concurring.
I agree with the Court that this death case cannot be disposed of on grounds of procedural default, and I agree on the merits of the constitutional issue. I believe there are additional reasons that the Court is right and that the State’s position is untenable.
I. Procedural Default
In this case, the jury found that the crimes were “especially heinous, atrocious, or cruel in that [they] involved torture or depravity of mind.” (J.A. at 235, 237 (verdict forms)). Pursuant to its statutory mandate, the state supreme court automatically reviews, inter alia, whether the sentence of death was imposed in any arbitrary fashion and whether the evidence supported the jury’s finding of a statutory aggravating circumstance. See Tenn.Code Ann. § 39-2-205(c)(l), (2) (1982). On direct review in this case, the state supreme court expressly examined the evidence presented at trial and determined that the evidence was sufficient for the jury to find that the murders were “especially heinous, cruel, or atrocious in that they involved torture or depravity of mind.” State v. Cone, 665 S.W.2d 87, 94-95 (Tenn.1984).
In State v. Harris, the jury found three aggravating circumstances to support the death penalty, including that the crimes were “especially heinous, atrocious, or cruel in that [they] involved torture or depravity of mind.” 839 S.W.2d 54, 59-60 & n. 1 (Tenn.1992). On direct appeal, the defendant did not raise any specific vagueness challenge to the aggravator or challenge the sufficiency of the evidence in support of it. Nevertheless, the state court clearly examined both aspects of the aggravator as part of its statutory review of the sufficiency of the evidence:
The Defendant has not challenged the sufficiency of the evidence to support the aggravating circumstances found by the jury to warrant imposition of the death penalty in this case. Nonetheless, *800as in all capital cases, under the directive of T.C.A. § 39 — 13—206(c)(1)(B) [formerly T.C.A. § 39 — 2—205(c)(2) ], this Court has reviewed the evidence pertaining to the aggravating circumstances and concludes that it is sufficient to support the aggravating circumstances found by the jury in this case.
Id. at 76. Two dissenting justices would have held that sentence invalid based on the “heinous, atrocious, or cruel” aggravator as applied to the evidence in. the case because the instruction did not sufficiently guide the jury’s discretion as a matter of constitutional law. Noting that the jury’s application of the aggravator could only have been based on a finding of depravity, the dissenting justices concluded that “the instructions provided no help in guiding the jury to its decision” because the jury “received no guidance in determining whether the defendant’s mind was materially ‘depraved’ beyond that of any first degree murderer, and was bestowed unconstitutionally unfettered and unguided discretion in applying this aspect of [the] aggravating circumstance.” Id. at 83-84 (Reid, C. j.dissenting) (citing Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990)). The majority responded to the “dissent[’s] challenge[ ][to] the validity in the present case of the aggravating circumstance” by setting forth evidence in support of the aggravator and holding that the jury was “fully and correctly instructed” on the aggravator in accord with State v. Williams, 690 S.W.2d 517, 529 (Tenn.1985).1
Harris demonstrates that, in a death penalty case, the state supreme court’s mandatory review of the sufficiency of the evidence to support the jury’s finding of an aggravator necessarily includes an affirmative examination of whether the aggravator, either as instructed or as viewed by the reviewing court through a narrowing construction, sufficiently narrowed the class of persons eligible for the death penalty. As a result, there can be no doubt in this case that the state court reviewed the “heinous, atrocious, and cruel” aggravator on the merits and determined that it was not unconstitutionally vague.
Moreover, there is nothing in the record that would constitute a clear and express statement that the state court disposed of this issue on state procedural grounds, a prerequisite to the deference to state deci-sionmaking that our federal doctrine of procedural default aims to protect. Cone first presented his challenge to the constitutionality of the aggravator in paragraph 18 of his second amended post-conviction petition. In dismissing the ground, the trial court did not state that the claim had been waived, as the State asserts in its brief before this Court, but that “grounds 17, 18 [which included his challenge to the constitutionality of the aggravator], 19, 21, 22, 23, 34, 35, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, and 36 involve[] a potpourri of various errors by the court at the trial all of which grounds have been considered and denied in direct appeal or the First Post'Conviction Petition.” Cone v. State, No. P-06874, slip op. at 4 (Crim. Ct. Tenn., 13th Judicial Dist., Dec. 16, 1993). In affirming the trial court’s ruling, the Tennessee Court of Appeals did not expressly address Cone’s claim for relief based on the “heinous, atrocious, or cruel” aggrava*801tor, but agreed with the trial court that all of Cone’s claims had been “previously determined or waived.” This language, in light of the state supreme court’s mandatory review on direct appeal, “gives a federal court good reason to question whether there is an adequate and independent state ground for the decision.” O’Guinn v. Dutton, 88 F.3d 1409, 1423 (6th Cir.1996) (Merritt, J., concurring).
To the extent that the decision of the state court of appeals can be read as an “unexplained ruling” due to its failure to specify that a procedural default has been expressly invoked to dispose of this particular claim, we must refer to the only reasoned state court judgment addressing the aggravator, which in Cone’s case is the state supreme court’s express consideration of the aggravator on direct appeal. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (“If an earlier opinion ‘fairly appears[ ] to rest primarily on federal law,’ ... we will presume that no procedural default has been invoked by a subsequent unexplained order that leaves the judgment or its consequences in place”); O’Guinn, 88 F.3d at 1423. As explained above, we can presume that, in ruling that the evidence supported the jury’s finding that the crimes were “especially heinous, atrocious or cruel,” the state supreme court, as in Harris, fulfilled its statutory duty to test the constitutionality of the aggravator. Further, contrary to the State’s assertion, no state court has clearly and expressly stated that its disposition on the issue was based on the independent and adequate state ground of waiver, as required by Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), and Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546,115 L.Ed.2d 640 (1991).
Our view is reinforced by State v. West, 19 S.W.3d 753 (Tenn.2000), in which the constitutionality of an aggravator was raised. The state supreme court ruled that it had previously determined the constitutionality of the aggravator on direct appeal pursuant to its statutory mandate “to automatically consider whether the ‘evidence supports the jury’s finding of a statutory aggravating circumstance or statutory aggravating circumstances.’ ” Id. at 756. West demonstrates that the Tennessee Supreme Court understands its statutory obligation to review death sentences as carrying with it the affirmative responsibility to keep the application of the statutory aggravators within constitutional bounds. See Godfrey v. Georgia, 446 U.S. 420, 429, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (noting the Georgia Supreme Court’s previous exercise of its responsibility to keep the application of the “outrageously or wantonly vile, horrible and inhuman” aggravator within constitutional bounds).
II. Cause and Prejudice
Even if Cone had proeedurally defaulted his objection to the “heinous, atrocious, and cruel” aggravator, this Court can still hear the claim if Cone can establish “cause and prejudice” for the default. Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Cone argues that his failure to raise the objection on direct appeal was due to the ineffectiveness of his counsel. Ineffective assistance of counsel, if established, can be sufficient to establish cause and therefore allow a federal court to reach the merits of a claim defaulted in a state court so long as the ineffectiveness rises to the level of a Sixth Amendment violation resulting in prejudice to the defendant. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
In this case, counsel was allegedly ineffective at two stages of the proceeding in failing to raise the constitutional objection *802to the instruction — at trial and on appeal. Before we can decide if Cone has established ineffective assistance of counsel as cause of the failure to object at trial and on appeal, we must first decide whether Cone has properly exhausted the ineffectiveness claim in the state courts. When a petitioner claims ineffective assistance of counsel as cause for a procedural default in state court of a substantive constitutional claim, the allegation of ineffectiveness is a separate claim which must itself be exhausted in state court according to the normal procedures. Edwards v. Carpenter, 529 U.S. 446, 452, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Murray v. Carrier, 477 U.S. 478, 489, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (“[T]he exhaustion doctrine ... generally requires that a claim of ineffective assistance of counsel be presented to state courts before it may be used to establish cause for a procedural default.”). According to Edwards, the failure to exhaust the ineffectiveness claim will itself constitute a procedural default of the procedural default defense and, absent cause and prejudice, will prevent federal courts from hearing it. 529 U.S. at 452, 120 S.Ct. 1587. A petitioner cannot easily establish cause for the third default, because there is no constitutional' right to counsel at post-conviction hearings, according to Coleman, and without such a right ineffective assistance of counsel cannot constitute cause for a procedural default. 501 U.S. at 752, 111 S.Ct. 2546.
It is clear from the record that Cone did not waive his ineffective assistance of counsel claim. Cone raised a general claim of ineffective counsel in his first post-conviction petition. Although he did not claim specifically in that first petition that his counsel was ineffective because of the failure to object to the vague “heinous, atrocious, and cruel” aggravator, he added those grounds in his second post-conviction petition. Both the state trial court and the appellate court ruled that under Tennessee law, ineffective assistance of counsel is a “single ground for relief’ that had been “previously determined” in the first post-conviction petition. J.A. at 2001. Therefore, even though Cone did not claim that his counsel was ineffective specifically because of the failure to object to the ag-gravator until his second post-conviction petition, he has not defaulted that claim because under Tennessee law it constitutes the same ground that the Tennessee courts had previously determined to be without merit.
Still, even though Cone has not procedurally defaulted his ineffective assistance of counsel claim, the message from Edwards is that in order to rely on the ineffectiveness claim as cause for his failure to raise the “heinous, atrocious, and cruel” aggravator, the issue must not only have been presented to, or at least deter-rrfined by, the state courts, the restrictions on federal review from the Anti-Terrorism and Effective Death Penalty Act (“AED-PA”) must be satisfied as well. Specifically, § 2254(d) prevents federal courts from granting habeas “with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim” was either “contrary to” or an “unreasonable application of’ clearly established federal law. 28 U.S.C. § 2254(d) (2003); Williams v. Taylor, 529 U.S. 362, 402-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Thus, we must determine whether the rejection of Cone’s ineffective assistance of counsel claim by the Tennessee state courts in his post-conviction petitions was contrary to, or an unreasonable application of, clearly established federal law.
The starting point for ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). According to *803Strickland, in order to establish a claim for the ineffective assistance of counsel, a petitioner must be able to show both that his counsel was constitutionally deficient and that the deficiency prejudiced his defense. Id. at 687, 104 S.Ct. 2052; Wiggins v. Smith, 539 U.S. 510, -, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Although the Strickland test is “highly deferential” to the judgment of defense counsel, 466 U.S. at 689,104 S.Ct. 2052, and the mere fact that counsel has failed to recognize or raise a particular claim does not always constitute cause for a procedural default, Smith v. Murray, 477 U.S. 527, 535, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Carrier, 477 U.S. at 486-87, 106 S.Ct. 2678, the Supreme Court has also made it clear that “the right to effective assistance of counsel ... may in a particular case be violated by even an isolated error ... if that error is sufficiently egregious and prejudicial.” Murray, 477 U.S. at 535, 106 S.Ct. 2661 (quoting Carrier, 477 U.S. at 496, 106 S.Ct. 2678); see also Edwards, 529 U.S. at 451, 120 S.Ct. 1587 (“Although we have not identified with precision what constitutes ‘cause’ to excuse a procedural default, we have acknowledged that in certain circumstances counsel’s ineffectiveness in failing properly to preserve the claim for review in state court will suffice.”).
In this case, there can be no doubt that the defense counsel’s error was “sufficiently egregious and prejudicial” to constitute cause for his procedural default. The defense counsel failed both at trial and on direct appeal to object to the “heinous, atrocious, and cruel” aggravator despite the then-recent Supreme Court decision in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), in which the Court held similar language to be unconstitutionally vague. Indeed, as the Court here points out, not only did the principle established in Godfrey mean that the “heinous, atrocious, and cruel” aggravator was unconstitutional (as explained later in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988)), to rule otherwise as the Tennessee Supreme Court did in its mandatory review was contrary to clearly established Supreme Court precedent even according to the high standards of AEDPA as interpreted in Williams v. Taylor. Cone’s defense counsel missed, both at trial and on direct appeal, a claim of clearly established constitutional dimension, the preservation of which would result in having one of the aggravators on which Cone was sentenced to death thrown out. Failing to raise a winning defense is not a strategic decision, and incompetence is the only explanation for the failure to raise it. It appears that Cone’s counsel was litigating a capital case while simply unaware of controlling Supreme Court precedent in death penalty cases. It is hard to imagine a better case for “ineffectiveness in failing properly to preserve [a] claim for review in state court.” Edwards, 529 U.S. at 451, 120 S.Ct. 1587.
This conclusion is further supported by the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. As pointed out in Strickland, “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” 466 U.S. at 688, 104 S.Ct. 2052. American Bar Association standards are only “guides” and not “rules” for what constitutes ineffective assistance of counsel, id., but in this case the guidelines speak clearly:
One of the most fundamental duties of an attorney defending a capital case at trial is the preservation of any and all conceivable errors for each stage of ap*804pellate and post-conviction review. Failure to preserve an issue may result in the client being executed even though reversible error occurred at trial. For this reason, trial counsel in a death penalty case must be especially aware not only of strategies for winning at trial, but also of the heightened need to fully preserve all potential issues for later review.
ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 91-92 (rev. ed.2003) (internal quotations omitted).2 In this case, not only did Cone’s counsel fail to preserve “any and all” errors, he failed to preserve a claim based on binding Supreme Court precedent that was a sure winner as a matter of federal law and that, given the role of the “heinous, atrocious, and cruel” aggravator in the jury’s deliberation of the death sentence, may well have saved his client’s life. There can be no doubt that this error was “sufficiently egregious and prejudicial” to constitute cause for the procedural default of that claim.
III. Contrary to Established Supreme Court Cases
Finally, I have no trouble finding that the denial of Cone’s claim that his counsel was ineffective due to the failure to object to the “heinous, atrocious, and cruel” ag-gravator was not only wrong, but contrary to clearly established federal law as required by AEDPA and Williams. Although the error at issue here involves the failure to raise a claim rather than the failure to investigate at issue in Strickland and Wiggins, the differences do not mean that the Tennessee courts’ rejections of his valid ineffectiveness claim are not contrary to the clearly established test from Strickland. As the Supreme Court explained in Williams, “[t]hat the Strickland test ‘of necessity requires a case-by-case examination of the evidence’ ... obviates neither the clarity of the rule nor the extent to which the rule must be seen as ‘established’ by this Court.” 529 U.S. at 391, 120 S.Ct. 1495 (citation omitted). The Strickland test is well-established, and is itself based on a long established right to effective counsel. See id. (“[I]t can hardly be said that recognizing the right to effective counsel breaks new ground or imposes a new obligation on the states.” (internal quotations omitted)).
The Strickland test requires not only ineffectiveness of counsel, but also prejudice to the defendant as a result of that ineffectiveness. 466 U.S. at 687, 104 S.Ct. 2052. For the purposes of this test, prejudice amounts to a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Demonstrating such a reasonable probability is not difficult here. As the Court explains in its harmless error analysis, supra, the prosecutor specifically emphasized the “heinous, atrocious, and cruel” aggravator during closing arguments and at the sentencing phase of the trial. Moreover, this is the second invalid aggra-vator found by the jury. Thus, there is at the very least a reasonable probability that had Cone’s counsel preserved the objection to this “heinous, atrocious, and cruel” ag-gravator, his sentence ultimately may well have been different.
*805IY. The Merits
As is now typical in death penalty cases, we have spent more time discussing the maze of “door closing” devices such as procedural default than the merits. In this case, the merits are relatively easy to decide.
The Court concludes that applying the “heinous, atrocious, and cruel” aggravator to Cone’s case was not only wrong but contrary to clearly established federal law as required by AJEDPA and Williams because similar language was ruled unconstitutional in Godfrey. The Court cites Maynard for support of this proposition, which specifically held that an identical Oklahoma “heinous, atrocious, and cruel” ag-gravator was unconstitutional. Although Maynard was not decided until 1988— after the Tennessee Supreme Court upheld Cone’s conviction — because the Court in Maynard said that it was only applying the clear principle of Godfrey and not establishing new law, this Court today cites it for the proposition that Tennessee’s upholding the “heinous, atrocious, and cruel” aggravator was contrary to clearly established federal law.
I agree with the Court despite the state counsel’s objection to reliance on a later case to determine what law had been then clearly established. I would only add that the Supreme Court recently did precisely the same thing in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535-36, 156 L.Ed.2d 471 (2003), despite an identical objection by the dissenting justices in that case. Id. at 2546-47. In that case, the Court applied the rule of Strickland v. Washington, which was decided before Wiggins’ state court ruling, but also cited Williams v. Taylor, which was decided after Wiggins’ state court decision. Id. Since the Court in Williams had “made no new law in resolving Williams’ ineffectiveness claim,” id. at 2535, the Wiggins Court was free to cite Williams in determining whether or not the state court ruling against Wiggins was contrary to clearly established federal law, even though Williams was decided after the state court ruled against Wiggins. Similarly, as the Supreme Court later said when discussing non-retroactivity, “[i]n applying Godfrey to the language before us in Maynard, we did not ‘break[ ] new ground.’ ” Stringer v. Black, 503 U.S. 222, 228-29, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992) (quoting Butler v. McKellar, 494 U.S. 407, 412, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990)). Therefore, Wiggins reinforces our reliance on Maynard’s application of Godfrey when determining what was “clearly established federal law” at the time of Cone’s state court decision even though Maynard was not yet decided. In Houston v. Dutton, 50 F.3d 381 (6th Cir.1995), our Court did the same thing in invalidating the same Tennessee instruction. We cited Richmond v. Lewis, 506 U.S. 40, 46, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992), a case decided after Houston’s last state court decision, to find the same “heinous, atrocious, or cruel” ag-gravator unconstitutional because Richmond simply applied the principle enunciated in Godfrey and Maynard.
For these reasons, as well as those articulated by the Court, I agree with the Court’s ruling.
. Approximately one year after the state supreme court upheld Cone's death sentence, the Tennessee Supreme Court decided State v. Williams, in which it construed "depravity of mind” in cases where there was no evidence of torture. 690 S.W.2d at 529-30. The construction was intended to comport with constitutional requirements by sufficiently narrowing the class of persons eligible for the death penalty as required by Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).
. Although the above quotation is a recent statement not published at the time of Cone's trial, I use it because it is an articulation of long-established "fundamental” duties of trial counsel. See Hamblin v. Mitchell, 354 F.3d 482, 487 (6th Cir.2003) (applying 1989 ABA guidelines to counsel’s 1982 representation on the grounds that "the standards merely represent a codification of longstanding, commonsense principles of representation understood by diligent, competent counsel in death penalty cases”).