STEVENS, J., DISSENTING
SCHRIRO V. LANDRIGAN
550 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NO. 05-1575
DORA B. SCHRIRO, DIRECTOR, ARIZONA DEPART- MENT OF
CORRECTIONS, PETITIONER
v. JEFFREY TIMOTHY LANDRIGAN, aka
BILLY PATRICK WAYNE HILL
on writ of certiorari to the united states court of
appeals for the ninth circuit
[May 14, 2007]
Justice Stevens, with whom
Justice Souter, Justice Ginsburg, and Justice Breyer join,
dissenting.
Significant mitigating
evidence—evidence that may well have explained respondent’s
criminal conduct and unruly behavior at his capital sentencing
hearing—was unknown at the time of sentencing. Only years later did
respondent learn that he suffers from a serious psychological
condition that sheds important light on his earlier actions. The
reason why this and other mitigating evidence was unavailable is
that respondent’s counsel failed to conduct a constitutionally
adequate investigation. See
Wiggins v.
Smith,
539 U. S. 510
(2003). In spite of this, the Court holds that respondent is not
entitled to an evidentiary hearing to explore the prejudicial
impact of his counsel’s inadequate representation. It reasons that
respondent “would have” waived his right to introduce any
mitigating evidence that counsel might have uncovered,
ante, at 10, 13, and that such evidence “would have” made
no difference in the sentencing anyway,
ante, at 14.
Without the benefit of an evidentiary hearing, this is pure
guesswork.
The Court’s decision rests on a parsimonious
appraisal of a capital defendant’s constitutional right to have the
sentencing decision reflect meaningful consideration of all
relevant mitigating evidence, see,
e.g.,
Abdul-Kabir v.
Quarterman, 550 U. S. ___ (2007);
Skipper v.
South Carolina,
476 U. S. 1 (1986);
Lockett v.
Ohio,
438 U. S. 586 (1978), a begrudging
appreciation of the need for a knowing and intelligent waiver of
constitutionally protected trial rights, see,
e.g.,
Schneckloth v.
Bustamonte,
412 U. S. 218 (1973);
Johnson v.
Zerbst,
304 U. S. 458 (1938), and a cramped
reading of the record. Unlike this Court, the en banc Court of
Appeals properly accounted for these important constitutional and
factual considerations. Its narrow holding that the District Court
abused its discretion in denying respondent an evidentiary hearing
should be affirmed. See
Townsend v.
Sain,
372 U. S. 293,
312, 318 (1963); see also 28 U. S. C. §2254 Rule 8(a) (2000
ed., Supp. IV).
I
No one, not even the Court,
seriously contends that counsel’s investigation of possible
mitigating evidence was constitutionally sufficient. See
Wiggins, 539 U. S., at 521;
Strickland v.
Washington,
466 U. S. 668, 688
(1984). Indeed, both the majority and dissenting judges on the en
banc Court of Appeals agreed that “counsel’s limited investigation
of Landrigan’s background fell below the standards of professional
representation prevailing” at the time of his sentencing hearing.
441 F. 3d 638, 650 (CA9 2006) (Bea, J., dissenting); see
id., at 643–645 (“On the record before us, it appears that
Landrigan’s counsel did little to prepare for the sentencing aspect
of the case. … A comparison of the results of the minimal
investigation by [counsel] with the amount of available mitigating
evidence Landrigan claims was available leaves us with grave doubts
whether Landrigan received effective assistance of counsel during
his penalty phase proceeding”). The list of evidence that counsel
failed to investigate is long. For instance, counsel did not
complete a psychological evaluation of respondent, which we now
know would have uncovered a serious organic brain disorder. He
failed to consult an expert to explore the effects of respondent’s
birth mother’s drinking and drug use during pregnancy. And he never
developed a history of respondent’s troubled childhood with his
adoptive family—a childhood marked by physical and emotional abuse,
neglect by his adoptive parents, his own serious substance abuse
problems (including an overdose in his eighth or ninth grade
classroom), a stunted education, and recurrent placement in
substance abuse rehabilitation facilities, a psychiatric ward, and
police custody. See Declaration by Shannon Sumpter, App. 180–192.
Counsel’s failure to develop this background evidence was so
glaring that even the sentencing judge noted that she had “received
very little information concerning the defendant’s difficult family
history.” App. to Pet. for Cert. D–21.[
Footnote 1] At the time of sentencing, counsel was only
prepared to put on the testimony by respondent’s ex-wife and birth
mother. By any measure, and especially for a capital case, this
meager investigation “fell below an objective standard of
reasonableness.”
Strickland, 466 U. S., at 688.
Given this deficient performance,
the only issue is whether counsel’s inadequate investigation
prejudiced the outcome of sentencing. The bulk of the Court’s
opinion argues that the District Court reasonably found that
respondent waived his right to present any and all mitigating
evidence. See
ante, at 8–13. As I shall explain, this
argument finds no support in the Constitution or the record of this
case.
II
It is well established that a
citizen’s waiver of a constitutional right must be knowing,
intelligent, and voluntary. As far back as
Johnson v.
Zerbst, we held that courts must “ ‘indulge every
reasonable presumption against waiver’ of fundamental
constitutional rights.’ ” 304 U. S., at 464. Since then, “[w]e
have been unyielding in our insistence that a defendant’s waiver of
his trial rights cannot be given effect unless it is ‘knowing’ and
‘intelligent.’ ”
Illinois v.
Rodriguez,
497 U. S. 177,
183 (1990) (citing
Zerbst,
304 U. S. 458).
Twenty-five years after
Zerbst, our decision in
Schneckloth v.
Bustamonte added crucial content to our jurisprudence on
the knowing and intelligent waiver of constitutional rights. That
case considered whether
Zerbst’s requirement applied to a
citizen’s consent to a search or seizure. In determining that it
did not, our decision turned on the “vast difference between those
rights that protect a fair criminal trial and the rights guaranteed
under the Fourth Amendment.” 412 U. S., at 241. We explained:
“The requirement of a ‘knowing’ and ‘intelligent’
waiver was articulated in a case involving the validity of a
defendant’s decision to forgo a right constitutionally guaranteed
to protect a fair trial and the reliability of the
truth-determining process… . Almost without exception, the
requirement of a knowing and intelligent waiver has been applied
only to those rights which the Constitution guarantees to a
criminal defendant in order to preserve a fair trial.”
Id., at 236–237.
We then ran through the extensive list of trial
rights to which the knowing-and-intelligent-waiver requirement had
already been applied.[
Footnote
2] We further noted that the
Zerbst requirement had
been applied to the “waiver of trial rights in trial-type
situations,”[
Footnote 3] and to
guilty pleas, which we said must be “carefully scrutinized to
determine whether the accused knew and understood all the rights to
which he would be entitled at trial.”[
Footnote 4] 412 U. S., at 238. If our emphasis on trial
rights was not already clear, we went on to state:
“A strict standard of waiver has been applied to
those rights guaranteed to a criminal defendant to insure that he
will be accorded the greatest possible opportunity to utilize every
facet of the constitutional model of a fair criminal trial. Any
trial conducted in derogation of that model leaves open the
possibility that the trial reached an unfair result precisely
because all the protections specified in the Constitution were not
provided… . The Constitution requires that every effort be
made to see to it that a defendant in a criminal case has not
unknowingly relinquished the basic protections that the Framers
thought indispensable to a fair trial.”
Id., at
241–242.
Given this unmistakable focus on
trial rights, it makes little difference that we have not
specifically “imposed an ‘informed and knowing’ requirement upon a
defendant’s decision not to introduce evidence.”
Ante, at
12. A capital defendant’s right to present mitigating evidence is
firmly established[
Footnote 5]
and can only be exercised at a sentencing
trial. For a
capital defendant, the right to have the sentencing authority give
full consideration to mitigating evidence that might support a
sentence other than death is of paramount importance—in some cases
just as important as the right to representation by counsel
protected in
Zerbst or any of the trial rights discussed
in
Schneckloth. Our longstanding precedent—from
Zerbst to
Schneckloth to the only waiver case
that the majority cites,
Iowa v.
Tovar,
541 U. S. 77
(2004)[
Footnote 6]—requires
that any waiver of the right to adduce such evidence be knowing,
intelligent, and voluntary. As such, the state postconviction
court’s conclusion that respondent completely waived his right to
present mitigating evidence involved an unreasonable application of
clearly established federal law as determined by this Court. See 28
U. S. C. §2254(d)(1).
Respondent’s statements at the sentencing
hearing do not qualify as an informed waiver under our precedents.
To understand why, it is important to remember the context in which
the waiver issue arose. In all of his postconviction proceedings,
respondent has never brought a freestanding claim that he failed to
knowingly or intelligently waive his right to present mitigating
evidence. See
Keeney v.
Tamayo-Reyes,
504 U. S. 1 (1992)
(considering a claim that a defendant’s guilty plea was not knowing
and intelligent). That is because respondent believes he never
waived his right to present all available mitigating evidence. See
Brief for Respondent 20 (“Landrigan has alleged that … he intended
at most to forgo his right to put on his ex-wife and birth mother
as witnesses”); Part III,
infra. Respondent’s only claim
is that his counsel was ineffective for failing to investigate and
present mitigating evidence.
In light of this posture, the Court’s
conclusion that respondent cannot make a
knowing-and-intelligent-waiver argument because he failed to
present it in the Arizona courts is nothing short of baffling. See
ante, at 12. Respondent never intended for waiver to
become an issue because he never thought it was an issue. Waiver
only became a concern when he was forced to answer: (1) the State’s
argument that he could not establish prejudice under
Strickland because he waived the right to present all
mitigating evidence; and (2) the state postconviction court’s
conclusion that “[s]ince the defendant instructed his attorney not
to bring any mitigation to the attention of the court, he cannot
now claim counsel was ineffective because he did not ‘explore
additional grounds for arguing mitigation evidence.’ ” App. to
Pet. for Cert. F–4. It is instructive that both the State and the
postconviction court considered the waiver issue within the context
of the prejudice prong of respondent’s
ineffective-assistance-of-counsel claim. Even now, respondent’s
only “claim” within the meaning of 28 U. S. C. §2254(e)(2) is
that his counsel was ineffective for not adequately investigating
and presenting mitigating evidence. An
argument—particularly one made in the alternative and in
response to another party—is fundamentally different from a
claim. Cf.
Yee v.
Escondido,
503 U. S. 519, 534
(1992).[
Footnote 7]
Turning back to that claim, respondent’s
purported waiver can only be appreciated in light of his counsel’s
deficient performance. To take just one example, respondent’s
counsel asked a psychologist, Dr. Mickey McMahon, to conduct an
initial interview with respondent. But Dr. McMahon has submitted an
affidavit stating that his experience was “quite different from the
working relationship [he] had with counsel on other death penalty
cases in which the psychological study went through a series of
steps.” Declaration by Mickey McMahon, App. 247. In this case, Dr.
McMahon was “not authorized to conduct the next step in
psychological testing that would have told [him] if … there were
any cognitive or neuropsychological deficits not observed during
just an interview.”
Id., at 246. Even though Dr. McMahon
told respondent’s counsel that “much more work was needed to
provide an appropriate psychological study for a death penalty
case,”
ibid., counsel refused to let him investigate any
further.[
Footnote 8]
A more thorough investigation would have
revealed that respondent suffers from an organic brain disorder.
See
Abdul-Kabir, 550 U. S., at ___ (slip op., at 27)
(recognizing that “possible neurological damage” is relevant
mitigating evidence). Years after Dr. McMahon’s aborted
examination, another psychologist, Dr. Thomas C. Thompson,
conducted a complete analysis of respondent. Based on extensive
interviews with respondent and several of his family members, a
review of his family history, and multiple clinical tests, Dr.
Thompson diagnosed respondent with Antisocial Personality Disorder.
See Declaration by Thomas C. Thompson, App. 149. Dr. Thompson filed
an affidavit in the District Court describing his diagnosis:
“[Respondent’s] actions did not constitute a
lifestyle choice in the sense of an individual operating with a
large degree of freedom, as we have come to define free will. The
inherited, prenatal, and early developmental factors severely
impaired Mr. Landrigan’s ability to function in a society that
expects individuals to operate in an organized and adaptive manner,
taking into account the actions and consequences of their behaviors
and their impact on society and its individual members. Based on
evaluation and investigation along with other relevant data, this
type of responsible functioning is simply beyond Mr. Landrigan and,
as far back as one can go, there is no indication that he ever had
these capacities.”
Id., at 160.
On the day of the sentencing
hearing, the only mitigating evidence that respondent’s counsel had
investigated was the testimony of respondent’s birth mother and
ex-wife. None of this neuropsychological information was available
to respondent at the time of his purported waiver. Yet the Court
conspicuously avoids any mention of respondent’s organic brain
disorder. It instead provides an incomplete list of other
mitigating evidence that respondent would have presented and
incorrectly assumes that respondent’s birth mother and ex-wife
would have covered it all. See
ante, at 9, 13. Unless I
missed the portion of the record indicating that respondent’s
ex-wife and birth mother were trained psychologists, neither could
have offered expert testimony about respondent’s organic brain
disorder.
It is of course true that respondent was aware
of many of the individual pieces of mitigating evidence that
contributed to Dr. Thompson’s subsequent diagnosis. He knew that
his birth mother abandoned him at the age of six months, see App.
147; that his biological family had an extensive criminal history,
see
id., at 146–147; that his adoptive mother had
“affective disturbances and chronic alcoholism,”
id., at
148; that she routinely drank vodka until she passed out, see
id., at 184; that she would frequently strike him, once
even “hit[ting him] with a frying pan hard enough to leave a dent,”
id., at 183, 185; that his childhood was difficult and he
exhibited abandonment and attachment problems at an early age, see
id., at 148; that he had a bad temper and often threw
violent tantrums as a child, see
id., at 182; and that he
“began getting into trouble and using alcohol and drugs at an early
age and, by adolescence, he had begun a series of placements in
juvenile detention facilities, a psychiatric ward, and twice in
drug abuse rehabilitation programs,”
id., at 148. Perhaps
respondent also knew that his biological mother abused alcohol and
amphetamines during her pregnancy, and that
in utero
exposure to drugs and alcohol has deleterious effects on the child.
See
id., at 155–156.
But even if respondent knew all these things,
we cannot assume that he could understand their consequences the
way an expert psychologist could. Without years of advanced
education and a battery of complicated testing, respondent could
not know that these experiences resulted in a serious organic brain
disorder or what effect such a disorder might have on his behavior.
And precisely because his counsel failed to conduct a proper
investigation, he did not know that this important evidence was
available to him when he purportedly waived the right to present
mitigating evidence. It is hard to see how respondent’s claim of
Strickland prejudice can be prejudiced by counsel’s
Strickland error. See
Hill v.
Lockhart,
474 U. S. 52,
58–59 (1985).
Without ever acknowledging that respondent
lacked this information, the Court clings to counsel’s discussion
with respondent about “the importance of mitigating evidence.”
Ante, at 12. The majority also places great weight on the
fact that counsel explained to respondent that, as counsel, he had
a “duty to disclose ‘any and all mitigating factors … to th[e]
[c]ourt for consideration regarding the sentencing.’ ”
Ibid. Leaving aside the fact that counsel’s deficient
performance did not demonstrate an understanding of the “importance
of mitigating evidence”—let alone knowledge of “ ‘any and
all’ ” such evidence—counsel’s abstract explanation cannot
satisfy the demands of
Zerbst and
Schneckloth.
Unless respondent knew of the most significant mitigation evidence
available to him, he could not have made a knowing and intelligent
waiver of his constitutional rights. See
Battenfield v.
Gibson, 236 F. 3d 1215, 1229–1233 (CA10 2001)
(holding a defendant’s waiver invalid where there was “no
indication [counsel] explained … what specific mitigation evidence
was available”);
Coleman v.
Mitchell, 268
F. 3d 417, 447–448 (CA6 2001); see generally
Tovar,
541 U. S., at 88.
III
Even if the putative waiver had
been fully informed, the Arizona postconviction court’s
determination that respondent “instructed his attorney not to bring
any mitigation to the attention of the [sentencing] court” is
plainly contradicted by the record. App. to Pet. for Cert. F–4. The
Court nevertheless defers to this finding, concluding that it was
not an “unreasonable determination of the facts” under 28 U.
S. C. §2254(d)(2). “[I]n the context of federal habeas,”
however, “deference does not imply abandonment or abdication of
judicial review.”
Miller-El v.
Cockrell,
537 U. S. 322, 340
(2003). A careful examination of the “record material and the
transcripts from the state courts,”
ante, at 9, does not
indicate that respondent intended to make a waiver that went beyond
the testimony of his birth mother and ex-wife.
The Court reads the following
exchange as definitive proof that respondent “informed his counsel
not to present any mitigating evidence,”
ibid.:
“THE COURT: Mr. Landrigan, have you instructed
your lawyer that you do not wish for him to bring any mitigating
circumstances to my attention?
“THE DEFENDANT: Yeah.
“THE COURT: Do you know what that means?
“THE DEFENDANT: Yeah.
“THE COURT: Mr. Landrigan, are there mitigating
circumstances I should be aware of?
“THE DEFENDANT: Not as far as I’m concerned.” App. to Pet.
for Cert. D–3 to D–4.
The Court also infers from respondent’s
disruptive behavior at the sentencing hearing that he “would have
undermined the presentation of any mitigating evidence that his
attorney might have uncovered.” Ante, at 10. But this record
material does not conclusively establish that respondent would have
waived his right to present other mitigating evidence if his
counsel had made it available to him.
The brief exchange between respondent and the
trial court must be considered in the context of the
entire sentencing proceeding. The above-quoted dialogue
came immediately after a lengthy colloquy between the trial court
and respondent’s counsel:
“MR. FARRELL: Your Honor, at this time … I have two
witnesses that I wished to testify before this Court, one I had
brought in from out of state and is my client’s ex-wife, Ms. Sandy
Landrigan. The second witness is my client’s natural mother,
Virginia Gipson. I believe both of those people had some important
evidence that I believed the Court should take into mitigation
concerning my client.
However, Mr. Landrigan has made it clear
to me …
that he does not wish anyone from his family to
testify on his behalf today.
“I have talked with Sandra Landrigan, his ex-wife. I have
talked a number of times with her and confirmed what I thought was
important evidence that she should present for the Court. And I
have also talked with Ms. Gipson, and her evidence I think is very
important and should have been brought to this Court’s attention.
Both of them, after talking with Jeff today, have agreed with
their, in one case son and the other ex-husband, they will not
testify in his behalf.
“THE COURT: Why not?
“MR. FARRELL: Basically it’s at my client’s wishes, Your
Honor. I told him that in order to effectively represent him,
especially concerning the fact that the State is seeking the death
penalty, any and all mitigating factors, I was under a duty to
disclose those factors to this Court for consideration regarding
the sentencing. He is adamant he does not want any testimony from
his family, specifically these two people that I have here, his
mother, under subpoena, and as well as having flown in his
ex-wife.” App. to Pet. for Cert. D–2 to D–3 (emphasis
added).
Respondent’s answers to the trial
judge’s questions must be read in light of this discussion. When
the judge immediately turned from counsel to respondent and asked
about “any mitigating circumstances,” the entire proceeding to that
point had been about the possible testimony of his birth mother or
ex-wife. Counsel had only informed the court that respondent did
not want any testimony “from his family.”
Id., at D–3.
Neither counsel nor respondent said anything about other mitigating
evidence. A fair reading of the full sentencing transcript makes
clear that respondent’s answers referred only to the testimony of
his ex-wife and birth mother.[
Footnote 9]
What is more, respondent’s answers were
necessarily infected by his counsel’s failure to investigate.
Respondent does not dispute that he instructed his counsel not to
present his family’s testimony. Brief for Respondent 47 (“Landrigan
contends that his intent was not to effect a broad waiver but,
instead, merely to waive presentation of testimony from his mother
and his ex-wife”). But his limited waiver cannot change the fact
that he was unaware that the words “any mitigating circumstances”
could include his organic brain disorder, the medical consequences
of his mother’s drinking and drug use during pregnancy, and his
abusive upbringing with his adoptive family.[
Footnote 10] In respondent’s mind, the words
“any mitigating circumstances” just meant the incomplete evidence
that counsel offered to present. As the en banc Court of Appeals
explained, “[h]ad his lawyer conducted an investigation and
uncovered other types of mitigating evidence, Landrigan might well
have been able to direct the court to other mitigating
circumstances.” 441 F. 3d, at 646. It is therefore error to
read respondent’s simple “Yeah” and “Not as far as I’m concerned”
as waiving anything other than the little he knew was available to
him.
Accordingly, the state postconviction court’s
finding that petitioner waived his right to present any mitigating
evidence was an unreasonable determination of the facts under
§2254(d)(2). While the Court is correct that the postconviction
judge was the same judge who sentenced respondent, we must remember
that her postconviction opinion was written in 1995—
five
years after the sentencing proceeding. Although the judge’s
memory deserves some deference, her opinion reflects many of the
same flaws as does the Court’s opinion. Instead of reexamining the
entire trial transcript, she only quoted the same two-question
exchange with respondent. App. to Pet. for Cert. F–4. And unlike
this Court’s repeated reference to respondent’s behavior at
sentencing, she did not mention it at all. Her analysis consists of
an incomplete review of the transcript and an unsupported summary
conclusion that respondent told his attorney not to present any
mitigating evidence.
While I believe that neither the Constitution
nor the record supports the Court’s waiver holding, respondent is
at least entitled to an evidentiary hearing on this question as
well as his broader claim of ineffective assistance of counsel.
Respondent insists that he never instructed his counsel not to
investigate other mitigating evidence. Even the State concedes that
there has been no finding on this issue. See,
e.g., Brief
for Respondent 37 (“ ‘[Judge Kozinski]: There’s no [state
court] finding at all even by inference as to investigation?
There’s … no finding that … the trial court made that goes to
Landrigan’s attitude about allowing his lawyer to
investigate? … [Counsel for State]: I would agree’ ”
(quoting Ninth Circuit Oral Argument Audio 43:55–44:30)). He has
long maintained that he would have permitted the presentation of
mitigating evidence if only counsel was prepared to introduce
evidence other than testimony from his birth mother and ex-wife.
See,
e.g., App. to Pet. for Cert. E–2. Respondent planned
to call his counsel at an evidentiary hearing to testify about
these very assertions. See App. 126. Because counsel is in the best
position to clarify whether respondent gave any blanket
instructions not to investigate or present mitigating evidence, the
Court is wrong to decide this case before any evidence regarding
respondent’s instructions can be developed.
IV
Almost as an afterthought, the
Court holds in the alternative that “the District Court did not
abuse its discretion in finding that Landrigan could not establish
prejudice based on his counsel’s failure to present the evidence he
now wishes to offer.”
Ante, at 14. It of course does this
on a cold and incomplete factual record. Describing respondent’s
mitigation case as “weak,” and emphasizing his “exceedingly violent
past” and “belligerent behavior” at sentencing, the Court concludes
that there is no way that respondent can establish prejudice with
the evidence he seeks to introduce.
Ibid. This reasoning
is flawed in several respects.
First, as has been discussed
above but bears repeating, the Court thoroughly misrepresents
respondent’s mitigating evidence. It is all too easy to view
respondent’s mitigation case as “weak” when you assume away his
most powerful evidence. The Court ignores respondent’s organic
brain disorder, which would have explained not only his criminal
history but also the repeated outbursts at sentencing.[
Footnote 11] It mistakenly assumes
that respondent’s birth mother and ex-wife could have testified
about the medical consequences of fetal alcohol syndrome. And it
inaccurately states that these women could have described his
turbulent childhood with his adoptive family. We have repeatedly
said that evidence of this kind can influence a sentencer’s
decision as to whether death is the proper punishment. See,
e.g.,
Wiggins, 539 U. S., at 535 (“[E]vidence
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” (internal
quotation marks omitted));
Eddings v.
Oklahoma,
455 U. S. 104,
115 (1982) (“[T]here can be no doubt that evidence of a turbulent
family history, of beatings by a harsh father, and of severe
emotional disturbance is particularly relevant”). The evidence here
might well have convinced a sentencer that a death sentence was not
appropriate.
Second, the aggravating circumstances relied
on by the sentencing judge are not as strong as the Court makes
them out to be.[
Footnote 12]
To be sure, respondent had already committed two violent offenses.
But so had Terry Williams, and this Court still concluded that he
suffered prejudice when his attorney failed to investigate and
present mitigating evidence. See
Williams v.
Taylor,
529
U. S. 362, 368 (2000) (noting that Williams confessed to “two
separate violent assaults on elderly victims,” including one that
left an elderly woman in a “ ‘vegetative state’ ”);
id., at 398 (“[T]he graphic description of Williams’
childhood, filled with abuse and privation, or the reality that he
was ‘borderline mentally retarded,’ might well have influenced the
jury’s appraisal of his moral culpability.”). The only other
aggravating factor was that Landrigan committed his crime for
pecuniary gain[
Footnote
13]—but there are serious doubts about that. As the en banc
Court of Appeals explained, “[t]here was limited evidence regarding
the pecuniary gain aggravator. The judge noted that the victim’s
apartment had been ransacked as if the perpetrator were looking for
something, and that this demonstrated an expectation of pecuniary
gain,
even though Landrigan did not actually steal anything of
value.” 441 F. 3d, at 649 (emphasis added). Thus, while
we should not ignore respondent’s violent past, it is certainly
possible—even likely—that evidence of his neurological disorder,
fetal alcohol syndrome, and abusive upbringing would have
influenced the sentencing judge’s assessment of his moral
blameworthiness and altered the outcome of his sentencing. As such,
respondent has plainly alleged facts that, if substantiated at an
evidentiary hearing, would entitle him to relief. See
Townsend, 372 U. S., at 312.
V
In the end, the Court’s decision
can only be explained by its increasingly familiar effort to guard
the floodgates of litigation. Immediately before turning to the
facts of this case, it states that “[i]f district courts were
required to allow federal habeas applicants to develop even the
most insubstantial factual allegations in evidentiary hearings,
district courts would be forced to reopen factual disputes that
were conclusively resolved in the state courts.”
Ante, at
8. However, habeas cases requiring evidentiary hearings have been
“few in number,” and “there is no clear evidence that this
particular classification of habeas proceedings has burdened the
dockets of the federal courts.”
Keeney, 504 U. S., at 24
(Kennedy, J., dissenting). Even prior to the passage of the
Antiterriorism and Effective Death Act of 1996, district courts
held evidentiary hearings in only
1.17% of all federal
habeas cases. See Report to the Federal Courts Study Committee of
the Subcommittee on the Role of the Federal Courts and their
Relation to the States (Mar. 12, 1990) (Richard A. Posner, Chair),
in 1 Federal Courts Study Committee, Working Papers and
Subcommittee Reports 468–515 (July 1, 1990). This figure makes it
abundantly clear that doing justice does not always cause the
heavens to fall. The Court would therefore do well to heed Justice
Kennedy’s just reminder that “[w]e ought not take steps which
diminish the likelihood that [federal] courts will base their legal
decision on an accurate assessment of the facts.”
Keeney,
504 U. S., at 24 (dissenting opinion).
It may well be true that
respondent would have completely waived his right to present
mitigating evidence if that evidence had been adequately
investigated at the time of sentencing. It may also be true that
respondent’s mitigating evidence could not outweigh his violent
past. What is certainly true, however, is that an evidentiary
hearing would provide answers to these questions. I emphatically
agree with the majority of judges on the en banc Court of Appeals
that it was an abuse of discretion to refuse to conduct such a
hearing in this capital case.
Accordingly, I respectfully dissent.
Footnote 1
Even more troubling is that prior to
sentencing, counsel had clues for where to find this important
mitigating evidence. As the Court of Appeals noted, respondent has
alleged that his birth mother sent a letter to counsel explaining
that “(1) Landrigan began drinking at an early age because his
adoptive mother was an alcoholic and would walk around nude in
front of him, (2) Landrigan’s father was on death row in Arkansas
and the ‘blood link to Darrel [and] I are what has messed up his
whole life,’ and (3) ‘Jeff needs help mentally like his father
did.’ ” 441 F. 3d 638, 644 (CA9 2006) (en banc). Counsel
failed to follow up on any of these leads.
Footnote 2
See,
e.g.,
Brookhart v.
Janis, 384 U.
S. 1 (1966) (right to confrontation);
Adams v.
United States ex rel. McCann,
317 U. S. 269 (1942)
(right to jury trial);
Barker v.
Wingo,
407 U. S. 514 (1972)
(the right to a speedy trial);
Green v.
United
States,
355 U.
S. 184 (1957) (right to be free from double jeopardy).
Footnote 3
See,
e.g.,
Smith v.
United States,
337 U. S. 137 (1949)
(waiver of the privilege against compulsory self-incrimination
before an administrative agency);
Emspak v.
United
States,
349 U.
S. 190 (1955) (waiver of the privilege against compulsory
self-incrimination before a congressional committee);
In re
Gault,
387 U. S.
1 (1967) (waiver of counsel in a juvenile proceeding).
Footnote 4
See,
e.g., McCarthy v.
United States,
394 U. S. 459 (1969);
Boykin v.
Alabama,
395 U. S. 238 (1969);
Von Moltke v.
Gillies,
332 U. S. 708 (1948);
Uveges v.
Pennsylvania,
335 U. S. 437
(1948).
Footnote 5
See,
e.g.,
Abdul-Kabir v.
Quarterman, 550 U. S. ___ (2007);
Brewer v.
Quarterman, 550 U. S. ___ (2007);
Skipper v.
South Carolina,
476 U. S. 1 (1986);
Lockett v.
Ohio,
438 U. S. 586 (1978).
Footnote 6
See
Tovar, 541 U. S., at 81 (“Waiver
of the right to counsel,
as of constitutional rights in the
criminal process generally, must be a ‘knowing, intelligent
ac[t] done with sufficient awareness of the relevant
circumstances’ ” (quoting
Brady v.
United
States,
397 U.
S. 742, 748 (1970); emphasis added)).
Footnote 7
The Court also misapplies §2254(e)(2) by
failing to account for our holding that “[u]nder the opening clause
of §2254(e)(2), a failure to develop the factual basis of a claim
is not established unless there is
lack of diligence, or
some greater fault, attributable to the prisoner or the prisoner’s
counsel.”
Williams v.
Taylor,
529 U. S. 420, 432
(2000) (emphasis added). “Diligence … depends upon whether the
prisoner made a reasonable attempt, in light of the information
available at the time, to investigate and pursue claims in state
court.”
Id., at 435. At the time petitioner filed his
state postconviction petition, he was under the impression that he
had not waived his right to present all mitigating evidence. Once
the state postconviction court informed him otherwise, he
immediately raised this argument in a motion for rehearing. See
ante, at 12, n. 3. The consequence of today’s
decision is that prisoners will be forced to file separate claims
in anticipation of every possible argument that might be made in
response to their genuine claims. That is no way to advance “[the
Antiterrrorism and Effective Death Penalty Act of 1996’s]
acknowledged purpose of reduc[ing] delays in the execution of state
and federal criminal sentences.”
Ante, at 7–8 (internal
quotation marks omitted).
Footnote 8
An investigator named George LaBash had a
similar experience with respondent’s counsel. Although counsel had
hired LaBash to look into respondent’s case, LaBash stated in an
affidavit that counsel “did not ask me to do much.” Declaration by
George LaBash, App. 242. In fact, LaBash spent only 13 hours
working on the case, never conducted a mitigation investigation,
and described his experience working with respondent’s counsel as
“quite frustrating.”
Id., at 242–243.
Footnote 9
The Court disregards another important
contextual clue—that respondent’s counsel requested three 30-day
continuances to investigate and prepare a mitigation case, and that
respondent consented on the record to each one. App. 10, 12–13, 15.
If respondent had instructed his counsel not to develop any
mitigating evidence, his consent would be difficult to explain.
Similarly, there is clear evidence that respondent cooperated with
counsel’s minimal investigation. He allowed counsel to interview
his birth mother and ex-wife, he assisted in counsel’s gathering of
his medical records, and he freely met with Dr. McMahon. See App.
to Pet. for Cert. D–2 to D–3; App. 12;
id., at 129. These
are not the actions of a man who wanted to present no mitigating
evidence.
Footnote 10
Contrary to the Court’s contention, see
ante, at 9, 14, respondent’s
birth mother could
not have testified about his difficult childhood with his
adoptive family. In fact, respondent sought a state
postconviction evidentiary hearing so that his adoptive sister
could present such evidence. See Petition for Post-Conviction
Relief, App. 88 (“Petitioner’s sister, Shannon Sumpter, would also
have verified that their mother, Mrs. Landrigan, was an alcoholic
and that that disease caused significant problems within the family
which impacted adversely on Petitioner as he was growing up. … She
would, moreover, have provided additional information concerning
familial problems which preceded the time of sentencing and which
may have offered at least a partial explanation of Petitioner’s
conduct at sentencing”).
Footnote 11
See Declaration by Thomas C. Thompson, App.
149 (stating that tests revealed that respondent has “deficits with
cognitive processing, poor adaptability, incomplete understanding
of his surroundings and his effect on others, and
very limited
impulse control” (emphasis added));
id., at 150
(noting that individuals with antisocial personality disorder
typically act “irresponsibl[y] across areas of their daily lives
with decisions characterized by
impulsivity” (emphasis
added)).
Footnote 12
In fact, while the Court’s terse prejudice
analysis relies heavily on a colorful quote from the original Ninth
Circuit panel, see
ante, at 14, it declines to mention
that one judge on that panel switched her vote and joined the en
banc majority after further consideration of respondent’s
mitigating evidence.
Footnote 13
Notwithstanding the Court’s repeated
assertions, the sentencing judge did not consider respondent’s
courtroom behavior as an aggravating factor. Compare
ante,
at 14, with App. to Pet. for Cert. D–17 to D–18. In fact, the
sentencing judge noted that until the day of sentencing, respondent
had “acted appropriately in the courtroom” and his conduct had been
“good.”
Id., at D–22. Even more important, she understood
his behavior that day to be a mere “release … of his frustration,”
ibid.—not as an aggravating factor and certainly not as an
indication of his intent to waive his right to present mitigating
evidence. At most, the sentencing judge treated respondent’s
behavior on the day of sentencing as a reason not to credit his
earlier “good” behavior as a mitigating circumstance. In any event,
a defendant’s poor behavior at trial is not listed as an
aggravating factor under Arizona’s capital sentencing statute. See
Ariz. Rev. Stat. Ann. §13–703(F) (West Supp. 2006).
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