OCTOBER TERM, 2001
Syllabus
BELL, WARDEN
v. CONE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 01-400. Argued March 25, 2002-Decided May 28, 2002
Respondent was tried in a Tennessee court for the murder of an
elderly couple, whose killings culminated a 2-day crime rampage in
which respondent also committed robbery and shot a police officer
and another citizen. At his trial, the prosecution adduced
overwhelming evidence that respondent perpetrated the crimes and
killed the couple in a brutal and callous fashion. His defense that
he was not guilty by reason of insanity due to substance abuse and
posttraumatic stress disorders related to his Vietnam military
service was supported by expert testimony about his drug use and by
his mother's testimony that he returned from Vietnam a changed
person. The jury found him guilty on all charges. The next day,
during opening statements at the sentencing hearing for the
murders, the prosecution said that it would prove four aggravating
factors warranting the death penalty, and the defense called the
jury's attention to the mitigating evidence already before it.
Defense counsel cross-examined prosecution witnesses, but called no
witnesses. After the junior prosecutor gave a low-key closing,
defense counsel waived final argument, which prevented the lead
prosecutor, by all accounts an extremely effective advocate, from
arguing in rebuttal. The jury found four aggravating factors and no
mitigating circumstances, which, under Tennessee law, required a
death sentence. The State Supreme Court affirmed. After a hearing
in which respondent's trial counsel testified, the State Criminal
Court denied his petition for postconviction relief, rejecting his
contention that his counsel rendered ineffective assistance during
the sentencing phase by failing to present mitigating evidence and
waiving final argument. In affirming, the State Court of Criminal
Appeals found counsel's performance within the permissible range of
competency under the attorney-performance standard of
Strickland v.
Washington, 466 U. S. 668.
Subsequently, the Federal District Court denied respondent's
federal habeas petition, ruling that he did not meet 28 U. S. C. §
2254(d)(1)'s requirement that a state decision be "contrary to," or
involve "an unreasonable application of, clearly established
Federal law." The Sixth Circuit reversed with respect to the
sentence, finding that respondent suffered a Sixth Amendment
violation for which prejudice should be presumed under
United
States v.
Cronic, 466 U. S. 648, because
his counsel, by not asking for mercy after the prosecutor's
686
Syllabus
final argument, did not subject the State's death penalty call
to meaningful adversarial testing; and that the state court's
adjudication of respondent's claim was therefore an unreasonable
application of the clearly established law announced in
Strickland.
Held: Respondent's claim was governed by
Strickland, and the state court's decision neither was
"contrary to," nor involved "an unreasonable application of,
clearly established Federal law" under § 2254(d)(1). Pp.
693-702.
(a) Section 2254(d)(1)'s "contrary to" and "unreasonable
application" clauses have independent meaning. A federal habeas
court may grant relief under the former clause if the state court
applies a rule different from the governing law set forth in this
Court's cases, or if it decides a case differently than this Court
has done on a set of materially indistinguishable facts.
Williams v.
Taylor, 529 U. S. 362,405-406.
The federal court may grant relief under the latter clause if the
state court correctly identifies the governing legal principle from
this Court's decisions but unreasonably applies it in the
particular case.
Id., at 407-410. Such application must be
objectively unreasonable, which is different from incorrect. To
satisfy
Strickland's two-part test for evaluating claims
that counsel performed so incompetently that a defendant's sentence
or conviction should be reversed, the defendant must prove that
counsel's representation fell below an objective reasonableness
standard and that there is a reasonable probability that, but for
counsel's unprofessional error, the proceeding's result would have
been different. In
Cronic, this Court identified three
situations in which it is possible to presume prejudice to the
defense. Respondent argues that his claim fits within the exception
for cases where "counsel
entirely fails to subject the
prosecution's case to meaningful adversarial testing," 466 U. S.,
at 659 (emphasis added), because his counsel failed to mount a case
for life imprisonment after the prosecution introduced evidence in
the sentencing hearing and gave a closing statement. Under
Cronic, the attorney's failure to test the prosecutor's case
must be complete. Here, respondent argues not that his counsel
failed to oppose the prosecution throughout the sentencing
proceeding, but that he failed to do so at specific points. The
challenged aspects of counsel's performancefailing to adduce
mitigating evidence and waiving closing argumentare plainly of the
same ilk as other specific attorney errors subject to
Strickland's performance and prejudice components. See,
e. g., Darden v.
Wainwright, 477 U. S. 168, 184.
Because the state court correctly identified
Strickland's
principles as those governing the analysis of respondent's claim,
there is no merit in his contention that the state
687
court's adjudication was contrary to this Court's clearly
established law. Pp. 693-698.
(b) Nor was the state court's decision "an unreasonable
application" of
Strickland. Strickland requires a defendant
to overcome the "presumption that ... the challenged action 'might
be considered sound trial strategy.''' 466 U. S., at 689. Section
2254(d)(1) requires respondent to do more, i.
e., show that
the state court applied
Strickland to his case in an
objectively unreasonable manner. This he cannot do. Counsel was
faced with the onerous task of defending a client who had committed
a brutal and senseless crime and who, despite a relatively normal
upbringing, had become a drug addict and robber. Counsel reasonably
could have concluded that the substance of the medical experts'
testimony during the guilt phase was still fresh to the jury during
the sentencing phase, and that respondent's mother had not made a
good witness at the guilt stage and should not be subjected to
further crossexamination. Respondent's sister refused to testify,
and counsel had sound tactical reasons for not calling respondent
himself. Counsel also feared that the prosecution might elicit
information about respondent's criminal history from other
witnesses that he could have called, and that testimony about
respondent's normal youth might cut the other way in the jury's
eyes. Counsel's final-argument options were to make a closing
argument and reprise for the jury the primary mitigating evidence,
plead for his client's life, and impress upon the jury other, less
significant facts, knowing that it would give the persuasive lead
prosecutor the chance to depict his client as a heartless killer
just before the jurors began deliberation; or to prevent the lead
prosecutor from arguing by waiving his own summation and relying on
the jurors' familiarity with the case and his opening plea for life
made just a few hours before. Neither option so clearly outweighs
the other that it was objectively unreasonable for the state court
to deem his choice a tactical decision about which competent
lawyers might disagree. Pp. 698-702.
243 F.3d
961, reversed and remanded.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER,
JJ., joined. STEVENS, J., filed a dissenting opinion,
post,
p. 702.
Michael E. Moore, Solicitor General of Tennessee, argued
the cause for petitioner. With him on the briefs were
Gordon
W Smith, Associate Solicitor General, and
Jennifer L. Smith,
Assistant Attorney General.
688
Lisa Schiavo Blatt argued the cause for the United States as
amicus curiae urging reversal. With her on the brief were Solicitor
General Olson, Assistant Attorney General Chertoff, and Deputy
Solicitor General Dreeben.
Robert L. Hutton, by appointment of the Court, 534 U. S.
1111, argued the cause for respondent. *
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The Tennessee Court of Appeals rejected respondent's claim that
his counsel rendered ineffective assistance during his sentencing
hearing under principles announced in
Strickland v.
Washington, 466 U. S. 668 (1984). The
Court of Appeals for the Sixth Circuit concluded that
United
States v.
Cronic, 466 U. S. 648 (1984),
should have controlled the state court's analysis and granted him a
conditional writ of habeas corpus. We hold that respondent's claim
was governed by
Strickland, and that the state court's
decision neither was
*Briefs of
amicus curiae urging reversal were filed for
the State of Ohio et al. by
Betty D. Montgomery, Attorney
General of Ohio,
David M. Gormley, State Solicitor, and
Matthew Hellman, Assistant Attorney General, and by the
Attorneys General for their respective jurisdictions as follows:
Bill Pryor of Alabama,
Janet Napolitano of Arizona,
Bill Lockyer of California,
M. Jane Brady of
Delaware,
Robert A. Butterworth of Florida,
Steve
Carter of Indiana,
Richard P. Ieyoub of Louisiana,
J. Joseph Curran, Jr., of Maryland,
Jeremiah W
(Jay) Nixon of Missouri,
Mike McGrath of Montana,
Don
Stenberg of Nebraska,
Frankie Sue Del Papa of Nevada,
David Samson of New Jersey,
W A. Drew Edmondson of
Oklahoma,
Hardy Myers of Oregon,
Mark Barnett of
South Dakota,
John Cornyn of Texas,
Mark L. Shurtleff
of Utah,
Iver A. Stridiron of the Virgin Islands,
Jerry
Kilgore of Virginia,
Christine O.
Gregoire of
Washington, and
Hoke MacMillan of Wyoming; and for the
Criminal Justice Legal Foundation by
Kent S.
Scheidegger.
Walter Dellinger, Pamela Harris, and
David M.
Porter filed a brief for the National Association of Criminal
Defense Lawyers as
amicus curiae urging affirmance.
Larry W Yackle and
Steven R. Shapiro filed a brief
for the American Civil Liberties Union et al. as
amicus
curiae.
689
"contrary to," nor involved "an unreasonable application of,
clearly established Federal law" under the provisions of 28 U. S.
C. § 2254(d)(1).
I
In 1982, respondent was convicted of, and sentenced to death
for, the murder of an elderly couple in Memphis, Tennessee. The
killings culminated a 2-day crime rampage that began when
respondent robbed a Memphis jewelry store of approximately $112,000
in merchandise on a Saturday in August 1980. Shortly after the
12:45 p.m. robbery, a police officer in an unmarked vehicle spotted
respondent driving at a normal speed and began to follow him. After
a few blocks, respondent accelerated, prompting a high-speed chase
through midtown Memphis and into a residential neighborhood where
respondent abandoned his vehicle. Attempting to flee, respondent
shot an officer who tried to apprehend him, shot a citizen who
confronted him, and, at gunpoint, demanded that another hand over
his car keys. As a police helicopter hovered overhead, respondent
tried to shoot the fleeing car owner, but was frustrated because
his gun was out of ammunition.
Throughout the afternoon and into the next morning, respondent
managed to elude detection as police combed the surrounding area.
In the meantime, officers inventorying his car found an array of
illegal and prescription drugs, the stolen merchandise, and more
than $2,400 in cash. Respondent reappeared early Sunday morning
when he drew a gun on an elderly resident who refused to let him in
to use her telephone. Later that afternoon, respondent broke into
the home of Shipley and Cleopatra Todd, aged 93 and 79 years old,
and killed them by repeatedly beating them about the head with a
blunt instrument. He moved their bodies so that they would not be
visible from the front and rear doors and ransacked the first floor
of their home. After shaving his beard, respondent traveled to
Florida. He was arrested
690
there for robbing a drugstore in Pompano Beach. He admitted
killing the Todds and shooting the police officer.
A Tennessee grand jury charged respondent with two counts of
first-degree murder in the perpetration of a burglary in connection
with the Todds' deaths, three counts of assault with intent to
murder in connection with the shootings and attempted shooting of
the car owner, and one count of robbery with a deadly weapon for
the jewelry store theft. At a jury trial in the Criminal Court of
Shelby County, the prosecution adduced overwhelming physical and
testimonial evidence showing that respondent perpetrated the crimes
and that he killed the Todds in a brutal and callous fashion.
The defense conceded that respondent committed most of the acts
in question, but sought to prove that he was not guilty by reason
of insanity. A clinical psychologist testified that respondent
suffered from substance abuse and posttraumatic stress disorders
related to his military service in Vietnam. A neuropharmacologist
recounted at length respondent's history of illicit drug use, which
began after he joined the Army and escalated to the point where he
was daily consuming "rather horrific" quantities. Tr. 1722-1763.
That drug use, according to the expert, caused chronic amphetamine
psychosis, hallucinations, and ongoing paranoia, which affected
respondent's mental capacity and ability to obey the law. Defense
counsel also called respondent's mother, who spoke of her son
coming back from Vietnam in 1969 a changed person, his honorable
discharge from service, his graduation with honors from college,
and the deaths of his father and fiancée while he was in prison
from 1972-1979 for robbery. Although respondent did not take the
stand, defense counsel was able to elicit through other testimony
that he had expressed remorse for the killings. Rejecting his
insanity defense, the jury found him guilty on all charges.
Punishment for the first-degree murder counts was fixed in a
separate sentencing hearing that took place the next day and lasted
about three hours. Under then-applicable Ten-
691
nessee law, a death sentence was required if the jury found
unanimously that the State proved beyond a reasonable doubt the
existence of at least one statutory aggravating circumstance that
was not outweighed by any mitigating circumstance. Tenn. Code Ann.
§ 39-2-203 (1982). In making these determinations, the jury could
(and was instructed that it could) consider evidence from both the
guilt and punishment phases.
Ibid.; Tr. 2219.
During its opening statement, the State said it would prove four
aggravating factors: that (1) respondent had previously been
convicted of one or more felonies involving the use or threat of
violence to a person; (2) he knowingly created a great risk of
death to two or more persons other than the victim during the act
of murder; (3) the murder was especially heinous, atrocious, or
cruel; and (4) the murder was committed for the purpose of avoiding
lawful arrest. In his opening statement, defense counsel called the
jury's attention to the mitigating evidence already before them. He
suggested that respondent was under the influence of extreme mental
disturbance or duress, that he was an addict whose drug and other
problems stemmed from the stress of his military service, and that
he felt remorse. Counsel urged the jury that there was a good
reason for preserving his client's life if one looked at "the whole
man." App. 26. He asked for mercy, calling it a blessing that would
raise them above the State to the level of God.
The prosecution then called a records custodian and fingerprint
examiner to establish that respondent had three armed robbery
convictions and two officers who said they tried unsuccessfully to
arrest respondent for armed robbery after the jewelry store heist.
Through cross-examination of the records custodian, respondent's
attorney brought out that his client had been awarded the Bronze
Star in Vietnam. After defense counsel successfully objected to the
State's proffer of photos of the Todds' decomposing bodies, both
sides rested. The junior prosecuting attorney on the case
692
gave what the state courts described as a "low-key" closing.1
Defense counsel waived final argument, preventing the lead
prosecutor, who by all accounts was an extremely effective
advocate, from arguing in rebuttal. The jury found in both murder
cases four aggravating factors and no mitigating circumstances
substantial enough to outweigh them. The Tennessee Supreme Court
affirmed respondent's convictions and sentence on appeal,
State v.
Cone, 665 S. W. 2d 87, and we denied
certiorari, 467 U. S. 1210 (1984).
Respondent then petitioned for state postconviction relief,
contending that his counsel rendered ineffective assistance during
the sentencing phase by failing to present mitigating evidence and
by waiving final argument. After a hearing in which respondent's
trial counsel testified, a division of the Tennessee Criminal Court
rejected this contention. The Tennessee Court of Criminal Appeals
affirmed.
Cone v.
State, 747 S. W. 2d 353 (1987). The
appellate court reviewed counsel's explanations for his decisions
concerning the calling of witnesses and the waiving of final
argument.
Id., at 356357. Describing counsel's
representation as "very conscientious," the court concluded that
his performance was within the permissible range of competency,
citing
Baxter v.
Rose, 523 S. W. 2d 930 (Tenn. 1975),
a decision the Tennessee Supreme Court deems to have announced the
same attorney performance standard as
Strickland v.
Washington, 466 U. S. 668 (1984). See,
e. g., State
v.
Burns, 6 S. W. 3d 453, 461 (1999). The court also
expressed its view that respondent received the death penalty based
on the law and facts, not on the shortcomings of counsel. 747 S. W.
2d, at 357358. The Tennessee Supreme Court denied respondent
permission to appeal, and we denied further review,
Cone v.
Tennessee, 488 U. S. 871 (1988).
In 1997, after his second application for state postconviction
relief was dismissed, respondent sought a federal writ
1 See
Cone v.
State, 747 S. W. 2d 353, 357 (Tenn.
Crim. App. 1987).
693
of habeas corpus under 28 U. S. C. § 2254 as amended by the
Antiterrorism and Effective Death Penalty Act of 1996. His petition
alleged numerous grounds for relief including ineffective
assistance at the sentencing phase. The District Court ruled that
respondent did not meet § 2254(d)'s requirements and denied the
petition.
The Court of Appeals affirmed the refusal to issue a writ with
respect to respondent's conviction, but reversed with respect to
his sentence.
243 F.3d
961, 979
(CA6 2001). It held that respondent suffered a
Sixth Amendment violation for which prejudice should be presumed
under
United States v.
Cronic, 466 U. S. 648 (1984),
because his counsel, by not asking for mercy after the prosecutor's
final argument, did not subject the State's call for the death
penalty to meaningful adversarial testing. 243 F. 3d, at 979. The
state court's adjudication of respondent's Sixth Amendment claim,
in the Court of Appeals' analysis, was therefore an unreasonable
application of the clearly established law announced in
Strickland. 243 F. 3d, at 979. We granted certiorari, 534 U.
S. 1064 (2001), and now reverse the Court of Appeals.
II
The Antiterrorism and Effective Death Penalty Act of 1996
modified a federal habeas court's role in reviewing state prisoner
applications in order to prevent federal habeas "retrials" and to
ensure that state-court convictions are given effect to the extent
possible under law. See
Williams v.
Taylor, 529 U. S. 362, 403-404
(2000). To these ends, § 2254(d)(1) provides:
"(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
the claim-
"(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly estab-
694
lished Federal law, as determined by the Supreme Court of the
United States."z
As we stated in
Williams, § 2254(d)(1)'s "contrary to"
and "unreasonable application" clauses have independent meaning.
529 U. S., at 404-405. A federal habeas court may issue the writ
under the "contrary to" clause if the state court applies a rule
different from the governing law set forth in our cases, or if it
decides a case differently than we have done on a set of materially
indistinguishable facts.
Id., at 405-406. The court may
grant relief under the "unreasonable application" clause if the
state court correctly identifies the governing legal principle from
our decisions but unreasonably applies it to the facts of the
particular case.
Id., at 407-408. The focus of the latter
inquiry is on whether the state court's application of clearly
established federal law is objectively unreasonable, and we
stressed in
Williams that an unreasonable application is
different from an incorrect one.
Id., at 409-410. See also
id., at 411 (a federal habeas court may not issue a writ
under the unreasonable application clause "simply because that
court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly").
Petitioner contends that the Court of Appeals exceeded its
statutory authority to grant relief under § 2254(d)(1) because the
decision of the Tennessee courts was neither contrary to nor an
unreasonable application of the clearly established law of
Strickland. Respondent counters that he is entitled to
relief under § 2254(d)(1)'s "contrary to" clause because the state
court applied the wrong legal rule. In his view,
Cronic, not
Strickland, governs the analysis of his claim that
2JUSTICE STEVENS' dissent does not cite this statutory provision
governing respondent's ability to obtain federal habeas relief,
much less explain how his claim meets its standards.
695
his counsel rendered ineffective assistance at the sentencing
hearing. We address this issue first.
In
Strickland, which was decided the same day as
Cronic, we announced a two-part test for evaluating claims
that a defendant's counsel performed so incompetently in his or her
representation of a defendant that the defendant's sentence or
conviction should be reversed. We reasoned that there would be a
sufficient indication that counsel's assistance was defective
enough to undermine confidence in a proceeding's result if the
defendant proved two things: first, that counsel's "representation
fell below an objective standard of reasonableness," 466 U. S., at
688; and second, that "there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
would have been different,"
id., at 694. Without proof of
both deficient performance and prejudice to the defense, we
concluded, it could not be said that the sentence or conviction
"resulted from a breakdown in the adversary process that rendered
the result of the proceeding unreliable,"
id., at 687, and
the sentence or conviction should stand.
In
Cronic, we considered whether the Court of Appeals was
correct in reversing a defendant's conviction under the Sixth
Amendment without inquiring into counsel's actual performance or
requiring the defendant to show the effect it had on the trial. 466
U. S., at 650,658. We determined that the court had erred and
remanded to allow the claim to be considered under
Strickland's test. 466 U. S., at 666-667, and n. 41. In the
course of deciding this question, we identified three situations
implicating the right to counsel that involved circumstances "so
likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified."
Id., at
658-659.
First and "[m]ost obvious" was the "complete denial of counsel."
Id., at 659. A trial would be presumptively unfair, we said,
where the accused is denied the presence of counsel at "a critical
stage,"
id., at 659, 662, a phrase we used
696
in
Hamilton v.
Alabama, 368 U. S. 52, 54 (1961),
and
White v.
Maryland, 373 U. S. 59, 60 (1963)
(per curiam), to denote a step of a criminal proceeding,
such as arraignment, that held significant consequences for the
accused.3 Second, we posited that a similar presumption was
warranted if "counsel entirely fails to subject the prosecution's
case to meaningful adversarial testing."
Cronic, supra, at
659. Finally, we said that in cases like
Powell v.
Alabama, 287 U.
S. 45 (1932), where counsel is called upon to render assistance
under circumstances where competent counsel very likely could not,
the defendant need not show that the proceedings were affected.
Cronic, supra, at 659-662.
Respondent argues that his claim fits within the second
exception identified in
Cronic because his counsel failed to
"mount some case for life" after the prosecution introduced
evidence in the sentencing hearing and gave a closing statement.
Brief for Respondent 26. We disagree. When we
3 In a footnote, we also cited other cases besides
Hamilton v.
Alabama and
White v.
Maryland where we found a Sixth Amendment error without
requiring a showing of prejudice. Each involved criminal defendants
who had actually or constructively been denied counsel by
government action. See
United States v.
Cronic,
466 U. S. 648,
659, n. 25 (1984) (citing
Geders v.
United States,
425 U. S. 80, 91
(1976) (order preventing defendant from consulting his counsel
"about anything" during a 17-hour overnight recess impinged upon
his Sixth Amendment right to the assistance of counsel);
Herring v.
New York, 422 U. S. 853, 865 (1975)
(trial judge's order denying counsel the opportunity to make a
summation at close of bench trial denied defendant assistance of
counsel);
Brooks v.
Tennessee, 406 U. S. 605, 612613
(1972) (law requiring defendant to testify first at trial or not at
all deprived accused of "the 'guiding hand of counsel' in the
timing of this critical element of his defense," i.
e., when
and whether to take the stand);
Ferguson v.
Georgia,
365 U. S. 570,
596 (1961) (statute retaining commonlaw incompetency rule for
criminal defendants, which denied the accused the right to have his
counsel question him to elicit his statements before the jury, was
inconsistent with Fourteenth Amendment);
Williams v.
Kaiser, 323 U.
S. 471 (1945) (allegation that petitioner requested counsel but
did not receive one at the time he was convicted and sentenced
stated case for denial of due process)).
697
spoke in
Cronic of the possibility of presuming prejudice
based on an attorney's failure to test the prosecutor's case, we
indicated that the attorney's failure must be complete. We said "if
counsel
entirely fails to subject the prosecution's case to
meaningful adversarial testing."
Cronic, supra, at 659
(emphasis added). Here, respondent's argument is not that his
counsel failed to oppose the prosecution throughout the sentencing
proceeding as a whole, but that his counsel failed to do so at
specific points. For purposes of distinguishing between the rule of
Strickland and that of
Cronic, this difference is not
of degree but of kind.4
The aspects of counsel's performance challenged by
respondent-the failure to adduce mitigating evidence and the waiver
of closing argument-are plainly of the same ilk as other specific
attorney errors we have held subject to
Strick-
4 In concluding that
Cronic applies to respondent's
ineffective-assistance claim, the dissent relies in part on
inferences it draws from evidence that his attorney sought
treatment for a mental illness four years after respondent's trial.
See
post, at 715-716 (opinion of STEVENS, J.). While the
dissent admits that counsel's mental health problems "may have
onset after [respondent's] trial," it speculates that counsel's
mental health problems began earlier based on its "complete reading
of the trial transcript and an assessment of [counsel's] actions at
triaL"
Post, at 716. But, as the dissent concedes,
respondent did not present
any evidence regarding his
counsel's mental health in the state-court proceedings. Before us,
respondent does not argue that we could consider his attorney's
medical records obtained in the federal habeas proceedings in
assessing his Sixth Amendment claim, nor does he suggest that his
counsel suffered from mental health problems at the time of his
trial. Furthermore, any implication that trial counsel was impaired
during his representation is contradicted by the testimony of the
two experts called during the state postconviction hearing. Both
had extensive experience in prosecuting and defending criminal
cases and were familiar with trial counsel's abilities. Wayne
Emmons said that counsel was "not only fully capable, but one of
the most conscientious lawyers [he] knew." State Postconviction Tr.
73. And Stephen Shankman said he considered respondent's counsel
"to be one of the finest practitioners in [the] community in the
area of criminal defense work,"
id., at 182, and "an
extremely experienced lawyer" whom he would be "hardpressed to
second guess,"
id., at 190.
698
land's performance and prejudice components. In
Darden v.
Wainwright, 477 U. S. 168, 184
(1986), for example, we evaluated under
Strickland a claim
that counsel was ineffective for failing to put on any mitigating
evidence at a capital sentencing hearing. In
Burger v.
Kemp, 483 U.
S. 776, 788 (1987), we did the same when presented with a
challenge to counsel's decision at a capital sentencing hearing not
to offer any mitigating evidence at all.
We hold, therefore, that the state court correctly identified
the principles announced in
Strickland as those governing
the analysis of respondent's claim. Consequently, we find no merit
in respondent's contention that the state court's adjudication was
contrary to our clearly established law. Cf.
Williams, 529
U. S., at 405 ("The word 'contrary' is commonly understood to mean
'diametrically different,' 'opposite in character or nature,' or
'mutually opposed'" (quoting Webster's Third New International
Dictionary 495 (1976))).
III
The remaining issue, then, is whether respondent can obtain
relief on the ground that the state court's adjudication of his
claim involved an "unreasonable application" of
Strickland.
In
Strickland we said that "[j]udicial scrutiny of a
counsel's performance must be highly deferential" and that "every
effort [must] be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at
the time." 466 U. S., at 689. Thus, even when a court is presented
with an ineffective-assistance claim not subject to § 2254(d)(1)
deference, a defendant must overcome the "presumption that, under
the circumstances, the challenged action 'might be considered sound
trial strategy.'"
Ibid. (quoting
Michel v.
Louisiana, 350
U. S. 91, 101 (1955)).
For respondent to succeed, however, he must do more than show
that he would have satisfied
Strickland's test if his
699
claim were being analyzed in the first instance, because under §
2254(d)(1), it is not enough to convince a federal habeas court
that, in its independent judgment, the state-court decision applied
Strickland incorrectly. See
Williams, supra, at 411.
Rather, he must show that the Tennessee Court of Appeals applied
Strickland to the facts of his case in an objectively
unreasonable manner. This, we conclude, he cannot do.
Respondent's counsel was faced with the formidable task of
defending a client who had committed a horribly brutal and
senseless crime against two elderly persons in their home. He had
just the day before shot a police officer and an unarmed civilian,
attempted to shoot another person, and committed a robbery. The
State had near conclusive proof of guilt on the murder charges as
well as extensive evidence demonstrating the cruelty of the
killings. Making the situation more onerous were the facts that
respondent, despite his high intelligence and relatively normal
upbringing, had turned into a drug addict and had a history of
robbery convictions.
Because the defense's theory at the guilt phase was not guilty
by reason of insanity, counsel was able to put before the jury
extensive testimony about what he believed to be the most
compelling mitigating evidence in the caseevidence regarding the
change his client underwent after serving in Vietnam; his drug
dependency, which apparently drove him to commit the robbery in the
first place; and its effects. Before the state courts, respondent
faulted his counsel for not recalling his medical experts during
the sentencing hearing. But we think counsel reasonably could have
concluded that the substance of their testimony was still fresh to
the jury. Each had taken the stand not long before, and counsel
focused on their testimony in his guilt phase closing argument,
which took place the day before the sentencing hearing was held.
Respondent's suggestion that the jury could not fully consider the
mental health proof as
700
potentially mitigating because it was adduced during the guilt
phase finds no support in the record. Defense counsel advised the
jury that the testimony of the experts established the existence of
mitigating circumstances, and the trial court specifically
instructed the jury that evidence of a mental disease or defect
insufficient to establish a criminal defense could be considered in
mitigation. Tr. 2221.
Respondent also assigned error in his counsel's decision not to
recall his mother. While counsel recognized that respondent's
mother could have provided further information about respondent's
childhood and spoken of her love for him, he concluded that she had
not made a good witness at the guilt stage, and he did not wish to
subject her to further cross-examination. Respondent advances no
argument that would call his attorney's assessment into
question.
In his trial preparations, counsel investigated the possibility
of calling other witnesses. He thought respondent's sister, who was
closest to him, might make a good witness, but she did not want to
testify. And even if she had agreed, putting her on the stand would
have allowed the prosecutor to question her about the fact that
respondent called her from the Todds' house just after the
killings. After consulting with his client, counsel opted not to
call respondent himself as a witness. And we think counsel had
sound tactical reasons for deciding against it. Respondent said he
was very angry with the prosecutor and thought he might lash out if
pressed on cross-examination, which could have only alienated him
in the eyes of the jury. There was also the possibility of calling
other witnesses from his childhood or days in the Army. But counsel
feared that the prosecution might elicit information about
respondent's criminal history.5
5 Respondent cites
Cozzolino v.
State, 584 S. W.
2d 765 (Tenn. 1979), to argue that calling additional witnesses
would not have opened the door to evidence about his prior bad
acts. We need not express any view as to Tennessee law on this
issue except to point out that
Cozzolino does not state such
a broad, categorical rule.
Cozzolino held that a trial
court
701
He further feared that testimony about respondent's normal youth
might, in the jury's eyes, cut the other way.
Respondent also focuses on counsel's decision to waive final
argument. He points out that counsel could have explained the
significance of his Bronze Star decoration and argues that his
counsel's failure to advocate for life in closing necessarily left
the jury with the impression that he deserved to die. The Court of
Appeals "reject[ed] out of hand" the idea that waiving summation
could ever be considered sound trial strategy. 243 F. 3d, at 979.
In this case, we think at the very least that the state court's
contrary assessment was not "unreasonable." After respondent's
counsel gave his opening statement discussing the mitigating
evidence before them and urging that they choose life for his
client, the prosecution did not put on any particularly dramatic or
impressive testimony. The State's witnesses testified rather
briefly about the undisputed facts that respondent had prior
convictions and was evading arrest.
When the junior prosecutor delivered a very matter-offact
closing that did not dwell on any of the brutal aspects of the
crime, counsel was faced with a choice. He could make a closing
argument and reprise for the jury, perhaps in greater detail than
his opening, the primary mitigating evidence concerning his
client's drug dependency and posttraumatic stress from Vietnam. And
he could plead again for life for his client and impress upon the
jurors the importance of what he believed were less significant
facts, such as the Bronze Star decoration or his client's
expression of remorse. But he knew that if he took this
opportunity, he would give the lead prosecutor, who all agreed was
very persuasive, the
erred in admitting evidence that the defendant committed crimes
after the murder because that evidence was not relevant to
any aggravating factors or mitigating factors raised by the
defense.
Id., at 767-768. In this case, at a minimum, any
evidence about respondent's
prior robbery convictions would
have been relevant because the State relied on those convictions to
prove an aggravating circumstance.
702
chance to depict his client as a heartless killer just before
the jurors began deliberation. Alternatively, counsel could prevent
the lead prosecutor from arguing by waiving his own summation and
relying on the jurors' familiarity with the case and his opening
plea for life made just a few hours before. 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.
We cautioned in
Strickland that a court must indulge a
"strong presumption" that counsel's conduct falls within the wide
range of reasonable professional assistance because it is all too
easy to conclude that a particular act or omission of counsel was
unreasonable in the harsh light of hindsight. 466 U. S., at 689.
Given the choices available to respondent's counsel and the reasons
we have identified, we cannot say that the state court's
application of
Strickland's attorneyperformance standard was
objectively unreasonable. The judgment of the Court of Appeals is
therefore reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, dissenting.
In my judgment, the Court of Appeals correctly concluded that
during the penalty phase of respondent's capital murder trial, his
counsel "entirely fail[ed] to subject the prosecution's case to
meaningful adversarial testing."
United States v.
Cronic, 466 U.
S. 648, 659 (1984). Counsel's shortcomings included a failure
to interview witnesses who could have provided mitigating evidence;
a failure to introduce available mitigating evidence; and the
failure to make any closing argument or plea for his client's life
at the conclusion of the penalty phase. Furthermore, respondent's
counsel was, subsequent to trial, diagnosed with a mental illness
that ren-
703
dered him unqualified to practice law, and that apparently led
to his suicide. See App. 88-89. These circumstances "justify a
presumption that respondent's conviction was insufficiently
reliable to satisfy the Constitution."
Cronic, 466 U. S., at
662.
I
Certain facts about respondent, Gary Cone, are not in dispute.
Cone was a "gentle child," of exceptional intelligence, with an
outstanding academic record in high school. App. 62-63. His father
was an officer in the United States Army and a firm disciplinarian.
He apparently enjoyed a loving relationship with his older brother
and with both of his sisters. At age 8 or 9, however, Cone
witnessed the drowning of his older brother. In 1966, at age 18,
Cone enlisted in the Army and was sent to Germany. He was
eventually transferred to Vietnam, where he served as a supply
clerk until 1969. His service in Vietnam involved, among other
things, transporting corpses and performing long hours of guard
duty. He was awarded the Bronze Star, and he received an honorable
discharge.
After returning to the States, Cone graduated from college and,
although accepted into law school for August! September 1980, never
enrolled. According to Cone, he began to use drugs-mainly
amphetamines-while in Vietnam, in order to perform extended guard
duties, and he continued to do so after his discharge from the
Army. In an apparent effort to fund this growing drug habit, he
committed robberies, and, in 1972, after college, he was convicted
of armed robbery and incarcerated in Oklahoma until 1979. While he
was in prison, his father died and his fiancée, whom he met while
in college, was raped and murdered. After his release from prison,
he kept in touch with his mother (who lived in Arkansas) and his
sister (who lived in Chicago), but did not stay in one place. The
lack of evidence of gainful employment post-1979, coupled with
evidence of travels to
704
Florida and Hawaii, suggests that Cone supported himself and his
drug habit by criminal activity.
The Court has fairly described the facts of respondent's crime.
Ante, at 689-690. However, in order to understand both why
Cronic applies in the present case, and how counsel
completely failed respondent at the penalty phase, I describe the
events at trial in more detail. In his opening statement at the
guilt phase of the trial, respondent's counsel, John Dice, admitted
to the jury that Cone had committed the crimes for which he was
charged, but explained that he was not guilty by reason of
insanity-a condition brought on by excessive drug use that resulted
from "Vietnam Veterans Syndrome." See,
e. g., Tr.
956-957.1 Dice explained to the jury that Cone's time in Vietnam
had transformed him, leading to his insanity, and Dice promised
several witnesses in aid of this insanity defense, including Cone's
sister Susan, Cone's mother, and his two aunts, all of whom would
"testify about the Gary Cone that they knew,"
id., at 953,
that is, the
1 Dice claims credit for developing this defense, but these
claims are unsubstantiated and appear exaggerated from Dice's
testimony. See State Postconviction Tr. 92. Nonetheless, such a
defense was in its early stages at the time of respondent's 1982
trial, and has become more widely asserted. See generally Levin,
Defense of the Vietnam Veteran with Post-Traumatic Stress Disorder,
46 Am. Jur. Trials 441 (1993 and Supp. 2001). Furthermore, as of
1980, the American Psychiatric Association began formally to
recognize posttraumatic stress disorder (PTSD), which can derive
from disturbing war experiences. See American Psychiatric Assn.,
Diagnostic and Statistical Manual of Mental Disorders 463-468 (rev.
4th ed. 2000).
The PTSD from which respondent allegedly suffered would sensibly
have been used by Dice as mitigation in the penalty phase. See
Levin, 46 Am. Jur. Trials § 37. However, its viability as the guilt
phase defense in this case was unlikely at best, because insanity
in this context applies when "[t]he veteran who believes he is
again in combat ... attacks one whom he believes to be an enemy
soldier." Davidson, Note, PostTraumatic Stress Disorder: A
Controversial Defense for Veterans of a Controversial War, 29 Wm.
& Mary L. Rev. 415, 424 (1988). Cone was not in combat and his
crime did not fit this description.
705
pre-Vietnam Cone. Dice also advised the jury that he would prove
that the victim's sister had written a letter of forgiveness to
Cone's mother-"one of the most loving letters I've ever read in my
life," in Dice's words.
Id., at 965-966.2
Despite these promises, after the State's affirmative case in
the guilt phase, Dice presented only three witnesses in support of
the insanity defense: Cone's mother testified about his behavior
after his return from Vietnam, but the court largely precluded her
from discussing Cone's pre-Vietnam life; a clinical psychologist
testified about posttraumatic stress resulting from Cone's Vietnam
service; and a neuropharmacologist testified about Cone's drug use
and its effects. Through these witnesses, Dice attempted to paint a
picture of a normal person who fell victim to "amphetamine
psychosis" and became a "junkie of such unbelievable proportions
that it would have been impossible for him to form any intent."
Id., at 957. Cone was not a witness at the guilt phase,
though he did take the stand outside the presence of the jury to
waive his right to testify.
In its rebuttal case, the State adduced the testimony of Aileen
Blankman, whom Cone visited in Florida approximately one day after
the murders. She testified that respondent neither used drugs while
visiting her, nor appeared to have recently used drugs, thereby
calling into question his claim of drug addiction. According to
Dice's co-counsel, Blankman's testimony "utterly destroyed our
defense. We were totally unprepared for that." State Postconviction
Tr. 42. Dice knew of Blankman's contact with Cone after the
murders, and was "absolutely" aware that Blankman was
2 This letter's mitigating effect would have been significant.
It read, in part: "Even tho I am still in shock over the tragic
death of my dear brother and his wife, I want you to know that you
and your family have my prayers and deepest sympathy. I am also
praying for Gary. We know he must have been out of his mind to have
done the things he did. May God forgive him." Record, Exh. 29. See
Tr. 1280-1281 (referencing letter, marked as Exhibit 29, which was
never submitted to the jury).
706
a possible prosecution witness, but Dice failed to interview her
before the trial.
Id., at 138.3 In guilt phase rebuttal, the
State also introduced its own medical experts to challenge the
defense experts' testimony concerning Cone's alleged insanity.
Although the State's experts questioned Cone's claim of Vietnam
Veterans Syndrome, their testimony focused on Cone's failure to
satisfy the insanity standard. See Tr. 1957, 1983. It took less
than two hours for the jury to return a guilty verdict on all
counts.
Dice's stated attitude toward the penalty phase must frame our
consideration of the constitutional standard applicable to this
case. Once his "Vietnam Veterans Syndrome" defense was rejected in
the guilt phase, it appears that Dice approached the penalty phase
with a sense of hopelessness because his "basic tactic was to try
to convince the jury that Gary Cone was insane at the time of the
commission of these acts, and the jury rejected that." State
Postconviction Tr. 109. Dice perceived that the guilt phase
evidence concerning Cone's mental health "made absolutely no
difference to the jury,"
id., at 159, and that the jurors
"weren't buying any of it,"
id., at 156, even though that
evidence had been introduced to the jury through the lens of the
insanity defense, not as mitigation for the death penalty.4 Dice's
co-
3 With respect to this failure, Dice explained: "So, we could
have interviewed her, but we didn't. I don't know, maybe she was
devastating and maybe she wasn't, but let's say that we had
interviewed her, you know, what would it have changed? If she'd
come up here and she'd testified, she would have testified the same
way I assume." State Postconviction Tr.140.
4 It is true that the jury was instructed to consider mitigation
from the guilt phase, and also true that Dice's brief penalty phase
opening referenced the mental health evidence from the guilt phase,
ante, at 691, but the jury's whole view of that testimony
was influenced by its relation to the debunked insanity defense.
Although the State's experts may have been successful in
undermining Cone's claim to insanity, they did not necessarily
undermine the potential mitigating effect of Cone's mental health
evidence.
707
counsel echoed the sentiment that death was a foregone
conclusion: "I don't recall too much on any discussion, really,
about the penalty stage, mainly because my own feeling about the
case law as it was then, and I guess as it still is, is that when a
jury is
[Witherspooned] in,5 it's a fixed jury. They're
going to find a death penalty .... It was almost a hopeless feeling
that the way the problem was going to be solved was through the
Court of Appeals, not through any jury verdict."
Id., at 39.
Indeed, Dice expressed this hopelessness even before the trial
began; he testified that he told Cone's mother "the first day I met
her, that if [the prosecutor] does not elect to offer life in this
case, your boy is going to the chair and there's not going to be a
darn thing ... I'm going to be able to do to stop it except to
maybe screw up the prosecution."
Id., at 108. Moreover,
Dice's testimony in state postconviction reveals his "radical" view
of the penalty phase.
Id., at 122. When asked if the purpose
of the penalty phase was to "individualize the defendant," Dice
replied "[t]hat's your view of it as a lawyer, not mine,"
id., at 124, and when asked why a capital proceeding is
bifurcated, Dice replied "God only knows,"
id., at 125.6 His
co-counsel's postconviction testimony confirms Dice's misguided
views. Discussing the penalty phase, co-counsel stated: "I don't
believe I understood the separate nature of it. I don't believe
that I understood the necessity ... of perhaps producing
5Her comments refer to
Witherspoon v.
Illinois,
391 U. S. 510,
518 (1968) (finding no general constitutional bar to a State's
"exclusion of jurors opposed to capital punishment," i.
e.,
"death-qualification" of a jury, because of no proof that such a
bar "results in an unrepresentative jury on the issue of guilt or
substantially increases the risk of conviction").
6 Dice's comments concerning the penalty phase are not only
erroneous in content, but inappropriate in tone. For example, when
asked about capital sentencing, he rejected the notion that the
Constitution requires an individualized death penalty decision:
"The reason's political as far as I'm concerned. The method is
insanity .... I don't care whether it's legal or not. When you kill
people who kill people to show that killing people is wrong, it's
insane." State Postconviction Tr. 124.
708
more evidence in mitigating circumstances, in that phase also."
Id., at 49.
The parties agree that Dice did four things in the penalty
phase. See Brief for Respondent 36. First, he made a brief opening
argument in the penalty phase asking for mercy. Second, in this
opening, he referenced the evidence concerning Vietnam Veterans
Syndrome that had been presented in the guilt phase. Third, he
brought out on cross-examination of the State's witness who
presented court records of respondent's prior convictions that Cone
had been awarded the Bronze Star in Vietnam, though he did not
explain the significance of that decoration to the jury because he
made no closing remarks after the cross-examination. And, fourth,
outside of the jury's presence, he successfully objected to the
State's introduction of two photographs of the murder victims.
Aside from doing these things, however, Dice did nothing before or
during the penalty phase-he did not interview witnesses aside from
those relevant to the guilt phase; he did not present testimony
relevant to mitigation from the witnesses who were available; and
he made no plea for Cone's life or closing remarks after the
State's case.
Dice conceded that he did not interview various people from
Cone's past, such as his high school teachers and classmates, who
could have testified that Cone was a good person who did not engage
in criminal behavior pre-Vietnam. Dice agreed that such witnesses
would likely have been available if Dice had, in his words, "been
stupid enough to put them on." State Postconviction Tr. 104.
Apparently, Dice did not interview these individuals in preparation
for the penalty phase, because he assumed that the State's
crossexamination of those witnesses would emphasize the seriousness
of Cone's post-Vietnam criminal behavior.
Id., at 104105,
137. Dice's reasoning is doubtful to say the least because,
regardless of the state of Tennessee law, see
ante, at 696,
n. 3, these post-Vietnam crimes were already known to the jury
through the State's penalty phase evidence of
709
respondent's prior convictions. Further, it is hard to imagine
how evidence of Cone's post-Vietnam behavior would change their
assessments-indeed, Dice's whole case was that Cone had
changed.7
Dice also failed to present to the jury mitigation evidence that
he did have on hand. He admitted that other witnesses-including
those whose testimony he promised to the jury in the guilt phase
opening, such as Cone's mother, sister, and aunts-had been
interviewed and were available to testify at the penalty phase.
Dice had ready access to other mitigation evidence as well:
testimony from Cone himself (in which he could have, among other
things, expressed remorse and discussed his brother's drowning and
his fiancée's murder), the letter of forgiveness from the victim's
sister, the Bronze Star, and the medical experts. Dice's
post
hoc reasons for not putting on these additional witnesses and
evidence are puzzling, but appear to rest largely on his incorrect
assumption that the guilt phase record already included "what
little mitigating circumstances we had," State Postconviction Tr.
133, and his fear of the prosecutor, "who by all accounts was an
extremely effective advocate,"
ante, at 692; see,
e.
g., State Postconviction Tr. 105, 107-108, 123, 136,
137.
7 The Court's brief descriptions of Dice's reasoning for his
choices, see
ante, at 699-702, gives this reasoning more
legitimacy than it merits. Only by reading Dice's lengthy answers
from the postconviction hearing is it clear how confused and
misguided Dice was. For example, with respect to the supposed
damage that these mitigation witnesses could do, Dice speaks in
generalities about unsubstantiated fears: "Picture this scenario.
You've got them on the stand; once you've put on this trial for
life, as we call it, you and I, and the burden is what now? It's
only preponderance of the evidence. Comes now the skilled
prosecutor, Mr. Strother, over there, and says, oh, he was a good
student in high school; right? And Vietnam affected his mind;
right? What about all the robberies he pulled? They have him in
prison in Oklahoma. I mean, he was in prison once. Did you know
about those things? And how about this and that, you know, and
other things Mr. Cone told me about?" State Postconviction Tr.
104-105.
710
Although the guilt phase evidence included information about
Cone's post-Vietnam behavior, it told the jury little about Cone's
earlier life.8 During the guilt phase, Dice had a difficult enough
time convincing the court to allow him to present evidence of
respondent's post-Vietnam behavior and drug addiction as an
insanity defense, that he did not seriously attempt to introduce
evidence of respondent's childhood. However, such evidence would
have been permissible mitigation in the penalty phase. This
evidence would have revealed Cone to be "a quiet, studious child,"
with "absolutely no suggestion of any behavioral disturbance, even
in adolescence." App. 93. Indeed, his mother could have described
him as a "perfect" child,
ibid., and she "absolutely" wanted
to testify at the penalty hearing to make a plea for Cone's life,
but Dice "wouldn't put her on even if she'd wanted to," because he
"did not feel that she did well on the stand," and because of "the
cross-examination skills of the District Attorney involved." State
Postconviction Tr. 9798, 193. Dice's claim that she had not made a
good witness at the guilt phase, see
ante, at 700, is
contradicted by the transcript of her straightforward trial
testimony, Tr. 16311656, and his desire not to subject her to
cross-examination is surely an insufficient reason, absent more, to
prevent her from asking the jury to spare her son's life.
Dice also did not call as witnesses in mitigation either of
Cone's sisters or his aunt, all of whom were promised in Dice's
opening statement. Dice's statement that Cone's sister Sue "did not
want to testify,"
ante, at 700, is contradicted by his
opening statement. And his fear that she might have been questioned
"about the fact that [Cone] called her from the [victims'] house
just after the killings,"
ibid., is unfounded: Evidence of
this call was already in the record, and further reference to the
call could do no conceivable additional harm to Cone's case.
Indeed, Dice's justification for
8 Cf. Levin, 46 Am. Jur. Trials § 37 ("Counsel needs to clearly
draw the contrast in the client from before and after
Vietnam").
711
not calling Sue merely illustrates Dice's extraordinary fear of
his adversaries. Dice's explanation for his failure to call Cone's
other sister, Rita, is even more unsatisfying: "I think that we had
a letter exchange or a phone call. My tactics do not necessarily
involve putting the family on down here because, again, ... I
thought that we were in a position which we should say was tenuous
from the outset." State Postconviction Tr. 136. His failure to call
Cone's aunt is unexplained. His failure to offer into evidence the
letter written by the victim's sister, offering her prayers for
Cone, is also unexplained. See n. 2,
supra.
Dice did not put Cone on the stand during the penalty phase,
forfeiting the opportunity for him to express the remorse he
apparently felt, see Tr. 1675. Dice testified that he discussed
with Cone the possibility of testifying, but opted not to call him
at the penalty phase because of fear that respondent might "lash
out if pressed on crossexamination."
Ante, at 700. He also
claimed that Cone made the decision not to testify at the penalty
phase because Cone feared the prosecutor. In Dice's words, Cone
"realized that [the prosecutor] was a very intelligent and skilled
cross-examiner and [Cone] felt that he would go off if he took the
stand." State Postconviction Tr. 103. However, this explanation
conspicuously echoes Dice's
own fears about the prosecutor's
prowess. Furthermore, respondent testified that Dice never "urged
[him] as to the importance of testifying at the penalty stage,"
id., at 204, and Dice testified that his duties did not
include urging Cone to testify,
id., at 119. Given the
undisputed evidence of Cone's intelligence and no indication that
his behavior in the courtroom was anything but exemplary, it is
difficult to imagine why any competent lawyer would so readily
abandon any effort to persuade his client to take the stand when
his life was at stake. Dice's claim that he did no more than permit
Cone to reach his own decision about testifying in the penalty
phase is simply not credible. Rather, it appears that Dice, fearful
of the prosecutor, did not specifically discuss testifying in the
penalty
712
phase with Cone, but rather discussed with him the possibility
of taking the stand on only one occasion-during the guilt phase of
the trial. 9
Dice's failure to recall the medical experts who testified in
the guilt phase is a closer question, and may have been justified
by his belief that they could not add anything that had not already
been presented to the jury.lO Nevertheless, had they been called,
Dice could have made the point, likely lost on the jury as a result
of Dice's "strategy," that the experts' appraisal of Cone had
mitigating significance, even if it did not establish his insanity.
For there is a vast difference between insanity-which the defense
utterly failed to proveand the possible mitigating effect of drug
addiction incurred as a result of honorable service in the
military. By not emphasizing this distinction, Dice made it far
less likely that the jury would treat either the trauma resulting
from Cone's tour of duty in Vietnam 11 or other traumatic events in
his
9 This conclusion follows from Cone's testimony that he was only
consulted once, in a three-person conference, about testifying,
before he got on the stand to state that he would not be
testifying. State Postconviction Tr. 203-204. Cone initially
recalled that this meeting occurred in the penalty stage, though he
then expressed uncertainty on this point; however, he remained
certain that there had been only one meeting. See
ibid. The
conference must have concerned the guilt phase, because it was
during the guilt phase that Cone waived his right to testify. See
Tr. 1865-1866. Furthermore, Dice's co-counsel does not remember a
discussion concerning Cone's possible testimony at the penalty
phase, State Postconviction Tr. 35, 48; Dice himself testified
repeatedly that Cone does not lie,
id., at 117, 120, 139,
141; and Dice himself was unable to state for certain that Cone was
consulted about penalty phase testimony,
id., at 118.
10 Indeed, had counsel's performance not been so completely
deficient, this would be the sort of strategic choice about which
counsel would be owed deference under
Strickland v.
Washington, 466 U. S. 668, 689
(1984). In this case, however, because of Dice's total failure in
the penalty phase, it is difficult to credit even arguably
reasonable choices as the result of "reasonable professional
judgment,"
id., at 690. See
infra, at 717-718.
11 "Although not a combat soldier in Vietnam, Gary described
disturbing and traumatic experiences while there. For example, the
stench from the corpses, and the way in which they were stored in
refrigerators alongside
713
life 12 as mitigating. And, again, the reason for Dice's failure
is that Dice himself failed to appreciate this distinction, for he
believed that the "jury had completely rejected" the experts'
testimony after losing at the guilt phase.
Id., at 156.
In addition to performing no penalty phase investigation and
failing to introduce available mitigation, Dice made no closing
statement after the State's affirmative case for death. Rather,
Dice's "strategy" was to rely on his brief penalty phase opening
statement. This opening statement did refer to the evidence of drug
addiction and the expert testimony already in the record, though it
is unclear to what end, as Dice believed that the jury had
"completely rejected" this testimony,
ibid. Dice's statement
also explained that respondent's drug abuse began under the "stress
and strain of combat service," Tr. 2118, even though the jurors
knew that Cone had not been in combat. Otherwise, Dice failed to
describe the substantial mitigating evidence of which he was aware:
Cone's Bronze Star; his good character before entering the
military; the deaths in his family; the rape and murder of his
fiancée; and his loving relationships with his mother, his sisters,
and his aunt. At best, Dice's opening statement and plea for Cone's
life was perfunctory; indeed, it occupies only 4lf2 of the total
2,158 trial transcript pages.
Dice's decision not to make a closing argument was most strongly
motivated by his fear that his adversary would make a persuasive
argument depicting Cone as a heartless
food; witnessing death; being required, even on occasion to fire
a weapon; the long hours of guard duty; and the escalating drug
abuse, often ostensibly sanctioned by superior officers." App.
96.
12 According to a defense psychologist's report about Cone, the
major traumas in his life have been: "witnessing his brother's body
being removed from the lake"; "[h]is grandmother's death, just
after high school graduation. Gary lived with her, and clearly
viewed her as a safe haven from his father"; "[d]uty in Vietnam,
1968-1969. Although not a combat soldier, experiences were beyond
the realm of normal experiences for a 20-year-old"; and the "[r]ape
and murder of his fiancée in December 1972."
Id., at
102.
714
killer. At all costs, Dice wanted to avoid the prosecutor
"slash[ing] me to pieces on rebuttal," as "[h]e's done ... a
hundred times." State Postconviction Tr. 123. Dice hoped that by
not making a closing statement, the prosecutor would "kind of
follo[w] me right down the primrose path."
Id., at 107. Of
course, at the time Dice waived closing argument, the aggravating
circumstances had already been proved, and Dice knew that the judge
would instruct the jury to return a verdict of death unless the
jurors were persuaded that the aggravating circumstances were
outweighed by mitigating evidence. Perhaps that burden was
insurmountable, but the jury must have viewed the absence of any
argument in response to the State's case for death as Dice's
concession that no case for life could be made. A closing argument
provided the only chance to avoid the inevitable outcome of the
"primrose path"-a death sentence.13
Both of the experienced criminal lawyers who testified as expert
witnesses in the state postconviction proceedings refused to state
categorically that it would never be appropriate to waive closing
argument, to fail to put the defendant on the stand during the
penalty phase of the trial, or to offer no mitigating evidence in
the penalty phase. Both witnesses agreed, however, that Dice's
tactical decisions were
13 In his postconviction testimony, Dice offered another reason
for waiving closing argument. He claimed that the State, in its
penalty phase case, had "screw[ed] up the aggravated circumstances"
by arguing to the jury an aggravating factor that was unsupported
by the evidence-that the lives of two or more people other than the
victims were endangered by the defendant. State Postconviction Tr.
108. Dice testified that he was concerned that if he made a closing
argument, the State might realize its mistake and correct the error
in its rebuttal closing argument. See
id., at 103-104. Not
only is Dice's explanation incredible, but, unsurprisingly, Dice's
"strategy" did not work "perfectly," as Dice claimed it did,
id., at 103, because the State Supreme Court found any error
concerning the aggravators to be harmless,
State v.
Cone, 665 S. W. 2d 87, 95 (Tenn. 1984). More importantly,
such a "strategy" is never appropriate; counsel's hope for an
appellate victory concerning one trial error cannot justify
abdication of his duty as advocate for the remainder of the
proceeding.
715
highly abnormal, and perhaps unprecedented in a capital
case.
II
On these facts, and as a result of Dice's overwhelming failure
at the penalty phase, the Court of Appeals properly concluded that
Cronic controls the Sixth Amendment claim in this case, and
that prejudice to respondent should be presumed. Given Dice's
repeated and unequivocal testimony about Cone's truthfulness,
together with Cone's apparent feelings of remorse, see Tr. 1675,
Dice's decision not to offer Cone's testimony in the penalty phase
is simply bewildering. And his decisions to present no mitigation
case in the penalty phase,14 and to offer no closing argument in
the face of the prosecution's request for death,15 are nothing
short of incredible. Moreover, Dice's explanations for his
decisions not only were uncorroborated, but were, in my judgment,
patently unsatisfactory. Indeed, his rambling and often incoherent
descriptions of his unusual trial strategy lend strong support to
the Court of Appeals' evaluation of this case and its decision not
to defer to Dice's lack of meaningful participation in the penalty
phase as "strategy." 16
Although the state courts did not have the benefit of evidence
concerning Dice's mental health, it appears from Dice's
14 Cf.
Penry v.
Lynaugh, 492 U. S. 302, 319 (1989)
("If the sentencer is to make an individualized assessment of the
appropriateness of the death penalty, 'evidence about the
defendant's background and character is relevant because of the
belief, long held by this society, that defendants who commit
criminal acts that are attributable to a disadvantaged background,
or to emotional and mental problems, may be less culpable than
defendants who have no such excuse'" (quoting
California v.
Brown, 479 U.
S. 538, 545 (1987) (O'CONNOR, J., concurring))).
15 Cf.
Herring v.
New York, 422 U. S. 853, 862 (1975)
("In a criminal trial, which is in the end basically a factfinding
process, no aspect of such advocacy could be more important than
the opportunity finally to marshal the evidence for each side
before submission of the case to judgment").
16 Dice's main explanation of his decision to waive closing
argument at the close of the penalty hearing is quoted in an
appendix to this opinion.
716
medical records that he suffered from a severe mental
impairment. He began treatment for this illness a couple of years
after trial, and he committed suicide approximately six months
after the postconviction hearing in this case. See App. 88-89. The
symptoms of his disorder included "confused thinking, impaired
memory, inability to concentrate for more than a short period of
time, paranoia, grandiosity, [and] inappropriate behavior."
Id., at 88. While these mental health problems may have
onset after Cone's trial, a complete reading of the trial
transcript and an assessment of Dice's actions at trial suggest
this not to be the case.
A theme of fear of possible counterthrusts by his adversaries
permeates Dice's loquacious explanations of his tactical decisions.
But fear of the opponent cannot justify such absolute dereliction
of a lawyer's duty to the client-especially a client facing death.
For "[t]he very premise of our adversary system of criminal justice
is that partisan advocacy on both sides of a case will best promote
the ultimate objective that the guilty be convicted and the
innocent go free."
Herring v.
New York, 422 U. S. 853, 862
(1975). There may be cases in which such timidity is consistent
with a "meaningful adversarial testing" of the prosecution's case,
Cronic, 466 U. S., at 659, but my examination of the record
has produced a firm conviction that this is not such a case.
The Court claims that
Cronic's second prong only applies
when "counsel failed to oppose the prosecution throughout the
sentencing proceeding
as a whole." Ante, at 697 (emphasis
added). But that is exactly what Dice did. It is true, as the Court
claims, that respondent's complaints about Dice's performance can
be framed as complaints about what Dice failed to do "at specific
points,"
ibid. However, when those complaints concern
"points" that encompass all of counsel's fundamental duties at a
capital sentencing proceedingperforming a mitigation investigation,
putting on available mitigation evidence, and making a plea for the
defendant's life after the State has asked for death-counsel
has failed
717
"entirely,"
ibid. (quoting
Cronic, 466 U. S., at
659 (emphasis omitted)). The Court of Appeals' conclusion in this
regard exemplifies a court's proper use of its judgment to
recognize when failures "at specific points" amount to an "entir[e]
fail[ure]" within the meaning of
Cronic. We recognized the
importance of the exercise of such judgment in
Strickland v.
Washington, 466 U. S. 668 (1984), in
which we explained that Sixth Amendment principles are "not ...
mechanical rules," and that "[i]n every case the court should be
concerned with whether, despite the strong presumption of
reliability, the result of the particular proceeding is unreliable
because of a breakdown in the adversarial process that our system
counts on to produce just results."
Id., at 698.
The majority also claims that
Cronic's second prong does
not apply because this Court has previously analyzed claims "of the
same ilk,"
ante, at 697, under
Strickland, not
Cronic. However, in none of our previous cases applying
Strickland to a penalty phase ineffectiveness claim did the
challenged attorney not only fail to conduct a penalty phase
investigation, but also fail to put on available mitigation
evidence and fail to make a closing argument asking to spare the
defendant's life. See
Williams v.
Taylor, 529 U. S. 362 (2000);
Burger v.
Kemp, 483 U. S. 776 (1987); and
Darden v.
Wainwright, 477 U. S. 168 (1986).
Furthermore, in none of these cases was there evidence that counsel
had as "radical" a view of the penalty phase as Dice's, and in none
of these cases was the lawyer's own mental health called into
question, as it has been here. It is, of course, true that a
"total" failure claim, which we confront here, could theoretically
be analyzed under
Strickland. However, as
Cronic
makes clear, see
ante, at 695-696, although
Strickland
could apply in all Sixth Amendment right to counsel cases, it
does not.
Moreover, presuming prejudice when counsel has entirely failed
to function as an adversary makes sense, for three reasons. First,
counsel's complete failure to advocate, coupled here with his
likely mental illness, undermines
Strickland's
718
basic assumption: that counsel has "made all significant
decisions in the exercise of reasonable professional judgment." 466
U. S., at 690. Second, a proper
Strickland inquiry is
difficult, if not impossible, to conduct when counsel has
completely abdicated his role as advocate, because the abdication
results in an incomplete trial record from which a court cannot
properly evaluate whether a defendant has or has not suffered
prejudice from the attorney's conduct. Finally, counsel's total
failure as an adversary renders "the likelihood that the verdict is
unreliable" to be "so high that a caseby-case inquiry is
unnecessary."
Mickens v.
Taylor, ante, at 166.
The Court's holding today is entirely consistent with its recent
decision in
Mickens. In both cases, according to the Court,
a presumption that every lawyer in every capital case has performed
ethically, diligently, and competently is appropriate because such
performance generally characterizes the members of an honorable
profession. It is nevertheless true that there are rare cases in
which blind reliance on that presumption, or uncritical analysis of
a lawyer's proffered explanations for aberrant behavior in the
courtroom, may result in the denial of the constitutional "right to
the effective assistance of counsel."
McMann v.
Richardson, 397 U. S. 759, 771, n. 14
(1970). The importance of protecting this right in capital cases
cannot be overstated.17 Effective representa-
17 A recent, comprehensive report issued by the Governor's
Commission reviewing Illinois' capital punishment system concluded:
"'Providing qualified counsel is perhaps the most important
safeguard against the wrongful conviction, sentencing, and
execution of capital defendants. It is also a safeguard far too
often ignored.' " Report of the Governor's Commission on Capital
Punishment 105 (2002) (quoting Constitution Project, Mandatory
Justice: Eighteen Reforms to the Death Penalty 6 (2001)).
Members of this Court have similarly recognized both the
importance of qualified counsel in death cases, and the frequent
lack thereof. See,
e. g., McFarland v.
Scott, 512 U. S. 1256 (1994) (Blackmun, J., dissenting from
denial of certiorari) (describing the "crisis in trial and state
postconviction legal representation for capital defendants"); Lane,
O'Connor Ex-
719
tion provides "the means through which the other rights of the
person on trial are secured."
Cronic, 466 U. S., at 653. For
that reason, there is "a denial of Sixth Amendment rights that
makes the adversary process itself presumptively unreliable"
whenever defense counsel "entirely fails to subject the
prosecution's case to meaningful adversary testing."
Id., at
659. That is exactly what happened in the penalty phase of Gary
Cone's trial.
I respectfully dissent.
APPENDIX TO OPINION OF STEVENS, J.
Excerpt from Dice's postconviction testimony in which he
explains his reasons for waiving closing argument:
"Q: While we're on that subject, will you summarize for us all
the reasons that you had at that time, and not at this time, but at
that time, for waiver of final argument in the penalty phase of the
Cone matter?
"A: Okay. Number one; I thought that we had put on almost every
mitigating circumstance that we had. Okay? In the first phase of
the trial.
"Number two; I managed to sucker Mr. Patterson and Mr. Strother
into putting on my Bronze Star decoration without having my
defendant testify, which I felt was pretty good trial tactics. I
know when I asked Mr. Blackwell that question, one of the two of
them over there became unglued. Okay.
"Number three; I thought the trial judge had lost control of the
case. He allowed Mr. Strother to call me unethical twice in front
of the jury, and he did several things in there
presses Death Penalty Doubt; Justice Says Innocent May Be
Killed, Washington Post, July 4, 2001, p. Al (reporting JUSTICE
O'CONNOR'S comment that "Perhaps it's time to look at minimum
standards for appointed counsel in death cases" and JUSTICE
GINSBURG'S comment that "I have yet to see a death case, among the
dozens coming to the Supreme Court on the eve of execution
petitions, in which the defendant was well represented at
trial").
720
Appendix to opinion of STEVENS, J.
which had made my client extremely angry. I forgive Mr. Strother
for that. I don't think he really believes it, but he's a trial
lawyer and he took the position.
"Okay. I'm saying the general feeling of that was goingthe trial
was not being conducted neutrally by the judge. Okay.
"The other thing that got to me about the aspects of why to
waive, I knew again that they were so much out for blood that
they'd screw up their own trial in terms of what the jury was going
to find.
"Okay. Another factor is that my defendant told me that he would
probably explode on the stand with anger if General Strother
cross-examined him, and I know Don Strother to be an extremely
competent cross-examiner.
"Q: Just so we'll be clear now. I've asked you to name the
reasons for waiving final argument. Was whether or not what you
just said about Mr. Cone possibly exploding, did that have anything
to do with waiving final argument?
"A: Absolutely it did. I didn't make that decision at the last
moment at all, Mr. Kopernak. That decision was carefully planned
out. When the jury was only out for an hour, when they were only
out for an hour, and I think it was close to that, and long before
the trial I considered that as a trial tactic. Now, all these
factors were being considered, not just one.
"Q: Okay. Go ahead, please. "A: Okay.
"Q: Do you want me to go over those so you'll(Interrupted)
"A: No, because I recall most of them pretty clearly. You know,
we'd had all those things go on, and some of the things which had
happened in the trial, and when Ural Adams had done that in the
Groseclose case and he and I had spent so much time talking about
whether or not to do it, I considered
721
that perhaps because of the nature of the opposition in this
particular case, that it might be an effective tactic. And I'll
tell you this much. Let's say that when we'd gotten down there that
Mr. Strother had gotten up and made the first argument, I might not
have waived at all if I knew that Patterson was going to make the
kill argument. I might not have made it. But once Patterson made
the first argument, and then those statements that were reported in
the press where Mr. Patterson said, well, we're here because it's
wrong to kill people. I'll never forget that one as long as I live.
Okay. When he made that portion in another portion of the trial.
So, what I chose to do is to make my closing argument in my opening
argument and then suckered them along because they'd already made
that mistake, as far as I was concerned. Okay? And see whether or
not the jury would take what little mitigating circumstances we had
and give us a verdict and keep him alive." State Postconviction Tr.
130-133.
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