drug withdrawal captured florida tr apr footnotes tennessee denied discretionary review decision tennessee criminal appeals decision affirming denial petitioner second amended petition postconviction relief must look decision latter determine decision based adequate independent state ground see baldwin reese boerckel brady maryland tennessee law since changed currently tennessee procedure act bars second postconviction petition see code ann permits reopening petition limited circumstances restrictions apply petition filed enactment procedure act even conviction occurred long referring long list claims including claim failure disclose exculpatory evidence reply brief clear meritorious claims presented adjudication claims waived remand hearing essential order enable cone present evidence prove factual allegations including relating claims ineffective assistance counsel petition withholding exculpatory evidence petition reply brief emphasis added hereinafter reply brief reply brief petitioner stated waiving claim presented asked appellate consider claims see reply brief tennessee criminal appeals specifically held claims may raised appeal manner see leonard state wl crim july unlike exhaustion procedural default may waived raised defense banks dretke allowing waiver procedural default based state litigation conduct citing gray netherland appears state consistently argued petitioner brady claim procedurally defaulted state supporting arguments shifted whether question procedural default described opinion entertained particular circumstances intensely matter left sixth circuit remand