Cone v. Bell , 492 F.3d 743 ( 2007 )

RYAN, J., delivered the opinion of the court, in which NORRIS, J., joined. MERRITT, J. (pp. 759-66), delivered a separate dissenting opinion.

OPINION

■ RYAN, Circuit Judge.

In 1982, a Tennessee state court sentenced Gary Bradford Cone to death after convicting him of two counts of first degree murder, two counts of murder in the perpetration of a burglary, three counts of assault with intent to commit murder, and one count of robbery by use of deadly force. The jury found Cone had bludgeoned two elderly persons to death while hiding out after a robbery. The Tennessee courts upheld Cone’s conviction and sentence on direct appeal and denied his petitions for post-conviction relief. Then, in 2000, Cone filed a petition for a writ of habeas corpus in federal district court, which, in due course, was denied. He appealed.

We have now heard Cone’s appeal three times because the United States Supreme Court has twice reversed our decisions granting relief. This third time around, Cone raises a number of claims, none of which, in our judgment, has merit. Therefore, we will affirm the district court’s original judgment denying Cone’s petition.

I.

A.

The details of Cone’s brutal crimes are not material to the issues we address in this appeal, but they are fully set forth in Cone v. Bell, 243 F.3d 961 (6th Cir.2001), rev’d, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (Cone I). However, the details of this case’s procedural history are material to the issues before us on this appeal and we recount them now.

At the time of Cone’s conviction, under Tennessee law a jury could impose the death penalty only if it found that the government had proved, beyond a reasonable doubt, the existence of at least one of twelve statutory aggravating factors. Tenn.Code Ann. § 39-2404(i) (1981) (current version at Tenn.Code Ann. § 39-13-204(i) (2006)). In sentencing Cone to death, the jury found four aggravating factors: “[1] The defendant was previously convicted of one or more felonies, other than the present charge, which involve[d] the use or threat of violence to the person^ 2] The defendant knowingly created a great risk of death to two or more persons, other than the victim murdered, during his act of murder [ (‘great risk of death’ factor);] ... [3] The murder was especially heinous, atrocious, or cruel [ (HAC) ] in that it involved torture or depravity of mind [ (HAC factor); and] [4] The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another.” Id.; State v. Cone, 665 S.W.2d 87, 94-95 (Tenn.1984).

On direct appeal, the Tennessee Supreme Court found that the evidence did not support the jury’s finding of the “great risk of death” factor. Cone, 665 S.W.2d at 95. However, the court found this error was “harmless beyond a reasonable doubt” because Cone’s death sentence was supported by the other three aggravating factors found by the jury and by still another aggravating factor the jury did not find, but which the evidence supported; viz. that the murders were committed in perpetration of a burglary. Id. The court held that the death sentence was “not in any way disproportionate under all of the circumstances,” and affirmed. Id. at 95-96. After Tennessee courts denied two post-conviction petitions, Cone v. State, 927 S.W.2d 579, 580 (Tenn.Crim.App.1995), Cone filed a habeas corpus petition in federal district court under 28 U.S.C. § 2254, alleging numerous federal constitutional violations. As we have said, the federal district court denied Cone’s petition on all claims and Cone appealed.

In 2001, after hearing Cone’s first habeas appeal, we directed the district court to vacate the death sentence because Cone had been denied constitutionally guaranteed effective assistance of counsel at his sentencing hearing. Cone, 248 F.3d at 975-76. We also held that: (1) Cone’s allegations that the prosecution had withheld evidence from him in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), had been procedurally defaulted and that Cone had not shown cause and prejudice to overcome this default; (2) even if these Brady claims were not procedurally defaulted, the allegedly withheld documents were not Brady material; and (3) statements made by the prosecutor during closing argument did not rise to the level of prosecutorial misconduct. Cone, 243 F.3d at 968-73. We specifically declined to address Cone’s arguments that death by electrocution violates the Eight Amendment’s prohibition on cruel and unusual punishment and that the Tennessee jury improperly considered the “great risk of death” and HAC aggravating factors in sentencing him to death. Id. at 975. The United States Supreme Court reversed our decision that the assistance provided by Cone’s attorney did not meet constitutional mínimums and remanded the case back to this court. Cone I, 535 U.S. at 702, 122 S.Ct. 1843.

We heard Cone’s second appeal, on remand, in 2004. We held that the statutorily defined HAC aggravating factor found by the sentencing jury was unconstitutionally vague. Cone v. Bell, 359 F.3d 785, 797-99 (6th Cir.2004), rev’d, 543 U.S. 447, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005) (Cone II). Since this error was not harmless, particularly in light of the jurors’ erroneous reliance on the “great risk of death” aggravating factor, we granted Cone’s petition for habeas relief, without addressing any of Cone’s other claims. Id. at 799. The United States Supreme Court again reversed, holding that even if Tennessee’s HAC aggravating factor was facially vague, the Tennessee Supreme Court is presumed to have “eure[d] this vagueness by applying a narrowing construction on direct appeal.” Cone II, 543 U.S. at 459, 125 S.Ct. 847. The Supreme Court did not address any other issues and remanded, once again. Id. at 460, 125 S.Ct. 847.

B.

In this, his third appearance before us, Cone argues that several of his claims for relief remain unresolved. Without conceding any other claims, Cone’s brief focuses on two main claims: (1) that the jury’s improper consideration of the HAC and “great risk of death” aggravating factors at sentencing has not been cured and so he deserves a new sentencing hearing; and (2) that we should revisit our first decision’s holding that Cone’s Brady claims are procedurally defaulted, because the Supreme Court has since decided Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). Cone also makes six additional claims: (3) death by electrocution violates the Eighth Amendment; (4) the prosecutor made false arguments to the jury; (5) Cone received ineffective assistance of counsel; (6) the judge gave misleading jury instructions; (7) women were systematically underrepresented as grand jury forepersons when Cone was indicted; and (8) he was denied the right to counsel during trial. We address each claim below.

II.

We review the district court’s disposition of a petition for habeas relief de novo, but review the court’s factual findings for clear error only. Carter v. Bell, 218 F.3d 581, 590 (6th Cir.2000).

Our scope of review is also subject to the law of the case doctrine. Under that doctrine, when a court explicitly decides an issue of law, that decision should govern the same issue raised in subsequent stages of the same litigation. Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983); Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir.2006). In other words, when a court resolves an issue by a final decision, that decision binds future court deci sions in the same litigation, even those by that same court. Bowles v. Russell, 432 F.3d 668, 676-77 (6th Cir.2005), cert. granted, - U.S. -, 127 S.Ct. 763, 166 L.Ed.2d 590 (2006). However, the doctrine does not preclude reconsideration of decided issues if the court finds “exceptional circumstances.” Westside Mothers, 454 F.3d at 538 (citing Hanover Ins. Co. v. Am. Eng’g Co., 105 F.3d 306, 312 (6th Cir.1997)). “Exceptional circumstances” include: “(1) where substantially different evidence is raised on subsequent trial; (2) where a subsequent contrary view of the law is decided by the controlling authority; or (3) where a decision is clearly erroneous and would work a manifest injustice.” Id.

We also note that when the Supreme Court remands to our court, “ ‘whatever was before [the Supreme Court], and disposed of by its decree, is considered as finally settled’ ” and not in our power to rehear. Vendo Co. v. Lektro-Vend Corp., 434 U.S. 425, 427-28, 98 S.Ct. 702, 54 L.Ed.2d 659 (1978) (quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 40 L.Ed. 414 (1895)).

III.

As a general proposition, we have authority to grant habeas relief on a claim adjudicated by a state court if the state court decision “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The “contrary to” clause means a federal court “may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The “unreasonable application” clause means a federal court “may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. We make this determination by looking at whether the state court was objectively unreasonable in applying the federal law, not just whether the court was incorrect. Id. at 409, 120 S.Ct. 1495.

Cone first claims that he is entitled to relief because the jury weighed two invalid aggravating factors—the HAC factor and the “great risk of death” factor—without any court performing a harmless error analysis or conducting a new sentencing hearing to consider Cone’s mitigating evidence and valid aggravating factors.

In a so-called “weighing state” like Tennessee, in which the sentencer balances the aggravating and mitigating factors in making a death sentence determination, a sentence is arbitrary, and in violation of the Eighth Amendment, if the sentencer gives weight to an invalid aggravating factor, even if other valid factors have been found. Richmond v. Lewis, 506 U.S. 40, 46, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992); Stringer v. Black, 503 U.S. 222, 230, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). However, the Supreme Court has held that a death sentence may still be upheld despite a court’s consideration of an invalid aggravating factor if a state appellate court either: (1) reweighed the aggravating factors and mitigating evidence and found that the death sentence is still supported by the evidence; or (2) determined that the jury’s consideration of the invalid factor was harmless error beyond a reasonable doubt. Stringer, 503 U.S. at 230, 112 S.Ct. 1130 (citing Clemons v. Mississippi 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990)); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In conducting a harmless error analysis, “[a] [state] appellate court may choose to consider whether absent an invalid factor, the jury would have reached the same verdict or it may choose instead to consider whether the result would have been the same had the invalid aggravating factor been precisely defined.” Jones v. United States, 527 U.S. 373, 402, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (citing Clemons, 494 U.S. at 753-54, 110 S.Ct. 1441). Either way, the defendant must have received an “individualized sentenc[e]” from the jury, Stringer, 503 U.S. at 230, 112 S.Ct. 1130, which means that the jury selected the sentence based on “the character of the individual and the circumstances of the crime.” Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). This determination requires the state appellate court not simply to assume that absent the invalid factor, the jury still would have given a death sentence, Stringer, 503 U.S. at 231, 112 S.Ct. 1130, but instead, to review the evidence before it, including the mitigating evidence. See Parker v. Dugger, 498 U.S. 308, 321-22, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991).

There is another analytical route by which a court may decide the validity of a death sentence based in part, on an invalid factor. It is the route taken by the United States Supreme Court in rejecting Cone’s vagueness challenge to the HAC factor. Cone II, 543 U.S. at 459, 125 S.Ct. 847. If a court finds that a factor is invalid because the factor is unconstitutionally vague, a jury’s improper reliance on that factor may be “cured” by a state appellate court sufficiently limiting the vague language of the factor by applying a narrowing construction. See Lambrix v. Singletary, 520 U.S. 518, 531, 537 n. 6, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997); Stringer, 503 U.S. at 230, 112 S.Ct. 1130. In other words, “[there are] two distinct and permissible routes to satisfy the Eighth Amendment [prohibition against cruel and unusual punishment] where the sentencer considered a vague aggravator: a court’s finding of the aggravator under a proper [narrowing] construction, or independent reweighing of the circumstances.” Lambrix, 520 U.S. at 537 n. 6, 117 S.Ct. 1517. Therefore, when a state appellate court undertakes to “cure” the sentencer’s consideration of an unconstitutionally vague aggravating factor by giving the flawed factor a narrowing construction, that is the end of it, and no further harmless error analysis is necessary. Lambrix, 520 U.S. at 537 n. 6, 117 S.Ct. 1517; Richmond, 506 U.S. at 47, 113 S.Ct. 528.

In its last decision in this case, the United States Supreme Court held that even assuming that the HAC factor relied on by the sentencing jury in Cone’s case was facially vague, the Tennessee Supreme Court should be presumed to have applied a narrowing construction. Cone II, 543 U.S. at 456-58, 125 S.Ct. 847. Therefore, the Court reasoned, the presumed narrowing of the presumptively unconstitutional HAC factor rendered the factor’s vague language constitutionally sufficient. Id. at 459-60, 125 S.Ct. 847. The Court concluded that the Tennessee court’s affirmance of Cone’s death sentence on this issue was “not contrary to ... clearly established Federal law” and habeas relief should not be granted. Id. at 460, 125 S.Ct. 847.

These findings by the Supreme Court close the HAC aggravating factor issue and we find that the jury’s reliance on the HAC factor in sentencing Cone does not constitute a constitutional infirmity. Cone’s argument to the contrary—that he should get relief because the jury considered the vague HAC factor and no court found this error harmless or conducted a new sentencing calculus—misreads Supreme Court precedent. As we have said, because the Supreme Court presumed that the Tennessee Supreme Court applied a narrowing construction, Cone II, 543 U.S. at 456-58, 125 S.Ct. 847, any error by the jury in relying on this factor was “cured.” See Richmond, 506 U.S. at 47, 113 S.Ct. 528.

We also reject Cone’s claim that he deserves a new sentencing hearing because the jury erroneously relied on the “great risk of death” factor. It is true that the Tennessee Supreme Court acknowledged that the jury finding on this factor was not supported by the evidence, but Cone is not entitled to a new sentence unless the Tennessee Supreme Court did not (1) conduct a proper harmless error analysis; or (2) reweigh the mitigating and aggravating factors in examining his sentence. Stringer, 503 U.S. at 230, 112 S.Ct. 1130. Tennessee appellate courts generally do not reweigh, but instead conduct a harmless error analysis when faced with jury reliance on an invalid sentencing factor. State v. Howell, 868 S.W.2d 238, 259-61 (Tenn.1993). As the Howell court recognized, the Tennessee Supreme Court did just such an analysis in this case. See id. at 260 (citing Cone, 665 S.W.2d 87). The Tennessee Supreme Court explicitly decided that the jury’s consideration of the “great risk of death” factor “was harmless beyond a reasonable doubt and does not warrant the granting of a new sentencing hearing.” Cone, 665 S.W.2d at 95.

While the Tennessee Supreme Court’s statement that it found harmless error is significant in our upholding that decision, see Sochor v. Florida, 504 U.S. 527, 540-41, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), the opinion further demonstrates that the court performed a proper harmless error analysis. Although the Court’s opinion does not spell out its harmless error analysis in explicit terms, in discussing the jury’s erroneous consideration of the “great risk of death” factor, the opinion examines the evidence supporting each aggravating circumstance found by the jury and finds that the other aggravating circumstances “were clearly shown by the evidence.” Cone, 665 S.W.2d at 94. Earlier in the opinion, in a section immediately preceding a discussion of the claims Cone raised on appeal, the court explicitly discussed the mitigating evidence presented by Cone at trial and the contrary evidence presented by the government on that issue. Id. at 92. The court concluded: “[W]e have reviewed the sentence of death in this case and are of the opinion that it is not in any way disproportionate under all of the circumstances.” Id. at 95. The court’s analysis shows that it looked at “whether absent [the] invalid [“great risk of death”] factor, the jury would have reached the same verdict,” see Jones, 527 U.S. at 402, 119 S.Ct. 2090, and found that the sentence was appropriate. Contrary to Cone’s claims, the court did not just “assume it would have made no difference if the thumb had been removed from death’s side of the scale.” Stringer, 503 U.S. at 232, 112 S.Ct. 1130. Therefore, Cone has failed to establish that the Tennessee Supreme Court’s affirmance of his death sentence was contrary to clearly established law and, therefore, we may not grant relief on this claim.

IV.

Cone’s second claim raises an issue previously decided by this court: whether the state prosecutors withheld evidence from Cone in violation of Brady, 373 U.S. 83, 83 S.Ct. 1194. The Brady rule requires the government “to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment.” Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). A government violation of this rule is grounds for setting aside a conviction or sentence only if the failure to disclose the relevant evidence “undermines confidence in the verdict, because there is a reasonable probability that there would have been a different result had the evidence been disclosed.” Coe v. Bell, 161 F.3d 320, 344 (6th Cir.1998).

Cone’s claim is actually better described as four separate Brady claims because Cone asserts that four groups of documents were withheld from him in violation of Brady. They are: (1) evidence regarding his drug use; (2) evidence that might have been useful to impeach the testimony and credibility of prosecution witness Sergeant Ralph Roby; (3) FBI reports; and (4) evidence showing that prosecution witness llene Blankman was untruthful and biased. We examined these four claims in our first opinion and found that each one had been procedurally defaulted. Cone, 243 F.3d at 968-70. Three of the claims had been procedurally defaulted because the Tennessee state court held the claims were previously determined or waived and that holding amounted to an independent and adequate state law ground barring our considering the claims. Id. The remaining claim, the FBI reports, had been procedurally defaulted because Cone failed to argue it in state court. Id. at 970. Cone also did not overcome this procedural default by showing both (a) reasonable cause for his failure to timely raise these claims, and (b) unfair prejudice from the withholding of the documents. Id. at 971. We held that Cone had not shown cause or prejudice for his first, second, and fourth Brady claims, and while he had shown cause for his third claim, the FBI reports, he had not shown any prejudice. Id. Therefore, we held that Cone’s Brady claims were not properly before us. In the alternative, we held that even if Cone could establish cause and prejudice to overcome his procedural default, “we are satisfied that the documents Cone complains were withheld are not Brady material.” Id. at 968.

Given these prior rulings, we may not, because of the law of the case doctrine, reconsider Cone’s Brady claims unless “ ‘exceptional circumstances’ ” exist. Westside Mothers, 454 F.3d at 538 (citation omitted). Cone argues that the Supreme Court’s decision in Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157 L.Ed.2d 1166, provides the necessary “exceptional circumstance! ]” because it decided a “subsequent contrary view of the law” after our first decision in Cone’s case. See Westside Mothers, 454 F.3d at 538. According to Cone, Banks “held that when the state withholds evidence which is material to a jury’s death-sentencing determination, a petitioner has ‘cause and prejudice’ for any failure to timely present such claims in state court.” Since the prosecution withheld mitigating evidence, Cone argues he had “cause and prejudice” under Banks. We disagree.

Contrary to Cone’s arguments, Banks does not require us to review our prior findings. In Banks, the Supreme Court, citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), stated the familiar rule for overcoming procedural default: that the petitioner must show cause and prejudice. Banks, 540 U.S. at 691, 124 S.Ct. 1256. The Court recounted that a petitioner shows “cause” when he demonstrates that his failure to develop facts in the state court proceedings was due to the prosecution’s suppression of the relevant evidence and “prejudice” “when the suppressed evidence is ‘material’ for Brady purposes.” Id. (quoting Strickler, 527 U.S. at 282, 119 S.Ct. 1936). The Banks Court then, analyzed each of these factors separately to find cause and prejudice. Id. at 692-703, 124 S.Ct. 1256. The Court did not find cause and prejudice solely because the prosecution withheld evidence. Therefore, the Supreme Court did not decide a “subsequent contrary view of the law” that would lead us to disregard the law of the case here.

Furthermore, any attempt by Cone to analogize Banks to his case is misplaced because the Court’s finding of cause and prejudice in Banks is distinguishable from Cone’s case. The Supreme Court found that Banks showed “cause” by proving three factors: (a) the prosecution withheld exculpatory evidence; (b) Banks reasonably relied on the prosecution’s open file policy to fulfill its Brady responsibilities; and (c) the State confirmed Banks’s reliance on the prosecution’s representation that it had disclosed all Brady material. Banks, 540 U.S. at 692-93, 124 S.Ct. 1256. The Court concluded: “In short, because the State persisted in hiding [the witness’s] informant status and misleadingly represented that it had complied in full with its Brady disclosure obligations, Banks had cause for failing to investigate, in state postconviction proceedings, [the witness’s] connections to [the police].” Id. at 693, 124 S.Ct. 1256. This circuit has held that “prosecutorial concealment and misrepresentation” was key to the Banks holding and rejected a petitioner’s argument that the prosecution’s withholding of documents alone, i.e., without prosecutorial misconduct, demonstrates cause. Harbison v. Bell, 408 F.3d 823, 833 (6th Cir.2005), cert. denied, 547 U.S. 1101, 126 S.Ct. 1888, 164 L.Ed.2d 574 (2006).

This distinction is applicable here. Cone has not presented any evidence of prosecu-torial concealment or shown his reliance on false prosecutor statements. Instead, he summarily concludes that Banks supplies the necessary cause without explaining how the facts of his case match Banks’ case. Banks thereby does not give us reason to revisit our prior decision that three of Cone’s Brady claims lack cause for his procedural default.

In Banks, the Court found “prejudice” because the government witness, whose testimony may have been impeached with the withheld Brady material, presented evidence on a key element of the case and was not corroborated by another witness. Banks, 540 U.S. at 700, 124 S.Ct. 1256. The Court found this uncorroborated testimony on a key issue combined with the prosecutor’s misrepresentations and concealment of the issue showed a reasonable probability that the outcome of the case would have been different if Banks, had received the withheld evidence. Id. at 699-701, 124 S.Ct. 1256.

But Cone has not made a similar showing. In his most recent brief, claiming that his receiving the withheld evidence would have resulted in a different sentence, Cone has made only conclusory arguments. Cone introduced considerable evidence that he had a drug habit, Cone, 665 S.W.2d at 92, and so we have no basis to conclude that the result of his trial would have come out differently had the Brady evidence been given to him. See Coe, 161 F.3d at 344. Banks thereby does not give us reason to revisit our prior decision that Cone has not shown prejudice. We therefore will not disturb our decision that Cone’s Brady claims are procedurally defaulted and not before this court.

Cone argues in the alternative that even without a showing of “cause and prejudice” this court can review three of his Brady claims—the mitigating drug evidence, the Roby impeachment testimony, and the Blankman testimony—because those claims were not procedurally defaulted under state law.

It is well settled that a habeas petitioner must exhaust his available remedies in state court before a federal court may grant habeas relief. 28 U.S.C. § 2254(b)(1)(A). If the state court decides the petitioner’s claims on an adequate and independent state ground, such as a state procedural rule, the petitioner’s claims are considered procedurally defaulted and he is barred from seeking federal habeas relief. Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Under Tennessee law, grounds for relief which have been “waived or previously determined” are not cognizable in a state post-conviction action. Tenn.Code Ann. § 40-30-112 (1990) (since repealed). The Tennessee courts held that Cone’s Brady claims were previously determined under this rule, State v. Cone, No. P-06874 (TenmCrim. Ct. filed December 16, 1993) aff'd 927 S.W.2d 579 (Tenn.Crim.App.1995), and we found that Cone’s claims were therefore procedurally defaulted. Cone, 243 F.3d at 969-70.

Cone looks to Hathorn v. Lovorn, 457 U.S. 255, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982), to challenge our finding of procedural default. While the general rule is that a petitioner’s failure to comply with a state procedural rule may constitute an independent and adequate state ground of decision and bar a federal court’s review of a federal question raised in state court, Hathom held that a federal court will not be prevented from hearing a federal question raised in state court if the state court did not follow established state procedural rules. Id. at 262-63, 102 S.Ct. 2421. Therefore, Cone argues, if the Tennessee court rested its finding that Cone’s three Brady claims were previously determined upon a Tennessee procedural rule that was not “ ‘firmly established and regularly followed,’ ” Hutchison v. Bell, 303 F.3d 720, 737 (6th Cir.2002) (quoting Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991)), then no independent and adequate state ground precludes this court from reviewing Cone’s three Brady claims.

While we do not take issue with Cone’s statement of the general rule, we find it is inapplicable to his case. We have already decided that Cone’s claims are procedurally defaulted and so we would need to find an “exceptional circumstance[]” to revisit that decision. Westside Mothers, 454 F.3d at 538. We do not find any such circumstance. Even if we were disposed to ignore our prior decision on this issue, we find that Cone’s argument has no merit. To determine whether a state procedural rule is firmly established, a court looks at “whether, at the time of the petitioner’s actions giving rise to the default, the petitioner ‘could not be deemed to have been apprised of [the rule’s] existence.’ ” Hutchison, 303 F.3d at 737 (quoting Ford, 498 U.S. at 423, 111 S.Ct. 850). The petitioner must demonstrate more than “ ‘[a]n occasional act of grace by a state court in excusing or disregarding a state procedural rule’ in order for a federal court to conclude that the state procedural rule is inadequate because inconsistently applied.” Id. (quoting Coleman v. Mitchell, 268 F.3d 417, 429 (6th Cir.2001)).

Cone has not shown that Tennessee did not consistently follow its procedural rules such that we should have disregarded Tennessee’s finding that his Brady claims were previously determined. While Cone cites a few cases in an attempt to show inconsistent application of Tennessee’s procedural rules, they do not support the claim that Tennessee’s waiver rule was not “ ‘firmly established and regularly followed.’ ” Hutchison, 303 F.3d at 737 (citation omitted). Rather, the rules . were firmly established and the Tennessee courts applied them here. We again find that Cone’s claims are procedurally defaulted and we reject Cone’s request to reconsider his Brady claims.

The dissent challenges our reliance on the law of the case doctrine, arguing that, on this third appeal, we should find our prior holding of procedural default no longer valid because Cone’s Brady claims have never been decided by a court. The Tennessee courts found that Cone’s Brady claims were “previously determined” and, therefore, not cognizable in Cone’s state post-conviction action, Cone v. State, No. P-06874 (Tenn.Crim. Ct. filed Dec. 16, 1993), aff'd, 927 S.W.2d 579 (Tenn.Crim.App.1995). However, after an impressively close scrutiny of the enormous state court record, our brother finds as a matter of fact that the Tennessee trial and appellate courts have repeatedly misstated the record. Our brother’s fact-finding raises interesting questions as to a federal appellate court’s authority on review of the denial of a habeas petition to make its own findings of fact ' contradicting a state court’s findings on the contents of the state court record.

We need not be delayed by these interesting questions of federalism, however, because, in all events, the documents discussed in the dissenting opinion that were allegedly withheld are not Brady material. We said this before in Cone, 243 F.3d at 968-70, and we now say it again. A review of the allegedly withheld documents. shows that this evidence would not have overcome the overwhelming evidence of Cone’s guilt in committing a brutal double murder and the persuasive testimony that Cone was not under the influence of drugs. The dissent narrowly focuses on Sergeant Roby’s testimony that “he knew of no evidence of drug addiction or abuse,” dissent p. 761, and FBI Agent Eugene Flynn’s testimony that he had “found no evidence of drug addiction,” dissent p. 761. The dissent’s argument, apparently, is that some of the undisclosed documents were prior inconsistent statements by Roby and Flynn that could have, been used to impeach their credibility. While it is far from clear that these documents were indeed prior inconsistencies by Roby and Flynn, even if they were, they would have been admissible under Tennessee law, only to impeach veracity and not for their truth. See Dailey v. Bateman, 937 S.W.2d 927, 930 (Tenn.Ct.App.1996). The third category of undisclosed documents are said to be (1) . hearsay statements by Chief Daniels to Memphis police investigators that Cone “was a heavy drug user,” and (2) statements by “[t]hree other witnesses” that the day before the murder, Cone looked “weird” and on drugs, or “wild-eyed.” Dissent, p. 761.

It would not have been news to the jurors, that Cone was a “drug user.” They had already heard substantial direct evidence that he was a drug user, including the opinion of two expert witnesses, the testimony of Cone’s mother, drugs found in Cone’s car, and photographic evidence. Despite this evidence, the jurors concluded that Cone’s prior drug use did not vitiate his specific intent to murder his victims and did not mitigate his culpability sufficient to avoid the death sentence. In short, the allegedly withheld evidence catalogued by the dissent does not “undermine confidence in the verdict because there is [not] a reasonable probability that there would have been a different result had the evidence been disclosed,” see Coe, 161 F.3d at 344, and so we reject Cone’s Brady claims.

■V.

Cone’s third claim is that" death by electrocution violates the Eighth Amendment. We explicitly did not address this claim in our first decision, Cone, 243 F.3d at 975, and so we address it now for the first time. The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const, amend. VIII. In Tennessee, electrocution was the only method of execution until 1999 when the legislature made lethal injection the default method, but gave inmates a choice of electrocution if they had committed their crime before January 1, 1999. Tenn.Code Ann. § 40-23-114. The Supreme Court has declared that in a state where the default method of execution' is lethal injection and a person chooses to be executed by lethal gas that person has waived any objection he may have to the method of lethal gas. Stewart v. LaGrand, 526 U.S. 115, 119, 119 S.Ct. 1018, 143 L.Ed.2d 196 (1999).

Cone, who committed his crimes in 1980, has chosen electrocution over lethal injection and now argues that electrocution violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Since Cone selected a method of execution different from the state’s default method, his objections to his chosen method of execution are waived and we do not reach the merits of his claim. See id. We note that even if Cone’s claim could move forward, neither the Supreme Court nor this circuit has concluded that electrocution offends “ ‘the evolving standards of decency that mark the progress of a maturing society,’ ” Roper v. Simmons, 543 U.S. 551, 561, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (citation omitted), and constitutes cruel and unusual punishment. Williams v. Bagley, 380 F.3d 932, 965 (6th Cir.2004), cert. denied, 544 U.S. 1003, 125 S.Ct. 1939, 161 L.Ed.2d 779 (2005); In re Sapp, 118 F.3d 460, 464 (6th Cir.1997); see also In re Kemmler, 136 U.S. 436, 443, 10 S.Ct. 930, 34 L.Ed. 519 (1890).

We decline to grant relief on Cone’s Eighth Amendment claim.

VI.

Cone has a number of remaining claims: (1) the prosecutor made false arguments to the jury; (2) Cone received ineffective assistance of counsel; (3) the judge gave misleading jury instructions; (4) women were systematically underrepresented as grand jury forepersons when Cone was indicted; and (5) Cone was denied the right to counsel during trial.

We have previously decided the first of Cone’s remaining claims and there are no “ ‘exceptional circumstances,’ ” Westside Mothers, 454 F.3d at 538 (citation omitted), that would warrant our not following the law of the case. In our first decision we held:

We find that the statements made by the prosecutor referring to Cone as a drug seller are not material, and we agree with the district court that the statement was too remote from the real issues in this case to have affected the jury’s deliberations. Cone’s drug psychosis defense was not substantially undercut by the prosecutor’s remarks; rather, Cone simply did not present credible evidence that he was using drugs at the time he committed the murders. Under 28 U.S.C. § 2254(d), this decision does not appear to be contrary to, or involve an unreasonable application of, clearly established Federal law as determined by the Supreme Court.

Cone, 243 F.3d at 973. As we have already decided this issue, we reject Cone’s request to reconsider this claim.

We are also precluded under the law of the case doctrine from considering Cone’s claim that he received ineffective assistance of counsel. Cone raised only two ineffective assistance of counsel claims in his first post-conviction relief petition: (a) the failure of counsel to object during the State’s argument at sentencing; and (b) the failure of counsel to present evidence in mitigation at the sentencing phase of the trial. We may not consider either of these claims because the United States Supreme Court has held that the Tennessee courts did not err in rejecting Cone’s Sixth Amendment arguments on these issues. Cone I, 535 U.S. at 697, 700-02, 122 S.Ct. 1843.

Any other ineffective assistance of counsel claims by Cone are procedurally barred because they were not raised until Cone’s second petition for post-conviction review. A petitioner must exhaust his available remedies in state court before a federal court may grant post-conviction relief. 28 U.S.C. § 2254(b)(1)(A). As previously discussed, if the state court decides the petitioner’s claims on an adequate and independent state ground, such as a procedural rule, the petitioner’s claims are considered procedurally defaulted and he is barred from seeking federal habeas review. Wainwright, 433 U.S. at 86-87, 97 S.Ct. 2497. Under Tennessee law at the time, a claim not brought in a prior proceeding is presumed to be waived. Tenn. Code Ann. § 40-30-112(b)(2) (1990) (since repealed). Cone has not shown “cause and prejudice” to excuse the default. Therefore, his ineffective assistance claims raised in later petitions are procedurally barred.

Cone’s claim of denial of counsel at trial suffers a similar fate. Cone specifically claims that he was denied his Sixth Amendment right to counsel by not being allowed to sit at counsel table during trial. This claim was not raised until an amendment to his second state post-conviction petition, rather than his first petition, and so it is procedurally defaulted. Cone has not made any attempt to show “cause and prejudice” for this claim and so we may not reach it.

Cone admits that his remaining two claims—misleading jury instructions and grand jury sex discrimination—fail under a prior decision of this court. See Salmi v. Sec’y of Health and Human Servs., 774 F.2d 685, 689 (6th Cir.1985). In Coe v. Bell, we approved a jury instruction regarding unanimity identical to the one used in Cone’s case and we also held that it was not error for a district court to hold that a male defendant lacked standing to raise a claim of discrimination against females in jury selection. Coe, 161 F.3d at 337-39, 352-53. Since Cone admits that Coe controls his claims, that is the end of the matter.

VII.

Cone’s petition for federal habeas relief has come before this court for a third time. We find that the law of the case directs us to AFFIRM once again the denial of those claims we have .previously addressed and decided.

We AFFIRM the district court’s rejection of Cone’s remaining claims for the reasons we have given, and deny the petition for habeas relief.