dissenting.
At least three serious problems exist in this case. First, the State deliberately concealed mitigating evidence of Cone’s drug addiction and mental illness in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As will be demonstrated below, the bulletins and teletypes sent out by the police at the time of the murders clearly show that the police believed Cone to be a drug addict.
Second, embedded within the Brady problem is the majority’s failure to acknowledge and follow the long-established, bedrock principle of mitigation under the Eighth Amendment that forbids a state sentencing process that limits or proscribes the full consideration' of addiction or other mitigating evidence by the jury. That principle was reiterated and explained once again by the Supreme Court as recently as April 25, 2007, in Abdul-Kabir v. Quarterman, 550 U.S. -, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007). In that case, the Court stated in the text and accompanying footnote its holding that applies equally to Cone’s claim:
the basic legal principle that continues to govern such [mitigation] cases: The jury must have a ‘meaningful basis to consider the relevant mitigating qualities’ of the defendant’s proffered evidence 21
127 S.Ct. at 1671 n. 21 (emphasis added, citations omitted). In the present case the trial prosecutor’s argument, outlined below, combined with his concealment of mitigating evidence, prevented the jury from giving effect to Cone’s evidence of drug addiction which arose from a post-traumatic stress disorder from the Vietnam War.
Third, the majority fails to acknowledge that we were wrong in our earlier reliance on procedural default on Cone’s claim that the State concealed mitigating evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). I—and I believe my colleagues, as well— originally failed to understand the record correctly. The basic problem, as will be explained below, is that Cone presented a colorable Brady claim in the 1993 state habeas proceedings within a few months of discovering the documents wrongfully withheld by the State prosecutors. Cone presented this Brady claim as an amendment to his second post-conviction petition along with the 51 other pending claims. The claim was overlooked in the press of other claims, and the State trial court and Court of Appeals mistakenly asserted that the claims had been “previously determined” at earlier stages of the review process. In fact, Cone’s lawyer had discovered the present Brady claim just before he filed it; it had not been previously presented or adjudicated. And to make matters worse, no court, state or federal, has as yet reviewed the claim on the merits. Four courts—two state courts and two federal courts—have now misconstrued the record and declined to hear the merits after invoking the doctrine of “procedural default.” These kinds of errors are risks that we all run—lawyers and judges alike—when presented with a large mass of claims and arguments, especially in death penalty litigation, a dense and difficult field.
The failures of the state and federal judiciaries to consider the claim properly were caused by the misrepresentations of *760the record in the case by the Tennessee Attorney General and his appellate staff. The majority does not acknowledge, analyze or seek to provide a remedy for the complete falsification of the procedural record in this case by the Tennessee Attorney General’s appellate counsel concerning the State’s procedural default defense to the Brady claim. I will outline below the unacceptable conduct engaged in by the State’s appellate prosecutors in this litigation.
We should reverse our previous erroneous decision invoking procedural default and remand the case to the District Court for a full review of the merits of Cone’s claim that combines a Brady violation together with an Eighth Amendment mitigation violation. I will briefly explain the claim and then how the mistake was made in each of the four courts that led them erroneously to invoke procedural default rather than reach the merits. Cone deserves a full hearing on the merits of his claim in the District Court. I would not resolve the other complex claims in the case until the £ra<%-mitigation claim is fully litigated in the District Court on the merits.
I. Cone’s Brady Claim
In 1980, Gary Cone, who has a high IQ and a college education, committed an unprovoked brutal murder in Memphis. Before that, he fought in the Viet Nam conflict, received a bronze star for bravery in combat, and came home with a mental illness. He returned addicted to drugs and suffering from a serious post-traumatic, wartime stress disorder. The State prosecutor decided to seek the death penalty despite the mitigating evidence and needed to undermine any possible feelings of sympathy that a juror might have for such a mentally ill man guilty of a brutal murder. The prosecutor wanted the jury to feel a strong sense that it should seek retribution for the murder by imposing a sentence of death. In final argument at the guilt phase of the trial, the prosecutor falsely dismissed Cone’s mental illness and argued that Cone “says he’s a drug addict,” but “I say baloney.” During the final argument, the prosecutor flatly told the jury that there was no evidence of drug addiction and, therefore, no mitigating evidence. He reminded them that the State’s medical experts “saw no evidence of any kind, any extent of mental disease or defect” from drug use or any other form of post-traumatic stress syndrome. (App. 150.) The prosecutor repeated the testimony of a witness, llene Blankman, that there was no such evidence of drug abuse. (App. 158.)
The prosecutor did not want evidence inconsistent with this theory of the case to come before the jury. So far as the prosecutor was concerned, Cone was a perfectly intelligent and normal but evil man who should be executed for the good of society. The prosecutor did not answer Cone’s motion for exculpatory evidence of drug addiction or mental illness by turning over the substantial mitigating evidence that the State had in its files. The prosecutor was successful in undermining any feelings that Cone’s mental illness and drug addiction were mitigating reasons for sparing his life. In rejecting what it called Cone’s “tenuous defense, at best,” and affirming the death sentence in 1984, the Tennessee Supreme Court explained that the only evidence of drug addiction and mental illness that the jury heard was “based purely on his [Cone’s] personal recitation,” and that his “known pattern of conduct” and “the testimony of several witnesses” “raised serious doubts” that he “was under the influence of or experiencing withdrawal from drugs” about his mental illness and drug addiction, the Tennessee Supreme Court said:
The only defense interposed on his behalf was that of insanity, or lack of *761mental capacity, due to drug abuse and to stress arising out of his previous service in the Vietnamese war, some eleven years prior to the events involved in this case. This proved to be a tenuous defense, at best, since neither of the expert witnesses who testified on his behalf had ever seen or heard of him until a few weeks prior to the trial. Neither was a medical doctor or psychiatrist, and neither had purported to treat him as a patient. Their testimony that he lacked mental capacity was based purely upon his personal recitation to them of his history of military service and drug abuse.
State v. Cone, 665 S.W.2d 87, 90 (Tenn.1984) (emphasis added). The prosecutors, trial and appellate, convinced both the jury and the Supreme Court that there was no mitigating evidence. (In Tennessee, the trial prosecutor comes from the local district attorney’s office, and appellate and habeas counsel come from the Tennessee Attorney General’s staff.)
The exculpatory evidence of drug addiction and mental illness lay in the files of the State police and prosecutor’s offices undiscovered by Cone’s lawyers. Then, eight years after the opinion of the Tennessee Supreme Court, over the strong, persistent objection of State prosecutors in the State Attorney General’s Office, these files became available for the first time as a result of a decision by Judge Cantrell in the Tennessee Court of Appeals, Capital Case Resource Center of Tennessee, Inc. v. Woodall, No. 01-A-01 9104CH00150, 1992 WL 12217 (Jan. 29, 1992), holding that such police records must be made available under the Tennessee Public Records Act. Based on this decision, Cone’s lawyers searched through these records and found for the first time mitigating evidence that the State prosecutor had refused to disclose in response to the motion for exculpatory evidence.
When Sergeant Roby of the Memphis Police Department testified at the trial that he knew of no evidence of drug addiction or abuse, he also knew that he had sent out on August 10 and 11, 1980, detailed teletype all-points-bulletins to police departments around the country saying that Cone was armed, extremely dangerous and a drug user whose car contained “a large quantity of drugs.” (App. 518, 515.) On August 12, he sent out a more detailed bulletin to selected police departments saying that Cone was “believed [to be a] heavy drug user.” (App. 517-26.) These three police bulletins could have been used by defense counsel during trial to undermine Sergeant Roby’s credibility, as well as to establish that it was not “baloney” that Cone had the reputation for “heavy drug use.” The undisclosed evidence supported the testimony of Cone’s two experts concerning his heavy drug use and his mental illness. The documents tended to undermine the State’s two expert witnesses who denied extensive drug use and mental illness. I do not agree with the majority that these documents containing mitigating evidence of drug addiction are not Brady material.
Police records also reflect that on August 11, 1980, the police chief of the town where Cone previously lived, Chief Daniels of the Lake Village, Arkansas, police department, advised the Memphis police investigators that Cone “was a heavy drug user.” (App. 450.) Three other witnesses to events advised the police investigators that Cone appeared “weird” and on drugs or “looked wild-eyed” the day before the murders. (App. 449.)
The same problem exists with FBI Agent Flynn’s testimony. He also testified that he found no evidence of drug addiction. Later-disclosed FBI documents contained teletypes sent around the country prior to Cone’s arrest that refer to him *762as an “armed and dangerous drug user” and “subject believed heavy drug user.” Cone has now produced ten such teletypes or letters. (App. 450-52.) I do not agree with the majority that these documents are not Brady material. Flynn, as the agent investigating the case, had to know that Cone had a reputation as a heavy drug user and that FBI documents so described him. Cone believes that this long string of FBI documents would have undermined Flynn’s trial testimony, as well as the testimony of the State’s two medical experts, and would have supported the testimony of Cone’s medical experts. If one or more jurors had believed that Cone was suffering from a post-traumatic combat stress mental illness and drug addiction—instead of believing it was just “baloney,” as the trial prosecutor and the Attorney General’s office insist—it is unlikely that the jury would have reached a verdict of death.
II. Eighth Amendment Mitigation Requirement
In this death penalty case, the constitutional right to show drug addiction in mitigation is particularly important because this was Cone’s only way to prove a sufficient lack of mental capacity to avoid the jury’s imposition of death in retribution for a brutal murder. In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Supreme Court stated “the Ohio death penalty statute does not permit the type of individualized consideration of mitigating factors we now hold to be required by the Eighth and Fourteenth Amendments.” Lockett, therefore, absolutely forbids a state sentencing process that limits or proscribes the full consideration of addiction and other mitigators by the sentencer. By ruling immaterial the documented proof of addiction contradicting the prosecution’s “baloney” argument, the State and our court are permitting the execution of Cone in violation not only of Brady but also the Eighth Amendment’s mitigation line of death penalty cases, ending with Abdul-Kabir, quoted above. In its companion mitigation case, Brewer v. Quarterman, 505 U.S. -, 127 S.Ct. 1706, 167 L.Ed.2d 622 (2007), the Court stated that “there is surely a reasonable likelihood that the jurors accepted the prosecutor’s argument at the close of the sentencing hearing” that Brewer’s mitigating evidence of drug abuse and mental illness was irrelevant to the issues. The Court went on to say that the prosecutor told the jury that “all they needed to decide was whether Brewer had acted deliberately and would likely be dangerous in the future, necessarily disregarding any independent concern that, given Brewer’s troubled background, he may not be deserving of a death sentence.” 127 S.Ct. at 1712. Cone’s claim in this case is much stronger than Brewer’s because the prosecution here not only misinterpreted the law, as in Brewer, but falsified the factual record. Cone should be allowed to advance his argument in mitigation that he does not deserve the death penalty. He should be allowed to go forward on the merits with his argument that the State has concealed mitigating evidence in violation of Brady.
III. The Procedural Default Mistake
There is no question in this case that counsel for Cone filed before trial an extensive three-page “Motion for Production of Exculpatory Evidence” that covered the waterfront of exculpatory material, as well as a “Motion for Disclosure of Impeaching Information.” (App., Add.1, doc. 1, pp. 54-56, 98-99.) The State does not claim that Cone did not request before trial the type of exculpatory evidence withheld from Cone.
Our Court’s earlier mistaken ruling that the doctrine of procedural default barred *763the Brady claim was based on false statements of the record by the Tennessee Attorney General’s office in its brief in this Court and by incorrect statements from the record by two Tennessee courts. In its brief before this Court, the State argues that the Brady claim “is clearly procedurally defaulted” because “Cone’s Brady claims were simply never raised in the state court.” (Final brief, pp. 12-13.) This “simply never raised” statement can itself only be characterized as a deliberate falsehood. On October 5, 1993, soon after counsel for Cone learned of the existence of the exculpatory statements, counsel filed an amendment to his second petition for post-conviction relief in the criminal court of Tennessee at Memphis in which Cone was originally sentenced to death. The amendment’s paragraph 41 stated the Brady claim as follows:
Additional Claims for Review
41. Petitioner was denied his rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 6, 7, 8, 9, 10, 11, 14, 16 and 17 of the Tennessee Constitution, because the State withheld exculpatory evidence which demonstrated that petitioner that petitioner [sic] did in fact suffer drug problems and/or drug withdrawal or psychosis both at the time of the offense and in the past, such evidence including, but not limited to, statements of Charles and Debbie Slaughter, statements of Sue Cone, statements of Lucille Tuech, statements of Herschel Dalton, and patrolman Collins, and other persons unknown at this time, such statements contained in official police reports, and/or contained in other documents unknown and/or through personal recollections of officers or others. Such evidence was highly exculpatory and exculpatory to both the jury’s determination of petitioner’s guilt and its consideration of the proper sentence. There is a reasonable probability that, had the evidence not been withheld, the jurors would not have convicted petitioner and would not have sentenced him to death.
(App. 2006) (emphasis added).
Two months later on December 16,1993, the Criminal Court in Memphis, “William H. Williams, Senior Judge,” dismissed this paragraph 41 Brady claim stating only:
The petitioner, by way of his Third Amendment [to the second post-conviction petition], continues with grounds 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 and 52, all of which grounds are clearly restatements of previous grounds heretofore determined and denied by the Tennessee Supreme court and upon Direct Appeal or the Court of Criminal Appeals upon the First Petitioner.
(App. Add. 4, p. 233) (emphasis added). Judge Williams did not cite or attempt to point out when or how or What court had “previously determined” the claim. In fact, the Brady claim is never mentioned by the Tennessee courts in any previous opinion or order, including the Tennessee Supreme Court opinion on direct appeal quoted above, the trial court order on the first post-conviction petition, Cone v. State, No. P-3653 (Tenn.Crim. Ct. at Memphis, Sept. 19, 1986) (App. 1954) (mentioning only claims of prosecutorial misconduct and ineffective assistance of counsel), or the Tennessee Court of Appeals opinion affirming the denial of the first post-conviction petition on the same grounds, Cone v. State, 747 S.W.2d 353 (Tenn.Ct.Crim.App.1987). Had Judge Williams read paragraph 41 closely, or made inquiry, or conducted a hearing, or asked for briefs, it would have been obvious that the material had only recently been discovered and the new claim could not possibly have been “previously determined.” The State prosecutors at the trial and appellate levels had *764been concealing the mitigating evidence for 10 years since the trial.
If the inattentive and unfocused treatment of a capital defendant’s Bra<%-mitigation claim in the Memphis trial court shows a broken judicial system unable to cope with its responsibilities in capital litigation, the treatment of the claim on review in the Tennessee Court of Criminal Appeals was worse. At least Judge Williams did not excoriate pro bono defense lawyers for diligently pursuing their duty to represent Cone. In Cone’s appellate brief in the Tennessee Court of Criminal Appeals, filed August 22, 1994, counsel pointed out that the trial court was clearly in error. Counsel pointed out that the trial court did not address or examine “each individual issue” and that a reading of the decisions “clearly shows that the issues were neither presented on direct appeal nor addressed in the initial post-conviction petition.” (App. Add. 4, p. 16.) But, in a brief opinion, the Tennessee Court of Criminal Appeals, like the trial court, did not specifically address the Bra-(%-mitigation issues. The opinion begins:
Appellant contends that the trial court’s dismissal of his second petition was premature, because ... the trial court declined to hold an evidentiary hearing. ... Our conclusion as to the timeliness of the trial court’s dismissal is therefore dependent on our resolution of the substantive issues of waiver and previous determination.
Had Judge Williams not provided this court with such an exemplary and meticulous treatment of the appellant’s petition, our task in reviewing the relevant issues would have been difficult if not insurmountable.
The trial court found that most of the appellant’s stated grounds for relief, in addition to being repetitious and cumulative, were previously determined either on direct appeal or in the appellant’s first petition.
Cone v. State, 927 S.W.2d 579, 580-81 (1995). After denying all of the claims without specifically addressing them, the Tennessee Court of Criminal Appeals then criticized Cone’s lawyers:
[T]he appellant should not be able to extend the post-conviction process and delay the administration of justice ad infinitum by filing subsequent petitions which disingenuously claim that the grounds asserted were unknown to the appellant when his previous petition was filed.
Id. at 582. The Court then says that counsel’s “perpetual disrespect for the finality of convictions disparages the entire criminal justice system” and further complains about counsel’s conduct: “The courts, the executive branch of the government, the legal profession, and the public have been seriously inconvenienced by the prosecutions of baseless habeas corpus and post-conviction proceedings.” Id. Counsel for Cone filed a petition for review in the Tennessee Supreme Court of this decision setting out the Brady claim in detail. The Tennessee Supreme Court denied review. This treatment of Cone’s claim illustrates a completely broken system of review in capital cases in Tennessee.
The judge of the Court of Criminal Appeals who wrote the opinion stating that the Brady issue was “previously determined,” then became the Attorney General of the State by the time the issue came to federal court. When the issue was later presented to the federal courts, including this Court, the Attorney General maintained his previous judicial position that the Brady claim was “previously determined” but shifted the main focus to: “Cone’s Brady claims were simply never raised in the state court.” (Final Brief, p. *76512.) In the federal court, the Attorney General attempts to conceal the very fact that the claim of Brady concealment was even presented in the Memphis trial court by stating that the “claims were simply never raised in the state court.” Of course, the two procedural default defenses to the Brady claim—“never raised” and “previously determined”—cannot both be true. The fact is that neither is true. They were clearly raised but never decided. The Attorney General is deliberately falsifying the procedural record in the case.
It is difficult to tell exactly what the District Court below held with respect to the Brady claims. The District Court mixes the Rracfy-mitigation claims up in a discursive discussion of ineffective assistance of counsel claims, moving from a discussion of these Brady claims on page 17 of the opinion below (App. p. 1549) to a discussion of ineffective assistance of counsel and then back to the claims at page 27. (App. 1559.) All we can really tell about the District Court’s disposition of the Bra-%-mitigation claims is that the court said they are procedurally defaulted. It is unclear why they are procedurally defaulted. The District Court seems to agree at page 1559 with the Attorney General’s false argument that the claims have “never been presented to the state courts” and “are now barred by the state post-conviction statute of limitations.” In a footnote at this point, the District Court relies upon Tennessee’s three-year statute of limitations for filing post-conviction petitions. T.C.A. § 40-30-102. The Court begins the limitation period on July 1, 1986, long before Cone discovered the mitigation evidence that the prosecutor at the trial and appellate levels had concealed. Despite the inconsistency between the State’s witnesses (Roby, Flynn and the two experts) and the newly-discovered documents, the District Court wound up its discussion by saying:
The evidence of Cone’s guilt was overwhelming, and the material evidence that he was acting under the influence of amphetamine psychosis was, and continues to be, virtually nonexistent.
(App. 1563-64.) In our Court’s earlier opinion invoking procedural default, we accepted the mistake of Judge Williams in the Memphis trial court and the Tennessee Court of Criminal Appeals by repeating three times that the “independent and adequate state ground in this instance is the State court’s finding that Cone’s claims were previously determined.” 243 F.3d at 969. We accepted the Attorney General’s alternative argument and based our holding of procedural default on the Tennessee courts’ mistaken position that the claims were “previously determined.” This is simply false.
The law of the case doctrine relied on by the majority does not wed us forever to a clear misreading of the record, especially a misreading brought about by the State’s falsification of the record in the case. Courts should correct their mistakes where important matters are concerned, and a man’s life is an important matter. The previous decisions of the Supreme Court and this Court tell us what is obviously true: “Death is different.” Mistakes cannot be corrected after a man is executed. They must be corrected now. I would set aside the previous “procedural default” ruling on Cone’s claim and remand the case to the District Court for a full hearing on the merits regarding his mitigating evidence that the State has now attempted to conceal for 25 years.
After relying on procedural default throughout its first opinion in this case, and now relying on procedural default again in its present opinion, the majority throws up its hands and says, “Well, anyway, all the withheld documents are not really Brady material.” It does so without *766any analysis of the record, or the Brady and mitigation lines of cases, and states no basis for its eonclusory statement. The majority’s eonclusory “well anyway” attitude is just as eonclusory and misleading as the prosecutor’s false, death knell statement to the jury that the defense statement was “baloney” that Cone was not a heavy drug user as a result of his wartime experience. The undisclosed, withheld documents directly contradict both the prosecutor’s “baloney” statement and the majority’s “not Brady material” conclusion. And beyond these errors, the majority seems totally unconcerned that the Tennessee Attorney General’s office has completely falsified the procedural record in the case by asserting that the Brady-mitigation claims were both “never raised” and “previously determined.”
. A jury may be precluded from doing so not only as a result of the instructions it is given, but also as a result of prosecutorial argument..,”