Gary Cone's habeas appeals have ping ponged throughout the federal court system for years, and they are not over yet. Today the Supreme Court granted certiorari in Cone v. Bell. At issue is whether Cone procedurally defaulted on some of his potential claims. I covered the last opinion of the U.S. Court of Appeals for the Sixth Circuit here, and the opinion is here.

Cone is not the only habeas case from the Sixth Circuit to go up. The Supreme Court also granted certiorari in Harbison v. Bell. As I understand the issue in this case, it concerns whether Harbison's federally-funded habeas counsel could seek clemency on Harbison's behalf, and whether a certificate of appealability is necessary to challenge a decision to the contrary.

Today's NYT has an informative article by Adam Liptak on the two habeas cases from the U.S. Court of Appeals for the Sixth Circuit that the Supreme Court agreed to hear yesterday. The article focuses on Cone v. Bell, which is the more interesting of the two, and not only because it is the third time this case has been to the High Court.

Mr. Cone, a decorated Vietnam War veteran, killed Shipley Todd, 93, and his wife, Cleopatra, 79, in their Memphis home at the end of a two-day crime spree in 1980. His only defense was that he had been in the throes of an amphetamine psychosis.

"This proved to be a tenuous defense, at best," the Tennessee Supreme Court said in affirming Mr. Cone's conviction and death sentence. There was no solid evidence, the court said, that Mr. Cone was even a drug user.

Indeed, a prosecutor called Mr. Cone's claim that he was a drug addict "baloney." Mr. Cone, the prosecutor said, was instead "a calm, cool professional robber."

It later emerged, however, that the district attorney's files contained contrary evidence that had not been provided to Mr. Cone's lawyers. Police reports had called Mr. Cone a heavy drug user and said he looked frenzied and wild-eyed before and after his crimes. The Federal Bureau of Investigation's files, disclosed still later, said Mr. Cone had been caught with amphetamines while in prison.

At issue is whether federal courts can consider this evidence despite state courts' rejection of Cone's claims.