OPINION OF THE COURT
CULLEN V. PINHOLSTER
563 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-1088
VINCENT CULLEN, ACTING WARDEN, PETITIONER
v. SCOTT LYNN PINHOLSTER
on writ of certiorari to the united states court of
appeals for the ninth circuit
[April 4, 2011]
Justice Thomas delivered the
opinion of the Court.*
Scott Lynn Pinholster and two
accomplices broke into a house in the middle of the night and
brutally beat and stabbed to death two men who happened to
interrupt the burglary. A jury convicted Pinholster of first-degree
murder, and he was sentenced to death.
After the California Supreme Court twice
unanimously denied Pinholster habeas relief, a Federal District
Court held an evidentiary hearing and granted Pinholster habeas
relief under 28 U. S. C. §2254. The District Court concluded
that Pinholster’s trial counsel had been constitutionally
ineffective at the penalty phase of trial. Sitting en banc, the
Court of Appeals for the Ninth Circuit affirmed.
Pinholster v.
Ayers, 590 F. 3d 651 (2009).
Considering the new evidence adduced in the District Court hearing,
the Court of Appeals held that the California Supreme Court’s
decision “was contrary to, or involved an unreasonable application
of, clearly established Federal law.” §2254(d)(1).
We granted certiorari and now reverse.
I
A
On the evening of January 8,
1982, Pinholster solicited Art Corona and Paul David Brown to help
him rob Michael Kumar, a local drug dealer. On the way, they
stopped at Lisa Tapar’s house, where Pinholster put his buck knife
through her front door and scratched a swastika into her car after
she refused to talk to him. The three men, who were all armed with
buck knives, found no one at Kumar’s house, broke in, and began
ransacking the home. They came across only a small amount of
marijuana before Kumar’s friends, Thomas Johnson and Robert
Beckett, arrived and shouted that they were calling the police.
Pinholster and his accomplices
tried to escape through the rear door, but Johnson blocked their
path. Pinholster backed Johnson onto the patio, demanding drugs and
money and repeatedly striking him in the chest. Johnson dropped his
wallet on the ground and stopped resisting. Beckett then came
around the corner, and Pinholster attacked him, too, stabbing him
repeatedly in the chest. Pinholster forced Beckett to the ground,
took both men’s wallets, and began kicking Beckett in the head.
Meanwhile, Brown stabbed Johnson in the chest, “ ‘bury[ing]
his knife to the hilt.’ ” 35 Reporter’s Tr. 4947 (hereinafter
Tr.). Johnson and Beckett died of their wounds.
Corona drove the three men to Pinholster’s
apartment. While in the car, Pinholster and Brown exulted,
“ ‘We got ’em, man, we got ’em good.’ ”
Ibid. At
the apartment, Pinholster washed his knife, and the three split the
proceeds of the robbery: $23 and one quarter-ounce of marijuana.
Although Pinholster instructed Corona to “lay low,” Corona turned
himself in to the police two weeks later.
Id., at 4955.
Pinholster was arrested shortly thereafter and threatened to kill
Corona if he did not keep quiet about the burglary and murders.
Corona later became the State’s primary witness. The prosecution
brought numerous charges against Pinholster, including two counts
of first-degree murder.
B
The California trial court
appointed Harry Brainard and Wilbur Dettmar to defend Pinholster on
charges of first-degree murder, robbery, and burglary. Before their
appointment, Pinholster had rejected other attorneys and insisted
on representing himself. During that time, the State had mailed
Pinholster a letter in jail informing him that the prosecution
planned to offer aggravating evidence during the penalty phase of
trial to support a sentence of death.
The guilt phase of the trial
began on February 28, 1984. Pinholster testified on his own behalf
and presented an alibi defense. He claimed that he had broken into
Kumar’s house alone at around 8 p.m. on January 8, 1982, and had
stolen marijuana but denied killing anyone. Pinholster asserted
that later that night around 1 a.m., while he was elsewhere, Corona
went to Kumar’s house to steal more drugs and did not return for
three hours. Pinholster told the jury that he was a “professional
robber,” not a murderer. 43
id., at 6204. He boasted of
committing hundreds of robberies over the previous six years but
insisted that he always used a gun, never a knife. The jury
convicted Pinholster on both counts of first-degree murder.
Before the penalty phase, Brainard and Dettmar
moved to exclude any aggravating evidence on the ground that the
prosecution had failed to provide notice of the evidence to be
introduced, as required by Cal. Penal Code Ann. §190.3 (West 2008).
At a hearing on April 24, Dettmar argued that, in reliance on the
lack of notice, he was “not presently prepared to offer anything by
way of mitigation.” 52 Tr. 7250. He acknowledged, however, that the
prosecutor “possibly ha[d] met the [notice] requirement.”
Ibid. The trial court asked whether a continuance might be
helpful, but Dettmar declined, explaining that he could not think
of a mitigation witness other than Pinholster’s mother and that
additional time would not “make a great deal of difference.”
Id., at 7257–7258. Three days later, after hearing
testimony, the court found that Pinholster had received notice
while representing himself and denied the motion to exclude.
The penalty phase was held before the same
jury that had convicted Pinholster. The prosecution produced eight
witnesses, who testified about Pinholster’s history of threatening
and violent behavior, including resisting arrest and assaulting
police officers, involvement with juvenile gangs, and a substantial
prison disciplinary record. Defense counsel called only
Pinholster’s mother, Burnice Brashear. She gave an account of
Pinholster’s troubled childhood and adolescent years, discussed
Pinholster’s siblings, and described Pinholster as “a perfect
gentleman at home.”
Id., at 7405. Defense counsel did not
call a psychiatrist, though they had consulted Dr. John Stalberg at
least six weeks earlier. Dr. Stalberg noted Pinholster’s
“psychopathic personality traits,” diagnosed him with antisocial
personality disorder, and concluded that he “was not under the
influence of extreme mental or emotional disturbance” at the time
of the murders. App. 131.
After 2 days of deliberation, the jury
unanimously voted for death on each of the two murder counts. On
mandatory appeal, the California Supreme Court affirmed the
judgment.
People v.
Pinholster, 1 Cal. 4th
865, 824 P. 2d 571 (1992).
C
In August 1993, Pinholster filed
his first state habeas petition. Represented by new counsel,
Pinholster alleged,
inter alia, ineffective assistance of
counsel at the penalty phase of his trial. He alleged that Brainard
and Dettmar had failed to adequately investigate and present
mitigating evidence, including evidence of mental disorders.
Pinholster supported this claim with school, medical, and legal
records, as well as declarations from family members, Brainard, and
Dr. George Woods, a psychiatrist who diagnosed Pinholster with
bipolar mood disorder and seizure disorders. Dr. Woods criticized
Dr. Stalberg’s report as incompetent, unreliable, and inaccurate.
The California Supreme Court unanimously and summarily[
Footnote 1] denied Pinholster’s
penalty-phase ineffective-assistance claim “on the substantive
ground that it is without merit.” App. to Pet. for Cert. 302.
Pinholster filed a federal habeas
petition in April 1997. He reiterated his previous allegations
about penalty-phase ineffective assistance and also added new
allegations that his trial counsel had failed to furnish Dr.
Stalberg with adequate background materials. In support of the new
allegations, Dr. Stalberg provided a declaration stating that in
1984, Pinholster’s trial counsel had provided him with only some
police reports and a 1978 probation report. Dr. Stalberg explained
that, had he known about the material that had since been gathered
by Pinholster’s habeas counsel, he would have conducted “further
inquiry” before concluding that Pinholster suffered only from a
personality disorder. App. to Brief in Opposition 219. He noted
that Pinholster’s school records showed evidence of “some degree of
brain damage.”
Ibid. Dr. Stalberg did not, however,
retract his earlier diagnosis. The parties stipulated that this
declaration had never been submitted to the California Supreme
Court, and the federal petition was held in abeyance to allow
Pinholster to go back to state court.
In August 1997, Pinholster filed his second
state habeas petition, this time including Dr. Stalberg’s
declaration and requesting judicial notice of the documents
previously submitted in support of his first state habeas petition.
His allegations of penalty-phase ineffective assistance of counsel
mirrored those in his federal habeas petition. The California
Supreme Court again unanimously and summarily denied the petition
“on the substantive ground that it is without merit.”[
Footnote 2] App. to Pet. for Cert. 300.
Having presented Dr. Stalberg’s declaration to
the state court, Pinholster returned to the District Court. In
November 1997, he filed an amended petition for a writ of habeas
corpus. His allegations of penalty-phase ineffective assistance of
counsel were identical to those in his second state habeas
petition. Both parties moved for summary judgment and Pinholster
also moved, in the alternative, for an evidentiary hearing.
The District Court concluded that the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110
Stat. 1214, did not apply and granted an evidentiary hearing.
Before the hearing, the State deposed Dr. Stalberg, who stated that
none of the new material he reviewed altered his original
diagnosis. Dr. Stalberg disagreed with Dr. Woods’ conclusion that
Pinholster suffers from bipolar disorder. Pinholster did not call
Dr. Stalberg to testify at the hearing. He presented two new
medical experts: Dr. Sophia Vinogradov, a psychiatrist who
diagnosed Pinholster with organic personality syndrome and ruled
out antisocial personality disorder, and Dr. Donald Olson, a
pediatric neurologist who suggested that Pinholster suffers from
partial epilepsy and brain injury. The State called Dr. F. David
Rudnick, a psychiatrist who, like Dr. Stalberg, diagnosed
Pinholster with antisocial personality disorder and rejected any
diagnosis of bipolar disorder.
D
The District Court granted habeas
relief. Applying pre-AEDPA standards, the court granted the habeas
petition “for inadequacy of counsel by failure to investigate and
present mitigation evidence at the penalty hearing.” App. to Pet.
for Cert. 262. After
Woodford v.
Garceau,
538 U. S. 202
(2003), clarified that AEDPA applies to cases like Pinholster’s,
the court amended its order but did not alter its conclusion. Over
a dissent, a panel of the Court of Appeals for the Ninth Circuit
reversed.
Pinholster v.
Ayers, 525 F. 3d 742
(2008).
On rehearing en banc,
the Court of Appeals vacated the panel opinion and affirmed the
District Court’s grant of habeas relief. The en banc court held
that the District Court’s evidentiary hearing was not barred by 28
U. S. C. §2254(e)(2). The court then determined that new
evidence from the hearing could be considered in assessing whether
the California Supreme Court’s decision “was contrary to, or
involved an unreasonable application of, clearly established
Federal law” under §2254(d)(1). See 590 F. 3d, at 666
(“Congress did not intend to restrict the inquiry under §2254(d)(1)
only to the evidence introduced in the state habeas court”). Taking
the District Court evidence into account, the en banc court
determined that the California Supreme Court unreasonably applied
Strickland v.
Washington,
466 U. S. 668 (1984), in
denying Pinholster’s claim of penalty-phase ineffective assistance
of counsel.
Three judges dissented and rejected the
majority’s conclusion that the District Court hearing was not
barred by §2254(e)(2). 590 F. 3d, at 689 (opinion of Kozinski,
C. J.) (characterizing Pinholster’s efforts as
“habeas-by-sandbagging”). Limiting its review to the state-court
record, the dissent concluded that the California Supreme Court did
not unreasonably apply
Strickland. 590
F. 3d
, at 691–723.
We granted certiorari to resolve two
questions. 560 U. S. ___ (2010). First, whether review under
§2254(d)(1) permits consideration of evidence introduced in an
evidentiary hearing before the federal habeas court. Second,
whether the Court of Appeals properly granted Pinholster habeas
relief on his claim of penalty-phase ineffective assistance of
counsel.
II
We first consider the scope of
the record for a §2254(d)(1) inquiry. The State argues that review
is limited to the record that was before the state court that
adjudicated the claim on the merits. Pinholster contends that
evidence presented to the federal habeas court may also be
considered. We agree with the State.
A
As amended by AEDPA, 28 U.
S. C. §2254 sets several limits on the power of a federal
court to grant an application for a writ of habeas corpus on behalf
of a state prisoner. Section 2254(a) permits a federal court to
entertain only those applications alleging that a person is in
state custody “in violation of the Constitution or laws or treaties
of the United States.” Sections 2254(b) and (c) provide that a
federal court may not grant such applications unless, with certain
exceptions, the applicant has exhausted state remedies.
If an application includes a
claim that has been “adjudicated on the merits in State court
proceedings,” §2254(d), an additional restriction applies. Under
§2254(d), that application “shall not be granted with respect to
[such a] claim … unless the adjudication of the claim”:
“(1) resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States; or
“(2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”
This is a “difficult to meet,”
Harrington
v.
Richter, 562 U. S. ___, ___ (2011) (slip op., at 12),
and “highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given the
benefit of the doubt,”
Woodford v.
Visciotti,
537 U. S. 19, 24
(2002)
(per curiam) (citation and internal quotation marks
omitted). The petitioner carries the burden of proof.
Id.,
at 25.
We now hold that review under §2254(d)(1) is
limited to the record that was before the state court that
adjudicated the claim on the merits. Section 2254(d)(1) refers, in
the past tense, to a state-court adjudication that “resulted in” a
decision that was contrary to, or “involved” an unreasonable
application of, established law. This backward-looking language
requires an examination of the state-court decision at the time it
was made. It follows that the record under review is limited to the
record in existence at that same time
i.e., the record
before the state court.
This understanding of the text is compelled by
“the broader context of the statute as a whole,” which demonstrates
Congress’ intent to channel prisoners’ claims first to the state
courts.
Robinson v.
Shell Oil Co.,
519 U. S. 337, 341
(1997). “The federal habeas scheme leaves primary responsibility
with the state courts … .”
Visciotti,
supra,
at 27. Section 2254(b) requires that prisoners must ordinarily
exhaust state remedies before filing for federal habeas relief. It
would be contrary to that purpose to allow a petitioner to overcome
an adverse state-court decision with new evidence introduced in a
federal habeas court and reviewed by that court in the first
instance effectively
de novo.
Limiting §2254(d)(1) review to the state-court
record is consistent with our precedents interpreting that statu-
tory provision. Our cases emphasize that review under §2254(d)(1)
focuses on what a state court knew and did. State-court decisions
are measured against this Court’s precedents as of “the time the
state court renders its decision.”
Lockyer v.
Andrade,
538
U. S. 63, 71–72 (2003). To determine whether a particular
decision is “contrary to” then-established law, a federal court
must consider whether the decision “applies a rule that contradicts
[such] law” and how the decision “confronts [the] set of facts”
that were before the state court.
Williams v.
Taylor,
529 U. S. 362, 405, 406 (2000)
(Terry Williams). If the state-court decision “identifies
the correct governing legal principle” in existence at the time, a
federal court must assess whether the decision “unreasonably
applies that principle to the facts of the prisoner’s case.”
Id., at 413. It would be strange to ask federal courts to
analyze whether a state court’s adjudication resulted in a decision
that unreasonably applied federal law to facts not before the state
court.[
Footnote 3]
Our recent decision in
Schriro v.
Landrigan,
550 U. S. 465 (2007), is
consistent as well with our holding here. We explained that
“[b]ecause the deferential standards prescribed by §2254 control
whether to grant habeas relief, a federal court must take into
account those standards in deciding whether an evidentiary hearing
is appropriate.”
Id., at 474. In practical effect, we went
on to note, this means that when the state-court record “precludes
habeas relief” under the limitations of §2254(d), a district court
is “not required to hold an evidentiary hearing.”
Id., at
474 (citing with approval the Ninth Circuit’s recognition that “an
evidentiary hearing is not required on issues that can be resolved
by reference to the state court record” (internal quotation marks
omitted)).
The Court of Appeals wrongly interpreted
Williams v.
Taylor,
529 U. S. 420 (2000)
(Michael Williams), as supporting the contrary view. The
question there was whether the lower court had correctly determined
that §2254(e)(2) barred the petitioner’s request for a federal
evidentiary hearing.[
Footnote
4]
Michael Williams did not concern whether evidence
introduced in such a hearing could be considered under §2254(d)(1).
In fact, only one claim at issue in that case was even subject to
§2254(d); the rest had not been adjudicated on the merits in
state-court proceedings. See
id., at 429 (“Petitioner did
not develop, or raise, his claims … until he filed his federal
habeas petition”).[
Footnote
5]
If anything, the decision in
Michael
Williams supports our holding. The lower court in that case
had determined that the one claim subject to §2254(d)(1) did not
satisfy that statutory requirement. In light of that ruling, this
Court concluded that it was “unnecessary to reach the question
whether §2254(e)(2) would permit a [federal] hearing on th[at]
claim.”
Id., at 444. That conclusion is fully consistent
with our holding that evidence later introduced in federal court is
irrelevant to §2254(d)(1) review.
The Court of Appeals’ reliance on
Holland v.
Jackson,
542 U. S. 649 (2004)
(per curiam), was also mistaken. In
Holland, we
initially stated that “whether a state court’s decision was
unreasonable [under §2254(d)(1)] must be assessed in light of the
record the court had before it.”
Id., at 652. We then went
on to
assume for the sake of argument what some Courts of
Appeals had heldthat §2254(d)(1), despite its mandatory language,
simply does not apply when a federal habeas court has admitted new
evidence that supports a claim previously adjudicated in state
court.[
Footnote 6]
Id., at 653. There was no reason to decide that question
because regardless, the hearing should have been barred by
§2254(e)(2). Today, we reject that assumption and hold that
evidence introduced in federal court has no bearing on §2254(d)(1)
review. If a claim has been adjudicated on the merits by a state
court, a fed- eral habeas petitioner must overcome the limitation
of §2254(d)(1) on the record that was before that state
court.[
Footnote 7]
B
Pinholster’s contention that our
holding renders §2254(e)(2) superfluous is incorrect. Section
2254(e)(2) imposes a limitation on the discretion of federal habeas
courts to take new evidence in an evidentiary hearing. See
Landrigan,
supra, at 473 (noting that district
courts, under AEDPA, generally retain the discretion to grant an
evidentiary hearing). Like §2254(d)(1), it carries out “AEDPA’s
goal of promoting comity, finality, and federalism by giving state
courts the first opportunity to review [a] claim, and to correct
any constitutional violation in the first instance.”
Jimenez v.
Quarterman,
555 U. S. 113, ___
(2009) (slip op., at 8) (internal quotation marks
omitted).[
Footnote 8]
Section 2254(e)(2) continues to
have force where §2254(d)(1) does not bar federal habeas relief.
For example, not all federal habeas claims by state prisoners fall
within the scope of §2254(d), which applies only to claims
“adjudicated on the merits in State court proceedings.” At a
minimum, therefore, §2254(e)(2) still restricts the discretion of
federal habeas courts to consider new evidence when deciding claims
that were not adjudicated on the merits in state court. See,
e.g.,
Michael Williams, 529 U. S.
, at
427–429.[
Footnote 9]
Although state prisoners may sometimes submit
new evidence in federal court, AEDPA’s statutory scheme is designed
to strongly discourage them from doing so. Provisions like
§§2254(d)(1) and (e)(2) ensure that “[f]ederal courts sitting in
habeas are not an alternative forum for trying facts and issues
which a prisoner made insufficient effort to pursue in state
proceedings.”
Id., at 437; see also
Richter, 562
U. S., at ___ (slip op., at 13) (“Section 2254(d) is part of the
basic structure of federal habeas jurisdiction, designed to confirm
that state courts are the principal forum for asserting
constitutional challenges to state convictions”);
Wainwright v.
Sykes,
433 U. S. 72, 90 (1977)
(“[T]he state trial on the merits [should be] the ‘main event,’ so
to speak, rather than a ‘tryout on the road’ for what will later be
the determinative federal habeas hearing”).[
Footnote 10]
C
Accordingly, we conclude that the
Court of Appeals erred in considering the District Court evidence
in its review under §2254(d)(1). Although we might ordinarily
remand for a properly limited review, the Court of Appeals also
ruled, in the alternative, that Pinholster merited habeas relief
even on the state-court record alone. 590 F. 3d, at 669.
Remand is therefore inappropriate, and we turn next to a review of
the state-court record.
III
The Court of Appeals’ alternative
holding was also erroneous. Pinholster has failed to demonstrate
that the California Supreme Court unreasonably applied clearly
established federal law to his penalty-phase ineffective-assistance
claim on the state-court record. Section 2254(d) prohibits habeas
relief.
A
Section 2254(d) applies to
Pinholster’s claim because that claim was adjudicated on the merits
in state-court proceedings. No party disputes that Pinholster’s
federal petition alleges an ineffective-assistance-of-counsel claim
that had been included in both of Pinholster’s state habeas
petitions. The California Supreme Court denied each of those
petitions “on the substantive ground that it is without
merit.”[
Footnote 11]
Section 2254(d) applies even
where there has been a summary denial. See
Richter, 562 U.
S., at ___ (slip op., at 8). In these circumstances, Pinholster can
satisfy the “unreasonable application” prong of §2254(d)(1) only by
showing that “there was no reasonable basis” for the California
Supreme Court’s decision.
Id., at ___ (slip op., at
8)
. “[A] habeas court must determine what arguments or
theories … could have supporte[d] the state court’s decision; and
then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the
holding in a prior decision of this Court.”
Id., at ___
(slip op., at 12). After a thorough review of the state-court
record,[
Footnote 12] we
conclude that Pinholster has failed to meet that high
threshold.
B
There is no dispute that the
clearly established federal law here is
Strickland v.
Washington. In
Strickland, this Court made clear
that “the purpose of the effective assistance guarantee of the
Sixth Amendment is not to improve the quality of legal
representation … [but] simply to ensure that criminal defendants
receive a fair trial.” 466 U. S., at 689. Thus, “[t]he benchmark
for judging any claim of ineffectiveness must be whether counsel’s
conduct
so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a just result.”
Id., at 686 (emphasis added). The
Court acknowledged that “[t]here are countless ways to provide
effective assistance in any given case,” and that “[e]ven the best
criminal defense attorneys would not defend a particular client in
the same way.”
Id., at 689.
Recognizing the “tempt[ation] for
a defendant to second-guess counsel’s assistance after conviction
or adverse sentence,”
ibid., the Court established that
counsel should be “strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment,”
id., at 690
.
To overcome that presumption, a defendant must show that counsel
failed to act “reasonabl[y] considering all the circumstances.”
Id., at 688. The Court cautioned that “[t]he availability
of intrusive post-trial inquiry into attorney performance or of
detailed guidelines for its evaluation would encourage the
proliferation of ineffectiveness challenges.”
Id., at
690.
The Court also required that defendants prove
prejudice.
Id., at 691–692. “The defendant must show 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. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Ibid. That requires a “substantial,” not just
“conceivable,” likelihood of a different result.
Richter,
562 U. S., at ___ (slip op., at 22).
Our review of the California Supreme Court’s
decision is thus “doubly deferential.”
Knowles v.
Mirzayance, 556 U. S. ___, ___ (2009) (slip op., at 11)
(citing
Yarborough v.
Gentry,
540 U. S. 1, 5–6 (2003)
(per curiam)). We take a “highly deferential” look at
counsel’s performance,
Strickland,
supra, at 689,
through the “deferential lens of §2254(d),”
Mirzayance,
supra, at ___, n. 2 (slip op., at 9, n. 2).
Pinholster must demonstrate that it was necessarily unreasonable
for the California Supreme Court to conclude: (1) that he had not
overcome the strong presumption of competence; and (2) that he had
failed to undermine confidence in the jury’s sentence of death.
C
1
Pinholster has not shown that the
California Supreme Court’s decision that he could not demonstrate
deficient performance by his trial counsel necessarily involved an
unreasonable application of federal law. In arguing to the state
court that his counsel performed deficiently, Pinholster contended
that they should have pursued and presented additional evidence
about: his family members and their criminal, mental, and substance
abuse problems; his schooling; and his medical and mental health
history, including his epileptic disorder. To support his
allegation
that his trial counsel had “no reasonable
tactical basis” for the approach they took, Pinholster relied on
statements his counsel made at trial. App. to Brief in Opposition
143. When arguing the motion to exclude the State’s aggravating
evidence at the penalty phase for failure to comply with Cal. Penal
Code Ann. §190.3, Dettmar, one of Pinholster’s counsel, contended
that because the State did not provide notice, he “[was] not
presently prepared to offer anything by way of mitigation,” 52 Tr.
7250. In response to the trial court’s inquiry as to whether a
continuance might be helpful, Dettmar noted that the only
mitigation witness he could think of was Pinholster’s mother.
Additional time, Dettmar stated, would not “make a great deal of
difference.” Id., at 7257–7258.
We begin with the
premise that “under the circumstances, the challenged action[s]
might be considered sound trial strategy. ”
Strickland, supra, at 689 (internal quotation
marks omitted). The Court of Appeals dissent described one possible
strategy:
“[Pinholster’s attorneys] were fully
aware that they would have to deal with mitigation sometime during
the course of the trial, did spend considerable time and effort
investigating avenues for mitigation[,] and made a reasoned
professional judgment that the best way to serve their client would
be to rely on the fact that they never got [the required §190.3]
notice and hope the judge would bar the state from putting on their
aggravation witnesses.” 590 F. 3d, at 701–702 (opinion of
Kozinski, C. J.).
Further, if their motion was denied,
counsel were prepared to present only Pinholster’s mother in the
penalty phase to create sympathy not for Pinholster, but for his
mother. After all, the “ ‘family sympathy’ ” mitigation
defense was known to the defense bar in California at the time and
had been used by other attorneys. Id., at 707. Rather than
displaying neglect, we presume that Dettmar’s arguments were part
of this trial strategy. See Gentry, supra, at 8
(“[T]here is a strong presumption that [counsel took certain
actions] for tactical reasons rather than through sheer neglect”
(citing Strickland, supra, at 690)).
The state-court record supports
the idea that Pinholster’s counsel acted strategically to get the
prosecution’s aggravation witnesses excluded for lack of notice,
and if that failed, to put on Pinholster’s mother. Other statements
made during the argument regarding the motion to exclude suggest
that defense counsel were trying to take advantage of a legal
technicality and were not truly surprised. Brainard and Dettmar
acknowledged that the prosecutor had invited them on numerous
occasions to review Pinholster’s state prison file but argued that
such an invitation did not meet with the “strict demands” of
§190.3. 52 Tr. 7260. Dettmar admitted that the prosecutor, “being
as thorough as she is, possibly ha[d] met the requirement.”
Id., at 7250. But if so, he wanted her “to make that
representation to the court.”[Footnote 13] Ibid.
Timesheets indicate that
Pinholster’s trial counsel investigated mitigating
evidence.[Footnote 14] Long
before the guilty verdict, Dettmar talked with Pinholster’s mother
and contacted a psychiatrist.[Footnote 15] On February 26, two months before the
penalty phase started, he billed six hours for “[p]reparation
argument, death penalty phase.” See Clerk’s Tr. 864. Brainard, who
merely assisted Dettmar for the penalty phase, researched epilepsy
and also interviewed Pinholster’s mother.[Footnote 16] We know that Brainard likely spent
additional time, not reflected in these entries, preparing
Pinholster’s brother, Terry, who provided some mitigation testimony
about Pinholster’s background during the guilt phase.
Infra, at 28.
The record also shows that
Pinholster’s counsel confronted a challenging penalty phase with an
unsympathetic client, which limited their feasible mitigation
strategies. By the end of the guilt phase, the jury had observed
Pinholster “glor[y]” in “his criminal disposition” and “hundreds of
robberies.” Pinholster, 1 Cal. 4th, at 945, 907, 824
P. 2d, at 611, 584. During his cross-examination, Pinholster
laughed or smirked when he told the jury that his “occupation” was
“a crook,” when he was asked whether he had threatened a potential
witness, and when he described thwarting police efforts
to recover a gun he had once used. 44 Tr. 6225. He
bragged about being a “professional robber.” 43 id., at
6204. To sup- port his defense, Pinholster claimed that he used
only gunsnot knivesto commit his crimes. But during
cross-examination, Pinholster admitted that he had
previously been convicted of using a knife in a kidnaping. Pinholster also said he was a white supremacist and that he
frequently carved swastikas into other people’s property as “a
sideline to robbery.” 44 id., at
6246.
Trial counsel’s psychiatric
expert, Dr. Stalberg, had concluded that Pinholster showed no
significant signs or symptoms of mental disorder or defect other
than his “psychopathic personality traits.” App. 131. Dr. Stalberg
was aware of Pinholster’s hyperactivity as a youngster,
hospitalization at age 14 for incorrigibility, alleged epileptic
disorder, and history of drug dependency. Nevertheless, Dr.
Stalberg told counsel that Pinholster did not appear to suffer from
brain damage, was not significantly intoxicated or impaired on the
night in question, and did not have an impaired ability to
appreciate the criminality of his
conduct.
Given these impediments, it would
have been a reasonable penalty-phase strategy to focus on evoking
sympathy for Pinholster’s mother. In fact, such a family sympathy
defense is precisely how the State understood defense counsel’s
strategy. The prosecutor carefully opened her cross-examination of
Pinholster’s mother with, “I hope you understand I don’t enjoy
cross-examining a mother of anybody.” 52 Tr. 7407. And in her
closing argument, the prosecutor attempted to undercut defense
counsel’s strategy by pointing out, “Even the most heinous person
born, even Adolph Hitler[,] probably had a mother who loved him.”
53 id., at
7452.
Pinholster’s only response to
this evidence is a series of declarations from Brainard submitted
with Pinholster’s first state habeas petition, seven years after
the trial. Brainard declares that he has “no recollection” of
interviewing any family members (other than Pinholster’s mother)
regarding penalty-phase testimony, of attempting to secure
Pinholster’s school or medical records, or of interviewing any
former teachers or counselors. Pet. for Writ of Habeas Corpus in
No. S004616 (Cal.), Exh. 3. Brainard also declares that Dettmar was
primarily responsible for mental health issues in the case, but he
has “no recollection” of Dettmar ever having secured Pinholster’s
medical records. Id., Exh. 2. Dettmar neither confirmed
nor denied Brainard’s statements, as he had died by the time of the
first state habeas petition. 590 F. 3d, at 700 (Kozinski, C.
J., dissenting).
In sum, Brainard and Dettmar made
statements suggesting that they were not surprised that the State
intended to put on aggravating evidence, billing records show that
they spent time investigating mitigating evidence, and the record
demonstrates that they represented a psychotic client whose
performance at trial hardly endeared him to the jury. Pinholster
has responded to this evidence with only a handful of
post-hoc nondenials by one of his lawyers. The California
Supreme Court could have reasonably concluded that Pinholster had
failed to rebut the presumption of competence mandated by
Strickland—here, that counsel had adequately performed at
the penalty phase of
trial.
2
The Court of Appeals
held that the California Supreme Court had unreasonably applied
Strickland because Pinholster’s attorneys “w[ere] far more
deficient than … the attorneys in Terry Williams,
Wiggins [v. Smith, 539 U. S. 510 (2003)], and
Rompilla [v. Beard, 545 U. S. 374 (2005)], where in each
case the Supreme Court upheld the petitioner’s ineffective
assistance claim.” 590 F. 3d, at 671. The court drew from
those cases a “constitutional duty to investigate,” id.,
at 674, and the principle that “[i]t is prima facie ineffective
assistance for counsel to ‘abandon[ ] their investigation of [the]
petitioner’s background after having acquired only rudimentary
knowledge of his history from a narrow set of sources,’ ”
ibid. (quoting Wiggins v. Smith,
539 U. S. 510, 524–525 (2003)). The
court explained that it could not “lightly disregard” a failure to
introduce evidence of “excruciating life history” or “nightmarish
childhood.” 590 F. 3d, at 684 (internal quotation
marks omitted).
The Court of Appeals
misapplied Strickland and overlooked “the constitutionally
protected independence of counsel and … the wide latitude counsel
must have in making tactical decisions.” 466 U. S., at 689. Beyond
the general requirement of reasonableness, “specific guidelines are
not appropriate.” Id., at 688. “No particular set of
detailed rules for counsel’s conduct can satisfactorily take
account of the variety of circumstances faced by defense counsel or
the range of legitimate decisions … .” Id., at
688–689. Strickland itself rejected the notion that the
same investigation will be required in every case. Id., at
691 (“[C]ounsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary” (emphasis added)). It is “[r]are” that
constitutionally competent representation will require “any one
technique or approach.” Richter, 562 U. S., at ___ (slip
op., at 17). The Court of Appeals erred in attributing strict rules
to this Court’s recent case law.[Footnote
17]
Nor did the Court of Appeals
properly apply the strong presumption of competence that
Strickland mandates. The court dismissed the dissent’s
application of the presumption as “fabricat[ing] an excuse that the
attorneys themselves could not conjure up.” 590 F. 3d, at 673.
But Strickland specifically commands that a court “must
indulge [the] strong presumption” that counsel “made all
significant decisions in the exercise of reasonable professional
judgment.” 466 U. S., at 689–690. The Court of Appeals was
required not simply to “give [the] attorneys the benefit of the
doubt,” 590 F. 3d, at 673, but to affirmatively entertain the
range of possible “reasons Pinholster’s counsel may have had for
proceeding as they did,” id., at 692 (Kozinski, C. J.,
dissenting). See also Richter, supra, at ___
(slip op., at 20) (“Strickland … calls for an inquiry into
the objective reasonableness of counsel’s performance, not
counsel’s subjective state of
mind”).
Justice Sotomayor questions
whether it would have been a reasonable professional judgment for
Pinholster’s trial counsel to adopt a family-sympathy mitigation
defense. Post, at 27. She cites no evidence, however, that
such an approach would have been inconsistent with the standard of
professional competence in capital cases that prevailed in Los
Angeles in 1984. Indeed, she does not contest that, at the time,
the defense bar in California had been using that strategy. See
supra, at 19; post, at 28, n. 21.
Justice Sotomayor relies heavily on Wiggins, but
in that case the defendant’s trial counsel specifically
acknowledged a standard practice for capital cases in Maryland that
was inconsistent with what he had done. 539 U. S., at
524.
At bottom, Justice Sotomayor’s
view is grounded in little more than her own sense of “prudence,”
post, at 26 (internal quotation marks omitted), and what
appears to be her belief that the only reasonable mitigation
strategy in capital cases is to “help” the jury “understand” the
defendant, post, at 35. According to Justice Sotomayor,
that Pinholster was an unsympathetic client “compound[ed], rather
than excuse[d], counsel’s deficiency” in pursuing further evidence
“that could explain why Pinholster was the way he was.”
Post, at 30. But it certainly can be reasonable for
attorneys to conclude that creating sympathy for the defendant’s
family is a better idea because the defendant himself is
simply
unsympathetic.
Justice Sotomayor’s approach is
flatly inconsistent with Strickland’s recognition that
“[t]here are countless ways to provide effective assistance in any
given case.” 466 U. S., at 689. There comes a point where a defense
attorney will reasonably decide that another strategy is in order,
thus “mak[ing] particular investigations unnecessary.”
Id., at 691; cf. 590 F. 3d, at 692 (Kozinski, C. J.,
dissenting) (“The current infatuation with ‘humanizing’ the
defendant as the be-all and end-all of mitigation disregards the
possibility that this may be the wrong tactic in some cases because
experienced lawyers conclude that the jury simply won’t buy it”).
Those decisions are due “a heavy measure of deference.”
Strickland, supra, at 691. The California Supreme
Court could have reasonably concluded that Pinholster’s counsel
made such a reasoned decision in this
case.
We have recently reiterated that
“ ‘[s]urmounting Strickland’s high bar is never an
easy task.’ ” Richter, supra, at ___ (slip
op., at 15) (quoting Padilla v. Kentucky, 559 U.
S. ___, ___ (2010) (slip op., at 14)). The Strickland
standard must be applied with “scrupulous care.” Richter,
supra, at ___ (slip op., at 15). The Court of Appeals did
not do so here.
D
Even if his trial
counsel had performed deficiently, Pinholster also has failed to
show that the California Supreme Court must have unreasonably
concluded that Pinholster was not prejudiced. “[T]he question is
whether there is a reasonable probability that, absent the errors,
the sentencer … would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death.”
Strickland, supra, at 695. We therefore “reweigh
the evidence in aggravation against the totality of available
mitigating evidence.” Wiggins, supra, at
534.
1
We turn first to the
aggravating and mitigating evidence that the sentencing jury
considered. See Strickland, supra, at 695 (“[A]
court hearing an ineffectiveness claim must consider the totality
of the evidence before the judge or jury”). Here, the same jury
heard both the guilt and penalty phases and was instructed to
consider all the evidence presented. Cf. Visciotti, 537 U.
S., at 25 (noting that the state habeas court had correctly
considered mitigating evidence introduced during the guilt
phase).
The State presented
extensive aggravating evidence. As we have already discussed, the
jury watched Pinholster revel in his extensive criminal history.
Supra, at 21. Then, during the penalty phase, the State
presented evidence that Pinholster had threatened to kill the
State’s lead witness, assaulted a man with a straight razor, and
kidnaped another person with a knife. The State showed that
Pinholster had a history of violent outbursts, including striking
and threatening a bailiff after a court proceeding at age 17,
breaking his wife’s jaw,[Footnote 18] resisting arrest by faking seizures, and
assaulting and spitting on police officers. The jury also heard
about Pinholster’s involvement in juvenile gangs and his
substantial disciplinary record in both county and state jails,
where he had threatened, assaulted, and thrown urine at guards, and
fought with other inmates. While in jail, Pinholster had been
segregated for a time due to his propensity for violence and placed on a “special disciplinary diet” reserved only for
the most disruptive inmates. 52 Tr.
7305.
The mitigating
evidence consisted primarily of the penalty-phase testimony of
Pinholster’s mother, Brashear, who gave a detailed account of
Pinholster’s troubled childhood and adolescence. Early childhood
was quite difficult. The family “didn’t have lots of money.”
Id., at 7404. When he was very young, Pinholster suffered
two serious head injuries, first at age 2 or 3 when he was run over
by a car, and again at age 4 or 5 when he went through the
windshield during a car accident. When he was 5, Pinholster’s
stepfather moved in and was abusive, or nearly
so.
Pinholster always
struggled in school. He was disruptive in kindergarten and was
failing by first grade. He got in fights and would run out of the
classroom. In third grade, Pinholster’s teacher suggested that he
was more than just a “ ‘disruptive child.’ ”
Id., at 7394. Following tests at a clinic, Pinholster was
sent to a school for educationally handicapped children where his
performance
improved.
At age 10,
psychiatrists recommended that Pinholster be sent to a mental
institution, although he did not go. Pinholster had continued to
initiate fights with his brothers and to act like “Robin Hood”
around the neighborhood, “[s]tealing from the rich and giving to
the poor.” Id., at 7395. Brashear had thought then that
“[s]omething was not working right.” Id., at
7396.
By age 10 or 11,
Pinholster was living in boy’s homes and juvenile halls. He spent six months when he was 12 in a state mental
institution for emotionally handicapped children. By
the time he was 18, Pinholster was in county jail, where he
was beaten badly. Brashear suspected that the beating
caused Pinholster’s epilepsy, for which he has been prescribed
medication. After a stint in state prison, Pinholster returned home
but acted “unusual” and had trouble readjusting to life.
Id., at
7405.
Pinholster’s siblings were “basically very
good children,” although they would get into trouble. Id.,
at 7401. His brother, Terry, had been arrested for drunk driving
and his sister, Tammy, for public intoxication. Tammy also was
arrested for drug possession and was self-destructive and “wild.”
Ibid. Pinholster’s eldest brother, Alvin, died a fugitive
from California authorities.[Footnote
19]
In addition to Brashear’s penalty-phase
testimony, Pinholster had previously presented mitigating evidence
during the guilt phase from his brother, Terry. Terry testified
that Pinholster was “more or less in institutions all his life,”
suffered from epilepsy, and was “more or less” drunk on the night
of the murders. 42 id., at 6015,
6036.
After considering this aggravating and
mitigating evidence, the jury returned a sentence of death. The
state trial court found that the jury’s determination was
“supported overwhelmingly by the weight of the evidence” and added
that “the factors in aggravation beyond all reasonable doubt
outweigh those in mitigation.” Clerk’s Tr. 1184,
1186.
2
There is no reasonable
probability that the additional evidence Pinholster presented in
his state habeas proceedings would have changed the jury’s verdict.
The “new” evidence largely duplicated the mitigation evidence at
trial. School and medical records basically substantiate the
testimony of Pinholster’s mother and brother. Declarations from
Pinholster’s siblings support his mother’s testimony that his
stepfather was abusive and explain that Pinholster was beaten with
fists, belts, and even wooden
boards.
To the extent the state habeas
record includes new factual allegations or evidence, much of it is
of questionable mitigating value. If Pinholster had called Dr.
Woods to testify consistently with his psychiatric report,
Pinholster would have opened the door to rebuttal by a state
expert. See, e.g., Wong v. Belmontes,
558 U. S. ___, ___ (2009) (per curiam) (slip op., at
10–12) (taking into account that certain mitigating evidence would
have exposed the petitioner to further aggravating evidence). The
new evidence relating to Pinholster’s familytheir more serious
substance abuse, mental illness, and criminal problems, see
post, at 22is also by no means clearly mitigating, as the
jury might have concluded that Pinholster was simply beyond
rehabilitation. Cf. Atkins v. Virginia, 536 U. S. 304, 321
(2002) (recognizing that mitigating evidence can be a “two-edged
sword” that juries might find to show future
dangerousness).
The remaining new material in the state
habeas record is sparse. We learn that Pinholster’s brother Alvin
died of suicide by drug overdose, and there are passing
references to Pinholster’s own drug dependency. According to Dr.
Stalberg, Pinholster’s “school records” apparently evidenced “some
degree” of brain damage. App. to Brief in Opposition 219. Mostly,
there are just a few new details about Pinholster’s childhood.
Pinholster apparently looked like his biological father, whom his
grandparents “loathed.” Pet. for Writ of Habeas Corpus in No.
S004616 (Cal.), Exh. 98, p. 1. Accordingly, whenever his
grandparents “spanked or disciplined” the kids, Pinholster “always
got the worst of it.” Ibid. Pinholster was mostly
unsupervised and “didn’t get much love,” because his mother and
stepfather were always working and “were more concerned with their
own lives than the welfare of their kids.” Id., at
2. Neither parent seemed concerned about Pinholster’s
schooling. Finally, Pinholster’s aunt once saw the
children mixing flour and water to make something to eat, although
“[m]ost meals consisted of canned spaghetti and foods of that ilk.”
Id., at
1.
Given what little
additional mitigating evidence Pinholster presented in state
habeas, we cannot say that the California Supreme Court’s
determination was unreasonable. Having already heard much of what
is included in the state habeas record, the jury returned a
sentence of death. Moreover, some of the new testimony would likely
have undercut the mitigating value of the testimony by Pinholster’s
mother. The new material is thus not so significant that, even
assuming Pinholster’s trial counsel performed deficiently, it was
necessarily unreasonable for the California Supreme Court to
conclude that Pinholster had failed to show a “substantial”
likelihood of a different sentence. Richter, 562 U. S., at
___ (slip op., at 22) (citing Strickland, 466 U. S., at
693).
3
As with deficiency, the Court of Appeals
found this case to be “materially indistinguishable” from Terry
Williams and Rompilla v. Beard, 545 U. S. 374 (2005). 590 F. 3d,
at 684. But this Court did not apply AEDPA deference to the
question of prejudice in those cases; each of them lack the
important “doubly deferential” standard of Strickland and
AEDPA. See Terry Williams, 529 U. S., at 395–397
(reviewing a state-court decision that did not apply the correct
legal standard); Rompilla, supra, at 390
(reviewing Strickland prejudice de novo because
the state-court decision did not reach the question). Those cases
therefore offer no guidance with respect to whether a state court
has unreasonably determined that prejudice is lacking. We
have said time and again that “an unreasonable application
of federal law is different from an incorrect application
of federal law.” Richter, supra, at ___ (slip
op., at 11) (internal quotation marks omitted). Even if the Court
of Appeals might have reached a different conclusion as an initial
matter, it was not an unreasonable application of our precedent for
the California Supreme Court to conclude that Pinholster did not
establish prejudice.[Footnote
20]
* * *
The judgment of the United States Court of
Appeals for the Ninth Circuit is
reversed.
It is so
ordered.
*Justice
Ginsburg and Justice Kagan join only Part
II.
Footnote
1
Although
the California Supreme Court initially issued an order asking the
State to respond, it ultimately withdrew that order as “im-
providently issued.” App. to Pet. for Cert.
302.
Footnote
2
A
majority also “[s]eparately and independently” denied several
claims, including penalty-phase ineffective assistance of counsel,
as untimely, successive, and barred by res judicata. Id.,
at 300. The State has not argued that these procedural rulings
constitute adequate and independent state grounds that bar federal
habeas
review.
Footnote
3
Justice
Sotomayor argues that there is nothing strange about allowing
consideration of new evidence under §2254(d)(1) because, in her
view, it would not be “so different” from some other tasks that
courts undertake. Post, at 13 (dissenting opinion). What
makes the consideration of new evidence strange is not how
“different” the task would be, but rather the notion that a state
court can be deemed to have unreasonably applied federal law to
evidence it did not even know existed. We cannot comprehend how
exactly a state court would have any control over its application
of law to matters beyond its knowledge. Adopting Justice
Sotomayor’s approach would not take seriously AEDPA’s requirement
that federal courts defer to state-court decisions and would
effectively treat the statute as no more than a “ ‘mood’ that
the Federal Judiciary must respect,” Terry Williams, 529
U. S., at 386 (opinion of Stevens,
J.).
Footnote
4
If a
prisoner has “failed to develop the factual basis of a claim in
State court proceedings,” §2254(e)(2) bars a federal court from
holding an evidentiary hearing, unless the applicant meets certain
statutory
requirements.
Footnote
5
Justice
Sotomayor’s suggestion that Michael Williams “rejected”
the conclusion here, see post, at 15, is thus quite
puzzling. In the passage that she quotes, see ibid., the
Court merely explains that §2254(e)(2) should be interpreted in a
way that does not preclude a state prisoner, who was diligent in
state habeas court and who can satisfy §2254(d), from receiving an
evidentiary
hearing.
Footnote
6
In
Bradshaw v. Richey, 546 U. S. 74 (2005)
(per curiam), on which the Court of Appeals also relied,
we made the same assumption. Id., at 79–80 (discussing the
State’s “Holland
argument”).
Footnote
7
Pinholster and Justice Sotomayor place great weight on
the fact that §2254(d)(2) includes the language “in light of the
evidence presented in the State court proceeding,” whereas
§2254(d)(1) does not. See post, at 6–7. The additional
clarity of §2254(d)(2) on this point, however, does not detract
from our view that §2254(d)(1) also is plainly limited to the
state-court record. The omission of clarifying language from
§2254(d)(1) just as likely reflects Congress’ belief that such
language was unnecessary as it does anything
else.
Footnote
8
Justice
Sotomayor’s argument that §2254(d)(1) must be read in a way that
“accommodates” §2254(e)(2), see post, at 9, rests on a
fundamental misunderstanding of §2254(e)(2). The focus of that
section is not on “preserving the opportunity” for hearings,
post, at 9, but rather on limiting the discretion
of federal district courts in holding hearings. We see no need in
this case to address the proper application of §2254(e)(2). See
n. 20, infra. But see post, at 12
(suggesting that we have given §2254(e)(2) “an unnaturally cramped
reading”).
Footnote
9
In all
events, of course, the requirements of §§2254(a) through (c) remain
significant limitations on the power of a federal court to grant
habeas
relief.
Footnote
10
Though we
do not decide where to draw the line between new claims and claims
adjudicated on the merits, see n. 11, infra, Justice
Sotomayor’s hypothetical involving new evidence of withheld
exculpatory witness statements, see post, at 9–10, may
well present a new
claim.
Footnote
11
The State
does not contest that the alleged claim was adjudicated on
the merits by the California Supreme Court, but it asserts that
some of the evidence adduced in the federal evidentiary hearing
fundamentally changed Pinholster’s claim so as to render it
effectively unadjudicated. See Brief for Petitioner 28–31; Reply
Brief for Petitioner 4–5; Tr. of Oral Arg. 18. Pinholster disagrees
and argues that the evidence adduced in the evidentiary hearing
simply supports his alleged claim. Brief for Respondent
33–37.
We need
not resolve this dispute because, even accepting Pinholster’s
position, he is not entitled to federal habeas relief. Pinholster
has failed to show that the California Supreme Court unreasonably
applied clearly established federal law on the record before that
court, infra, at 18–23, 26–30, which brings our analysis
to an end. Even if the evidence adduced in the District Court
additionally supports his claim, as Pinholster contends, we are
precluded from considering it. See n. 20,
infra.
Footnote
12
The
parties agree that the state-court record includes both the
“allegations of [the] habeas corpus petition … and … ‘any matter of
record pertaining to the case.’ ” In re
Hochberg, 2 Cal. 3d 870, 874, n. 2, 471 P. 2d
1, 3–4, n. 2 (1970) (quoting Cal. Rule of Court 60), rejected
on another ground by In re Fields, 51 Cal. 3d
1063, 1070, n. 3, 800 P. 2d 862, 866, n. 3 (1990);
see Reply Brief for Petitioner 16–17; Tr. of Oral Arg. 45. Under
California law, the California Supreme Court’s summary denial of a
habeas petition on the merits reflects that court’s determination
that “the claims made in th[e] petition do not state a prima facie
case entitling the petitioner to relief.” In re
Clark, 5 Cal. 4th 750, 770, 855 P. 2d 729, 741–742
(1993). It appears that the court generally assumes the allegations
in the petition to be true, but does not accept wholly conclusory
allegations, People v. Duvall, 9 Cal. 4th
464, 474, 886 P. 2d 1252, 1258 (1995), and will also “review
the record of the trial … to assess the merits of the petitioner’s
claims,” Clark, supra, at 770, 855 P. 2d, at
742.
The
specific contents of the state-court record depend on which of the
two state habeas proceedings is at issue. One amicus
curiae suggests that both are at issuethat is, Pinholster must
prove that both California Supreme Court proceedings
involved an unreasonable application of law under §2254(d)(1). See
Brief for Criminal Justice Legal Foundation 26. By contrast, the
most favorable approach for Pinholster would be review of only the
second state habeas proceeding, the record of which includes all of
the evidence that Pinholster ever submitted in state habeas. We
have not previously ruled on how to proceed in these circumstances,
and we need not do so here. Even taking the approach most favorable
to Pinholster, and reviewing only whether the California Supreme
Court was objectively unreasonable in the second state habeas
proceeding, we find that Pinholster has failed to satisfy
§2254(d)(1).
Footnote
13
Counsel’s
argument was persuasive enough to cause the trial court to hold a
hearing and take testimony before denying the motion to
exclude.
Footnote
14
Both
parties agree that these billing records were before the California
Supreme Court. See Tr. of Oral Arg. 45,
48–49.
Footnote
15
See
Clerk’s Tr. 798 (entry on Jan. 13 for “phone call to defendant’s
mother re medical history”); id., at 864 (entries on Feb.
21 for “Penal Code research on capital punishment”; Feb. 23 for
“conference with defendant’s mother re childhood problems”; Feb. 25
for “Research on Pen. C. 190.3”; and Feb. 29 for “photocopying
reports for appointed expert,” “Preparation of Declaration and
Order for appointment of psychiatrist,” “Preparation order of
visitation for investigator,” and “Further research on Pen. C.
190.3”). The time records for Dettmar unfortunately stop with Mar.
14, so we do not know what he did during the critical weeks leading
up to the penalty phase on May
1.
Footnote
16
See
id., at 869 (entries on Feb. 23 for “Conf. with Bernice
Brasher, Pinholster’s mother”; and Feb. 25 for “Research re;
epilepsy and conf. with nurse”); id., at 1160 (entries on
Apr. 11 for “Start prep. for penalty phase”; Apr. 25 for “Prep.
penalty phase and conf. with Mrs. Brashear”; and Apr. 26 for “Prep.
penalty
phase”).
Footnote
17
The Court
of Appeals was not necessarily wrong in looking to other precedents
of this Court for guidance, but “the Strickland test ‘of
necessity requires a case-by-case examination of the
evidence.’ ” Terry Williams, 529 U. S. 362, 391 (2000) (quoting
Wright v. West, 505 U. S. 277, 308
(1992) (Kennedy, J., concurring in
judgment)).
Footnote
18
Pinholster’s wife waived her spousal privilege to testify
to this fact. She acknowledged that her testimony would be used to
argue that her husband should be
executed.
Footnote
19
Justice
Sotomayor criticizes Brashear’s testimony as “self-interested,”
post, at 31, but the whole premise of the family-sympathy
defense is the family’s interest. She similarly makes much
of the fact that the prosecutor “belittle[d]” Brashear’s testimony
in closing argument. Post, at 33. We fail to see the
point. Any diligent prosecutor would have challenged whatever
mitigating evidence the defense had put on. And, we would certainly
not expect the prosecutor’s closing argument to have described the
evidence in the light most favorable to Pinholster. But see
ibid.,
n. 26.
Footnote
20
Because
Pinholster has failed to demonstrate that the adjudication of his
claim based on the state-court record resulted in a decision
“contrary to” or “involv[ing] an unreasonable application” of
federal law, a writ of habeas corpus “shall not be granted” and our
analysis is at an end. 28 U. S. C. §2254(d). We are barred
from considering the evidence Pinholster submitted in the District
Court that he contends additionally supports his claim. For that
reason, we need not decide whether §2254(e)(2) prohibited the
District Court from holding the evidentiary hearing or whether a
district court may ever choose to hold an evidentiary hearing
before it determines that §2254(d) has been
satisfied.
Comments
Be the first to comment
Leave a Comment