OCTOBER TERM, 2002
Syllabus
WOODFORD, WARDEN
v. VISCIOTTI
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
No. 02-137. Decided November 4, 2002
Respondent killed one person and seriously wounded another
during a robbery. A California jury convicted him of murder and
sentenced him to death. The State Supreme Court affirmed. In
subsequently denying his state habeas corpus petition, that court
assumed that respondent's trial counsel provided constitutionally
inadequate representation during the trial's penalty phase, but
found that it did not prejudice the jury's sentencing decision. The
Federal District Court later granted respondent federal habeas
relief as to his sentence, finding that he had been denied
effective assistance of counsel during the penalty phase. In
affirming, the Ninth Circuit ruled that the State Supreme Court's
decision ran afoul of 28 U. S. C. § 2254(d) because it was
"contrary to"
Strickland v.
Washington, 466 U. S. 668, and an
"unreasonable application" of this Court's clearly established
principles.
Held: The Ninth Circuit's decision exceeds § 2254(d)'s
limits on federal habeas review. First, that court erred in holding
that the state court applied the wrong standard for evaluating
prejudice. Under
Strickland, a defendant need only establish
a "reasonable probability" that, but for counsel's unprofessional
errors, the result of his sentencing proceeding would have been
different.
Id., at 694.
Strickland specifically
rejected a higher standard: that the defendant must prove it more
likely than not that the outcome would have been altered.
Id., at 693. The Ninth Circuit erred in finding that the
State Supreme Court held respondent to this higher standard because
it used "probable" without the modifier "reasonably" in three
places in its opinion. The Ninth Circuit's readiness to attribute
error is inconsistent with the presumption that state courts know
and follow the law, and is incompatible with § 2254(d)'s highly
deferential standard for evaluating state-court rulings. The Ninth
Circuit also erred in finding that the state-court decision
involved an unreasonable application of this Court's clearly
established precedents. There is no support for the conclusion that
the state court failed to take into account the totality of the
available mitigating evidence and to consider the prejudicial
impact of counsel's actions. The state court found that, because
the aggravating factors were so severe, respondent suffered no
prejudice from trial counsel's (assumed) inadequacy. Whether or not
a federal habeas court would have reached that same
20
Per Curiam
conclusion, habeas relief is not permissible under § 2254(d)
unless the state court's decision is objectively unreasonable.
Certiorari granted;
288 F.3d
1097, reversed.
PER CURIAM.
The United States Court of Appeals for the Ninth Circuit
affirmed the grant of habeas relief to respondent John Visciotti
after concluding that he had been prejudiced by ineffective
assistance of counsel at trial.
288 F.3d
1097 (2002). Because this decision exceeds the limits imposed
on federal habeas review by 28 U. S. C. § 2254(d), we reverse.
I
Respondent and a co-worker, Brian Hefner, devised a plan to rob
two fellow employees, Timothy Dykstra and Michael Wolbert, on
November 8, 1982, their payday. They invited the pair to join them
at a party. As the four were driving to that supposed destination
in Wolbert's car, respondent asked Wolbert to stop in a remote area
so that he could relieve himself. When all four men had left the
car, respondent pulled a gun, demanded the victims' wallets (which
turned out to be almost empty), and got Wolbert to tell him where
in the car the cash was hidden. After Hefner had retrieved the
cash, respondent walked over to the seated Dykstra and killed him
with a shot in the chest from a distance of three or four feet.
Respondent then raised the gun in both hands and shot Wolbert three
times, in the torso and left shoulder, and finally, from a distance
of about two feet, in the left eye. Respondent and Hefner fled the
scene in Wolbert's car. Wolbert miraculously survived to testify
against them.
Respondent was convicted by a California jury of firstdegree
murder, attempted murder, and armed robbery, with a
special-circumstance finding that the murder was committed during
the commission of a robbery. The same jury determined that
respondent should suffer death. The California Supreme Court
affirmed the conviction and sentence.
People v.
Visciotti, 2 Cal. 4th 1, 825 P. 2d 388 (1992).
21
Respondent filed a petition for a writ of habeas corpus in the
California Supreme Court, alleging ineffective assistance of
counsel. That court appointed a referee to hold an evidentiary
hearing and make findings of fact-after which, and after briefing
on the merits, it denied the petition in a lengthy opinion.
In
re Visciotti, 14 Cal. 4th 325, 926 P. 2d 987 (1996). The
California Supreme Court assumed that respondent's trial counsel
provided constitutionally inadequate representation during the
penalty phase, but concluded that this did not prejudice the jury's
sentencing decision.
Id., at 353, 356-357, 926 P. 2d, at
1004, 1006.
Respondent filed a federal habeas petition in the United States
District Court for the Central District of California. That court
determined that respondent had been denied effective assistance of
counsel during the penalty phase of his trial, and granted the
habeas petition as to his sentence. The State appealed to the Court
of Appeals for the Ninth Circuit.
The Court of Appeals correctly observed that a federal habeas
application can only be granted if it meets the requirements of 28
U. S. C. § 2254(d), which provides:
"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."
The Court of Appeals found that the California Supreme Court
decision ran afoul of both the "contrary to" and the
22
Per Curiam
"unreasonable application" conditions of § 2254(d)(1), and
affirmed the District Court's grant of relief. See 288 F. 3d, at
1118-1119. The State of California petitioned for a writ of
certiorari, which we now grant along with respondent's motion for
leave to proceed
in forma pauperis.
II A
We consider first the Ninth Circuit's holding that the
California Supreme Court's decision was "contrary to" our decision
in
Strickland v.
Washington, 466 U. S. 668 (1984).
Strickland held that to prove prejudice the defendant must
establish a
"reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different," id., at 694 (emphasis added); it specifically rejected
the proposition that the defendant had to prove it more likely than
not that the outcome would have been altered, id., at 693. The
Court of Appeals read the State Supreme Court opinion in this case
as applying the latter testas requiring respondent to prove, by a
preponderance of the evidence, that the result of the sentencing
proceedings would have been different. See 288 F. 3d, at 1108-1109.
That is, in our view, a mischaracterization of the state-court
opinion, which expressed and applied the proper standard for
evaluating prejudice.
The California Supreme Court began its analysis of the prejudice
inquiry by setting forth the "reasonable probability" criterion,
with a citation of the relevant passage in
Strickland; and
it proceeded to state that "[t]he question we must answer is
whether there is a reasonable probability that, but for counsel's
errors and omissions, the sentencing authority would have found
that the balance of aggravating and mitigating factors did not
warrant imposition of the death penalty," again with a citation of
Strickland. In re Visciotti, 14 Cal. 4th, at 352, 926 P. 2d,
at 1003 (citing
Strickland, supra, at 696). Twice, the court
framed its inquiry as
23
turning on whether there was a "reasonable probability" that the
sentencing jury would have reached a more favorable penalty-phase
verdict. 14 Cal. 4th, at 352, 353, 926 P. 2d, at 1003, 1004. The
following passage, moreover, was central to the California Supreme
Court's analysis:
"In In re Fields, ... we addressed the process by which
the court assesses prejudice at the penalty phase of a capital
trial at which counsel was, allegedly, incompetent in failing to
present mitigating evidence: 'What kind of evidentiary showing will
undermine confidence in the outcome of a penalty trial that has
resulted in a death verdict? Strickland ... and the cases it
cites offer some guidance. United States v. Agurs ...
, the first case cited by Strickland, spoke of evidence
which raised a reasonable doubt, although not necessarily of such
character as to create a substantial likelihood of acquittal. ...
United States v. Valenzuela-Bernal ... , the second
case cited by Strickland, referred to evidence which is
"material and favorable ... in ways not merely cumulative .... "'"
Id., at 353-354, 926 P. 2d, at 1004.
"Undermin[ing] confidence in the outcome" is exactly
Strickland's description of what is meant by the "reasonable
probability" standard. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Strickland,
supra, at 694.
Despite all these citations of, and quotations from,
Strickland, the Ninth Circuit concluded that the California
Supreme Court had held respondent to a standard of proof higher
than what that case prescribes for one reason: in three places
(there was in fact a fourth) the opinion used the term "probable"
without the modifier "reasonably." 288 F. 3d, at 1108-1109, and n.
11. This was error. The California Supreme Court's opinion
painstakingly describes the
Strickland standard. Its
occasional shorthand reference to that
24
Per Curiam
standard by use of the term "probable" without the modifier may
perhaps be imprecise, but if so it can no more be considered a
repudiation of the standard than can this Court's own occasional
indulgence in the same imprecision. See
Mickens v.
Taylor, 535 U.
S. 162, 166 (2002) ("probable effect upon the outcome");
Williams v.
Taylor, 529 U. S. 362, 393 (2000)
("probably affected the outcome").
The Court of Appeals made no effort to reconcile the state
court's use of the term "probable" with its use, elsewhere, of
Strickland's term "reasonably probable," nor did it even
acknowledge, much less discuss, the California Supreme Court's
proper framing of the question as whether the evidence "undermines
confidence" in the outcome of the sentencing proceeding. This
readiness to attribute error is inconsistent with the presumption
that state courts know and follow the law. See,
e. g.,
Parker v.
Dugger, 498 U. S. 308, 314-316
(1991);
Walton v.
Arizona, 497 U. S. 639, 653
(1990), overruled on other grounds,
Ring v.
Arizona,
536 U. S. 584
(2002);
La Vallee v.
Delle Rose, 410 U. S. 690, 694-695
(1973)
(per curiam). It is also incompatible with §
2254(d)'s "highly deferential standard for evaluating state-court
rulings,"
Lindh v.
Murphy, 521 U. S. 320, 333, n. 7
(1997), which demands that state-court decisions be given the
benefit of the doubt.
B
The Court of Appeals also held that, regardless of whether the
California Supreme Court applied the proper standard for
determining prejudice under
Strickland, its decision
involved an unreasonable application of our clearly established
precedents. 288 F. 3d, at 1118. Specifically, the Ninth Circuit
concluded that the determination that Visciotti suffered no
prejudice as a result of his trial counsel's deficiencies was
"objectively unreasonable."
Ibid. Under § 2254(d)'s
"unreasonable application" clause, a federal habeas court may not
issue the writ simply because that court concludes in its
independent judgment that the state-court decision applied
25
Strickland incorrectly. See
Bell v.
Cone,
535 U. S. 685,
698699 (2002);
Williams, supra, at 411. Rather, it is the
habeas applicant's burden to show that the state court applied
Strickland to the facts of his case in an objectively
unreasonable manner. An
"unreasonable application of federal
law is different from an
incorrect application of federal
law."
Williams, supra, at 410; see
Bell, supra, at
694. The Ninth Circuit did not observe this distinction, but
ultimately substituted its own judgment for that of the state
court, in contravention of 28 U. S. C. § 2254(d).
The Ninth Circuit based its conclusion of "objective
unreasonableness" upon its perception (1) that the California
Supreme Court failed to "take into account" the totality of the
available mitigating evidence, and "to consider" the prejudicial
impact of certain of counsel's actions, and (2) that the
"aggravating factors were not overwhelming." 288 F. 3d, at 1118.
There is no support for the first of these contentions. All of the
mitigating evidence, and all of counsel's prejudicial actions, that
the Ninth Circuit specifically referred to as having been left out
of account or consideration were in fact described in the
California Supreme Court's lengthy and careful opinion. The Court
of Appeals asserted that the California Supreme Court "completely
ignored the mitigating effect of Vis ciotti's brain damage," and
failed to consider the prejudicial effect of counsel's "multiple
concessions during closing argument."
Ibid. However, the
California Supreme Court specifically considered the fact that an
expert "had testified at the guilt phase that [Vis ciotti] had a
minimal brain injury of a type associated with impulse disorder and
learning disorder."
In re Visciotti, 14 Cal. 4th, at 354,
926 P. 2d, at 1004. And it noted that under the trial court's
instructions, this and other evidence that had been introduced
"might have been considered mitigating at the penalty phase,"
despite trial counsel's concessions during closing argument.
Ibid.
26
Per Curiam
The California Supreme Court then focused on counsel's failure
to introduce mitigating evidence about respondent's background,
including expert testimony that could have been presented about his
"growing up in a dysfunctional family in which he suffered
continual psychological abuse."
Id., at 355, 926 P. 2d, at
1005. This discussion referred back to a lengthy, detailed
discussion about the undiscovered mitigating evidence that trial
counsel might have presented during the penalty phase. See id., at
341-345,926 P. 2d, at 996-998. The California Supreme Court
concluded that despite the failure to present evidence of
respondent's "troubled family background," id., at 355, 926 P. 2d,
at 1005, which included his being "berated," being "markedly
lacking in self-esteem and depressed," having been "born with club
feet," having "feelings of inadequacy, incompetence, inferiority,"
and the like, moving "20 times" while he was growing up, and
possibly suffering a "seizure disorder," id., at 341-343, 926 P.
2d, at 996-998, the aggravating factors were overwhelming. In the
state court's judgment, the circumstances of the crime (a
cold-blooded execution-style killing of one victim and attempted
execution-style killing of another, both during the course of a
preplanned armed robbery) coupled with the aggravating evidence of
prior offenses (the knifing of one man, and the stabbing of a
pregnant woman as she lay in bed trying to protect her unborn baby)
was devastating. See id., at 355, 926 P. 2d, at 1005; see also
People v.
Visciotti, 2 Cal. 4th, at 33-34, 825 P. 2d,
at 402. The California Supreme Court found these aggravating
factors to be so severe that it concluded respondent suffered no
prejudice from trial counsel's (assumed) inadequacy.
In re
Visciotti, supra, at 355, 926 P. 2d, at 1005.
The Court of Appeals disagreed with this assessment, suggesting
that the fact that the jury deliberated for a full day and
requested additional guidance on the meaning of "moral
justification" and "extreme duress" meant that the "aggravating
factors were not overwhelming." 288 F. 3d, at 1118.
27
Perhaps so. However, "under § 2254(d)(1), it is not enough to
convince a federal habeas court that, in its independent judgment,
the state-court decision applied
Strickland incorrectly."
Bell, 535 U. S., at 699. The federal habeas scheme leaves
primary responsibility with the state courts for these judgments,
and authorizes federal-court intervention only when a state-court
decision is objectively unreasonable. It is not that here. Whether
or not we would reach the same conclusion as the California Supreme
Court, "we think at the very least that the state court's contrary
assessment was not 'unreasonable.'"
Id., at 701. Habeas
relief is therefore not permissible under § 2254(d).
***
The judgment of the Court of Appeals for the Ninth Circuit
is
Reversed.
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