Facts of the Case

Gary Cone was tried in a Tennessee court for a 2-day crime spree that ended with the killing of an elderly couple. In response to the overwhelming evidence that he perpetrated the crimes, Cone's defense asserted that he was not guilty by reason of insanity. The jury found him guilty. During the sentencing hearing, Cone's counsel cross-examined prosecution witnesses, but called no witnesses. After the prosecutor closed, the defense counsel waived final argument. Ultimately, Cone was sentenced to death. The State Criminal Court denied Cone's petition for post-conviction relief, rejecting his contention that his counsel rendered ineffective assistance during the sentencing phase by failing to present mitigating evidence and waiving final argument. Subsequently, the Federal District Court denied Cone's federal habeas petition, ruling that he did not meet 28 USC section 2254(d)(1)'s requirement that a state decision be "contrary to" or involve "an unreasonable application of clearly established Federal law." In reversing, the Court of Appeals found that Cone suffered a Sixth Amendment violation for which prejudice should be presumed because his counsel, by not asking for mercy after the prosecutor's final argument, did not subject the State's death penalty call to meaningful adversarial testing.

Question

Does defense counsel render ineffective assistance during the sentencing phase of a murder trial by failing to present mitigating evidence and waiving final argument?

Conclusion

No. In an 8-1 opinion delivered by Chief Justice William H. Rehnquist, the Court held that Tennessee Court of Criminal Appeals's decision neither was "contrary to" nor involved "an unreasonable application of clearly established Federal law" under the provisions of 28 USC section 2254(d)(1). The Court noted that the defense counsel was defending a client who had committed a brutal and senseless crime against two elderly persons. Rather than closing, defense counsel prevented the lead prosecutor from arguing by waiving his own summation and relying on his opening plea for life. "Neither option, it seems to us, so clearly outweighs the other that it was objectively unreasonable for the Tennessee Court of Appeals to deem counsel's choice to waive argument a tactical decision about which competent lawyers might disagree," wrote Chief Justice Rehnquist. Justice John Paul Stevens dissented.