535 U.S. 685 (2002)
In 1982, Gary Cone was convicted in the Criminal Court of Shelby County, Tennessee, of two counts of first-degree murder in the perpetration of a burglary and other charges arising from the killings of an elderly couple during a two-day crime spree that began with a jewelry store robbery of approximately $112,000 in merchandise.1 The spree included shooting a police officer and a civilian, attempting to shoot another person, and the brutal beating deaths of Shipley and Cleopatra Todd, aged 93 and 79, in their home after which Cone moved their bodies and ransacked the house.2 Cone was arrested in Florida after admitting the crimes to officers there.3
At trial the defense presented an insanity defense based on post-traumatic stress disorder from Vietnam service and chronic amphetamine psychosis from drug use, calling a clinical psychologist, a neuropharmacologist, and Cone's mother as witnesses who testified about his changed behavior after Vietnam, his drug history, and his family background, but the jury rejected the defense and found him guilty on all counts.4
Punishment was determined in a separate sentencing hearing the next day that lasted about three hours.5 Under then-applicable Tennessee law, a death sentence was required if the jury found unanimously that the State proved beyond a reasonable doubt at least one statutory aggravating circumstance not outweighed by any mitigating circumstance. The jury could consider evidence from both phases.6 Defense counsel made an opening statement referencing mitigating evidence already before the jury and urging mercy. He cross-examined a records custodian to bring out that Cone had been awarded the Bronze Star in Vietnam and successfully objected to the State's proffer of photos of the victims' bodies.7 Both sides rested after the prosecution called witnesses to establish prior armed robbery convictions and failed arrest attempts.8 Counsel then waived final argument, preventing the lead prosecutor from arguing in rebuttal.9 The jury found four aggravating factors and no mitigating circumstances substantial enough to outweigh them.10 The Tennessee Supreme Court affirmed the convictions and death sentence.11
Cone petitioned for state postconviction relief contending that his counsel rendered ineffective assistance during the sentencing phase by failing to present additional mitigating evidence and by waiving final argument.12 After a hearing in which trial counsel testified about his decisions concerning witnesses and closing argument, a division of the Tennessee Criminal Court rejected the claim, and the Tennessee Court of Criminal Appeals affirmed, describing counsel's representation as very conscientious and concluding that his performance was within the permissible range of competency.13 The Tennessee Supreme Court denied permission to appeal.14
In 1997 Cone sought a federal writ of habeas corpus under 28 U.S.C. § 2254.15 The District Court denied the petition.16 The Court of Appeals for the Sixth Circuit affirmed the refusal to issue a writ as to the conviction but reversed as to the sentence, and the Supreme Court granted certiorari.17
Whether respondent's claim that his counsel rendered ineffective assistance at the sentencing hearing was governed by United States v. Cronic rather than Strickland v. Washington?18
Under Cronic, prejudice is presumed when counsel entirely fails to subject the prosecution's case to meaningful adversarial testing at a critical stage.19 Strickland governs claims of specific attorney errors at sentencing such as the failure to present additional mitigating evidence or to make a closing argument, requiring proof of deficient performance and resulting prejudice.20
No. Counsel participated in the sentencing hearing by delivering an opening statement that referenced mitigating evidence already in the record and urged the jury to consider the whole man and grant mercy.21 He cross-examined the records custodian to elicit that respondent had received the Bronze Star.22 He also objected to the introduction of photographs of the victims' bodies.23 These actions demonstrate that counsel did not entirely fail to oppose the prosecution throughout the sentencing proceeding as a whole.24
The specific decisions challenged, including the waiver of closing argument and the choice not to recall additional witnesses, are the type of discrete errors evaluated under Strickland's two-part test, as the Court has done in prior capital sentencing cases such as Darden v. Wainwright and Burger v. Kemp.25
Respondent's claim was governed by Strickland rather than Cronic.26
Related opinions on this issue
Justice Stevens concluded that Cronic applied because counsel entirely failed to subject the prosecution's case to meaningful adversarial testing during the penalty phase by failing to interview or present available mitigation witnesses such as Cone's mother, sisters, and aunts, by failing to introduce existing mitigation evidence including the Bronze Star and the letter of forgiveness from the victim's sister, and by waiving closing argument after the State requested death.27 These omissions, combined with counsel's expressed hopelessness and radical misunderstanding of the purpose of the penalty phase, amounted to a complete breakdown in the adversary process that justified a presumption of prejudice without requiring a case-specific showing under Strickland.28
Whether the Tennessee Court of Appeals applied Strickland v. Washington to the facts of respondent's case in an objectively unreasonable manner under 28 U.S.C. § 2254(d)(1)?29
Under 28 U.S.C. § 2254(d)(1), a federal habeas court may not grant relief unless the state court's application of clearly established federal law was objectively unreasonable.30 Strickland requires a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance with every effort made to eliminate the distorting effects of hindsight.31
No. Counsel faced a client who had committed a brutal double murder the day after shooting a police officer and a civilian during a crime spree involving robbery and drug use.32 Counsel reasonably could have concluded that the extensive mental health and Vietnam-related testimony presented during the guilt phase remained fresh to the jury the next day.33 Counsel also made a tactical choice not to recall respondent's mother because she had not been an effective witness at the guilt stage and to avoid further cross-examination.34 He declined to call respondent himself after determining that respondent might lash out under cross-examination by the lead prosecutor.35
The decision to waive closing argument was likewise a reasonable tactical choice. It prevented the highly effective lead prosecutor from delivering a rebuttal summation while relying on the opening plea for life made hours earlier and the jury's familiarity with the mitigating evidence already presented.36
The Tennessee Court of Appeals did not apply Strickland in an objectively unreasonable manner.37
Related opinions on this issue
Justice Stevens maintained that the state court's application of Strickland was unreasonable because counsel's postconviction explanations revealed a fundamental misunderstanding of the penalty phase, including the belief that the guilt-phase evidence already covered all mitigation and that the bifurcated proceeding served no purpose, and because counsel's pervasive fear of the prosecutor led to the complete abandonment of core duties such as conducting a mitigation investigation, presenting available evidence, and making any closing plea for life, rendering the state court's deference to these choices objectively unreasonable.38