OCTOBER TERM, 2002
Syllabus
WIGGINS
v. SMITH, WARDEN, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No.02-311. Argued March 24, 2003-Decided June 26, 2003
In 1989, petitioner Wiggins was convicted of capital murder by a
Maryland judge and subsequently elected to be sentenced by a jury.
His public defenders, Schlaich and Nethercott, moved to bifurcate
the sentencing, representing that they planned to prove that
Wiggins did not kill the victim by his own hand and then, if
necessary, to present a mitigation case. The court denied the
motion. At sentencing, Nethercott told the jury in her opening
statement that they would hear, among other things, about Wiggins'
difficult life, but such evidence was never introduced. Before
closing arguments and outside the presence of the jury, Schlaich
made a proffer to the court to preserve the bifurcation issue for
appeal, detailing the mitigation case counsel would have presented.
Schlaich never mentioned Wiggins' life history or family
background. The jury sentenced Wiggins to death, and the Maryland
Court of Appeals affirmed. Represented by new counsel, Wiggins
sought postconviction relief, arguing that his trial counsel had
rendered ineffective assistance by failing to investigate and
present mitigating evidence of his dysfunctional background. He
presented expert testimony by a forensic social worker about the
severe physical and sexual abuse he had suffered at the hands of
his mother and while under the care of a series of foster parents.
Schlaich testified that he did not remember retaining a forensic
social worker to prepare a social history before sentencing, even
though state funds were available for that purpose, and explained
that he and N ethercott had decided to focus on retrying the
factual case and disputing Wiggins' direct responsibility for the
murder. The trial court denied the petition, and the State Court of
Appeals affirmed, concluding that trial counsel had made a reasoned
choice to proceed with what they considered their best defense.
Subsequently, the Federal District Court granted Wiggins relief on
his federal habeas petition, holding that the Maryland courts'
rejection of his ineffective assistance claim involved an
unreasonable application of clearly established federal law. In
reversing, the Fourth Circuit found trial counsel's strategic
decision to focus on Wiggins' direct responsibility to be
reasonable.
Held: The performance of Wiggins' attorneys at sentencing
violated his Sixth Amendment right to effective assistance of
counsel. Pp. 519-538.
511
(a) A federal writ can be granted only if a state court decision
"was contrary to, or involved an unreasonable application of,
clearly established" precedents of this Court. 28 U. S. C. §
2254(d)(1). This "unreasonable application" prong permits the writ
to be granted when a state court identifies the correct governing
legal principle but unreasonably applies it to the facts of a
petitioner's case.
Williams v.
Taylor, 529 U. S.
362,413. For this standard to be satisfied, the state court
decision must have been "objectively unreasonable," id., at 409,
not just incorrect or erroneous. An ineffective assistance claim
has two components: A petitioner must show that counsel's
performance was deficient, and that the deficiency prejudiced the
defense.
Strickland v.
Washington, 466 U. S. 668,
687. Performance is deficient if it falls below an objective
standard of reasonableness, which is defined in terms of prevailing
professional norms.
Id., at 688. Here, as in
Strickland, counsel claim that their limited investigation
into petitioner's background reflected a tactical judgment not to
present mitigating evidence and to pursue an alternative strategy
instead. In evaluating petitioner's claim, this Court's principal
concern is not whether counsel should have presented a mitigation
case, but whether the investigation supporting their decision not
to introduce mitigating evidence of Wiggins' background was
itselfreasonable. The Court thus conducts an objective
review of their performance, measured for reasonableness under
prevailing professional norms, including a context-dependent
consideration of the challenged conduct as seen from counsel's
perspective at the time of that conduct.
Id., at 688, 689.
Pp. 519-523.
(b) Counsel did not conduct a reasonable investigation. Their
decision not to expand their investigation beyond a presentence
investigation (PSI) report and Baltimore City Department of Social
Services (DSS) records fell short of the professional standards
prevailing in Maryland in 1989. Standard practice in Maryland
capital cases at that time included the preparation of a social
history report. Although there were funds to retain a forensic
social worker, counsel chose not to commission a report. Their
conduct similarly fell short of the American Bar Association's
capital defense work standards. Moreover, in light of the facts
counsel discovered in the DSS records concerning Wiggins' alcoholic
mother and his problems in foster care, counsel's decision to cease
investigating when they did was unreasonable. Any reasonably
competent attorney would have realized that pursuing such leads was
necessary to making an informed choice among possible defenses,
particularly given the apparent absence of aggravating factors from
Wiggins' background. Indeed, counsel discovered no evidence to
suggest that a mitigation case would have been counterproductive or
that further investigation would have been fruitless, thus
distinguishing this case
512
Syllabus
from precedents in which this Court has found limited
investigations into mitigating evidence to be reasonable. The
record of the sentencing proceedings underscores the
unreasonableness of counsel's conduct by suggesting that their
failure to investigate thoroughly stemmed from inattention, not
strategic judgment. Until the trial court denied their bifurcation
motion, they had had every reason to develop the most powerful
mitigation case possible. During the sentencing process itself,
counsel did not focus exclusively on Wiggins' direct responsibility
for the murder; rather they put on a halfhearted mitigation case
instead. The Maryland Court of Appeals' assumption that counsel's
investigation was adequate reflected an unreasonable application of
Strickland. In deferring to counsel's decision not to
present every conceivable mitigation defense despite the fact that
counsel based their alleged choice on an inadequate investigation,
the Maryland Court of Appeals further unreasonably applied
Strickland. And the court's conclusion that the social
services records revealed incidences of sexual abuse, when they in
fact did not, reflects "an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding,"
28 U. S. C. § 2254(d)(2). Contrary to the State's and the United
States' contention, the record as a whole does not support the
conclusion that counsel conducted a more thorough investigation
than the one this Court describes. Ultimately, this Court's
conclusion that counsel's investigation was inadequate does not
mean that
Strickland requires counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the
effort would be to assist the defendant at sentencing. Nor does
Strickland require counsel to present such evidence at
sentencing in every case. Rather, the conclusion is based on the
much more limited principle that "strategic choices made after less
than complete investigation are reasonable" only to the extent that
"reasonable professional judgments support the limitations on
investigation."
Strickland, supra, at 690-691. Pp.
523-534.
(c) Counsel's failures prejudiced Wiggins' defense. To establish
prejudice, a defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
proceeding's result would have been different.
Strickland,
supra, at 694. This Court assesses prejudice by reweighing the
aggravating evidence against the totality of the mitigating
evidence adduced both at trial and in the habeas proceedings.
Williams v.
Taylor, supra, at 397-398. The mitigating
evidence counsel failed to discover and present here is powerful.
Wiggins experienced severe privation and abuse while in the custody
of his alcoholic, absentee mother and physical torment, sexual
molestation, and repeated rape while in foster care. His time spent
homeless and his diminished mental capacities further augment his
mitigation case. He
513
thus has the kind of troubled history relevant to assessing a
defendant's moral culpability.
Penry v.
Lynaugh,
492 U. S. 302,
319. Given the nature and extent of the abuse, there is a
reasonable probability that a competent attorney, aware of this
history, would have introduced it at sentencing, and that a jury
confronted with such mitigating evidence would have returned with a
different sentence. The only significant mitigating factor the jury
heard was that Wiggins had no prior convictions. Had it been able
to place his excruciating life history on the mitigating side of
the scale, there is a reasonable probability that at least one
juror would have struck a different balance. Wiggins had no record
of violent conduct that the State could have introduced to offset
this powerful mitigating narrative. Thus, the available mitigating
evidence, taken as a whole, might well have influenced the jury's
appraisal of his moral culpability. Pp. 534-538.
288 F.3d
629, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, and
BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in
which THOMAS, J., joined,
post, p. 538.
Donald B. Verrilli, Jr., argued the cause for
petitioner.
With him on the briefs were Ian Heath Gershengorn and Lara M.
Flint.
Gary E. Bair, Solicitor General of Maryland, argued the
cause for respondents. With him on the brief were J.
Joseph
Curran, Jr., Attorney General, and
Kathryn Grill Graeff
and
Ann N.
Bosse, Assistant Attorneys General.
Dan Himmelfarb argued the cause for the United States as amicus
curiae urging affirmance. With him on the brief were Solicitor
General Olson, Assistant Attorney General Chertoff, Deputy
Solicitor General Dreeben, and Robert J. Erickson. *
*Briefs of
amici curiae urging reversal were filed for
the American Bar Association by
Alfred P. Carlton, Lawrence
J.
Fox, David J.
Kessler, and
Robin M. Maher;
for the Constitution Project by
Virginia E. Sloan and
Stephen F.
Hanlon; for the National Association of
Criminal Defense Lawyers et al. by
David A. Reiser, Eleanor H.
Smith, and
Lisa B. Kemler; for the National Association
of Social Workers et al. by
Thomas C.
Gold-
514
JUSTICE O'CONNOR delivered the opinion of the Court. Petitioner,
Kevin Wiggins, argues that his attorneys' failure to investigate
his background and present mitigating evidence of his unfortunate
life history at his capital sentencing proceedings violated his
Sixth Amendment right to counsel. In this case, we consider whether
the United States Court of Appeals for the Fourth Circuit erred in
upholding the Maryland Court of Appeals' rejection of this
claim.
I A
On September 17, 1988, police discovered 77-year-old Florence
Lacs drowned in the bathtub of her ransacked apartment in Woodlawn,
Maryland.
Wiggins v.
State, 352 Md. 580, 585, 724 A.
2d 1, 5 (1999). The State indicted petitioner for the crime on
October 20, 1988, and later filed a notice of intention to seek the
death penalty. Two Baltimore County public defenders, Carl Schlaich
and Michelle Nethercott, assumed responsibility for Wiggins' case.
In July 1989, petitioner elected to be tried before a judge in
Baltimore County
stein and Amy Howe; and for Janet F. Reno et al. by Robert S.
Litt, Kathleen A. Behan, and John A. Freedman.
Briefs of
amici curiae urging affirmance were filed for
the State of California et al. by
Bill Lockyer, Attorney
General of California,
Manuel M. Medeiros, State Solicitor
General,
Robert R. Anderson, Chief Assistant Attorney
General,
Pamela C.
Hamanaka, Senior Assistant
Attorney General, and
Kristofer Jorstad, A. Scott Hayward,
and
Donald E. De Nicola, Deputy Attorneys General, and by
the Attorneys General for their respective States as follows:
William H. Pryor, Jr., of Alabama,
Terry Goddard of
Arizona,
Ken Salazar of Colorado,
Thurbert E. Baker
of Georgia,
Lisa Madigan of Illinois,
Steve Carter of
Indiana,
Richard P. Ieyoub of Louisiana,
Mike McGrath
of Montana,
Jon Bruning of Nebraska,
Brian Sandoval
of Nevada,
Jim Petro of Ohio,
W A. Drew Edmondson of
Oklahoma,
D. Michael Fisher of Pennsylvania,
Larry
Long of South Dakota,
Mark L. Shurtleff of Utah,
Jerry W Kilgore of Virginia, and
Christine O.
Gregoire of Washington; and for the Criminal Justice Legal
Foundation by
Kent S.
Scheidegger.
515
Circuit Court.
Ibid. On August 4, after a 4-day trial,
the court found petitioner guilty of first-degree murder, robbery,
and two counts of theft. App. 32.
After his conviction, Wiggins elected to be sentenced by a jury,
and the trial court scheduled the proceedings to begin on October
11, 1989. On September 11, counsel filed a motion for bifurcation
of sentencing in hopes of presenting Wiggins' case in two phases.
Id., at 34. Counsel intended first to prove that Wiggins did
not act as a "principal in the first degree,"
ibid.-i. e.,
that he did not kill the victim by his own hand. See Md. Ann. Code,
Art. 27, § 413 (1996) (requiring proof of direct responsibility for
death eligibility). Counsel then intended, if necessary, to present
a mitigation case. In the memorandum in support of their motion,
counsel argued that bifurcation would enable them to present each
case in its best light; separating the two cases would prevent the
introduction of mitigating evidence from diluting their claim that
Wiggins was not directly responsible for the murder. App. 36-42,
37.
On October 12, the court denied the bifurcation motion, and
sentencing proceedings commenced immediately thereafter. In her
opening statement, N ethercott told the jurors they would hear
evidence suggesting that someone other than Wiggins actually killed
Lacs.
Id., at 70-71. Counsel then explained that the judge
would instruct them to weigh Wiggins' clean record as a factor
against a death sentence. She concluded: "'You're going to hear
that Kevin Wiggins has had a difficult life. It has not been easy
for him. But he's worked. He's tried to be a productive citizen,
and he's reached the age of 27 with no convictions for prior crimes
of violence and no convictions, period .... I think that's an
important thing for you to consider.'"
Id., at 72. During
the proceedings themselves, however, counsel introduced no evidence
of Wiggins' life history.
Before closing arguments, Schlaich made a proffer to the court,
outside the presence of the jury, to preserve bifurca-
516
tion as an issue for appeal. He detailed the mitigation case
counsel would have presented had the court granted their
bifurcation motion. He explained that they would have introduced
psychological reports and expert testimony demonstrating Wiggins'
limited intellectual capacities and childlike emotional state on
the one hand, and the absence of aggressive patterns in his
behavior, his capacity for empathy, and his desire to function in
the world on the other. See id., at 349-351. At no point did
Schlaich proffer any evidence of petitioner's life history or
family background. On October 18, the court instructed the jury on
the sentencing task before it, and later that afternoon, the jury
returned with a sentence of death.
Id., at 409-410. A
divided Maryland Court of Appeals affirmed.
Wiggins v.
State, 324 Md. 551, 597 A. 2d 1359 (1991), cert. denied, 503
U. S. 1007 (1992).
B
In 1993, Wiggins sought postconviction relief in Baltimore
County Circuit Court. With new counsel, he challenged the adequacy
of his representation at sentencing, arguing that his attorneys had
rendered constitutionally defective assistance by failing to
investigate and present mitigating evidence of his dysfunctional
background. App. to Pet. for Cert. 132a. To support his claim,
petitioner presented testimony by Hans Selvog, a licensed social
worker certified as an expert by the court. App. 419. Selvog
testified concerning an elaborate social history report he had
prepared containing evidence of the severe physical and sexual
abuse petitioner suffered at the hands of his mother and while in
the care of a series of foster parents. Relying on state social
services, medical, and school records, as well as interviews with
petitioner and numerous family members, Selvog chronicled
petitioner's bleak life history. App. to Pet. for Cert. 163a.
According to Selvog's report, petitioner's mother, a chronic
alcoholic, frequently left Wiggins and his siblings home alone
517
for days, forcing them to beg for food and to eat paint chips
and garbage.
Id., at 166a-167a. Mrs. Wiggins' abusive
behavior included beating the children for breaking into the
kitchen, which she often kept locked. She had sex with men while
her children slept in the same bed and, on one occasion, forced
petitioner's hand against a hot stove burner-an incident that led
to petitioner's hospitalization.
Id., at 167a171a. At the
age of six, the State placed Wiggins in foster care. Petitioner's
first and second foster mothers abused him physically, id., at
175a-176a, and, as petitioner explained to Selvog, the father in
his second foster home repeatedly molested and raped him.
Id., at 176a-179a. At age 16, petitioner ran away from his
foster home and began living on the streets. He returned
intermittently to additional foster homes, including one in which
the foster mother's sons allegedly gang-raped him on more than one
occasion.
Id., at 190a. After leaving the foster care
system, Wiggins entered a Job Corps program and was allegedly
sexually abused by his supervisor.
Id., at 192a.
During the postconviction proceedings, Schlaich testified that
he did not remember retaining a forensic social worker to prepare a
social history, even though the State made funds available for that
purpose. App. 487-488. He explained that he and Nethercott, well in
advance of trial, decided to focus their efforts on "'retry[ing]
the factual case'" and disputing Wiggins' direct responsibility for
the murder.
Id., at 485-486. In April 1994, at the close of
the proceedings, the judge observed from the bench that he could
not remember a capital case in which counsel had not compiled a
social history of the defendant, explaining, "'[n]ot to do a social
history, at least to see what you have got, to me is absolute
error. I just-I would be flabbergasted if the Court of Appeals said
anything else.'"
Id., at 605. In October 1997, however, the
trial court denied Wiggins' petition for postconviction relief. The
court concluded that "when the decision not to investigate ... is a
matter of trial tactics, there is no
518
ineffective assistance of counsel." App. to Pet. for Cert.
155a-156a.
The Maryland Court of Appeals affirmed the denial of relief,
concluding that trial counsel had made "a deliberate, tactical
decision to concentrate their effort at convincing the jury" that
appellant was not directly responsible for the murder.
Wiggins v.
State, 352 Md., at 608, 724 A. 2d, at 15.
The court observed that counsel knew of Wiggins' unfortunate
childhood. They had available to them both the presentence
investigation (PSI) report prepared by the Division of Parole and
Probation, as required by Maryland law, Md. Ann. Code, Art. 41, §
4-609(d) (1988), as well as "more detailed social service records
that recorded incidences of physical and sexual abuse, an alcoholic
mother, placements in foster care, and borderline retardation." 352
Md., at 608-609, 724 A. 2d, at 15. The court acknowledged that this
evidence was neither as detailed nor as graphic as the history
elaborated in the Selvog report but emphasized that "counsel did
investigate and
were aware of appellant's background."
Id., at 610,724 A. 2d, at 16 (emphasis in original). Counsel
knew that at least one uncontested mitigating factor-Wiggins' lack
of prior convictions-would be before the jury should their attempt
to disprove Wiggins' direct responsibility for the murder fail. As
a result, the court concluded, Schlaich and Nethercott "made a
reasoned choice to proceed with what they thought was their best
defense."
Id., at 611-612, 724 A. 2d, at 17.
C
In September 2001, Wiggins filed a petition for writ of habeas
corpus in Federal District Court. The trial court granted him
relief, holding that the Maryland courts' rejection of his
ineffective assistance claim "involved an unreasonable application
of clearly established federal law."
Wiggins v.
Corcoran, 164 F. Supp. 2d 538, 557 (2001) (citing
Williams v.
Taylor, 529 U. S. 362 (2000)).
The court rejected the State's defense of counsel's "tactical"
decision to "'retry
519
guilt,'" concluding that for a strategic decision to be
reasonable, it must be "based upon information the attorney has
made after conducting a reasonable investigation." 164 F. Supp. 2d,
at 558. The court found that though counsel were aware of some
aspects of Wiggins' background, that knowledge did not excuse them
from their duty to make a "fully informed and deliberate decision"
about whether to present a mitigation case. In fact, the court
concluded, their knowledge triggered an obligation to look further.
Id., at 559.
Reviewing the District Court's decision
de novo, the
Fourth Circuit reversed, holding that counsel had made a reasonable
strategic decision to focus on petitioner's direct responsibility.
Wiggins v.
Corcoran, 288 F.3d
629, 639-640 (2002). The court contrasted counsel's complete
failure to investigate potential mitigating evidence in
Williams, 288 F. 3d, at 640, with the fact that Schlaich and
N ethercott knew at least some details of Wiggins' childhood from
the PSI and social services records, id., at 641. The court
acknowledged that counsel likely knew further investigation "would
have resulted in more sordid details surfacing," but agreed with
the Maryland Court of Appeals that counsel's knowledge of the
avenues of mitigation available to them "was sufficient to make an
informed strategic choice" to challenge petitioner's direct
responsibility for the murder.
Id., at 641-642. The court
emphasized that conflicting medical testimony with respect to the
time of death, the absence of direct evidence against Wiggins, and
unexplained forensic evidence at the crime scene supported
counsel's strategy.
Id., at 641.
We granted certiorari, 537 U. S. 1027 (2002), and now
reverse.
II A
Petitioner renews his contention that his attorneys' performance
at sentencing violated his Sixth Amendment right
520
to effective assistance of counsel. The amendments to 28 U. S.
C. § 2254, enacted as part of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), circumscribe our consideration of
Wiggins' claim and require us to limit our analysis to the law as
it was "clearly established" by our precedents at the time of the
state court's decision. Section 2254 provides:
"(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
the claim-
"(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly 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."
We have made clear that the "unreasonable application" prong of
§ 2254(d)(1) permits a federal habeas court to "grant the writ if
the state court identifies the correct governing legal principle
from this Court's decisions but unreasonably applies that principle
to the facts" of petitioner's case.
Williams v.
Taylor,
supra, at 413; see also
Bell v.
Cone, 535 U. S. 685, 694
(2002). In other words, a federal court may grant relief when a
state court has misapplied a "governing legal principle" to "a set
of facts different from those of the case in which the principle
was announced."
Lockyer v.
Andrade, 538 U. S. 63, 76 (2003)
(citing
Williams v.
Taylor, supra, at 407). In order
for a federal court to find a state court's application of our
precedent "unreasonable," the state court's decision must have been
more than incorrect or erroneous. See
Lockyer, supra, at 75.
The state court's appli-
521
cation must have been "objectively unreasonable." See
Williams v.
Taylor, 529 U. S., at 409.
We established the legal principles that govern claims of
ineffective assistance of counsel in
Strickland v.
Washington, 466 U. S. 668 (1984). An
ineffective assistance claim has two components: A petitioner must
show that counsel's performance was deficient, and that the
deficiency prejudiced the defense.
Id., at 687. To establish
deficient performance, a petitioner must demonstrate that counsel's
representation "fell below an objective standard of
reasonableness."
Id., at 688. We have declined to articulate
specific guidelines for appropriate attorney conduct and instead
have emphasized that "[t]he proper measure of attorney performance
remains simply reasonableness under prevailing professional norms."
Ibid.
In this case, as in
Strickland, petitioner's claim stems
from counsel's decision to limit the scope of their investigation
into potential mitigating evidence.
Id., at 673. Here, as in
Strickland, counsel attempt to justify their limited
investigation as reflecting a tactical judgment not to present
mitigating evidence at sentencing and to pursue an alternative
strategy instead. In rejecting the respondent's claim, we defined
the deference owed such strategic judgments in terms of the
adequacy of the investigations supporting those judgments:
"[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary. In any ineffectiveness
case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circum-
522
stances, applying a heavy measure of deference to counsel's
judgments." Id., at 690-691.
Our opinion in
Williams v.
Taylor is illustrative
of the proper application of these standards. In finding Williams'
ineffectiveness claim meritorious, we applied
Strickland and
concluded that counsel's failure to uncover and present voluminous
mitigating evidence at sentencing could not be justified as a
tactical decision to focus on Williams' voluntary confessions,
because counsel had not "fulfill[ed] their obligation to conduct a
thorough investigation of the defendant's background." 529 U. S.,
at 396 (citing 1 ABA Standards for Criminal Justice 4-4.1,
commentary, p. 4-55 (2d ed. 1980)). While
Williams had not
yet been decided at the time the Maryland Court of Appeals rendered
the decision at issue in this case, cf.
post, at 542
(SCALIA, J., dissenting), Williams' case was before us on habeas
review. Contrary to the dissent's contention,
post, at 543,
we therefore made no new law in resolving Williams' ineffectiveness
claim. See
Williams, 529 U. S., at 390 (noting that the
merits of Williams' claim "are squarely governed by our holding in
Strickland"); see also id., at 395 (noting that the trial
court correctly applied both components of the
Strickland
standard to petitioner's claim and proceeding to discuss counsel's
failure to investigate as a violation of
Strickland's
performance prong). In highlighting counsel's duty to investigate,
and in referring to the ABA Standards for Criminal Justice as
guides, we applied the same "clearly established" precedent of
Strickland we apply today. Cf. 466 U. S., at 690-691
(establishing that "thorough investigation[s]" are "virtually
unchallengeable" and underscoring that "counsel has a duty to make
reasonable investigations"); see also id., at 688-689 ("Prevailing
norms of practice as reflected in American Bar Association
standards and the like ... are guides to determining what is
reasonable").
In light of these standards, our principal concern in deciding
whether Schlaich and Nethercott exercised "reasonable
523
professional judgmen[t]," id., at 691, is not whether counsel
should have presented a mitigation case. Rather, we focus on
whether the investigation supporting counsel's decision not to
introduce mitigating evidence of Wiggins' background
was itself
reasonable. Ibid. Cf.
Williams v.
Taylor, supra,
at 415 (O'CONNOR, J., concurring) (noting counsel's duty to conduct
the "requisite, diligent" investigation into his client's
background). In assessing counsel's investigation, we must conduct
an objective review of their performance, measured for
"reasonableness under prevailing professional norms,"
Strickland, 466 U. S., at 688, which includes a
context-dependent consideration of the challenged conduct as seen
"from counsel's perspective at the time," id., at 689 ("[E]very
effort [must] be made to eliminate the distorting effects of
hindsight").
B 1
The record demonstrates that counsel's investigation drew from
three sources. App. 490-491. Counsel arranged for William Stejskal,
a psychologist, to conduct a number of tests on petitioner.
Stejskal concluded that petitioner had an IQ of 79, had difficulty
coping with demanding situations, and exhibited features of a
personality disorder.
Id., at 4445, 349-351. These reports
revealed nothing, however, of petitioner's life history. Tr. of
Oral Arg. 24-25.
With respect to that history, counsel had available to them the
written PSI, which included a one-page account of Wiggins'
"personal history" noting his "misery as a youth," quoting his
description of his own background as "'disgusting,'" and observing
that he spent most of his life in foster care. App. 20-21. Counsel
also "tracked down" records kept by the Baltimore City Department
of Social Services (DSS) documenting petitioner's various
placements in the State's foster care system.
Id., at 490;
Lodging of Petitioner. In describing the scope of counsel's
investigation into petitioner's
524
life history, both the Fourth Circuit and the Maryland Court of
Appeals referred only to these two sources of information. See 288
F. 3d, at 640-641;
Wiggins v.
State, 352 Md., at
608609, 724 A. 2d, at 15.
Counsel's decision not to expand their investigation beyond the
PSI and the DSS records fell short of the professional standards
that prevailed in Maryland in 1989. As Schlaich acknowledged,
standard practice in Maryland in capital cases at the time of
Wiggins' trial included the preparation of a social history report.
App. 488. Despite the fact that the Public Defender's office made
funds available for the retention of a forensic social worker,
counsel chose not to commission such a report.
Id., at 487.
Counsel's conduct similarly fell short of the standards for capital
defense work articulated by the American Bar Association
(ABA)-standards to which we long have referred as "guides to
determining what is reasonable."
Strickland, supra, at 688;
Williams v.
Taylor, supra, at 396. The ABA Guidelines
provide that investigations into mitigating evidence "should
comprise efforts to discover
all reasonably available
mitigating evidence and evidence to rebut any aggravating evidence
that may be introduced by the prosecutor." ABA Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases
11.4.1(C), p. 93 (1989) (emphasis added). Despite these
well-defined norms, however, counsel abandoned their investigation
of petitioner's background after having acquired only rudimentary
knowledge of his history from a narrow set of sources. Cf. id.,
11.8.6, p. 133 (noting that among the topics counsel should
consider presenting are medical history, educational history,
employment and training history,
family and social history,
prior adult and juvenile correctional experience, and religious and
cultural influences (emphasis added)); 1 ABA Standards for Criminal
Justice 4-4.1, commentary, p. 4-55 (2d ed. 1982) ("The lawyer also
has a substantial and important role to perform in raising
mitigating factors both to the prosecutor initially and
525
to the court at sentencing .... Investigation is essential to
fulfillment of these functions").
The scope of their investigation was also unreasonable in light
of what counsel actually discovered in the DSS records. The records
revealed several facts: Petitioner's mother was a chronic
alcoholic; Wiggins was shuttled from foster home to foster home and
displayed some emotional difficulties while there; he had frequent,
lengthy absences from school; and, on at least one occasion, his
mother left him and his siblings alone for days without food. See
Lodging of Petitioner 54-95, 126, 131-136, 140, 147, 159-176. As
the Federal District Court emphasized, any reasonably competent
attorney would have realized that pursuing these leads was
necessary to making an informed choice among possible defenses,
particularly given the apparent absence of any aggravating factors
in petitioner's background. 164 F. Supp. 2d, at 559. Indeed,
counsel uncovered no evidence in their investigation to suggest
that a mitigation case, in its own right, would have been
counterproductive, or that further investigation would have been
fruitless; this case is therefore distinguishable from our
precedents in which we have found limited investigations into
mitigating evidence to be reasonable. See,
e. g., Strickland,
supra, at 699 (concluding that counsel could "reasonably
surmise ... that character and psychological evidence would be of
little help");
Burger v. Kemp,
483 U. S. 776, 794 (1987)
(concluding counsel's limited investigation was reasonable because
he interviewed all witnesses brought to his attention, discovering
little that was helpful and much that was harmful);
Darden
v.
Wainwright, 477 U. S. 168, 186 (1986)
(concluding that counsel engaged in extensive preparation and that
the decision to present a mitigation case would have resulted in
the jury hearing evidence that petitioner had been convicted of
violent crimes and spent much of his life in jail). Had counsel
investigated further, they might well have discovered the sexual
abuse later revealed during state postconviction proceedings.
526
The record of the actual sentencing proceedings underscores the
unreasonableness of counsel's conduct by suggesting that their
failure to investigate thoroughly resulted from inattention, not
reasoned strategic judgment. Counsel sought, until the day before
sentencing, to have the proceedings bifurcated into a retrial of
guilt and a mitigation stage. See
supra, at 515. On the eve
of sentencing, counsel represented to the court that they were
prepared to come forward with mitigating evidence, App. 45, and
that they intended to present such evidence in the event the court
granted their motion to bifurcate. In other words, prior to
sentencing, counsel never actually abandoned the possibility that
they would present a mitigation defense. Until the court denied
their motion, then, they had every reason to develop the most
powerful mitigation case possible.
What is more, during the sentencing proceeding itself, counsel
did not focus exclusively on Wiggins' direct responsibility for the
murder. After introducing that issue in her opening statement, id.,
at 70-71, Nethercott entreated the jury to consider not just what
Wiggins "is found to have done," but also "who [he] is."
Id., at 70. Though she told the jury it would "hear that
Kevin Wiggins has had a difficult life," id., at 72, counsel never
followed up on that suggestion with details of Wiggins' history. At
the same time, counsel called a criminologist to testify that
inmates serving life sentences tend to adjust well and refrain from
further violence in prison-testimony with no bearing on whether
petitioner committed the murder by his own hand.
Id., at
311-312. Far from focusing exclusively on petitioner's direct
responsibility, then, counsel put on a halfhearted mitigation case,
taking precisely the type of " 'shotgun'" approach the Maryland
Court of Appeals concluded counsel sought to avoid. Wig
gins
v.
State, 352 Md., at 609, 724 A. 2d, at 15. When viewed in
this light, the "strategic decision" the state courts and
respondents all invoke to justify counsel's limited pursuit of
mitigating evidence resembles more a
post hoc
rationaliza-
527
tion of counsel's conduct than an accurate description of their
deliberations prior to sentencing.
In rejecting petitioner's ineffective assistance claim, the
Maryland Court of Appeals appears to have assumed that because
counsel had
some information with respect to petitioner's
background-the information in the PSI and the DSS records-they were
in a position to make a tactical choice not to present a mitigation
defense.
Id., at 611-612, 724 A. 2d, at 17 (citing federal
and state precedents finding ineffective assistance in cases in
which counsel failed to conduct an investigation of any kind). In
assessing the reasonableness of an attorney's investigation,
however, a court must consider not only the quantum of evidence
already known to counsel, but also whether the known evidence would
lead a reasonable attorney to investigate further. Even assuming
Schlaich and Nethercott limited the scope of their investigation
for strategic reasons,
Strickland does not establish that a
cursory investigation automatically justifies a tactical decision
with respect to sentencing strategy. Rather, a reviewing court must
consider the reasonableness of the investigation said to support
that strategy. 466 U. S., at 691.
The Maryland Court of Appeals' application of
Strickland's governing legal principles was objectively
unreasonable. Though the state court acknowledged petitioner's
claim that counsel's failure to prepare a social history "did not
meet the minimum standards of the profession," the court did not
conduct an assessment of whether the decision to cease all
investigation upon obtaining the PSI and the DSS records actually
demonstrated reasonable professional judgment.
Wiggins v.
State, 352 Md., at 609, 724 A. 2d, at 16. The state court
merely assumed that the investigation was adequate. In light of
what the PSI and the DSS records actually revealed, however,
counsel chose to abandon their investigation at an unreasonable
juncture, making a fully informed decision with respect to
sentencing strategy
528
impossible. The Court of Appeals' assumption that the
investigation was adequate,
ibid., thus reflected an
unreasonable application of
Strickland. 28 U. S. C. §
2254(d)(1). As a result, the court's subsequent deference to
counsel's strategic decision not "to present every conceivable
mitigation defense," 352 Md., at 610, 724 A. 2d, at 16, despite the
fact that counsel based this alleged choice on what we have made
clear was an unreasonable investigation, was also objectively
unreasonable. As we established in
Strickland, "strategic
choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments
support the limitations on investigation." 466 U. S., at
690-691.
Additionally, the court based its conclusion, in part, on a
clear factual error-that the "social service records ... recorded
incidences of ... sexual abuse." 352 Md., at 608-609, 724 A. 2d, at
15. As the State and the United States now concede, the records
contain no mention of sexual abuse, much less of the repeated
molestations and rapes of petitioner detailed in the Selvog report.
Brief for Respondents 22; Brief for United States as
Amicus
Curiae 26; App. to Pet. for Cert. 175a-179a, 190a. The state
court's assumption that the records documented instances of this
abuse has been shown to be incorrect by "clear and convincing
evidence," 28 U. S. C. § 2254(e)(1), and reflects "an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding," § 2254(d)(2). This partial reliance on
an erroneous factual finding further highlights the
unreasonableness of the state court's decision.
The dissent insists that this Court's hands are tied, under §
2254(d), "by the state court's factual determinations that Wiggins'
trial counsel
'did investigate and
were aware of
[Wiggins'] background,'"
post, at 550. But as we have made
clear, the Maryland Court of Appeals' conclusion that the
scope of counsel's investigation into petitioner's
background met the legal standards set in
Strickland
repre-
529
sented an objectively unreasonable application of our precedent.
§ 2254(d)(1). Moreover, the court's assumption that counsel learned
of a major aspect of Wiggins' background, i.
e., the sexual
abuse, from the DSS records was clearly erroneous. The requirements
of § 2254(d) thus pose no bar to granting petitioner habeas
relief.
2
In their briefs to this Court, the State and the United States
contend that counsel, in fact, conducted a more thorough
investigation than the one we have just described. This conclusion,
they explain, follows from Schlaich's postconviction testimony that
he knew of the sexual abuse Wiggins suffered, as well as of the
hand-burning incident. According to the State and its
amicus, the fact that counsel claimed to be aware of this
evidence, which was not in the social services records, coupled
with Schlaich's statement that he knew what was in "other people's
reports," App. 490491, suggests that counsel's investigation must
have extended beyond the social services records. Tr. of Oral Arg.
31-36; Brief for United States as
Amicus Curiae 26-27, n. 4;
Brief for Respondents 35. Schlaich simply "was not asked to and did
not reveal the source of his knowledge" of the abuse. Brief for
United States as
Amicus Curiae 27, n. 4.
In considering this reading of the state postconviction record,
we note preliminarily that the Maryland Court of Appeals clearly
assumed both that counsel's investigation began and ended with the
PSI and the DSS records and that this investigation was sufficient
in scope to satisfy
Strickland's reasonableness requirement.
See
Wiggins v.
State, 352 Md., at 608, 724 A. 2d, at
15. The court also assumed, erroneously, that the social services
records cited incidences of sexual abuse. See id., at 608-609, 724
A. 2d, at 15. Respondents' interpretation of Schlaich's
postconviction testimony therefore has no bearing on whether the
Maryland Court of
530
Appeals' decision reflected an objectively unreasonable
application of
Strickland.
In its assessment of the Maryland Court of Appeals' opinion, the
dissent apparently does not dispute that if counsel's investigation
in this case had consisted exclusively of the PSI and the DSS
records, the court's decision would have constituted an
unreasonable application of
Strickland. See
post, at
543-544. Of necessity, then, the dissent's primary contention is
that the Maryland Court of Appeals
did decide that Wiggins'
counsel looked beyond the PSI and the DSS records and that we must
therefore defer to that finding under § 2254(e)(1). See
post, at 544-551.
Had the court found that counsel's
investigation extended beyond the PSI and the DSS records, the
dissent, of course, would be correct that § 2254(e) would require
that we defer to that finding. But the state court made no such
finding.
The dissent bases its conclusion on the Maryland Court of
Appeals' statements that" '[c]ounsel were aware that appellant had
a most unfortunate childhood,'" and that" 'counsel
did
investigate and
were aware of appellant's background.'" See
post, at 540, 545 (quoting
Wiggins v.
State,
supra, at 608, 610, 724 A. 2d, at 15, 16). But the state
court's description of how counsel learned of petitioner's
childhood speaks for itself. The court explained: "Counsel were
aware that appellant had a most unfortunate childhood. Mr. Schlaich
had available to him not only the pre-sentence investigation report
... but also more detailed social service records." See 352 Md., at
608-609, 724 A. 2d, at 15. This construction reflects the state
court's understanding that the investigation consisted of the two
sources the court mentions. Indeed, when describing counsel's
investigation into petitioner's background, the court never so much
as implies that counsel uncovered any source other than the PSI and
the DSS records. The court's conclusion that counsel were aware of
"incidences of ... sexual abuse" does not suggest otherwise, cf.
supra, at 518, because the court assumed that counsel
531
learned of such incidents from the social services records.
Wiggins v.
State, 352 Md., at 608-609, 724 A. 2d, at
15.
The court's subsequent statement that, "as noted, counsel
did investigate and
were aware of appellant's
background," underscores our conclusion that the Maryland Court of
Appeals assumed counsel's investigation into Wiggins' childhood
consisted of the PSI and the DSS records. The court's use of the
phrase "as noted," which the dissent ignores, further confirms that
counsel's investigation consisted of the sources previously
described, i.
e., the PSI and the DSS records. It is the
dissent, therefore, that "rests upon a fundamental fallacy,"
post, at 544-that the Maryland Court of Appeals determined
that Schlaich's investigation extended beyond the PSI and the DSS
records.
We therefore must determine,
de novo, whether counsel
reached beyond the PSI and the DSS records in their investigation
of petitioner's background. The record as a whole does not support
the conclusion that counsel conducted a more thorough investigation
than the one we have described. The dissent, like the State and the
United States, relies primarily on Schlaich's postconviction
testimony to establish that counsel investigated more extensively.
But the questions put to Schlaich during his postconviction
testimony all referred to what he knew from the social services
records; the line of questioning, after all, first directed him to
his discovery of those documents. His subsequent reference to
"other people's reports," made in direct response to a question
concerning petitioner's mental retardation, appears to be an
acknowledgment of the psychologist's reports we know counsel
commissioned-reports that also revealed nothing of the sexual abuse
Wiggins experienced. App. 349. As the state trial judge who heard
this testimony concluded at the close of the proceedings, there is
"no reason to believe that [counsel] did have all of this
information."
Id., at 606 (emphasis added).
532
The State maintained at oral argument that Schlaich's reference
to "other people's reports" indicated that counsel learned of the
sexual abuse from sources other than the PSI and the DSS records.
Tr. of Oral Arg. 31, 33, 35. But when pressed repeatedly to
identify the sources counsel might have consulted, the State
acknowledged that no written reports documented the sexual abuse
and speculated that counsel must have learned of it through "[o]ral
reports" from Wiggins himself.
Id., at 36. Not only would
the phrase "other people's reports" have been an unusual way for
counsel to refer to conversations with his client, but the record
contains no evidence that counsel ever pursued this line of
questioning with Wiggins. See id., at 24-25. For its part, the
United States emphasized counsel's retention of the psychologist.
Id., at 51; Brief for United States as
Amicus Curiae
27. But again, counsel's decision to hire a psychologist sheds no
light on the extent of their investigation into petitioner's social
background. Though Stejskal based his conclusions on clinical
interviews with Wiggins, as well as meetings with Wiggins' family
members, Lodging of Petitioner, his final report discussed only
petitioner's mental capacities and attributed nothing of what he
learned to Wiggins' social history.
To further underscore that counsel did not know, prior to
sentencing, of the sexual abuse, as well as of the other incidents
not recorded in the DSS records, petitioner directs us to the
content of counsel's October 17, 1989, proffer. Before closing
statements and outside the presence of the jury, Schlaich proffered
to the court the mitigation case counsel would have introduced had
the court granted their motion to bifurcate. App. 349-351. In his
statement, Schlaich referred only to the results of the
psychologist's test and mentioned nothing of Wiggins' troubled
background. Given that the purpose of the proffer was to preserve
their pursuit of bifurcation as an issue for appeal, they had every
incentive to make their mitigation case seem as strong as
possible.
533
Counsel's failure to include in the proffer the powerful
evidence of repeated sexual abuse is therefore explicable only if
we assume that counsel had no knowledge of the abuse.
Contrary to the dissent's claim, see
post, at 547, we are
not accusing Schlaich of lying. His statements at the
postconviction proceedings that he knew of this abuse, as well as
of the hand-burning incident, may simply reflect a mistaken memory
shaped by the passage of time. After all, the state postconviction
proceedings took place over four years after Wiggins' sentencing.
Ultimately, given counsel's likely ignorance of the history of
sexual abuse at the time of sentencing, we cannot infer from
Schlaich's postconviction testimony that counsel looked further
than the PSI and the DSS records in investigating petitioner's
background. Indeed, the record contains no mention of sources other
than those it is undisputed counsel possessed, see
supra, at
523-524. We therefore conclude that counsel's investigation of
petitioner's background was limited to the PSI and the DSS
records.
3
In finding that Schlaich and Nethercott's investigation did not
meet
Strickland's performance standards, we emphasize 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 at sentencing. Nor does
Strickland require defense counsel to present mitigating
evidence at sentencing in every case. Both conclusions would
interfere with the "constitutionally protected independence of
counsel" at the heart of
Strickland. 466 U. S., at 689. We
base our conclusion on the much more limited principle that
"strategic choices made after less than complete investigation are
reasonable" only to the extent that "reasonable professional
judgments support the limitations on investigation."
Id., at
690-691. A decision not to investigate thus "must be directly
assessed for reasonableness in all the circumstances."
Id.,
at 691.
534
Counsel's investigation into Wiggins' background did not reflect
reasonable professional judgment. Their decision to end their
investigation when they did was neither consistent with the
professional standards that prevailed in 1989, nor reasonable in
light of the evidence counsel uncovered in the social services
records-evidence that would have led a reasonably competent
attorney to investigate further. Counsel's pursuit of bifurcation
until the eve of sentencing and their partial presentation of a
mitigation case suggest that their incomplete investigation was the
result of inattention, not reasoned strategic judgment. In
deferring to counsel's decision not to pursue a mitigation case
despite their unreasonable investigation, the Maryland Court of
Appeals unreasonably applied
Strickland. Furthermore, the
court partially relied on an erroneous factual assumption. The
requirements for habeas relief established by 28 U. S. C. § 2254(d)
are thus satisfied.
III
In order for counsel's inadequate performance to constitute a
Sixth Amendment violation, petitioner must show that counsel's
failures prejudiced his defense.
Strickland, 466 U. S., at
692. In
Strickland, we made clear that, to establish
prejudice, a "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. In assessing prejudice, we
reweigh the evidence in aggravation against the totality of
available mitigating evidence. In this case, our review is not
circumscribed by a state court conclusion with respect to
prejudice, as neither of the state courts below reached this prong
of the
Strickland analysis.
The mitigating evidence counsel failed to discover and present
in this case is powerful. As Selvog reported based on his
conversations with Wiggins and members of his fam-
535
ily, see Reply Brief for Petitioner 18-19, Wiggins experienced
severe privation and abuse in the first six years of his life while
in the custody of his alcoholic, absentee mother. He suffered
physical torment, sexual molestation, and repeated rape during his
subsequent years in foster care. The time Wiggins spent homeless,
along with his diminished mental capacities, further augment his
mitigation case. Petitioner thus has the kind of troubled history
we have declared relevant to assessing a defendant's moral
culpability.
Penry v.
Lynaugh, 492 U. S. 302, 319 (1989)
(" '[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 ... may be less culpable than defendants
who have no such excuse' "); see also
Eddings v.
Oklahoma, 455
U. S. 104, 112 (1982) (noting that consideration of the
offender's life history is a "'part of the process of inflicting
the penalty of death' ");
Lockett v.
Ohio, 438 U. S. 586, 604 (1978)
(invalidating Ohio law that did not permit consideration of aspects
of a defendant's background).
Given both the nature and the extent of the abuse petitioner
suffered, we find there to be a reasonable probability that a
competent attorney, aware of this history, would have introduced it
at sentencing in an admissible form. While it may well have been
strategically defensible upon a reasonably thorough investigation
to focus on Wiggins' direct responsibility for the murder, the two
sentencing strategies are not necessarily mutually exclusive.
Moreover, given the strength of the available evidence, a
reasonable attorney might well have chosen to prioritize the
mitigation case over the direct responsibility challenge,
particularly given that Wiggins' history contained little of the
double edge we have found to justify limited investigations in
other cases. Cf.
Burger v.
Kemp, 483 U. S. 776 (1987);
Darden v.
Wainwright, 477 U. S. 168 (1986).
536
The dissent nevertheless maintains that Wiggins' counsel would
not have altered their chosen strategy of focusing exclusively on
Wiggins' direct responsibility for the murder. See
post, at
553-554. But as we have made clear, counsel were not in a position
to make a reasonable strategic choice as to whether to focus on
Wiggins' direct responsibility, the sordid details of his life
history, or both, because the investigation supporting their choice
was unreasonable. See
supra, at 524-527. Moreover, as we
have noted, see
supra, at 526, Wiggins' counsel did
not focus solely on Wiggins' direct responsibility. Counsel
told the sentencing jury "[y]ou're going to hear that Kevin Wiggins
has had a difficult life," App. 72, but never followed up on this
suggestion.
We further find that had the jury been confronted with this
considerable mitigating evidence, there is a reasonable probability
that it would have returned with a different sentence. In reaching
this conclusion, we need not, as the dissent suggests,
post,
at 554-556, make the state-law evidentiary findings that would have
been at issue at sentencing. Rather, we evaluate the totality of
the evidence-"both that adduced at trial,
and the evidence
adduced in the habeas proceeding[s]." Williams v.
Taylor, 529 U. S., at 397-398 (emphasis added).
In any event, contrary to the dissent's assertion, it appears
that Selvog's report may have been admissible under Maryland law.
In
Whittlesey v.
State, 340 Md. 30, 665 A. 2d 223
(1995), the Maryland Court of Appeals vacated a trial court
decision excluding, on hearsay grounds, testimony by Selvog
himself. The court instructed the trial judge to exercise its
discretion to admit "any relevant and reliable mitigating evidence,
including hearsay evidence that might not be admissible in the
guilt-or-innocence phase of the trial."
Id., at 73, 665 A.
2d, at 244. This "relaxed standard," the court observed, would
provide the factfinder with "the opportunity to consider 'any
aspect of a defendant's character or record ... that the defendant
proffers as a basis for a sentence less
537
than death.'"
Ibid. See also
Ball v.
State,
347 Md. 156, 172-173, 699 A. 2d 1170, 1177 (1997) (noting that the
trial judge had admitted Selvog's social history report on the
defendant). While the dissent dismisses the contents of the social
history report, calling Wiggins a "liar" and his claims of sexual
abuse "uncorroborated gossip,"
post, at 554, 555, Maryland
appears to consider this type of evidence relevant at sentencing,
see
Whittlesey, supra, at 71, 665 A. 2d, at 243 ("The
reasons for relaxing the rules of evidence apply with particular
force in the death penalty context"). Not even the State contests
that Wiggins suffered from the various types of abuse and neglect
detailed in the PSI, the DSS records, and Selvog's social history
report.
Wiggins' sentencing jury heard only one significant mitigating
factor-that Wiggins had no prior convictions. Had the jury been
able to place petitioner's excruciating life history on the
mitigating side of the scale, there is a reasonable probability
that at least one juror would have struck a different balance. Cf.
Borchardt v.
State, 367 Md. 91, 139-140, 786 A. 2d
631, 660 (2001) (noting that as long as a single juror concludes
that mitigating evidence outweighs aggravating evidence, the death
penalty cannot be imposed); App. 369 (instructing the jury: "If you
unanimously find that the State has proven by a preponderance of
the evidence that the aggravating circumstance does outweigh the
mitigating circumstances, then consider whether death is the
appropriate sentence").
Moreover, in contrast to the petitioner in
Williams v.
Taylor, supra, Wiggins does not have a record of violent
conduct that could have been introduced by the State to offset this
powerful mitigating narrative. Cf. id., at 418 (REHNQUIST, C. J.,
dissenting) (noting that Williams had savagely beaten an elderly
woman, stolen two cars, set fire to a home, stabbed a man during a
robbery, and confessed to choking two inmates and breaking a fellow
prisoner's jaw). As the Federal District Court found, the
mitigating evidence in this case is
538
stronger, and the State's evidence in support of the death
penalty far weaker, than in
Williams, where we found
prejudice as the result of counsel's failure to investigate and
present mitigating evidence.
Id., at 399. We thus conclude
that the available mitigating evidence, taken as a whole, "might
well have influenced the jury's appraisal" of Wiggins' moral
culpability.
Id., at 398. Accordingly, the judgment of the
United States Court of Appeals for the Fourth Circuit is reversed,
and the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
The Court today vacates Kevin Wiggins' death sentence on the
ground that his trial counsel's investigation of potential
mitigating evidence was "incomplete."
Ante, at 534. Wiggins'
trial counsel testified under oath, however, that he was aware of
the basic features of Wiggins' troubled childhood that the Court
claims he overlooked. App. 490-491. The Court chooses to disbelieve
this testimony for reasons that do not withstand analysis.
Moreover, even if this disbelief could plausibly be entertained,
that would certainly not establish (as 28 U. S. C. § 2254(d)
requires) that the Maryland Court of Appeals was
unreasonable in believing it, and in therefore concluding
that counsel adequately investigated Wiggins' background. The Court
also fails to observe § 2254(e)(1)'s requirement that federal
habeas courts respect state-court factual determinations not
rebutted by "clear and convincing evidence." The decision sets at
naught the statutory scheme we once described as a "highly
deferential standard for evaluating state-court rulings,"
Lindh v.
Murphy,
521 U. S. 320, 333, n. 7
(1997). I respectfully dissent.
I
Wiggins claims that his death sentence violates
Strickland
539
neys, had they further investigated his background, would have
learned-and could have presented to the jury-the following
evidence: (1) According to family members, Wiggins' mother was an
alcoholic who neglected her children and failed to feed them
properly, App. to Pet. for Cert. 165a-169a; (2) according to
Wiggins and his sister India, Wiggins' mother intentionally burned
5-year-old Wiggins' hands on a kitchen stove as punishment for
playing with matches, id., at 169a-171a; (3) Wiggins was placed in
foster care at age six because of his mother's neglect, and was
moved in and out of various foster families, id., at 173a-192a; (4)
according to Wiggins, one of his foster parents sexually abused him
"'two or three times a week, sometimes everyday,'" when he was
eight years old, id., at 177a-179a; (5) according to Wiggins, at
age 16 he was knocked unconscious and raped by two of his foster
mother's teenage children, id., at 190a; (6) according to Wiggins,
when he joined the Job Corps at age 18 a Job Corps administrator
"made sexual advances ... and they became sexually involved," id.,
at 192a-193a (later, according to Wiggins, the Job Corps supervisor
drugged him and when Wiggins woke up, he "knew he had been anally
penetrated," id., at 193a); and (7) Wiggins is "'borderline'"
mentally retarded, id., at 193a-194a. All this information is
contained in a "social history" report prepared by social worker
Hans Selvog for use in the state postconviction proceedings.
In those proceedings, Carl Schlaich (one of Wiggins' two trial
attorneys) testified that, although he did not retain a social
worker to assemble a "social history" report, he nevertheless had
detailed knowledge of Wiggins' background:
"'Q But you knew that Mr. Wiggins, Kevin Wiggins, had been
removed from his natural mother as a result of a finding of neglect
and abuse when he was six years old, is that correct?
"'A I believe that we tracked all of that down.
540
"'Q You got the Social Service records? "'A That is what I
recall.
"'Q That was in the Social Service records? "'A Yes.
"'Q SO you knew that? "'A Yes.
"'Q You also knew that where
[sic] were reports of sexual
abuse at one of his foster homes?
"'A Yes.
"'Q Okay. You also knew that he had had his hands burned as a
child as a result of his mother's abuse of him?
"'A Yes.
" 'Q You also knew about homosexual overtures made toward him by
his Job Corp supervisor?
"'A Yes.
"'Q And you also knew that he was borderline mentally
retarded?
"'A Yes.
"'Q You knew all-
"'A At least I knew that as it was reported in other people's
reports, yes.
"'Q But you knew it?
"'A Yes.'" App. 490-491.
In light of this testimony, the Maryland Court of Appeals found
that "counsel did investigate and
were aware of [Wiggins']
background,"
Wiggins v.
State, 352 Md. 580, 610, 724
A. 2d, 1, 16 (1999) (emphasis in original), and, specifically, that
"[c]ounsel were aware that [Wiggins] had a most unfortunate
childhood," id., at 608, 724 A. 2d, at 15. These statecourt
determinations of factual issues are binding on federal habeas
courts, including this Court, unless rebutted by clear
541
and convincing evidence.1 Relying on these factual findings, the
Maryland Court of Appeals rejected Wiggins' claim that his trial
attorneys failed adequately to investigate potential mitigating
evidence. Wiggins' trial counsel, it said, "did not have as
detailed or graphic a history as was prepared by Mr. Selvog, but
that is not a Constitutional deficiency.
See Gilliam v.
State, 331 Md. 651, 680-82, 629 A. 2d 685, 700-02
(1993),
cert. denied, 510 U. S. 1077 ... (1994);
Burger v. Kemp,
483 U. S. 776,
788-96 ... (1987)."
Id., at 610, 724 A. 2d, at 16.
The state court having adjudicated Wiggins' Sixth Amendment
claim on the merits, 28 U. S. C. § 2254(d) bars habeas relief
unless the 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," §
2254(d)(1), or "was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding," § 2254(d)(2). The Court concludes without foundation
that the Maryland Court of Appeals' decision failed both these
tests. I shall discuss each in turn.
A
In concluding that the Maryland Court of Appeals
un
reasonably applied our clearly established precedents, the
Court disregards § 2254(d)(1)'s command that only "clearly
established Federal law, as determined by the Supreme Court of the
United States," be used in assessing the reasonableness of
state-court decisions. Further, the Court misdescribes the state
court's opinion while ignoring § 2254(e)(1)'s
1 Title 28 U. S. C. § 2254(e)(1) provides:
"In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a
State court, a determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and
convincing evidence."
542
requirement that federal habeas courts respect state-court
factual determinations.
1
We have defined "clearly established Federal law, as determined
by the Supreme Court of the United States," to encompass "the
holdings ... of this Court's decisions
as of the time of the
relevant state-court decision." Williams v.
Taylor, 529 U. S. 362, 412 (2000)
(emphasis added). Yet in discussing what our precedents have
"clearly established" with respect to ineffectiveness claims, the
Court relies upon a
case-Williams v.
Taylor, supra-that
postdates the Maryland court's decision rejecting Wiggins'
Sixth Amendment claim. See
ante, at 522. The Court concedes
that
Williams was not "clearly established Federal law" at
the time of the Maryland Court of Appeals' decision,
ante,
at 522, yet believes that it may ignore § 2254(d)'s strictures on
the ground that "Williams' case was before us on habeas review[,
and] we therefore made no new law in resolving [his]
ineffectiveness claim,"
ibid. The Court is wrong-in both its
premise and its conclusion.
Although
Williams was a habeas case, we reviewed the
first prong of the habeas petitioner's
Strickland
claimthe inadequate-performance question-de
novo. Williams
had surmounted § 2254(d)'s bar to habeas relief because we held
that the Virginia Supreme Court's analysis with respect to
Strickland's second prong-the
prejudice prong-was
both "contrary to," and "an unreasonable application of," our
clearly established precedents. See
Williams, supra, at
393-394, 397. That left us free to provide habeas reliefand since
the State had not raised a
Teague defense, see
Teague
v.
Lane, 489
U. S. 288 (1989), we proceeded to analyze the
inadequate-performance contention
de novo, rather than under
"clearly established" law. That is clear from the fact that we
cited no cases in our discussion of the inadequateperformance
question, see 529 U. S., at 395-396. The Court is mistaken to
assert that this discussion "made no new law,"
543
ante, at 522. There was nothing in
Strickland, or
in any of our "clearly established" precedents at the time of the
Virginia Supreme Court's decision, to support
Williams'
statement that trial counsel had an "obligation to conduct a
thorough investigation of the defendant's background," 529 U. S.,
at 396. That is why the citation supporting the statement is not
one of our opinions, but rather standards promulgated by the
American Bar Association,
ibid. (citing 1 ABA Standards for
Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed. 1980)). Insofar
as this Court's cases were concerned,
Burger v.
Kemp,
483 U. S. 776,
794 (1987), had
rejected an ineffective-assistance claim
even though acknowledging that trial counsel "could well have made
a more thorough investigation than he did." And
Strickland
had eschewed the imposition of such "rules" on counsel, 466 U. S.,
at 688-689, specifically stating that the very ABA standards upon
which
Williams later relied "are guides to determining what
is reasonable,
but they are only guides." 466 U. S., at 688
(emphasis added).
Williams did make new law-law that was
not "clearly established" at the time of the Maryland Court
of Appeals' decision.
But even if the Court were correct in its characterization of
Williams, that
still cannot justify its decision to
ignore an Act of Congress. Whether
Williams "made new law"
or not, what
Williams held was not clearly established
Supreme Court precedent
as of the time of the state court's
decision, and cannot be used to find fault in the state-court
opinion. Section 2254(d)(1) means what it says, and the Court
simply defies the congressionally imposed limits on federal habeas
review.
2
The Court concludes that
Strickland was applied
unreasonably (and § 2254(d)(1) thereby satisfied) because the
Maryland Court of Appeals' conclusion that trial counsel adequately
investigated Wiggins' background, see
Wiggins, 352 Md., at
610, 724 A. 2d, at 16, was unreasonable. That assess-
544
ment cannot possibly be sustained, particularly in light of the
state court's factual determinations that bind this Court under §
2254(e)(1). The Court's analysis of this point rests upon a
fundamental fallacy: that the state court "clearly assumed that
counsel's investigation began and ended with the PSI and the DSS
records,"
ante, at 529. That is demonstrably not so. The
state court did observe that Wiggins' trial attorneys "had
available" the presentence investigation (PSI) report and the
Maryland Department of Social Services (DSS) reports,
Wiggins,
supra, at 608-609, 724 A. 2d, at 15-16, but there is absolutely
nothing in the state-court opinion that says (or assumes) that
these were the
only sources on which counsel relied. It is
rather
this Court that makes such an assumption-or rather,
such a bald assertion, see
ante, at 527 (asserting that
counsel "cease[d] all investigation" upon receipt of the PSI and
DSS reports);
ante, at 524 (referring to "[c]ounsel's
decision not to expand their investigation beyond the PSI and DSS
records").
Nor
could the Maryland Court of Appeals have "assumed"
that Wiggins' trial counsel looked no further than the PSI and DSS
reports, because the state-court record is clear that Wiggins'
trial attorneys had investigated well beyond these sources.
Public-defender investigators interviewed Wiggins' family members,
see Defendant's Supplemental Answer to State's Discovery Request
filed in No. 88-CR-5464 (Cir. Ct. Baltimore Cty., Md., Sept. 18,
1989), Lodging of Respondents, and Wiggins' trial attorneys hired a
psychologist, Dr. William Stejskal (who reviewed the DSS records,
conducted clinical interviews, and performed six different
psychological tests of Wiggins, ibid.; App. 349-351), and a
criminologist, Dr. Robert Johnson (who interviewed Wiggins and
testified that Wiggins would adjust adequately to life in prison,
id., at 319-321). Schlaich also testified in the state
postconviction proceedings that he knew information about Wiggins'
background that was not contained in the DSS or PSI reports-such as
the allegation that Wiggins' mother
545
burned his hands as a child,
id., at 490-so Schlaich
must have investigated sources beyond these reports.
As the Court notes,
ante, at 529-530, the Maryland Court
of Appeals did not expressly state that counsel's investigation
extended beyond the PSI and DSS records. There was no reason
whatever to do so, since it had found that "counsel
did
investigate and
were aware of appellant's background,"
Wiggins, supra, at 610, 724 A. 2d, at 16, and since that
finding was based on a state-court record that clearly demonstrates
investigation beyond the PSI and DSS reports. The court's failure
to recite what is obvious from the record surely provides no basis
for believing that it stupidly "assumed" the opposite of what is
obvious from the record.
Once one eliminates the Court's mischaracterization of the
state-court opinion-which did not and could not have "assumed" that
Wiggins' counsel knew only what was contained in the DSS and PSI
reports-there is no basis for finding it "unreasonable" to believe
that counsel's investigation was adequate. As noted earlier,
Schlaich testified in the state postconviction proceedings that he
was aware of the essential items contained in the later-prepared
"social history" report. He knew that Wiggins was subjected to
neglect and abuse from his mother, App. 490, that there were
reports of sexual abuse at one of his foster homes,
ibid.,
that his mother had burned his hands as a child,
ibid., that
a Job Corps supervisor had made homosexual overtures toward him,
id., at 490-491, and that Wiggins was "'borderline'" mentally
retarded, id., at 491.2 Schlaich explained that, although he
2 The only incident contained in the "social history" report
about which Schlaich did not confirm knowledge was the occurrence
of sexual abuse in
more than one of Wiggins' foster homes.
And
that knowledge remained unconfirmed only because the
question posed asked him whether he knew of reports of abuse at
"'one' " of the foster homes. App. 490. The record does not show
that Schlaich knew of all these incidents in the degree of detail
contained in the "social history" report-but it does not show that
he did
not, either. In short, given Schlaich's testimony,
there is
no basis
546
was aware of all this potential mitigating evidence, he chose
not to present it to the jury for a strategic reason-namely, that
it would conflict with his efforts to persuade the jury that
Wiggins was not a "'principal'" in Mrs. Lacs's murder (i.
e., that he did not kill Lacs by his own hand).
Id.,
at 504-505.
There are only two possible responses to this testimony that
might salvage Wiggins' ineffective-assistance claim. The first
would be to declare that Schlaich had an inescapable
duty to
hire a social worker to construct a so-called "social history"
report,
regardless of Schlaich's pre-existing knowledge of
Wiggins' background. Petitioner makes this suggestion, see Brief
for Petitioner 32, n. 8 (asserting that it was "'a normative
standard'" at the time of Wiggins' case for capital defense lawyers
in Maryland to obtain a social history); and the Court flirts with
accepting it, see
ante, at 524 ("[P]rofessional standards
that prevailed in Maryland ... at the time of Wiggins' trial"
included, for defense of capital cases, "the preparation of a
social history report");
ibid. (citing ABA Guidelines for
the Appointment and Performance of Counsel in Death Penalty Cases
11.8.6, p. 133 (1989) (hereinafter ABA Guidelines), which says that
counsel should make efforts" 'to discover
all reasonably
available mitigating evidence'" (emphasis added by the Court)).
To think that the requirement of a "social history" was part of
"clearly established Federal law" (which is what § 2254(d)
requires) when the events here occurred would be absurd. Nothing in
our clearly established precedents requires counsel to retain a
social worker when he is already largely aware of his client's
background. To the contrary,
Strickland emphasizes that
"[t]here are countless ways to provide effective assistance in any
given case," 466 U. S., at 689, and further states that
"[p]revailing norms of practice as reflected in American Bar
Association standards and the like ... are
for finding that he was without knowledge of
anything in
the "social history" report.
547
guides to determining what is reasonable,
but they are only
guides," id., at 688. Cf.
ante, at 524 (treating the ABA
Guidelines as "well-defined norms"). It is inconceivable that
Schlaich, assuming he testified truthfully regarding his detailed
knowledge of Wiggins' troubled childhood, App. 490491, would need
to hire a social worker to comport with
Strickland's
competence standards. And it certainly would not have been
unreasonable for the Maryland Court of Appeals to conclude
otherwise.
The second possible response to Schlaich's testimony about his
extensive awareness of Wiggins' background is to assert that
Schlaich lied. The Court assumes
sub silentio throughout its
opinion that Schlaich was not telling the truth when he testified
that he knew of reports of sexual abuse in one of Wiggins' foster
homes, see,
e. g., ante, at 525 ("Had counsel investigated
further, they might well have discovered the sexual abuse later
revealed during state postconviction proceedings"), and eventually
declares straight-out that it disbelieves Schlaich,
ante, at
531-533. This conclusion rests upon a blatant mischaracterization
of the record, and an improper shifting of the burden of proof to
the State to demonstrate Schlaich's awareness of Wiggins'
background, rather than requiring Wiggins to prove Schlaich's
ignorance of it. But, more importantly, it is simply not enough for
the Court to conclude,
ante, at 533, that it "cannot infer
from Schlaich's postconviction testimony that counsel looked
further than the PSI and DSS reports in investigating petitioner's
background." If it is at least
reasonable to believe
Schlaich told the truth, then it could not have been
unreasonable for the Maryland Court of Appeals to conclude
that Wiggins' trial attorneys conducted an adequate investigation
into his background. See 28 U. S. C. § 2254(d)(1).
Schlaich's testimony must have been false, the Court insists,
because the social services records do not contain any evidence of
sexual abuse, and "the questions put to Schlaich during his
postconviction testimony all referred to what he
548
knew from the social services records."
Ante, at 531.
That is not true. Schlaich was
never asked "what he knew
from the social services records." With regard to the alleged
sexual abuse in particular, Schlaich answered" '[y]es'" to the
following question: "'You also knew that where
[sic] were
reports of sexual abuse at one of his foster homes?'" This question
did not "refe[r] to what [Schlaich] knew from the social services
records," as the Court declares; and neither, by the way, did
any of the other questions put to Schlaich regarding his
knowledge of Wiggins' background. See App. 490-491. Wiggins'
postconviction counsel simply never asked Schlaich to reveal the
source of his knowledge.
Schlaich's most likely source of knowledge of the alleged sexual
abuse was Wiggins himself; even Hans Selvog's extensive "social
history" report unearthed no documentation or corroborating
witnesses with respect to that claim.
Id., at 464; see App.
to Pet. for Cert. 177a, 193a. The Court, however, dismisses this
possibility for two reasons. First, because "the record contains no
evidence that counsel ever pursued this line of questioning with
Wiggins."
Ante, at 532. This statement calls for a timeout
to get our bearings: The burden of proof here is on
Wiggins
to show that counsel made their decision without adequate
knowledge. See
Strickland, 466 U. S., at 687. And when
counsel has testified, under oath, that he
did have
particular knowledge, the burden is not on counsel to show how he
obtained it, but on
Wiggins (if he wishes to impeach that
testimony) to show that counsel could not have obtained it. Thus,
the absence of evidence in the record as to whether or not Schlaich
pursued this line of questioning with Wiggins dooms, rather than
fortifies, Wiggins' ineffective-assistance claim. Wiggins has
produced no evidence that
anything in Hans Selvog's "social
history" report was unknown to Schlaich, and no evidence that any
source on which Selvog relied was not used by Schlaich.
549
The Court's second reason for rejecting the possibility that
Schlaich learned of the alleged sexual abuse from Wiggins is even
more incomprehensible. The Court claims that "the phrase 'other
people's reports' [would] have been an unusual way for counsel to
refer to conversations with his client."
Ante, at 532. But
Schlaich never used the phrase "other people's reports" in
describing how he learned of the alleged sexual abuse in Wiggins'
foster homes. Schlaich testified only that he learned of Wiggins'
borderline mental retardation as it was reported in "'other
people's reports''':
"'Q And you also knew that he was borderline mentally
retarded?
"'A Yes.
"'Q You knew all-
"'A At least I knew that as it was reported in other
people's reports, yes.
"'Q But you knew it?
"'A Yes.'" App. 490-491 (emphasis added).
It is clear that when Schlaich said, '''At least I knew
that as it was reported in other people's reports,'" id., at
491 (emphasis added), the" 'that'" to which he referred was the
fact that Wiggins was borderline mentally retarded-not the other
details of Wiggins' background which Schlaich had previously
testified he knew.
The Court's final reason for disbelieving Schlaich's sworn
testimony is his failure to mention the alleged sexual abuse in the
proffer of mitigating evidence he would introduce if the trial
court granted his motion to bifurcate. "Counsel's failure to
include in the proffer the powerful evidence of repeated sexual
abuse is ... explicable only if we assume that counsel had no
knowledge of the abuse."
Ante, at 533. But because the
only evidence of sexual abuse consisted of Wiggins' own
assertions, see App. 464; App. to Pet. for Cert. 177a, 193a
(evidence not exactly worthy of the Court's flattering description
as "powerful"),
there was nothing to prof-
550
fer unless Schlaich declared an intent to put Wiggins on the
stand. Given counsel's chosen trial strategy to prevent Wiggins
from testifying during the sentencing proceedings, the decision not
to mention sexual abuse in the proffer is perfectly consistent with
counsel's claimed knowledge of the alleged abuse.
Of course these reasons the Court offers-which range from the
incredible up to the feeble-are used only in support of the Court's
conclusion that,
in its independent judgment, Schlaich was
lying. The Court does not even attempt to establish (as it must)
that it was
objectively unreasonable for the state court to
believe Schlaich's testimony and therefore conclude that he
conducted an adequate investigation of Wiggins' background. It
could not possibly make this showing. Wiggins has not produced any
direct evidence that his attorneys were uninformed with respect to
anything in his background, and the Court can muster no
circumstantial evidence beyond the powerfully unconvincing fact
that Schlaich failed to mention the allegations of sexual abuse in
his proffer. To make things worse, the Court is
still bound
(though one would not know it from the opinion) by the state
court's factual determinations that Wiggins' trial counsel
"did investigate and
were aware of [Wiggins']
background,"
Wiggins, 352 Md., at 610, 724 A. 2d, at 16
(emphasis in original), and that "[c]ounsel were aware that
[Wiggins] had a most unfortunate childhood," id., at 608, 724 A.
2d, at 15. See 28 U. S. C. § 2254(e)(1).3 Because it is at least
reasonable to be-
3 The Court defends its refusal to adhere to these state-court
factual determinations on the ground that "the Maryland Court of
Appeals' conclusion that the
scope of counsel's
investigation ... met the legal standards set forth in
Strickland represented an objectively unreasonable
application of our precedent."
Ante, at 528-529. That is an
inadequate response, for several reasons. First, because in the
very course of determining
what was the scope of counsel's
investigation, the Court was bound to accept (as it did not) the
Maryland Court of Appeals' factual findings that counsel knew of
Wiggins' background, including his "most unfortunate childhood."
And it is an inadequate response, secondly, because even
551
lieve Schlaich's testimony, and because § 2254(e)(1) requires us
to respect the state court's factual determination that Wiggins'
trial attorneys were aware of Wiggins' background, the Maryland
Court of Appeals' legal conclusion-that trial counsel "did not have
as detailed or graphic a history as was prepared by Mr. Selvog,
but that is not a Constitutional deficiency," Wiggins,
supra, at 610, 724 A. 2d, at 16 (emphasis added)-is
unassailable under § 2254(d)(1).
B
The Court holds in the alternative that Wiggins has satisfied §
2254(d)(2), which allows a habeas petitioner to escape § 2254(d)'s
bar to relief when the state court's adjudication of his claim
"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." (Emphasis added.) This is so, the
Court says, because the Maryland Court of Appeals wrongly claimed
that Wiggins' social services records "recorded incidences of ...
sexual abuse." 352 Md., at 608-609, 724 A. 2d, at 15.
That it made that claim is true enough. And I will concede that
Wiggins has rebutted the presumption of correctness by the "clear
and convincing evidence" that § 2254(e)(1) requires. It is both
clear and convincing from reading the DSS records that they contain
no evidence of sexual abuse. I will also assume,
arguendo,
that the state court's error was "unreasonable" in light of the
evidence presented in the state-court proceeding.
Given all that, the Court's conclusion that a § 2254(d)(2) case
has been made out still suffers from the irreparable de-
after the Court concludes that the petitioner has avoided §
2254(d)'s bar to relief because of that misapplication of
Strickland (or because of the alleged mistaken factual
assumption "that counsel learned of ... sexual abuse ... from the
DSS records,"
ante, at 529), it
still must observe §
2254(e)(1)'s presumption of correctness in deciding the merits of
the habeas question. See
Miller-El v.
Cockrell,
537 U. S. 322,
341, 348 (2003).
552
fect that the Maryland Court of Appeals' decision was not "based
on" this mistaken factual determination. What difference did it
make whether the social services records contained evidence of
sexual abuse? Even if they did not, the court's decision would have
been the same in light of Schlaich's sworn testimony that he was
aware of the alleged sexual abuse. The
source of Schlaich's
knowledge-whether he obtained it from the DSS reports or from
Wiggins himself-was of no consequence. The only thing that mattered
was that Schlaich
knew, and testified under oath that he
knew, enough about Wiggins' background to make it reasonable to
proceed without a report by a social worker. The Court's opinion
does not even discuss this requirement of § 2254(d)(2), that the
unreasonable determination of facts be one on which the state-court
decision was
based.
II
The Court's indefensible holding that Wiggins has avoided §
2254(d)'s bar to relief is not alone enough to entitle Wiggins to
habeas relief on his Sixth Amendment claim. Wiggins
still
must establish that he was "prejudiced" by his counsel's alleged
"error."
Strickland, 466 U. S., at 691-696. Specifically,
Wiggins must demonstrate that, if his trial attorneys had retained
a licensed social worker to assemble a "social history" of their
client, there is a "reasonable probability" that (1) his attorneys
would have chosen to present the social history evidence to the
jury,
and (2) upon hearing that evidence, the jury would
have spared his life. The Court's analysis on these points
continues its disregard for the record in a determined procession
toward a seemingly preordained result.
There is no "reasonable probability" that a social-history
investigation would have altered the chosen strategy of Wiggins'
trial counsel. As noted earlier, Schlaich was well aware-without
the benefit of a "social history" report-that Wiggins had a
troubled childhood and background. And the
553
Court remains bound,
even after concluding that Wiggins
has satisfied the standards of §§ 2254(d)(1) and (d)(2), by the
state court's factual determination that Wiggins' trial attorneys
"were aware of [Wiggins'] background,"
Wiggins, 352
Md., at 610, 724 A. 2d, at 16 (emphasis in original), and "were
aware that [Wiggins] had a most unfortunate childhood," id., at
608, 724 A. 2d, at 15. See 28 U. S. C. § 2254(e)(1). Wiggins' trial
attorneys chose, however, not to present evidence of Wiggins'
background to the jury because of their "deliberate, tactical
decision to concentrate their effort at convincing the jury that
appellant was not a principal in the killing of Ms. Lacs."
Wiggins, supra, at 608, 724 A. 2d, at 15.
Wiggins has not shown that the incremental information in Hans
Selvog's social-history report would have induced counsel to change
this course. Schlaich testified under oath that presenting the type
of evidence in Selvog's report would have conflicted with his
chosen defense strategy to raise doubts as to Wiggins' role as a
principal, and that he wanted to avoid a "shotgun approach" with
the jury. App. 504-505.4 (This testimony is entirely unrefuted by
the Court's statement that
at the time of trial counsel
"were not in a position to make a reasonable strategic choice,"
because of their alleged inadequate investigation,
ante, at
536. Schlaich presented this testimony in state postconviction
proceedings, when
there was no doubt he was fully aware of
the details of Wiggins' background. See App. 490-491.) It is
irrelevant whether a hypothetical "reasonable attorney" might have
introduced evidence of alleged sexual abuse,
ante, at
535-536;
Wiggins' attorneys would
not have done so,
and therefore
4 Introducing evidence that Wiggins suffered semiweekly (or
perhaps daily) sexual abuse as a child, for example, could have led
the jury to conclude that this horrible experience made Wiggins
precisely the type of person who could perpetrate this bizarre
crime-in which a 77-year-old woman was found drowned in the bathtub
of her apartment, clothed but missing her underwear, and sprayed
with Black Flag Ant and Roach Killer.
554
Wiggins was not prejudiced by their allegedly inadequate
investigation. There is simply
nothing to show (and the
Court does not even dare to
assert) that there is a
"reasonable probability" this evidence would have been introduced
in this case. Ante, at 535-536.
What is more, almost all of Selvog's social-history evidence was
inadmissible at the time of Wiggins' trial. Maryland law
provides that evidence in a capital sentencing proceeding must be
"reliable" to be admissible, see
Whittlesey v.
State,
340 Md. 30, 70, 665 A. 2d 223, 243 (1995), and many of the
anecdotes regarding Wiggins' childhood consist of the baldest
hearsay-statements that have been neither taken in court, nor given
under oath, nor subjected to crossexamination, nor even submitted
in the form of a signed affidavit. Consider, for example, the
allegation that Wiggins' foster father sexually abused him "'two or
three times a week, sometimes everyday,'" App. to Pet. for Cert.
177a. The
only source of that information was Wiggins
himself, in his unsworn and un-cross-examined interview with Hans
Selvog. There is absolutely no documentation or corroboration of
the claim, App. 464, and the allegedly abusive foster parent is
apparently deceased, id., at 470. Wiggins was, however, examined by
a pediatrician during the time that this supposed biweekly or daily
sexual abuse occurred, and the pediatrician's report mentioned no
signs of sexual abuse. App. to Pet. for Cert. lSla; App. 464.
Much of the other "evidence" in Selvog's report (including
Wiggins' claim that he was drugged by his Job Corps supervisor and
raped while unconscious, and that he was raped by the teenage sons
at his fourth foster home) was also undocumented and based entirely
on Wiggins' say-so. The Court treats all this uncorroborated gossip
as established fact,5
5 Wiggins' postconviction lawyers could have increased the
credibility of these anecdotes, and assisted this Court's prejudice
determination, by at least having Wiggins testify under oath in the
state postconviction proceedings as to his allegedly abusive
childhood. They did not do that-
555
ante, at 534-535-indeed, even refers to it as "powerful"
evidence,
ante, at 534-and assumes that Wiggins' lawyers
could have simply handed Hans Selvog's report to the jury. Nothing
could be further from the truth. As the State Circuit Court
explained in rejecting Wiggins' Sixth Amendment claim, "Selvog's
report would have had a great deal of difficulty in getting into
evidence in Maryland. He was not licensed in Maryland, the report
contains multiple instances of hearsay, it contains many opinions
in the nature of diagnosis of a medical nature." App. to Pet. for
Cert. 156a.
The Court contends that Selvog's report "may have been
admissible,"
ante, at 536-relying for that contention upon
Whittlesey v.
State, supra. Whittlesey, however,
merely
vacated the trial judge's decision that a
social-history report assembled by Selvog was
per se
inadmissible on hearsay grounds and remanded for a determination
whether the hearsay evidence was "reliable."
Id., at 71-72,
665 A. 2d, at 243. Thus, unless the Court is prepared to make the
implausible contention that Wiggins' hearsay statements in Selvog's
report are "reliable" under Maryland law, there is no basis for its
conclusion that Maryland "consider[s] this type of evidence
relevant at sentencing,"
ante, at 537. The State Circuit
Court in the present case, in its decision that postdated
Whittlesey, certainly did not think Selvog's report met the
standard of reliability, App. to Pet. for Cert. 156a, and that
court's assessment was undoubtedly correct. Wiggins' accounts of
his background, as reported by Selvog, are the hearsay statements
of a convicted murderer and, as the trial testimony in this case
demonstrates, a serial liar. Wiggins lied to Geraldine Armstrong
when he told her that Mrs. Lacs's car belongs to "'a buddy of
min[e],'" App. 179. He lied when he told the police that he had
obtained
perhaps anticipating, correctly alas, that they could succeed in
getting this Court to vacate a jury verdict of death on the basis
of rumor and innuendo in a "social history" report that would never
be admissible in a court of law.
556
Mrs. Lacs's car and credit cards on Friday in the afternoon,
rather than Thursday, id., at 180. He lied to Armstrong about how
he obtained Mrs. Lacs's ring, ibid. And, knowing that the
information he provided to Selvog would be used to attack his death
sentence, Wiggins had every incentive to lie again about the
supposed abuse he suffered. The hearsay statements in Selvog's
report pertaining to the alleged sexual abuse were of especially
dubious reliability; Maryland courts have consistently refused to
allow hearsay evidence regarding alleged sexual abuse, except for
statements provided by the victim to a treating physician. See
Bohnert v.
State, 312 Md. 266, 276, 539 A. 2d 657,
662 (1988) (refusing to admit into evidence a social worker's
opinion, based on a child's "unsubstantiated averments," that the
child had been sexually abused);
Nixon v.
State, 140
Md. App. 170, 178-188, 780 A. 2d 344, 349-354 (2001) (child
protective services agent's testimony that retarded teenager told
agent she had been sexually abused was inadmissible hearsay);
Low v.
State, 119 Md. App. 413, 424-426, 705 A. 2d
67, 73-74 (1998) (refusing to admit into evidence examining
physician's testimony regarding a child's statements of sexual
abuse).
Given that the anecdotes in Selvog's report were unreliable, and
therefore inadmissible, the only way Wiggins' trial attorneys could
have presented these allegations to the jury would have been to
place Wiggins on the witness stand. Wiggins has not established
(and the Court does not assert) any "reasonable probability" that
they would have done this, given the dangers they saw in exposing
their client to cross-examination over a wide range of issues. See
App. 353 (Wiggins' trial attorneys advising him in open court:
"'Kevin, if you do take the witness stand, you must answer any
question that's asked of you. If it is a question the judge rules
is a permissible question, you would have to answer' "). Their
perception of those dangers must surely have been heightened by
their observation of Wiggins' volatile and obnoxious behavior
throughout the trial. See,
e. g.,
557
id., at 32 (Wiggins interrupting the judge's statement of the
verdict to say: "'He can't tell me I did it. I'm going to go out
.... I didn't do it. He can't tell me I did it' "); id., at 56
(Wiggins interrupting the prosecutor's opening argument to say:
"'I'm not going to take that because I didn't kill that lady. I'm
not going to sit there and take that' ").
But even indulging, for the sake of argument, the Court's belief
that Selvog's report "may" have been admissible,
ante, at
536, the Court's prejudice discussion simply assumes without
analysis that the sentencing jury would have believed the report's
hearsay accounts of Wiggins' statements.
Ante, at 536-537.
Yet that same jury would have learned during the guilt phase of the
trial that Wiggins is a proven liar, see App. 179-180, and Wiggins
would not have aided his credibility with the jury by avoiding the
witness stand and funneling his story through a social worker. I
doubt very much that Wiggins' jury would have shared the Court's
uncritical and wholesale acceptance of these hearsay claims.
***
Today's decision is extraordinary-even for our
"'deathis-different'" jurisprudence. See
Simmons v.
South
Carolina, 512 U.
S. 154, 185 (1994) (SCALIA, J., dissenting). It fails to give
effect to § 2254(e)(1)'s requirement that statecourt factual
determinations be presumed correct, and disbelieves the sworn
testimony of a member of the bar while treating hearsay accounts of
statements of a convicted murderer as established fact. I
dissent.
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