OPINION OF THE COURT
KNOWLES V. MIRZAYANCE
556 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
NO. 07-1315
MICHAEL A. KNOWLES, WARDEN, PETITIONER
v.
ALEXANDRE MIRZAYANCE
on writ of certiorari to the united states court of
appeals for the ninth circuit
[March 24, 2009]
Justice Thomas delivered the
opinion of the Court.*
A federal court may grant a
habeas corpus application arising from a state-court adjudication
on the merits if the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U. S. C. §2254(d)(1). In this case, respondent
Alexandre Mirzayance claimed ineffective assistance of counsel
because his attorney recommended withdrawing his insanity defense.
The California courts rejected this claim on state postconviction
review. We must decide whether this decision was contrary to or an
unreasonable application of clearly established federal law. We
hold that it was not. Whether reviewed under the standard of review
set forth in §2254(d)(1) or
de novo, Mirzayance failed to
establish that his counsel’s performance was ineffective, see
Strickland v.
Washington,
466 U. S. 668
(1984).
I
Mirzayance confessed that he
stabbed his 19-year-old cousin nine times with a hunting knife and
then shot her four times. At trial, he entered pleas of not guilty
and not guilty by reason of insanity (NGI). Under California law,
when both of these pleas are entered, the court must hold a
bifurcated trial, with guilt determined during the first phase and
the viability of the defendant’s NGI plea during the second. Cal.
Penal Code Ann. §1026(a) (West 1985). During the guilt phase of
Mirzayance’s trial, he sought to avoid a conviction for
first-degree murder by obtaining a verdict on the lesser included
offense of second-degree murder. To that end, he presented medical
testimony that he was insane at the time of the crime and was,
therefore, incapable of the premeditation or deliberation necessary
for a first-degree murder conviction. The jury nevertheless
convicted Mirzayance of first-degree murder.
The trial judge set the NGI phase
to begin the day after the conviction was entered but, on the
advice of counsel, Mirzayance abandoned his NGI plea before it
commenced. He would have borne the burden of proving his insanity
during the NGI phase to the same jury that had just convicted him
of first-degree murder. Counsel had planned to meet that burden by
presenting medical testimony similar to that presented in the guilt
phase, including evidence that Mirzayance was insane and incapable
of premeditating or deliberating. Because the jury rejected similar
evidence at the guilt phase (where the State bore the burden of
proof), counsel believed a defense verdict at the NGI phase (where
the burden was on the defendant) was unlikely. He planned, though,
to have Mirzayance’s parents testify and thus provide an emotional
account of Mirzayance’s struggles with mental illness to supplement
the medical evidence of insanity. But on the morning that the NGI
phase was set to begin, Mirzayance’s parents refused to testify.
After consulting with co-counsel, counsel advised Mirzayance that
he should withdraw the NGI plea. Mirzayance accepted the
advice.
After he was sentenced, Mirzayance challenged
his conviction in state postconviction proceedings. Among other
allegations, he claimed that counsel’s recommendation to withdraw
the NGI plea constituted ineffective assistance of counsel under
Strickland. The California trial court denied the petition
and the California Court of Appeal affirmed without offering any
reason for its rejection of this particular ineffective assistance
claim.
People v.
Mirzayance, Nos. B116856,
B124764 (Mar. 31, 1999), App. to Pet. for Cert. 165–167, 200–201
(hereinafter App.). Mirzayance then filed an application for
federal habeas relief under 28 U. S. C. §2254, which the
District Court denied without an evidentiary hearing. The Court of
Appeals reversed the District Court and ordered an evidentiary
hearing on counsel’s recommendation to withdraw the NGI plea.
Mirzayance v.
Hickman, 66 Fed. Appx. 676, 679–681
(CA9 2003). During that evidentiary hearing, a Magistrate Judge
made factual findings that the District Court later adopted.
Post-Remand Report and Recommendation of United States Magistrate
Judge in No. CV 00–01388 DT (RZ) (CD Cal.), App. 38, 68;
Mirzayance v.
Knowles, No. CV 00–1388 DT (RZ) (CD
Cal., Nov. 15, 2004),
id., at 35–36.
According to the Magistrate Judge, counsel’s
strategy for the two-part trial was to seek a second-degree murder
verdict in the first stage and to seek an NGI verdict in the second
stage. This strategy faltered when the jury instead convicted
Mirzayance of first-degree murder. In the circumstances of this
case, the medical evidence that Mirzayance planned to adduce at the
NGI phase essentially would have duplicated evidence that the jury
had necessarily rejected in the guilt phase. First-degree murder in
California includes any killing that is “willful, deliberate, and
premeditated.” Cal. Penal Code Ann. §189 (West 1999). To prove NGI,
a defendant must show that he was incapable of knowing or
understanding the nature of his act or of distinguishing right from
wrong at the time of the offense. See
People v.
Lawley, 27 Cal. 4th 102, 170, 38 P. 3d 461, 508
(2002). Highlighting this potential contradiction, the trial judge
instructed the jury during the guilt phase that “[t]he word
‘deliberate,’ ” as required for a first-degree murder
conviction, “means formed or arrived at or determined upon as a
result of careful thought and weighing of considerations for and
against the proposed course of action.” App. 48–49.
When the jury found Mirzayance guilty of
first-degree murder, counsel doubted the likelihood of prevailing
on the NGI claim. According to the Magistrate Judge:
“The defense suspected that a jury’s finding,
beyond a reasonable doubt, that [Mirzayance] had ‘deliberated’ and
‘premeditated’ his killing of [the victim] as a practical matter
would cripple [Mirzayance’s] chances of convincing the jury later,
during the sanity phase, that [Mirzayance] nevertheless ‘was
incapable of knowing or understanding the nature and quality of his
… act and of distinguishing right from wrong at the time of the
commission of the offense,’ Cal. Penal Code
§25(b), … .
. . . . .
“Any remaining chance of securing an NGI verdict … now depended
(in [counsel’s] view) on presenting some ‘emotional [im]pact’
testimony
by [Mirzayance’s]
parents, which
[counsel] had viewed as key even if the defense
had
secured a second-degree murder verdict at the guilt phase.”
Id., at 50–51 (emphasis in original; capitalization
omitted).
But, as the Magistrate Judge
found, on the morning that the NGI phase was set to begin,
Mirzayance’s parents effectively refused to testify:
“[T]he parents at least expressed clear
reluctance to testify, which, in context, conveyed the
same sense as a refusal.”
Id., at 72 (emphasis in
original).
Although the parties disputed this point, the
parents’ later actions supported the Magistrate Judge’s finding
that the parents’ reluctance to testify amounted to refusal:
“Corroborating the Court’s
finding that [Mirzayance’s] parents indicated a strong
disinclination to testify at the NGI phase are the facts that (1)
they did not testify later at his sentencing hearing, and (2) the
reason for their choosing not to do so … is that … [it] would have
been ‘too emotional’ for them… . If weeks after the guilty
verdict and the withdrawal of their son’s NGI plea, [Mirzayance’s]
parents’ emotions still prevented them from testifying at the
sentencing hearing, then surely those emotional obstacles to their
testifying
in the NGI phase would have been at least as
potent, and probably more so.”
Id., at 73 (emphasis in
original).
The Magistrate Judge found that
counsel made a carefully reasoned decision not to go forward with
the NGI plea:
“[Counsel] carefully weighed his options before
making his decision final; he did not make it rashly… .
[Counsel’s] strategy at the NGI phase … depended entirely on the
heartfelt participation of [Mirzayance’s] parents as
witnesses… . Moreover, [counsel] knew that, although he had
experts lined up to testify, their testimony had significant
weaknesses… . [Counsel’s] NGI-phase strategy became impossible
to attempt once [Mirzayance’s] parents … expressed … their
reluctance to [testify] … . All [counsel] was left with
were four experts, all of whom reached a conclusion—that
[Mirzayance] did not premeditate and deliberate his crime—that the
same jury about to hear the NGI evidence already had rejected under
a beyond-a-reasonable-doubt standard of proof. The experts were
subject to other impeachment as well… . [Counsel] discussed
the situation with his experienced co-counsel … who concurred in
[counsel’s] proposal that he recommend to [Mirzayance] the
withdrawal of the NGI plea.”
Id., at 69–71.
Based on these factual findings, the Magistrate
Judge stated that, in his view, counsel’s performance was not
deficient.
Despite this determination, the Magistrate
Judge concluded that the court was bound by the Court of Appeals’
remand order to determine only whether “ ‘there were tactical
reasons for abandoning the insanity defense.’ ”
Id.,
at 98 (quoting
Hickman, 66 Fed. Appx., at 680). Even
though the Magistrate Judge thought that counsel was reasonable in
recommending that a very weak claim be dropped, the Magistrate
Judge understood the remand order to mean that counsel’s
performance was deficient if withdrawing the NGI plea would achieve
no tactical advantage. The Magistrate Judge found that
“[Mirzayance] had nothing to lose” by going forward with the NGI
phase of the trial, App. 100, and thus held, under the remand
order, that counsel’s performance was deficient,
ibid. As
to prejudice, the Magistrate Judge concluded the court was
similarly bound by the remand order because the Court of Appeals
described the NGI defense as remaining “ ‘viable and
strong.’ ”
Id., at 98 (quoting
Hickman,
supra, at 681). Accordingly, the Magistrate Judge found
prejudice and recommended granting the writ of habeas corpus. The
District Court accepted this recommendation and granted the
writ.
The Court of Appeals affirmed.
Mirzayance v.
Knowles, 175 Fed. Appx. 142, 143
(CA9 2006). It first stated that the lower court had misunderstood
its remand order, which it described as requiring an examination of
“counsel’s reason for abandoning the insanity defense,” rather than
as mandating that the District Court must find deficient
performance if it found counsel had “nothing to lose” by pursuing
the insanity defense.
Ibid.
; App. 98–99.
Nonetheless, the Court of Appeals affirmed the finding of deficient
performance. According to the court, Mirzayance’s
“parents did not refuse, but merely expressed reluctance to
testify.”
Knowles, 175 Fed. Appx., at 144. And because
they may have been willing, “[c]ompetent counsel would have
attempted to persuade them to testify, which counsel here admits he
did not.”
Ibid.[Footnote
1] The Court of Appeals also “disagree[d] that counsel’s
decision was carefully weighed and not made rashly.”
Ibid.
Furthermore, even though it had suggested that
the District Court unnecessarily evaluated counsel’s strategy under
a “nothing to lose” standard, the Court of Appeals affirmed the
District Court in large part because Mirzayance’s “counsel did not
make a true tactical choice” based on its view that counsel had
nothing to gain by dropping the NGI defense.
Ibid. The
court held that “[r]easonably effective assistance would put on the
only defense available, especially in a case such as this where
there was significant potential for success.”
Id., at 145
(internal quotation marks omitted). The Court of Appeals also found
prejudice because, in its view, “[i]f counsel had pursued the
insanity phase of the trial, there is a reasonable probability . .
. that the jury would have found Mirzayance insane.”
Ibid.
We granted the petition for writ of
certiorari, vacated the Court of Appeals’ opinion, and remanded for
further consideration in light of
Carey v.
Musladin,
549 U. S. 70 (2006),
which held that a state court had not “ ‘unreasonabl[y]
appli[ed] clearly established Federal law’ ” when it declined
to apply our precedent concerning state-sponsored courtroom
practices to a case involving spectator conduct at trial,
id., at 76–77.
Knowles v.
Mirzayance,
549 U. S. 1199
(2007). On remand, the Court of Appeals concluded that its decision
was unaffected by
Musladin and again affirmed the District
Court’s grant of habeas corpus. App. 4. The Court of Appeals
reiterated the same analysis on which it had relied prior to this
Court’s remand, again finding that the California court had
unreasonably applied clearly established federal law because
defense counsel’s failure to pursue the insanity defense
constituted deficient performance as it “secured … [n]o actual
tactical advantage.”
Id., at 8. We granted certiorari, 554
U. S. ___ (2008).
II
Under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C.
§2254(d)(1), a federal court may not grant a state prisoner’s
habeas application unless the relevant state-court decision “was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States.”[
Footnote 2]
Here, the relevant state-court decision is the California Court of
Appeal’s decision denying state habeas relief.
We conclude that the state
court’s decision to deny Mirzayance’s
ineffective-assistance-of-counsel claim did not violate clearly
established federal law. The Court of Appeals reached a contrary
result based, in large measure, on its application of an improper
standard of review—it blamed counsel for abandoning the NGI claim
because there was nothing to lose by pursuing it.[
Footnote 3] But this Court has held on
numerous occasions that it is not “ ‘an unreasonable
application of clearly established Federal law’ ” for a state
court to decline to apply a specific legal rule that has not been
squarely established by this Court. See
Wright v.
Van
Patten, 552 U. S. ___, ___ (2008) (slip op., at 5–6
(per
curiam);
Schriro v.
Landrigan,
550 U. S. 465, 478
(2007);
Musladin,
supra, at 76–77. This Court has
never established anything akin to the Court of Appeals’ “nothing
to lose” standard for evaluating
Strickland claims.
Indeed, Mirzayance himself acknowledges that a “nothing to lose”
rule is “unrecognized by this Court.” Brief for Respondent 28. And
the Court of Appeals did not cite any Supreme Court decision
establishing a “nothing to lose” standard in any of its three
opinions in this case. See App. 3–12;
Knowles, 175 Fed.
Appx. 142;
Hickman, 66 Fed. Appx. 676.
With no Supreme Court precedent establishing a
“nothing to lose” standard for ineffective-assistance-of-counsel
claims, habeas relief cannot be granted pursuant to §2254(d)(1)
based on such a standard. Instead, such relief may be granted only
if the state-court decision unreasonably applied the more general
standard for ineffective-assistance-of-counsel claims established
by
Strickland, in which this Court held that a defendant
must show both deficient performance and prejudice in order to
prove that he has received ineffective assistance of counsel, 466
U. S., at 687. Indeed, this Court has repeatedly applied that
standard to evaluate ineffective-assistance-of-counsel claims where
there is no other Supreme Court precedent directly on point. See,
e.g.,
Van Patten,
supra, at ___ (slip
op., at 5) (evaluating claim under
Strickland where no
Supreme Court precedent established that any other standard applied
to the “novel factual context” before the Court);
Schriro,
supra, at 478 (evaluating claim under general
Strickland standard where no Supreme Court precedent
addressed the particular “situation in which a client interferes
with counsel’s efforts to present mitigating evidence to a
sentencing court”).
The question “is not whether a federal court
believes the state court’s determination” under the
Strickland standard “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.”
Schriro,
supra, at 473. And, because the
Strickland standard is a general standard, a state court
has even more latitude to reasonably determine that a defendant has
not satisfied that standard. See
Yarborough v.
Alvarado,
541 U. S. 652, 664
(2004) (“[E]valuating whether a rule applica- tion was unreasonable
requires considering the rule’s specificity. The more general the
rule, the more lee- way courts have in reaching outcomes in
case-by-case determinations”).
Under the doubly deferential judicial
review that applies to a
Strickland claim evaluated under
the §2254(d)(1) standard, see
Yarborough v.
Gentry,
540
U. S. 1, 5–6 (2003)
(per curiam), Mirzayance’s
ineffective-assistance claim fails. It was not unreasonable for the
state court to conclude that his defense counsel’s performance was
not deficient when he counseled Mirzayance to abandon a claim that
stood almost no chance of success. As explained more fully below,
this Court has never required defense counsel to pursue every claim
or defense, regardless of its merit, viability, or realistic chance
for success. See also
infra, at 14–15.
III
Even if Mirzayance’s
ineffective-assistance-of-counsel claim were eligible for
de
novo review, it would still fail.
Strickland requires
a defendant to establish deficient performance and prejudice. 466
U. S., at 687. Mirzayance can establish neither.
Mirzayance has not shown “that
counsel’s representation fell below an objective standard of
reasonableness.”
Id., at 687–688. “The proper measure of
attorney performance remains simply reasonableness under prevailing
professional norms.”
Id., at 688. “Judicial scrutiny of
counsel’s performance must be highly deferential,” and “a court
must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Id., at 689. “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable.”
Id., at 690.
Here, Mirzayance has not shown that his
counsel violated these standards. Rather, his counsel merely
recommended the withdrawal of what he reasonably believed was a
claim doomed to fail. The jury had already rejected medical
testimony about Mirzayance’s mental state in the guilt phase,
during which the State carried its burden of proving guilt beyond a
reasonable doubt. The Magistrate Judge explained this point:
“All [counsel] was left with were four experts, all
of whom reached a conclusion—that [Mirzayance] did not premeditate
and deliberate his crime—that the same jury about to hear the NGI
evidence already had rejected under a beyond-a-reasonable-doubt
standard of proof. The experts were subject to other impeachment as
well.” App. 71.
In fact, the Magistrate Judge found that counsel
“convincingly detailed ways in which [the experts] could have been
impeached, for overlooking or minimizing facts which showcased
[Mirzayance’s] clearly goal-directed behavior.”
Id., at
70.
In the NGI phase, the burden would have
switched to Mirzayance to prove insanity by a preponderance of the
evidence. Mirzayance’s counsel reasonably believed that there was
almost no chance that the same jury would have reached a different
result when considering similar evidence, especially with
Mirzayance bearing the burden of proof. Furthermore, counsel knew
he would have had to present this defense without the benefit of
the parents’ testimony, which he believed to be his strongest
evidence. See
ibid. (“[Counsel’s] strategy at the NGI
phase had been to appeal to the jury in one or both of two ways
that depended entirely on the heartfelt participation of
[Mirzayance’s] parents as witnesses”). Counsel reasonably concluded
that this defense was almost certain to lose.
The Court of Appeals took the position that
the situation was not quite so dire because the parents “merely
expressed reluctance to testify.”
Id., at 7;
Knowles, 175 Fed. Appx., at 144. It explained that
“[c]ompetent counsel would have attempted to persuade them to
testify.” App. 7;
Knowles,
supra, at 144. But
that holding is in tension with the Magistrate Judge’s findings and
applies a more demanding standard than
Strickland
prescribes. The Magistrate Judge noted that the parents “conveyed
the same sense as a refusal.” App. 72. Indeed, the Magistrate Judge
found that the parents “did not testify later at [Mirzayance’s]
sentencing hearing” because it “would have been ‘too emotional’ for
them.”
Id., at 73 (quoting testimony from evidentiary
hearing). Competence does not require an attorney to browbeat a
reluctant witness into testifying, especially when the facts
suggest that no amount of persuasion would have succeeded.
Counsel’s acceptance of the parents’ “convey[ance] [of] … a
refusal,”
id., at 72, does not rise to the high bar for
deficient performance set by
Strickland.
Mirzayance’s failure to show ineffective
assistance of counsel is confirmed by the Magistrate Judge’s
finding that “[counsel] carefully weighed his options before making
his decision final; he did not make it rashly.” App. 69. The
Magistrate Judge explained all of the factors that counsel
considered—many of which are discussed above—and noted that counsel
“discussed the situation with his experienced co-counsel” before
making it.
Id., at 71. In making this finding, the
Magistrate Judge identified counsel’s decision as essentially an
informed decision “made after thorough investigation of law and
facts relevant to plausible options.”
Strickland, 466 U.
S., at 690. As we stated in
Strickland, such a decision is
“virtually unchallengeable.”
Ibid.
Without even referring to the Magistrate
Judge’s finding, the Court of Appeals “disagree[d] that counsel’s
decision was carefully weighed and not made rashly.” App. 7;
Knowles, s
upra, at 144. In its view, “counsel
acted on his subjective feelings of hopelessness without even
considering the potential benefit to be gained in persisting with
the plea.” App. 8;
Knowles,
supra, at 144–145.
But courts of appeals may not set aside a district court’s factual
findings unless those findings are clearly erroneous. Fed. Rule
Civ. Proc. 52(a);
Anderson v.
Bessemer City,
470 U. S. 564,
573–574 (1985). Here, the Court of Appeals failed even to mention
the clearly-erroneous standard, let alone apply it, before
effectively overturning the lower court’s factual findings related
to counsel’s behavior.
In light of the Magistrate Judge’s factual
findings, the state court’s rejection of Mirzayance’s
ineffective-assistance-of-counsel claim was consistent with
Strickland. The Court of Appeals insisted, however, that
“ ‘[r]easonably effective assistance’ required here that
counsel assert the only defense available … .” App. 8; see
also
Knowles,
supra, at 145. But we are aware of
no “prevailing professional norms” that prevent counsel from
recommending that a plea be withdrawn when it is almost certain to
lose. See
Strickland,
supra, at 688. And in this
case, counsel did not give up “the only defense available.” Counsel
put on a defense to first-degree murder during the guilt phase.
Counsel also defended his client at the sentencing phase.[
Footnote 4] The law does not require
counsel to raise every available nonfrivolous defense. See
Jones v.
Barnes,
463 U. S. 745, 751
(1983); cf.
Wiggins v.
Smith,
539 U. S. 510, 533
(2003) (explaining, in case involving similar issue of counsel’s
responsibility to present mitigating evidence at sentencing, that
“
Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the
effort would be to assist the defendant … [or even to] present
mitigating evidence at sentencing in every case”). Counsel also is
not required to have a tactical reason—above and beyond a
reasonable appraisal of a claim’s dismal prospects for success—for
recommending that a weak claim be dropped altogether. Mirzayance
has thus failed to demonstrate that his counsel’s performance was
deficient.
In addition, Mirzayance has not demonstrated
that he suffered prejudice from his counsel’s performance. See
Strickland, 466 U. S., at 691 (“An error by counsel, even
if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the
judgment”). To establish prejudice, “[t]he 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. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Id., at 694. To
prevail on his ineffective-assistance claim, Mirzayance must show,
therefore, that there is a “reasonable probability” that he would
have prevailed on his insanity defense had he pursued it. This
Mirzayance cannot do. It was highly improbable that a jury, which
had just rejected testimony about Mirzayance’s mental condition
when the State bore the burden of proof, would have reached a
different result when Mirzayance presented similar evidence at the
NGI phase. See
supra, at 12–13.
IV
Mirzayance has not shown that the
state court’s conclusion that there was no ineffective assistance
of counsel “was contrary to, or involved an unreasonable
application of, clearly established Federal law” under §2254. In
fact, he has not shown ineffective assistance at all. The judgment
of the Court of Appeals is reversed, and the case is remanded with
instructions to deny the petition.
It is so ordered.
* Justice Scalia, Justice Souter, and Justice
Ginsburg join all but Part II of this opinion.
Footnote 1
At best, the Court of Appeals’
characterization of counsel’s efforts to persuade the parents to
testify is misleading. According to the Magistrate Judge, counsel
testified that he did attempt to persuade the parents to testify
but that their response “ ‘was kind of flat, and I had no
influence over them.’ ” App. 54 (quoting testimony from
evidentiary hearing). In his efforts to convince the parents to
testify, counsel told them that Mirzayance “had no chance of
securing an NGI verdict without the ‘emotional quality from
nonprofessional witnesses’ that Mr. and Mrs. Mirzayance’s testimony
could provide; and ‘that they were abandoning their son.’ ”
Id., at 53–54 (same).
Footnote 2
Before the Court of Appeals, Mirzayance
contended that the standard of review set forth in §2254(d)(1)
should not apply to his case. See Brief for Appellee in No.
04–57102 (CA9), pp. 28–29, 33. Before this Court, however,
Mirzayance contends that the Court of Appeals correctly applied
§2254(d) to his claim. See Brief for Respondent 27, 32. Mirzayance
did question whether the California Court of Appeal’s denial of his
claim should receive as much deference as the “prototypical”
state-court adjudication “involv[ing] both a reasoned, written
opinion and an adequate development of the factual record in
support of the claims.”
Id., at 33. Mirzayance thus
contends that “the usual §2254(d) deferential approach must be
modified and adapted” in evaluating his claim.
Id., at
34
. Nonetheless, because Mirzayance has not argued that
§2254(d) is entirely inapplicable to his claim or that the state
court failed to reach an adjudication on the merits, we initially
evaluate his claim through the deferential lens of §2254(d). See
United States v.
International Business Machines
Corp.,
517 U.
S. 843, 855, n. 3 (1996) (finding that party abandoned
issue by failing to address it in the party’s brief on the merits);
Posters ‘N’ Things, Ltd. v.
United States,
511 U. S. 513,
527 (1994) (same).
In addition, we do not decide whether the
Court of Appeals was correct in finding that an evidentiary hearing
on Mirzayance’s claim was required. See
Mirzayance v.
Hickman, 66 Fed. Appx. 676, 679–681 (CA9 2003).
Mirzayance’s ineffective-assistance-of-counsel claim fails even
under the facts presented at the evidentiary hearing.
Footnote 3
Although the Court of
Appeals implicitly disavowed the “nothing to lose” standard applied
by the District Court and Magistrate Judge, see App. 5;
Mirzayance v.
Knowles, 175 Fed. Appx. 142, 143
(CA9 2006), it nevertheless concluded that “[n]o actual tactical
advantage was to be gained” by counsel’s withdrawal of the insanity
defense, App. 8;
Knowles,
supra, at 144. Finding
that counsel is deficient by abandoning a defense where there is
nothing to gain from that abandonment is equivalent to finding that
counsel is deficient by declining to pursue a strategy where there
is nothing to lose from pursuit of that strategy.
Footnote 4
Mirzayance has no complaints about the
sentencing phase since he received the lowest possible sentence for
his first-degree murder conviction. California authorizes three
possible sentences for murder: death, life imprisonment without
parole, and imprisonment for 25 years to life. Cal. Penal Code Ann.
§190(a) (West 1999). Mirzayance was sentenced to 25 years to life
plus 4 years for a weapons enhancement.
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