Cullen v. Pinholster

WARDEN v. PINHOLSTER CULLEN, ACTING Aрril 4, 2011 Argued No. 09-1088. November 2010—Decided Thomas, J., opinion Court, delivered the of the in J., which C. Roberts, JJ., and Scalia joined full; and Kennedy, Alito, J., in in which joined as II; to all but Part in J., joined which II; toas Breyer, Parts I and and in Ginsburg joined which JJ., as to Kagan, Part II. J., filed an Alito, opinion concurring part in concurring post, p. 203. judgment, J., opinion Breyer, filed an part, post, concurring part and dissenting Ginsburg p. J., 204. a dissenting opinion, Sotomayor, filed in which Kagan, JJ., joined post, p. II, as to Part James William II, Bilderback Attor- Supervising Deputy General ney of California, argued cause for petitioner. on the briefs were Edmund him Brown, Jr., G. With Attor- ney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney Nicola, Donald E. de General, State Solicitor Deputy Gen- Borjon, Lawrence M. Daniels and H. eral, and Keith Super- vising Deputy Attorneys General. Kennedy K.

Sean the cause for argued respondent. With him on the brief was Mark R. Drozdowski.* *Briefs of amici curiae urging reversal filed were for the State of Pennsylvania Corbett, Jr., Thomas W. by et al. Attorney of General Penn- sylvania, Amy Zapp, and Deputy Attorney General, by Chief the At- and torneys for Troy King respective General their States as follows: of the of the Thomas delivered Court.* opinion

Justice accomplices Lynn into and two broke Scott Pinholster night brutally and of the beat house in the middle happened interrupt to death two men who stabbed first-degree jury burglary. of mur- Pinholster A convicted and he to death. was sentenced der, unanimously Supreme twice de- After California held Pinholster a Federal District Court nied habeas relief, evidentiary hearing granted an Pinholster habeas relief §2254. under 28 U. concluded S. C. The District Court constitutionally trial ineffec- counsel had been Sitting penalty phase tive at the of en the Court banc, trial. Appeals of affirmed. Ninth Circuit Pinholster (2009). Ayers, Considering 590 F. 3d 651 the new evidence Appeals hearing, adduced the District Court Court of held that the Court’s decision “was con- California clearly trary application or to, of, involved unreasonable 2254(d)(1). law.” established Federal granted We and now certiorari reverse.

I A January evening Art On of Pinholster solicited 8,1982, help and Paul David Brown to him rob Michael Corona drug way, they stopped Kumar, dealer. On the local Florida, Joseph R. Biden III Bill McCollum Alabama, Delaware, of of G. E. Lawrence Hawaii, Thurbert Mark J. Bennett of Baker Georgia, of Montana, F. Gregory Steve Bullock Idaho, Indiana, of Wasden Zoeller of of Mexico, King of Richard Nevada, Gary K. Catherine Cortez Masto of New M(¡Mas- Henry D. Cordray Ohio, A. Drew Oklahoma, Edmondson of of W Marty Dakota, Greg Abbott J. Jackley ter of South Carolina, South Shurtlejf Salzburg Wyoming; Mark A. L. and Bruce Texas, Utah, Scheidegger. Kent S. Legal Justice and for Criminal Foundation the American curiae urging filed for amici Briefs of affirmance were by Larry Yackle, Shapiro, R. and John Steven Civil Liberties Union M. by Neil Soltman Disability Holdridge; Rights Legal Center and for and Donald M. Falk. Ginsburg Kagan only II. join Part *Justice Justice Tapar’s put house, Lisa where Pinholster buck knife his through her front door and into her car scratched swastika to to after she refused talk The men, him. three who were all armed knives, with buck house, found no one at Kumar’s began ransacking They broke and in, the home. came across only marijuana a small amount of before friends, Kumar’s Thomas Beckett, Johnson and Robert arrived and shouted they calling police. were the accomplices escape through

Pinholster and his tried to the path. but door, rear Johnson blocked their Pinholster patio, demanding money drugs backed Johnson onto the and repeatedly striking dropped and him in the chest. Johnson ground stopped resisting. his wallet on the and Beckett came corner, then him, around and Pinholster attacked stabbing repeatedly too, him in the chest. Pinholster forced ground, began Beckett took wallets, both men’s kicking Beckett in the head. Meanwhile, Brown stabbed “ ” ‘bury[ing] in the chest, Johnson knife the hilt.’ (hereinafter Tr.). Reporter’s Tr. 4947 Johnson and Beckett their died of wounds. apartment. drove the

Corona three men to Pinholster’s got car, exulted, While Brown Pinholster and “‘We ” got good.’ apartment, ’em,man, we ’em Ibid. At Pin- split proceeds washed his knife, holster and the three robbery: marijuana. quarter-ounce and one Al- $23 though “lay low,” Pinholster instructed Corona Corona police turned himself weeks later. two shortly Pinholster was arrested thereafter and threatened to keep quiet burglary kill Corona if did not he about the primary murders. Corona later the State’s became witness. prosecution brought charges against numerous Pinhol- including first-degree ster, two counts of murder.

B appointed Harry The California trial court Brainard and charges Wilbur Dettmar to defend Pinholster on first- degree robbery, burglary. ap- murder, their Before

pointment, rejected attorneys in- had other and Pinholster During representing time, sisted on himself. that the State jail informing mailed a him the had Pinholster letter that prosecution planned aggravating during offer the phase penalty support of a trial to sentence of death. February guilt began phase The the trial on 28, of presented Pinholster his own behalf and an alibi testified on He broken into house defense. claimed that he had Kumar’s January p.m. at around on had alone and stolen anyone. marijuana killing but denied Pinholster asserted night he a.m., elsewhere, that later that while was around drugs went to to steal more and did Corona Kumar’s house jury told that he not return for hours. Pinholster the three “professional id., a robber,” was a not murderer. 43 at 6204. committing the He boasted of hundreds robberies over years previous always gun, a six but he used insisted jury never knife. The convicted Pinholster on both counts first-degree murder. penalty phase, and Before Brainard Dettmar moved any aggravating ground to exclude evidence on the that the provide prosecution had notice of evidence to be failed §190.3 required by as Penal Code Ann. introduced, Cal. (West 2008). hearing argued April that, At a 24, Dettmar pre- presently on the lack of he was “not notice, in reliance pared anything way mitigation.” Tr. 7250. to offer “possibly acknowledged, prosecutor He however, requirement.” ha[d] [notice] trial court met Ibid. The helpful, might Dettmar but asked whether continuance mitigation explaining think of a declined, that he could not additional mother and that other than Pinholster’s witness great Id., at of difference.” not “make deal time would testimony, days hearing after 7257-7258. Three later, repre- while notice found that Pinholster had received senting to exclude. himself and denied motion jury phase had penalty same was held before eight produced prosecution wit- Pinholster. The convicted threatening history Pinholster’s nesses, who testified about including resisting assaulting and violent behavior, arrest and police juvenile gangs, officers, involvement with sub- prison disciplinary stantial called record. Defense counsel only gave an ac- mother, Pinholster’s Burnice Brashear. She years, count of Pinholster’s troubled childhood adolescent siblings, Pinholster discussed described as perfect gentleman “a at home.” at 7405. coun- Defense psychiatrist, they though sel not call a did consulted had Stalberg Stalberg Dr. six John least weeks earlier. Dr. “psychopathic diag- personality noted Pinholster’s traits,” personality nosed him antisocial with disorder, and concluded that he “was not under the influence or emo- of extreme mental App. tional disturbance” at the time of the murders. 131. days unanimously jury of deliberation, After 2k voted mandatory for on each of death the two murder counts. On appeal, Supreme judgment. the California Court affirmed the (1992). People Pinholster, 4th Cal. 824 P. 2d C August peti- In 1993,Pinholster filed first his state habeas Represented by alleged, tion. new Pinholster inter counsel, penalty alia, phase ineffective assistance counsel at alleged his trial. He that Brainard and had failed Dettmar adequately investigate present to mitigating and evidence, including sup- Pinholster evidence of mental disorders. ported legal school, records, this claim with medical, and as family well as declarations from members, Brainard, and George psychiatrist diagnosed Dr. Woods, who Pinhol- bipolar ster with mood disorder and seizure disorders. incompetent, Stalberg’s report Dr. Woods criticized Dr. as Supreme unreliable, and The inaccurate. Court California unanimously summarily1 penalty- denied Pinholster’s

1Although initially Supreme asking California issued an order respond, ultimately the State to it “improvidently withdrew that order as App. issued.” to Pet. for Cert. 302.

phase claim “on the substantive ineffective-assistance App. 302. ground merit.” to Pet. Cert. is without petition April 1997. habeas a federal Pinholster filed allegations penalty-phase previous about He reiterated his allegations that his added new and also assistance ineffective adequate Stalberg with to Dr. had failed furnish trial counsel allegations, support background of the new In materials. stating 1984,Pin- Stalberg provided that in a declaration Dr. only po- provided some him trial counsel had holster's Stalberg ex- probation report. reports Dr. lice that had since plained known the material had he about that, would have gathered he counsel, Pinholster’s habeas been concluding inquiry” Pinhol- before “further conducted App. only personality Brief to disorder. from ster suffered Opposition records He Pinholster’s school noted that degree damage.” Ibid. evidence of “some brain showed diagnosis. Stalberg retract his earlier not, however, Dr. did parties stipulated been had never that this declaration and the federal Court, submitted the California abeyance go petition back was held in allow Pinholster court. August state habeas Pinholster filed second including Stalberg’s petition, time Dr. declaration this judicial previously requesting sub- notice of the documents petition. support His alle- of habeas mitted in his first state counsel gations penalty-phase of ineffective assistance petition. The Califor- his mirrored those in federal habeas summarily unanimously again denied and nia Court ground that it is without petition “on the substantive App. for merit.”2 to Pet. Cert. 300. claims, denied several majority “[s]eparately independently” and A also counsel, untimely, as suc penalty-phase ineffective assistance

including State not ar The has judicata. at 300. cessive, by res and barred independent and adequate procedural rulings constitute gued these bar federal habeas review. grounds that state Having presented Stalberg’s Dr. declaration to the court, Pinholster returned the District In Novem- Court. petition 1997, he filed ber an amended for a habeas writ of corpus. allegations penalty-phase His assist- ineffective ance of counsel were identical to second state those petition. parties summary judg- habeas Both for moved ment, and moved, alternative, Pinholster also in the for an evidentiary hearing.

The District Court concluded Antiterrorism and Penalty (AEDPA), Effective Death Act of 1996 110 Stat. apply granted evidentiary hearing. 1214,did not and Be- hearing, deposed Stalberg, fore Dr. State who stated origi- that none of the new he material reviewed altered his diagnosis. Stalberg disagreed nal Dr. with con- Dr. Woods’ bipolar clusion that Pinholster suffers from Pin- disorder. Stalberg testify hearing. holster did not call Dr. at the presented experts: Sophia Vinogra- He two new medical Dr. psychiatrist diagnosed organic dov, a who Pinholster with syndrome personality personality ruled and out antisocial pediatric neurologist disorder, Dr. Donald Olson, who suggested partial epilepsy that Pinholster suffers from injury. psy- Rudniek, brain State called Dr. F. David Stalberg, diagnosed like who, chiatrist Dr. Pinholster personality rejected any diagnosis antisocial disorder and bipolar disorder.

D granted pre- Applying The District habeas relief. granted petition AEDPA the court standards, the habeas inadequacy pre- investigate “for of counsel failure to mitigation penalty hearing.” App. sent evidence at Pet. for Cert. 262. After v. U. S. Garceau, Woodford (2003), applies clarified that Pinhol- AEDPA like cases ster’s, the court amended its order did not its con- but alter panel Appeals clusion. dissent, Over of the Court of Ayers, Ninth (2008). Circuit reversed. F. 3d Pinholster 742 Appeals rehearing vacated the of banc, en Court

On grant panel opinion Court’s of and affirmed the District held that the District The en banc court habeas relief. . by evidentiary hearing 28 U. S. was not barred C Court’s 2254(e)(2). § determined that new evidence The court then hearing assessing whether from the could considered contrary Supreme to, “was or Court’s decision California clearly application established of, involved unreasonable 2254(d)(1). (“Con § 3d, law” under 590 F. Federal 2254(d)(1) § gress inquiry intend restrict under did not court”). only to the introduced in the state habeas Taking en banc account, the District Court evidence into Supreme that the California Court unrea court determined sonably applied Washington, 466 U. S. 668 Strickland v. (1984), denying penalty-phase Pinholster’s claim of ineffec tive assistance of counsel. rejected majority’s judges

Three dissented hearing that the Court conclusion District barred 2254(e)(2). § (opinion 590 F. 3d, Kozinski, J.) (characterizing “habeas-by- C. Pinholster’s efforts as Limiting sandbagging”). its to the review state-court record, the dissent that the concluded California unreasonably apply Court did not Strickland. 590 F. 3d, at 691-723. granted questions.

We to resolve two certiorari U. S. (2010). 2254(d)(1) § per- First, review under whether evidentiary mits in an consideration of evidence introduced hearing Second, before the federal court. whether habeas Appeals granted properly Pinholster habeas re- penalty-phase assistance lief his claim of ineffective counsel.

II 2254(d)(1) scope consider the We first the record inquiry. argues to the limited rec- The State review adjudicated the state ord was before court that pre- Pinholster that evidence claim on the merits. contends may to the federal habeas court also be considered. sented agree with the State. We

A § by amended AEDPA, As 2254 sets U. S. C. several power grant application on the limits of federal court an сorpus prisoner. writ for a a state habeas on behalf of 2254(a) permits only Section a federal court to entertain applications alleging person custody those that a is in state “in of the violation Constitution or laws or treaties of 2254(b) (c) provide the United States.” Sections that may grant applications unless, court federal such exceptions, applicant certain with the has exhausted state remedies. application “adjudi-

If an includes claim that been has § proceedings,” 2254(d), on the cated merits in State an 2254(d), applies. § applica- additional restriction Under that granted respect [such a] “shall not tion . claim .. adjudication the of the unless claim”: “(1) contrary resulted in a decision that to, was or in- application clearly volved an of, unreasonable estab- by lished Federal law, as the determined the or States; United “(2) resulted in a decision that was based on an unrea- light determination of sonable the faets of the evi- presented proceeding.” dence State court Harrington meet,” This is “difficult to Richter, v. 562 S.U. (2011), “highly deferential standard evalu- ating rulings, state-court which demands state-court given decisions be the benefit of doubt,” Woodford (2002) curiam) (citation (per Visciotti, 537 U. S. omitted). quotation petitioner internal marks carries proof. burden 2254(d)(1) now hold We that review under is limited adjudicated the record that was before the state court that 2254(d)(1) the claim on the Section refers, merits. in the past adjudication in” a state-court that “resulted tense, to a contrary an decision that was or “involved” unreasonable to, backward-looking application lan- of, established law. This requires guage the state-court decision at examination of It under re- the time it made. record follows time— view is limited to record in existence same before the e., i. record state court. understanding compelled “the

This text context of the a which demon- whole,” broader statute as Congress’ prisoners’ intent to first strates claims channel Co., the state courts. Robinson Oil 519 U. S. 337, v. Shell (1997). primary re- “The federal leaves habeas scheme supra, sponsibility Visciotti, the state .” with . . . courts 2254(b) prisoners requires at ordi- 27. Section that must narily filing state exhaust remedies before for federal habeas contrary purpose peti- It a relief. that to allow would be tioner to an with overcome adverse state-court decision new in a habeas court evidence introduced federal and reviewed effectively by that court in the first instance de novo. 2254(d)(1) § Limiting review to the state-court record precedents interpreting is consistent with that statu- our tory provision. emphasize Our review under cases that 2254(d)(1) § on a court focuses what knew and did. state against prec- State-court decisions аre measured this Court’s edents as of “the time court its decision.” renders (2003). Lockyer 71-72 To Andrade, v. deter- U. S. “contrary particular is to” mine whether a decision then- a federal whether the law, established court must consider “applies [such] a rule law” and how decision that contradicts [the] were before the decision “confronts set of facts” that Taylor, 362, 405, 406 state court. Williams v. U. S. Williams). (2000) (Terry “identi- decision If the state-court governing legal principle” existence fies the correct must the decision “un- time, court whether federal assess reasonably prisoner’s applies principle to the of the facts strange 413. It would to ask federal Id., case.” adjudication analyze re- state court’s courts whether unreasonably applied in a federal law to sulted decision that not before the facts state court.3 Landrigan, recent

Our decision in 550 S. 465 Schriro v. (2007), holding is consistent as well with our here. We ex- “[bjecause plained prescribed the deferential standards §2254 by grant control whether to relief, habeas federal deciding must take into account those standards evidentiary hearing appropriate.” an whether is practical on effect, note, we went this means that when “precludes the state-court record lim- habeas relief” under the §2254(d), required itations district court “not to hold is evidentiary hearing.” (citing approval Id., at 474 hearing recognition evidentiary the Ninth Circuit’s that “an required can be reference to issues resolved (internal omitted)). quotation the state court marks record” wrongly Appeals interpreted The Court of Williams (2000) (Michael Williams), Taylor, support- 529 U. S. 420 as ing contrary question view. there was whether the 2254(e)(2) correctly lower court had determined that barred petitioner’s request evidentiary hearing.4 for a federal Sotomayor argues nothing strange that there is about allow Justice 2254(d)(1) view, ing because, § consideration of new evidence under in her not be “so would different” from some other that tasks courts undertake. Post, (dissenting opinion). at 218 What makes the consideration of new strange be, evidence is not how “different” the task would but rather that notion a state unreasonably applied court can deemed to have law federal to evidence it not compre did even know We cannot existed. exactly any hend how a state court would application control over its Sotomayor’s of to beyond law matters knowledge. Adopting its Justice approach seriously requirement would not take that federal AEDPA’s effectively courts defer to state-court decisions and would treat the stat Judiciary ute as no more than a that respect,” “'mood’ the Federal must Williams, Terry J.). Stevens, S., (opinion 529 U. at 386 of prisoner develop If a has “failed the factual basis оf a claim in 2254(e)(2) holding § proceedings,” State court bars a federal court from evidentiary statutory hearing, applicant unless meets certain requirements. in- not whether concern evidence

Michael Williams did hearing under be considered in such a could troduced 2254(d)(1). only § in case was In one claim at issue that fact, 2254(d); § adjudicated subject the rest had not been even proceedings. id., at 429 merits in state-court on the (“Petitioner develop, or . . until he raise, not his claims . did petition”).5 federal filed his habeas supports anything, If the decision Williams Michael holding. court in case our The lower that had determined 2254(d)(1) § satisfy subject that that one claim did not light ruling, statutory requirement. In that this Court of question “unnecessary that it reach the concluded 2254(e)(2) § hearing permit [federal] whether would on fully th[at] That consist- Id., claim.” at 444. conclusion is holding in federal ent with our that evidence later introduced 2254(d)(1) § irrelevant to is review. Appeals’ Jackson, reliance Holland v. Court (2004) curiam), (per mistaken. Hol- U. S. 649 was also initially land, we stated that state court’s deci- “whether 2254(d)(1)] § [under sion was unreasonable must be assessed light Id., the court before it.” the record had 652. argument We then went on to assume the sake what § 2254(d)(1), Appeals despite some had Courts held—that mandatory simply apply language, a fed- its does not when supports eral habeas court has admitted new that adjudicated previously a claim in state court.6 question regard- There decide because was no reason to 2254(e)(2). hearing been barred less, should have Sotomayor’s “rejected” Michael Williams suggestion 5 Justice here, quite puzzling. passage post, In the the conclusion see thus §2254(e)(2) ibid., merely explains quotes, that she see preclude prisoner, way interpreted should be that does 2254(d), satisfy § can in who from diligent was habeas court and who state evidentiary hearing. receiving an 6 curiam), on (per (2005) Richey, 74 which In Bradshaw v. 546 U. S. relied, assumption. made the at Appeals Court of also we same 79-80 argument”). (discussing the State’s “Holland we reject that in- Today, and hold that evidence assumption in 2254(d)(1) § troduced federal court has no on re- bearing If a claim view. has been on the adjudicated merits court, federal habeas must overcome the petitioner § 2254(d)(1) limitation of on the record that that was before state court.7

B contention our that holding renders 2254(e)(2) § superfluous 2254(e)(2) is incorrect. im- Section a limitation on the of poses discretion federal habeas courts Lan- to take new evidence in an evidentiary hearing. See drigan, supra, at 473 that courts, district under (noting AEDPA, retain generally the discretion to grant eviden- § 2254(d)(1), Like tiary hearing). it carries out “AEDPA’s goal promoting comity, and federalism finality, by giving state courts claim, first review opportunity [a] any to correct constitutiоnal violation the first instance.” Quarterman, Jimenez (2009) (internal S. 113, 555 U. omitted).8 marks quotation 2254(e)(2)

Section continues to have force where 2254(d)(1) does not § bar federal habeas relief. For example, Sotomayor Pinholster and Justice place great weight on the fact 2254(d)(2) § language includes the light presented “in of the 2254(d)(1) § proceeding,” post, the State court whereas does not. at See 2254(d)(2) clarity § point, however, The additional 211-212. on does this 2254(d)(1) § detract plainly from our view that also to the limited 2254(d)(1) clarifying language § state-court record. The omission of from likely just Congress’ as reflects language unnecessary belief that such anything it does as else. Sotomayor’s 2254(d)(1) § argument must be read Justice § way 2254(e)(2), post, “accommodates” on a funda see rests 2254(e)(2). § misunderstanding is not mental of that focus section opportunity” hearings, post, on “preserving but rather limiting holding hearings. the discretion of federal district courts in We 2254(e)(2). § proper see no need in this ease to address the application n. 20, post, given But (suggesting see that we have infra. 2254(e)(2) unnaturally cramped reading”). “an 186 prisoners

not within all state fall federal habeas claims §2254(d), “adjudi- scope applies only to of which claims proceedings.” cated on the merits in At mini- State court 2254(e)(2) § therefore, of mum, still restricts discretion federal habeas new evidence when decid- courts consider ing adjudicated in state claims on the merits were g., Williams, S., e. See, court. Michael 529 U. at 427-429.9 prisoners Although may submit new evi- state sometimes statutory scheme is court, dence in federal de- AEDPA’s signed strongly doing discourage so. from Provi- them “[fjederal 2254(d)(1) (e)(2) §§ sions like and courts ensure that sitting trying habeas are not forum for facts alternative prisoner pursue issues which made insufficient effort proceedings.” Richter, state also 562 437; see (“Section 2254(d) part S.,U. at 103 of the basic structure jurisdiction, designed of federal habeas to confirm state asserting principal courts are the forum for constitutional convictions”); Wainwright Sykes, challenges to 433 (1977) (“[T]he [should S. state trial on the merits ‘tryout be] speak, the ‘main rather than a so to event/ road’ what will later be the determinative federal hearing”).10 habeas

C Accordingly, Appeals of erred we conclude that Court considering evidence in its review the District Court 2254(d)(1). Although might-ordinarily remand under we Appeals properly for a also review, limited merited habeas ruled, alternative, in the that Pinholster re- 2254(a) (c) events, through §§ course, requirements all grant power a federal significant remain limitations on the habeas relief. new decide claims Though we do not draw line between where to Sotomay infra, Justice adjudicated merits, on the n. claims see exculpatory involving new witness hypothetical evidence of withheld Or’s post, statements, 214-215, a new claim. may present well see even on lief the state-court alone. F. 3d, record at 669. is therefore Remand we turn next to a inappropriate, of the review state-court record.

Ill The Court of alternative also Appeals’ was errone- holding Pinholster has ous. failed to demonstrate the that Califor- Supreme nia unreasonably clearly Court applied established federal law to his ineffective-assistance claim penalty-phase 2254(d) state-court on the record. Section prohibits habeas relief.

A 2254(d) Section applies Pinholster’s claim because that claim was on adjudicated the merits in state-court proceed- No that Pinholster’s federal ings. party disputes petition alleges ineffective-assistance-of-counsel claim that had included in been both state habeas Pinholster’s petitions. California The each Supreme Court denied of those petitions the it “on substantive that is without ground merit.”11 2254(d) where Section even there has been sum- applies Richter, denial. mary S., 562 98. these cir- alleged adjudicated The State does not contest that claim was on the Court, the merits California it that Supreme but asserts some of evidentiary hearing in the fundamentally adduced federal changed effectively unadjudicated. claim so Pinholster’s as to render it 28-31; Reply 4-5; See Brief Petitioner Brief for Tr. Petitioner of Oral 18. Arg. disagrees that argues Pinholster the evidence adduced evidentiary hearing simply supports alleged his claim. Brief for Re spondent 33-37. because, dispute accepting need not resolve this even

We he is position, not entitled to federal habeas relief. Pinholster has failed unreasonably clearly Supreme applied that the California to show Court court, infra, 190-194, federal that law the record before established 197-202, analysis which brings our to an end. Even if evidence ad- claim, additionally supports duced District Court as Pinholster contends, 20, precluded considering we are from it. See n. infra. “unreasonable satisfy applica- can Pinholster

cumstances, 2254(d)(1) that “there by showing §of only tion” prong deci- Court’s no basis” for the California reasonable Id., must what determine sion. at 98. habeas “[A] could the state supporte[d] theories . . . arguments or must whether it is ask decision; possible court’s then or those fairminded could jurists disagree arguments ain prior decision holding are with the theories inconsistent review of of this After thorough ‍‌​​​​‌‌‌‌​‌​​‌​‌‌‌​‌​​‌​​‌‌​​‌‌‌‌​‌‌‌‌‌​‌​‌‌​‌‌​‍Court.” failed state-court that Pinholster has record,12 we conclude meet threshold. high the “alle agree includes both parties the state-court record ‘any . gations . . . . matter of record corpus petition habeas . and [the] ” Hochberg, 2, In re 870, 874, 471 P. 2d pertaining to the case.’ 2 Cal. 3d n. (1970) 1, 3-4, 60), rejected n. 2 Cal. Rule on another (quoting Fields, 1063, 3, 862, In re ground by P. n. 3 Cal. 3d n. 2d (1990); 16-17; Brief of 45-46. Reply Arg. sеe for Petitioner Tr. Oral law, of Supreme summary Under Court’s denial California the California a petition on reflects that court’s that habeas the merits determination prima entitling “the petition th[e] in do not state facie case claims made Clark, 750, 729, In re petitioner 770, the to relief.” Cal. 4th 855 P. 2d (1993). appears generally allega 741-742 It the court the that assumes conclusory petition true, accept wholly tions in to the but does not Duvall, People 464, 474, allegations, v. Cal. 4th 886 P. 2d (1995), and will also the record of the trial... to the merits “review assess Clark, 2d, supra, petitioner’s claims,” the P. at 742. at depend

The of the specific contents of record on which the state-court One amicus curiae suggests two state proceedings habeas is issue. both California prove that that is, both are at issue —that Pinholster must Supreme application Court of law proceedings involved unreasonable 2254(d)(1). § Legal 26. under for Criminal Foundation Brief Justice By contrast, would be review approach the most for Pinholster favorable only record of which includes proceeding, the state habeas the second all of that state habeas. We the evidence Pinholster ever submitted circumstances, these previously proceed have not ruled on how taking approach so here. most we do Even favorable need not reviewing Court Pinholster, only California whether the proceeding, we find objectively unreasonable in the habeas second state 2254(d)(1). satisfy that has failed to Pinholster B dispute clearly that the federal law There is no established Washington. Strickland, this here is Strickland purpose Court made clear that “the assist- effective improve guarantee ance of the Sixth Amendment not to quality legal representation simply [but] .. . to ensure that criminal receive atS., defendants a fair trial.” 466 U. judging any “[t]he Thus, 689. benchmark for of inef- claim must fectiveness be whether counsel’s conduct under- so proper functioning process mined the of the adversarial having produced just the trial cannot be relied on as re- added). (emphasis at 686 Id., sult.” The acknowl- edged “[t]here ways provide are countless effective any given “[e]ven assistance in case,” and that crimi- best attorneys particular nal defense would client in defend way.” Id., the same at 689.

Recognizing “tempt[ation] for a defendant second- guess counsel’s assistance after conviction or sen- adverse ibid., the tence,” Court established that counsel should be “strongly presumed adequate to have rendered assistance significant and made all decisions reason- exercise of professional judgment,” able id., To overcome 690. presumption, must defendant show failed to that counsel “reasonably] considering act all the circumstances.” availability “[t]he Court cautioned that of in- post-trial inquiry attorney performance trusive into or of guidelines encourage detailed for its evaluation would proliferation challenges.” of ineffectiveness Id., at 690. required prove prejudice.

The Court also that defendants Id., at 691-692. “The defendant must show that is a there probability unprofessional reasonable but that, for counsel’s proceeding errors, the result of would differ- have been probability probability ent.” 694. “A reasonable is a sufficient to confidence in the Ibid. undermine outcome.” requires just That a “substantial,” “conceivable,” not likeli- supra, hood of a different Richter, result. at 112. Supreme decision is Court’s

Our review the California Mirzayance, “doubly Knowles v. thus deferential.” (2009) Gentry, (citing Yarborough 540 U. S. 111, U. S. curiam)). (2003) “highly (per take deferential” We 1, 5-6 supra, performance, Strickland, look at counsel’s 2254(d),” § Mirzayance, through lens “deferential supra, that was must demonstrate 121,n. 2. Pinholster Supreme necessarily for the California unreasonable (1) strong pre overcome the to conclude: that he had not (2) sumption competence; he failed to under that had and jury’s of death. mine confidence in the sentence

C Pinholster has not shown California per- deficient Court’s that he could not demonstrate decision by necessarily an unrea- formance his trial counsel involved application arguing sonable of federal law. In deficiently, performed Pinholster con- his counsel they pursued presented tended and addi- should have family tional his their criminal, evidence about: members and schooling; problems; mental, his substance abuse his history, including epileptic health medical his dis- mental support allegation To that his trial order. counsel had approach they took, “no tactical basis” for reasonable his counsel at trial. Pinholster relied on statements made App. Opposition arguing to Brief in 143. When the motion penalty aggravating evidence at to exclude the State’s phase comply Penal Ann. 190.3, Code failure to with Cal. Dettmar, counsel, contended that because one of Pinholster’s pre- presently “[was] provide he not the State notice, did mitigation,” pared anything way Tr. to offer response inquiry as to whether a the trial court’s only might helpful, noted that the Dettmar continuance mitigation of was think witness he could time, mother. Additional would stated, Dettmar not “make Id., deal of difference.” at 7257-7258. great begin We with circumstances, the that the “under premise the .challenged might action[s] considered sound trial supra, Strickland, (internal strategy.” at 689 quotation omitted). marks The Court of dissent described Appeals possible one strategy:

“[Pinholster’s attorneys] fully aware that they were would have to deal sometime the mitigation during trial, course of the did considerable spend time ef- fort avenues for and made a investigating mitigationf,] reasoned professional that best to judgment way serve their would be client rely on fact that they never got required [the notice and hope §190.3] would bar the state judge from on their putting aggra- vation 590 F. at 701-702 3d, witnesses.” (opinion J.). Kozinski, C.

Further, if their denied, motion was counsel were prepared to present only Pinholster’s mother in the penalty phase for Pinholster, create not but for sympathy his mother. all, After defense was “‘family sympathy’” mitigation to the bar known at the and had defense California time used other than attorneys. been 707. Rather dis- we that Dettmar’s neglect, were playing presume arguments Gentry, supra, (“[T]here of this trial at 8 part strategy. is a certain strong took for presumption [counsel actions] tactical reasons than sheer rather through neglect” (citing supra, Strickland, 690)). state-court record the idea supports

counsel acted strategically get aggrava- prosecution’s notice, failed, tion witnesses and if that excluded lack of on Pinholster’s mother. Other statements made dur- put the motion to exclude argument suggest ing regarding that defense counsel were to take trying advantage legal Brainard technicality were truly surprised. them had invited prosecutor Dettmar acknowledged review Pinholster’s state prison occasions to on numerous the did not meet with file that such an invitation but argued 52 Tr. Dettmar §of 7260. admitted “strict demands” 190.3. as as she “being is, possibly thorough prosecutor, he so, at 7250. But if met the requirement.” ha[d] to the court.”13 her “to that representation wanted make Ibid. trial investi- that Pinholster’s counsel

Timesheets indicate verdict, before gated Long guilty evidence.14 mitigating and Dettmar talked with Pinholster’s contacted mother the pen- months before February 26, On two psychiatrist.15 ar- for alty started, he billed six hours phase “[preparation Tr. Brain- death See 864. gument, phase.” Clerk’s penalty ard, phase, who assisted Dettmar for merely penalty researched and also interviewed Pinholster’s epilepsy mother.16 know We that Brainard additional likely.spent time, not reflected in these Pinholster’s entries, preparing who brother, testimony some Terry, mitigation provided 13 argument persuasive enough to cause the Counsel’s was trial a hearing testimony hold take before to exclude. denying and the motion 14 parties agree billing Both Califor that these records were before the Arg. 45, nia Court. See Tr. of Oral 48-49. 15 “phone 13 (entry See Clerk’s Tr. 798 on Jan. for call to defendant’s (entries id., 21 history”); mother re medical at 864 on Feb. for Code “Penal punishment”; research on 23 for with capital Feb. “conference defendant’s 190.3”; problems”; mother re Feb. 25 for “Research on Pen. childhood C. expert,” “Preparation “photocopying reports appointed and Feb. 29 fоr for psychiatrist,” “Preparation appointment of Declaration and Order for and research on Pen. C. investigator,” order of visitation for “Further 14, 190.3”). stop unfortunately March with The time records for Dettmar leading up during the weeks we not know what did critical so do he penalty phase May on 1. 16 (entries Brashear, id., for with Feb. “Conf. Bernice at 869 on re; mother”; epilepsy and conf. 25 for Pinholster’s and Feb. “Research nurse”); id., (entries penalty Apr. prep, 11 for “Start for at 1160 Brashear”; phase conf. with Mrs. Apr. ‘Prep, penalty and phase”; phase”). Apr. “Prep, penalty 26 for background during guilt phase. about at 200. Infra, record also shows Pinholster’s counsel confronted challenging penalty phase unsympathetic client, with an strategies. By mitigation limited

which their feasible guilt phase, jury end of the had observed Pinholster “glor[y]” disposition” in “his criminal “hundreds rob- Pinholster, 907,824 2d, beries.” 1 Cal. 4th, P. During laughed

584. or cross-examination, Pinholster jury “occupation” when he smirked told the that his he crook,” “a when was asked whether he had threatened potential thwarting police witness, when he described gun efforts recover a he had once used. Tr. 6225. He bragged being “professional about id., robber.” support To his defense, Pinholster he claimed that used guns only during knives—to commit his crimes. But —not pre- cross-examination, Pinholster that he had admitted viously using kidnaping. been of convicted in a knife Pin- supremacist also he holster said was a he white and that frequently people’s property carved swastikas into other as robbery.” 44 id., “a sideline at 6246. psychiatric expert, Stalberg,

Trial counsel’s Dr. had con- signs symp- significant that Pinholster showed no cluded or “psycho- of mental or toms disorder defect other than his pathic personality App. Stalberg traits.” 131. Dr. was hyperactivity youngster, hospital- of aware Pinholster’s as a age incorrigibility, alleged epileptic disorder, ization for Stalberg history drug dependency. of Nevertheless, Dr. appear that told counsel Pinholster did not to suffer from damage, significantly impaired brain or was intoxicated ability night question, impaired on the did not have an criminality appreciate of his conduct. impediments, it these would have been a reasonable Given strategy penalty-phase evoking sympathy to focus on for family-sympathy fact, In de- Pinholster’s mother. such a precisely how the fense State understood defense coun- carefully strategy. prosecutor opened cross- her sel’s hope you under- with, of Pinholster’s mother “I examination cross-examining anybody.” enjoy stand I don’t mother closing argument, prosecutor in her 7407. And Tr. strategy by point- attempted to undercut defense counsel’s Adolph ing person even born, “Even the most heinous out, probably id., had a who him.” 53 Hitler[,] mother loved at 7452. response only

Pinholster’s this evidence is series first from Brainard declarations submitted with petition, years seven trial. Brainard state habeas after the any interviewing “no declares that he has recollection” (other mother) family regarding members than Pinholster’s testimony, penalty-phase attempting to secure Pinhol- interviewing any records, ster’s or or of for- school medical Corpus mer or teachers counselors. Pet. Writ of Habeas (Cal.), Exh. 3. Brainard also declares that No. S004616 primarily responsible for mental health Dettmar issues case, in the but he has of Dettmar ever “no recollection” having medical records. Exh. secured Pinholster’s statements, neither confirmed nor denied Brainard’s Dettmar petition. died time first habeas as he had of the (Kozinski, dissenting). 3d, F. C. J., suggest- Brainard Dettmar made sum, statements ing they surprised intended to were not the State they billing put aggravating records show evidence, spent mitigating investigating and the record evidence, time they represented psychotic client whose demonstrates that hardly jury. performance the Pin- trial him to at endeared only responded of handful holster has this evidence by lawyers. post one The hoc nondenials of his California Supreme reasonably that Pinhol- could concluded Court competence presumption man- the ster failed to rebut of had per- adequately by here, that counsel had dated Strickland — phase penalty of trial. formed at Appeals Supreme The Court of held that the California unreasonably applied had Court Strickland because Pinhol- attorneys “w[ere] ster’s far more deficient than ... the attor- neys Terry Wiggins [v. Williams, Smith, 539 U. S. 510 (2003)], (2005)], Rompilla [v. Beard, 545 U. 374 S. where upheld petitioner’s each case in- 3d, effective assistance claim.” 590 F. at duty investigate,” from drew those cases “constitutional principle prima “[i]t id., at and the facie ineffec- investigation ‘abandon[] tive assistance for counsel to their petitioner’s [the] background acquired only having of after rudimentary knowledge history of his narrow from a set of ” ibid, (quoting Wiggins sources,’ v. Smith, 539 U. S. (2003)). explained 524-525 The court could not “lightly disregard” a failure introduce evidence of “excru- ciating history” “nightmarish life or 3d, childhood.” 590 F. (internal omitted). quotation marks Appeals misapplied

The Court of Strickland and over- constitutionally protected independence “the looked of coun- making and . . . the sel wide latitude counsel must have in Beyond general tactical S., decisions.” at 689. requirement “specific guidelines are reasonableness, particular appropriate.” Id., at 688. “No set detailed satisfactorily rules counsel’s conduct can take account of variety faced defense circumstances counsel or range legitimate Id., ....” decisions 688-689. Strick- rejected investigation itself that the land notion same (“[C]ounsel rеquired every case. at 691 has a will duty investigations to make reasonable or to make reason- particular investigations decision able that makes unneces- added)). sary” (emphasis constitutionally “[r]are” It is competent representation require “any technique will or one approach.” Ap- Richter, 106. The Court of S.,U.

196 attributing recent peals strict rules to this Court’s in erred case law.17 strong properly apply Appeals of did the Court

Nor The presumption competence mandates. of that Strickland presumption application of the dissent’s court dismissed the attorneys “fabricating] themselves an as excuse conjure up.” But at 673. Strickland 3d, 590 F. could not strong indulge [the] specifically court “must that a commands significant presumption” decisions “made all that counsel judgment.” professional 466 the exercise of reasonable in required Appeals not at 689-690. The Court of S.,U. “give attorneys 590 simply [the] doubt,” the benefit of range pos affirmatively of entertain 3d, 673, F. at but to proceed may had for have sible “reasons Pinholster’s counsel (Kozinski, dissenting). they ing See J.,C. did,” id., at 692 as (“Strickland supra, an in . . . calls for at Richter, also perform objective quiry of counsel’s into the reasonableness mind”). subjective ance, counsel’s questions it would whether Sotomayor Justice judgment professional for been reasonable mitigation family-sympathy adopt defense. trial counsel evidence, however, that such Post, cites no at 231. She approach with the standard inconsistent would have been capital prevailed in competence professional cases that in Angeles that, she does not contest Indeed, in Los 1984. using had been bar in California time, the defense supra, post, strategy. n. 191; Justice Wiggins, heavily in case but relies Sotomayor acknowledged specifically stand- trial counsel defendant’s Maryland capital practice that was inconsist- cases ard at 524. S., with what he had done. 539 ent other wrong looking necessarily Appeals was not “the Strickland ‘of neces test Court for but guidance, of this precedents Terry Wil case-by-case the evidence.”’ requires examination sity West, Wright 277, 308 liams, (2000) U. S. (quoting 529 U. S. (1992) J., (Kennedy, judgment)). concurring grounded At view is in little bottom, Justice Sotomayor’s (internal post, “prudence,” than at 231 more her own sense omitted), quotation appears her and to be belief marks what only mitigation capital strategy that the reasonable cases “help” jury post, defendant, is the the at “understand” 239. According to that Pinholster was an Sotomayor, Justice unsympathetic “compound[ed], client excuse[d], rather than deficiency” pursuing counsel’s further “that evidence could explain why way Post, Pinholster was the he was.” at 234. certainly attorneys But it can be reasonable to conclude crеating sympathy family that for the is a defendant’s better unsympathetic. simply idea because the defendant himself is flatly approach Sotomayor’s is with inconsistent Justice “[tjhere recognition ways that Strickland’s are countless provide any given effective assistance in case.” 466 S.,U. point attorney at 689. There comes where defense will reasonably strategy that decide another in order, is thus “mak[ing] particular unnecessary.” investigations Id., at (“The (Kozinski, dissenting) at 691; 3d, cf. 590 F. J., 692 C. ‘humanizing’ current infatuation with the defendant as the mitigation disregards possibility be-all end-all that may wrong experi- this be the tactic in some eases because it”). lawyers jury buy simply enced conclude that the won't heavy are “a Those decisions due measure of deference.” supra, Supreme Strickland, at 691. The California Court reasonably could have concluded Pinholster’s counsel made such reasoned decision in this case. “ recently ‘[sjurmounting haveWe reiterated Strick- ” high easy supra, land’s is Richter, bar never an task.’ (2010)). Kentucky, (quoting Padilla U. S. applied “scrupulous The Strickland standard must be supra, Appeals Richter, care.” at 105. Court of did do so here.

D deficiently, performed Even if trial counsel had Pinhol- also ster has failed to show that the California concluded that Pinholster unreasonably must have there is whether question was not prejudiced. “[T]he errors, that, absent sentencer reasonable probability balance aggravat- . . . would concluded warrant did not death.” circumstances ing mitigating supra, Strickland, evi- 695. We therefore “reweigh available aggravation totality mitigat- dence against supra, Wiggins, evidence.” ing turn first to

We aggravating mitigating supra, Strickland, that the considered. sentencing jury (“[A] must at 695 court an ineffectiveness claim con- hearing or totality jury”). sider of the before judge Here, the same and guilt penalty phases heard both jury and was consider all the evidence presented. instructed to Visciotti, 537 at 25 the state habeas S., (noting Cf. had considered evidence intro- court correctly mitigating during duced guilt phase). As

The extensive evidence. presented aggravating State Pinholster revel already discussed, jury we have watched Supra, Then, in extensive criminal 193. history. his evidence that State during penalty presented phase, kill witness, lead Pinholster had threatened the State’s a man and another razor, assaulted with a straight kidnaped Pinholster a The showed that had State knife. person and threat- outbursts, including striking a violent history 17, a at age breaking bailiff after a ening proceeding seizures, and as- by arrest faking his wife’s jaw,18 resisting also The heard jury and on officers. saulting spitting police and his in sub- gangs Pinholster’s juvenile about involvement and county jails, record in both disciplinary stantial thrown urine at threatened, assaulted, he had and where testify to this fact. spousal privilegе to wife waived her Pinholster’s argue that her testimony used acknowledged that her be She would should executed. husband

guards, fought jail, with other in Pin- inmates. While segregated propen- holster had been time for due sity placed “special disciplinary for violence and diet” only disruptive reserved for the most inmates. Tr. mitigating primarily The evidence consisted of the penalty-phase testimony of mother, Brashear, Pinholster’s gave who a detailed account Pinholster’s troubled child- Early quite hood and adolescence. childhood was difficult. family money.” “didn’t have Id., lots of at 7404. When young, very he was Pinholster suffered two in- serious head juries, age first at or 3 when he was run a car, over again age through 4 or when he went the windshield during stepfa- a car accident. When he was nearly ther moved and was or abusive, so. always struggled disruptive

Pinholster in school. He was kindergarten failing by grade. got and was first He fights grade, run would out of the classroom. In third suggested just Pinholster’s teacher that he was more than “‘disruptive Following child.’” at 7394. tests at educationally clinic, Pinholster was sent to a school handi- capped performance improved. children where his age psychiatrists

At recommended that Pinholster be although go. sent to mental he institution, Pinhol- did not fights had continued to ster initiate with his and to brothers neighborhood, “[stealing like act “Robin Hood” the around poor.” giving the from rich and to the Id., at 7395. Bra- “ thought [something working shear had then that was not right.” at Id., 7396.

By age living boys’ 11, 10 or was Pinholster in homes and juvenile spent halls. He six months when was in he emotionally handicapped for state mental institution chil- By county jail, he dren. the time was Pinholster in 18, badly suspected he that where was beaten Brashear the beating epilepsy, caused Pinholster’s for he has been which prescribed prison, medication. After a stint in Pinhol- re- acted “unusual” and had trouble returned home but

ster adjusting life. 7405. “basically very siblings good children,” were

Pinholster’s although get they His Id., at would into trouble. 7401. driving Terry, had for drunk and been arrested brother, Tammy Tammy, public also was ar- for intoxication. sister, possession drug self-destructive and and was rested Alvin, a fu- brother, died “wild.” Ibid. eldest gitive from California authorities.19 testimony, penalty-phase Pinhol-

In addition to Brashear’s during previously presented mitigating the had evidence ster Terry guilt phase Terry. that from his testified brother, all his suf- life,” Pinholster was “more or less in institutions epilepsy, and less” drunk on the fered from was “more or night of id., the murders. considering aggravating mitigating evi-

After this jury the death. The state trial returned sentence of dence, jury’s “supported that the determination was found overwhelmingly weight of the the evidence” added beyond aggravation “the all reasonable factors in doubt outweigh mitigation.” 1184,1186. in Tr. those Clerk’s probability the evi-

There no reasonable additional presented proceedings his state habeas dence Pinholster changed jury’s verdict. The “new” evidence would have the largely duplicated mitigation evidence at trial. School testimony basically substantiate the medical records Sotomayor testimony as “self-

19Justice criticizes Brashear’s interested,” family-sympathy post, but of the premise whole interest. much the fact family’s similarly makes defense is She testimony closing argument. prosecutor “belittle[d]” Brashear’s Post, diligent prosecutor would Any fail to see the point. at 237. We put had on. the defense mitigating whatever evidence challenged closing argument certainly not And, expect prosecutor’s we would favorable Pinholster. light most have described ibid., 26. see n. But

Pinholster’s mother Declarations from Pinhol- and brother. siblings support testimony stepfa- his mother’s that his ster’s explain ther was abusive and was beaten Pinholster fists, belts, and even wooden boards. To the extent the state record new factual habeas includes allegations mitigat- questionable or evidence, much it is of ing testify value. If Pinholster had Dr. called Woods con- sistently psychiatric report, with his would have Pinholster opened by expert. g., See, door to rebuttal state e. curiam) (2009) Wong (per Belmontes, v. 15, 558 U. S. (taking mitigating into account that certain would exposed petitioner aggravating to further evi- dence). relating family— The new evidence their more abuse, illness, serious substance mental and crim- problems, post, clearly inal see at 226—is also no means mitigating, jury might as the have concluded that Pinholster simply beyond Virginia, rehabilitation. Cf. Atkins (2002) (recognizing mitigating 536 U. S. evi- “two-edged juries might dence can be a sword” that find to dangerousness). show future remaining new material habeas record sparse. We learn that Pinholster’s Alvin brother died of by drug passing

suicide overdose, there are references drug dependency. According to Pinholster’s own to Dr. Stalberg, apparently Pinholster’s “school records” evidenced degree” damage. App. Opposition “some of brain Brief Mostly, just 219. there are a few new about details Pinhol- apparently ster’s childhood. Pinholster like looked his bio- logical grandparents father, whom his Pet. for “loathed.” Corpus (Cal.), p. of Writ Habeas No. S004616 Exh. 1. Accordingly, grandparents “spanked whenever or disci- plined” “always got Pinholster kids, worst of it.” mostly unsupervised get Ibid. Pinholster was and “didn’t stepfather always love,” much because his mother and were working and “were more concerned with their own lives parent than the welfare of their kids.” Neither Finally, schooling. concerned about Pinholster’s seemed mixing and aunt saw the once children flour “[m]ost something although con- eat, make meals water to spaghetti Id,., ilk.” at 1. canned of that sisted of foods mitigating what little additional evidence Pinholster Given say presented that the habeas, in state we cannot California Having Supreme Cоurt’s determination was unreasonable. already is in the state habeas heard much of what included jury Moreover, returned of death. record, sentence likely testimony some of the new would have undercut testimony mitigating value of the Pinholster’s mother. significant that, The is new material thus not so even assum- ing deficiently, performed Pinholster’s trial counsel it was necessarily for the unreasonable California Court to conclude that had Pinholster failed to show “substantial” Richter, of a sentence. at 112 S., likelihood different 693). (citing Strickland, S., at 466 U. deficiency, Appeals

As with found this case Court “materially indistinguishable” Terry from Williams (2005). Rompilla Beard, 3d, U. S. 374 590 F. at 684. apply ques did But this not AEDPA deference to Court prejudice them im tion in those each of lack the cases; portant “doubly of Strickland deferential” standard (re Terry Williams, S., AEDPA. 529 U. 395-397 apply viewing correct state-court decision did standard); supra, legal RompiUa, (reviewing at 390 Strick prejudice de because state-court decision did land novo question). offer no not reach the Those therefore cases guidance respect court has unrea to whether a state lacking. prejudice sonably have said determined that is We application again federal “an time and unreasonable application law.” of federal law is from an incorrect different omitted). (internal supra, quotation marks at 101 Richter, might Appeals a different have reached Even if the Court conclusion as an initial not an matter, unreason- able of our for the Su- application California precedent to conclude preme that Pinholster did not establish prejudice.20

[*] ^[*] ‡ of the judgment United States Court of Appeals the Ninth Circuit reversed.

It is so ordered. Justice Alito, in concurring in ‍‌​​​​‌‌‌‌​‌​​‌​‌‌‌​‌​​‌​​‌‌​​‌‌‌‌​‌‌‌‌‌​‌​‌‌​‌‌​‍part the concurring judgment. I concur in the

Although Court’s I judgment, agree the conclusion in reached Part I the dissent, namely, that, when an evidentiary is in federal hearing properly held court, 2254(d)(1) review under 28 § U. S. C. take must into account the evidence at that admitted As the hearing. dis- sent out, to points refusing consider the evidence received in the in 2254(e)(2) federal court hearing § gives an implausibly narrow and will scope lead either to results that Congress not did intend or to the surely distortion of other provisions of the Antiterrorism and Effective Death Act of 1996 Penalty (AEDPA), Stat. and the law on “cause and preju- post, dice.” See J). 214-217 (opinion Sotomayor, Under AEDPA in federal evidentiary hearings court should be rare. The petitioner must made a generally effort to diligent in produce state court the new evidence on Taylor, §See 2254(e)(2); Williams v. which he seeks rely. 20Because Pinholster has failed adjudication to demonstrate that his claim based on the state-court a “contrary record resulted in decision to” or “involv[ing] application” law, an unreasonable a federal writ of corpus habeas “shall analysis not be our granted” and at an is end. 28 2254(d). § S.U. C. We are barred from considering Pinhol evidence ster in submitted the District additionally Court that he contends supports reason, 2254(e)(2) his claim. For that § we not pro need decide whether hibited the District Court from holding evidentiary hearing or a may whether district court ever evidentiary hearing choose hold an 2254(d) § before it determines has been satisfied. (2000). requirement sat- is not If that 420,433-434 U. S. predicate petitioner may for establish the factual

isfied, the things, hearing only among other if, a claim in federal-court underlying to estab- the claim would be sufficient “the facts convincing constitu- but for lish clear and would have found tional no reasonable factfinder error, 2254(e)(2)(B). applicant underlying guilty offense.” of the satisfy diligence petitioner stand- Even when the does adopted Taylor, supra, hearing should ard Williams not be held new evidence in federal unless petitioner not could seeks to introduce not and proceeding. have been offered in the state-court Section 2254(e)(2) hearing not situations, certain but does bars hearing mean that a is other See allowed all situations. (2007). Landrigan, Schriro v. 473-474 U. S. essentially ha- whole thrust of AEDPA reserve federal state courts acted beas relief those cases in which the (e)(1). (2), §§2254(d)(1), Permitting unreasonably. petitioner evi- federal relief on the basis of obtain habeas dence that state court have been but was offered in could upset would this scheme. essentially

In for the set in the dis- this reasons out case, Appeals’ from Pinhol- decision, sent the en bane see Court (CA9 2009) Ayers, (opinion of ster v. 590 F. 3d 688-691 J.), hearing Kozinski, I the C. would hold that federal-court respondent not held did not dili- should have been because gently present the courts. his new to California join opinion as Court, II of the I Part the And all but agree represented a I the state court the decision of clearly application of established reasonable precedent light the record. state-court dissenting part concurring Breyer,

Justice part. join opinion. join I do not

I l and II of Parts the Court’s back to Court of III, Part I would send case this Appeals apply legal it so that can Part II standards that complex Compare ante, announces facts of case. this (majority opinion), post, at 187-203 at 221-246 (Soto- dissenting). J., mayor, understanding

Like Court, I believe that its 2254(d)(1) § hearing 28 U. S. C. does leave AEDPA’s sec- 2254(e), tion, without work An to do. who offender be- present he is lieves entitled to relief must habeas first a claim evidence) (including the state courts. If the state reject may then a courts federal claim, habeas court re- rejection view that on the basis of the materials considered by the state court. If the federal habeas court finds that (d)’s (or (d) the state-court decision fails test if does not (e) apply), hearing may an then be needed. example, rejection

For if the state-court the ha- assumed petitioner’s (deciding beas that, facts even those facts were if (after violated), finding true, law federal was not then (d) (e) wrong ground) might hearing state court on a an be alleged needed to determine whether the facts were indeed rejection true. if the Or state-court rested on ground, inadequate, which federal habeas court found then (e) hearing might petitioner’s an be needed consider (now unblocked) substantive federal claim. if Or the state- rejection only rested on one of federal several related (e. grounds g., that counsel’s assistance “inade- was not quate”), if then, the federal court found that the state court’s (d), respect ground decision in to the an decided violated (e) hearing might parts be needed related consider other (e. g., of the whole constitutional claim whether the counsel’s “inadequate” prejudicial). may assistance also There (e) hearing other situations in which an is needed as well. (e) say case, however, this we cannot whether hearing is needed until we know court, whether the state rejecting presented in Pinholster’s claim the to that basis (In (d). my state court, violated view, the lower courts’ analysis respect inadequate.) in to this matter is (d) analysis petitioner to is no in for habeas

There role presented to the state introduce that was not first evidence But not mean Pinholster is without courts. that does always present He to recourse to new evidence. can return previously pre- presenting new evidence not state court again might relief, If he sented. court denies to to make related to able to return claims federal rejection, subject to succes- latest AEDPA’s limitations on §2244. petitions. sive pro- predict trying

I am not the future course these only my point ceedings. I in is not that, view, out AEDPA designed necessary peti- to take remedies from a habeas give opportunity tioner but to a first consider State properly re- most to insist that federal courts matters and spect state-court determinations. Ginsburg with whom Justice Sotomayor,

Justice dissenting. Kagan join II, as to Part Justice develop petitioners unable the factual Some habeas are through no of their claims in state court fault basis of their Congress recognized much when enacted the own. as Penalty Death Act of Antiterrorism and Effective (AEDPA), permitted therein intro- Stat. proceedings in in habeas duction new evidence federal 2254(e)(2). § C. See 28 U. S. certain limited circumstances. §2254(d)(1), interpretation how- novel Under the Court’s eye to new ever, a blind federal courts must turn 2254(d)(l)’s § deciding petitioner in has satisfied whether it is habeas relief—even when threshold obstacle federal light petitiоner to relief would be entitled clear that the “compe[l]” reading this statute to of that evidence. key ignores a textual ante, the Court result, harsh 2254(d)(2) 2254(d)(1) §§ and discards difference between understanding precedents previous new evi- our 2254(d)(1)inquiry. I there- fact, inform the can, dence holding. first from Court’s fore dissent disagree 2254(d)(1) § I also the Court even that, if the analysis respondent is to limited the state-court record, Scott to Pinholster failed demonstrate that the California denying decision Court’s his ineffective-assistance-of-counsel application claim anwas unreasonable Strickland v. Wash- (1984). ington, 466 U. S. There is no reason for the 2254(d)(1) majority § analysis to decide the whether is lim- ited to state-court record because Pinholster satisfied 2254(d)(1) § on either the state- or federal-court record.

I determining The Court first that, holds in whether a application state-court decision is an unreasonable of Su- § preme precedent 2254(d)(1), under “review ... is lim- adjudi- to ited record was before the state court that cated the claim on the Ante, merits.” 181. New evidence evidentiary hearing at a adduced federal is now irrelevant 2254(d)(1). § determining petitioner whether has satisfied holding promote unnecessary purposes, This is AEDPA’s provision’s and it is with the text, inconsistent the structure precedents. and our statute, A significance majority’s holding, To understand of the important to view the issue context. AEDPA’s entire gives opportunity structure —which state courts to de- legal questions cide factual and in the first instance —ensures evidentiary hearings proceedings habeas in federal are very Kang, rare. Cheesman, Ostrom, See N. F. & B. Final Litigation Report: Technical S. Habeas U. District Courts (2007) (evidentiary hearings under 35-36 AEDPA occur percent noncapital percent capital cases 9.5 0.4 cases). today’s Even absent new restriction created multiple holding, prison- AEDPA hurdles to erects a state ability er’s introduce new evidence in a federal habeas proceeding. peti- requirement, “[u]nder a habeas exhaustion

First, attempt challenging must first state conviction tioner Harrington present Richter, state court.” his claim in 2254(b)(1)(A). (2011); cer- see also With U. S. exceptions, a courts cannot consider narrow federal tain accept to new evidence relevant all, at let alone claim in claim, if it state court.1 ex- has not been exhausted requirement to state courts the thus reserves first haustion disputes a opportunity to state to relevant resolve factual prisoner’s 838, Boerckel, 526 U. S. claim. See O’Sullivan v. (1999). 845 “complement[ed]” requirement

Second, the exhaustion 2254(d). Harrington, by the standards set forth in 562 may provision, a S., at 103. Under this federal court not any adjudicated grant on the habeas relief on “claim adjudication proceedings” in court merits State unless “(1) contrary to, in decision that was or in- resulted clearly application estab- of, volved an unreasonable law, lished as determined Federal or States; United “(2) ain that was on an unrea- resulted decision based light the facts in of the evi- sonable determination of proceeding.” presented dence in court State grant to whether habeas relief.” These standards “control (2007). Landrigan, 465, 474 v. Accord- Schriro U. S. allegations petitioner ingly, said, if the factual we have hearing satisfy prove evidentiary would an seeks hearing. for a id., there is See standards, these no reason may its case, 481. In such a exercise the district deny evidentiary hearing.” Ibid.; see also “discretion to approach sense: If 218-219. This makes eminent infra, asking evidentiary hearings first held without courts district prisoner matter, properly Relatedly, must, exhaust general as a state having claim defaulted on state court his federal claims to avoid (1991). Thompson, S. Coleman v. 501 U. grounds. procedural petitioner present whether evidence the seeks to would satisfy demanding they standards, AEDPA’s need- would lessly prolong proceedings. habeas federal petitioner

Third, even awhen seeks to introduce new evi- prohibits that would entitle him relief, dence AEDPA him doing except range so, in a cases, from narrow unless he light attempt, “made reasonable of the information avail- investigate pursue at the time, able claims (2000) (Mi- Taylor, court.” Williams 529 U. S. Williams). §2254(e)(2)provides: Thus, chael applicant develop

“If the has failed the factual basis proceedings, of a claim in State court the court shall evidentiary hearing not hold an on the claim unless the applicant that— shows

“(A) the claim relies on—

“(i) a rule of law, new constitutional made retroactive by to collateral eases on review the Court, that previously or unavailable; “(ii) predicate pre- a factual that could not have been viously through the of discovered due exercise dili- gence; and

“(B) underlying the facts the claim would be suffi- convincing cient to establish clear and evidence that error, but for no constitutional reasonable factfinder applicant guilty underly- would have found the of ing offense.” opening Williams, Michael we construed the clause of provision evidentiary triggers the bar

this hear- —which apply ings diligence, of when “there is lack or some —to prisoner prisoner’s greater fault, to the attributable or the evidentiary at 432. AEDPA thus counsel.”2 bars an hearing nondiligent petitioner petitioner for a unless can 2 2254(e)(2) governs attempt Section also an to relief obtain “based on Jackson, evidentiary Holland hearing.” new without v. 542 curiam) 649, (2004) deleted). (per (emphasis S. 653 2254(e)(2)(A) §§ (B),

satisfy petitioners few both which 2254(e)(2) way peti- in can. this incentivizes Section state develop state tioners the factual basis of their in claims court. evidentiary hearings

To limited are extent that federal petitioners they under who AEDPA, available ensure that diligently developed their the factual basis of claims state pro- the state-court discovered new evidence after court, ability ceeding, and return retain the cannot ante, J., to access the at 203-204 Great Writ. See (Alito, part concurring judgment). concurring in “When Congress previously judi- governing new this codified rules cially sight managed losing it did so without area law, corpus plays a that the ‘writ of vital role in fact habeas protecting rights.’” Florida, v. constitutional Holland (2010) (quoting McDaniel, U. S. Slack U. S. (2000)). Allowing petitioner new evi- introduce permitted by hearing in the dence at a limited circumstance 2254(e)(2) § upset Congress struck does not the balance By con- in AEDPA the state federal between courts. 2254(d)(1) § provisions struing work of other to do the Congress’ majority bal- careful AEDPA, has subverted unnecessarily responsibilities. also ance It has created complexities procedural set courts brandnew lower will confront.3

B 2254(d)(1) sup- majority’s interpretation of no finds provision’s port as a or statute’s structure in the text whole.

1 2254(d)(1) requires to ask whether courts district Section in a deci- adjudication “resulted merits on the a state-court appli- contrary unreasonable to, involved sion that was or determined clearly law, as of, established Federál cation 5, 7, 13, nn. and See, g., e. infra. ” pro- Court of the this United States. Beeause “backward-looking language” past-tense e., vision uses —i. majority verbs—the review to believes that limits 2254(d)(1) §§ Ante, state-court record. at 182. But both 2254(d)(2) language,” “backward-looking and use 2254(d)(2) § §2254(d)(1) expressly directs district —unlike — presented base their

courts “the review on in proceeding.” past the State court If use of the tense were Congress’ analysis to indicate sufficient intent to restrict phrase light record, the state-court “in of the evidence §2254(d)(2) presented proceeding” in the State court in superfluous. majority’s would The construction of 2254(d)(1) § give meaning Congress’ fails to decision to in- language referring presented clude to the evidence to the 2254(d)(2). § state court in States, Cf. Bates v. United (1997) (“Where Congress particular 23, S.U. 29-30 includes language in one section of a it in statute but omits another generally presumed Act, section of same it is that Con- disparate gress intentionally purposely acts in the inclu- (internal quotation or sion omitted)). exclusion” marks brackets Ignoring statutory “reluctan[ee] to our usual treat terms surplusage any setting,” as in Andrews, TRW Inc. v. (2001) (internal omitted), quotation S. marks 2254(d)(2) § majority phrase appearing characterizes the “clarifying spec- language,” mere It ante, as n. “[t]he clarifying language ulates that from omission of 2254(d)(1) § just likely Congress’ as reflects belief that such language unneсessary anything it does else.” Ibid. as argument merely phrase “clarifying” might this Congress phrase force, have more included however, had this 2254(d)(1) 2254(d)(2). § § but As between the two 2254(d)(2) requires provisions, review of the state —which logically de- court’s “determination the facts” —more presented pends on the facts to the court. Because provision point than this needs less clarification on this

212 included

§ all the more that Congress it is 2254(d)(1), telling from 2254(d)(2) it § to exclude this in but elected phrase 2254(d)(1). § I refuse assume in colleagues majority,

Unlike my in The in- that simply engaged sloppy drafting. Congress with its omis- §in 2254(d)(2) coupled clusion of this phrase — 2254(d)(2)’s § provision, 2254(d)(1) pro- § from partner sion — that did intend for vides reason to think Congress strong 2254(d)(1) to “the § to be limited analysis categorically evidence in the State court proceeding.” presented

2 “ ” ante, the statute context of as ‘broader whole/ Co., v. Shell Robinson Oil 337, 519 341 U. S. 182 (quoting (1997)), Congress’ this conclusion. In particular, reinforces 2254(e)(2), § that decision to include in AEDPA provision, in certain circum- evidentiary federal permits hearings not in- further did Congress stances provides 2254(d)(1) § to the state-court record tend to limit the inquiry in every case. diligent peti-

We have some habeas recognized long their all of facts tioners are unable develop supporting above, enacting claims in court.4 As discussed state for hearings barred generally evidentiary AEDPA, Congress their “exercise pursuing who did not petitioners diligence Williams, court. Michael S., 436; 529 U. claims” in 4 (2000) Williams, 420, that dili See, (noting U. 432 g., Michael a. 529 S. “thwarted, by example, develop gent might the facts efforts to prose id., at 434 (noting happenstance”); or conduct of another “a claim which was supporting facts” might cution have “concealed (re (1963) Sain, S. v. Townsend diligence”); pursued alia, when, inter “the hearings grant evidentiary quiring courts federal adequate court was not employed by procedure the state fact-finding allegation newly hearing” “there is a afford a full and fair or substantial Keeney grounds by evidence”), part other overruled discovered (1992). U. S. Tamayo-Reyes, 2254(e)(2). Importantly, any impose see also ex- did not press evidentiary hearings petitioners limit on had for who (“[T]he diligent been in state statute id., court. at 436 See prisoners equate pursuing diligence does not who exercise in not”). petitioners, their claims with those dowho For those Congress the hearing a left decision to the sound hold “to Landrigan, district discretion of atS., courts.” 550 U. diligent petitioner Faced with in a situations which offers appeals additional court, federal the courts 2254(d)(1). approaches § applying have taken two Some courts have held that when a federal court admits new evi- adjudicated supporting a dence claim on the merits in state 2254(d)(1) § apply court, does not at all and the federal court may review сlaim de the novo. ante, See Holland v. 184; (2004) curiam); (per g., Jackson, 649, 542 U. S. 653 see, e. (CA4 2010). Kelly, Winston 592 535, v. F. 3d 555-556 agree majority’s rejection I approach. with the of this See comity principles ante, 185. It would undermine mo- tivating adjudica- AEDPA decline to defer to a state-court through tion of claim because the state no fault of court, all the its lacked own, relevant evidence.5 Appeals, including Other below, Courts the court struck a more considered balance. These have held courts 2254(d)(1) § apply continues to but that new evidence properly presented hearing in a federal is relevant to the

5 2254(d)(1) course, only applies Of adjudicated when a state court has a claim on There may the merits. be situations in new evidence which adjudicated supporting a claim gives altogether the merits rise (evidence See, e.g., Reply different claim. Brief for Petitioner 10-11 by prosecutor relating sepa withheld may to one claim rise to give Brady Maryland, (1963)). rate claim v. majority under 373 U. S. 83 opinion possibility. does not foreclose this

I majority not suggest assume does intend to that review is petitioner’s limited to inability develop the state-court record when the facts his claim supporting was fault of the itself. See state court Kelly, generally 2008, Bell Arg. Tr. of Oral v. O. T. No. 07-1223. Pinhol- decision.

reasonableness of the state-court 2009) (“If (en banc) (CA9 Ayers, 651, v. ster 590 F. 3d or under Michael the evidence is admissible Williams §2254(e)(2), petitioner’s if claims it render does evaluating properly considered in ..., unexhausted then is legal reached state habeas whether the conclusion law”); application reasonable (CA2 2009); 490, 3d accord, Mazzuca, v. 570 F. Wilson (CA7 2002); Walls, 3d v. 286 F. Valdez Pecoraro 2001). (CA5 approach ac- Cockrell, 274 F. 3d This 2254(d) §§ goals, competing commodates the reflected 2254(e)(2), according deference to reasonable state-court diligent preserving opportunity peti- decisions and they present to when tioners evidence the federal court to to do so were in state court. unable majority as I third, that, The so far charts novel course 2254(d)(1) appeals adopted: court has am no of Section aware, petitioner apply has evidence to when a additional continues present the state but the court, that he unable to to deciding cannot district court consider that evidence 2254(d)(1). § prob- petitioner whether the has satisfied The potential approach habeas lem this is its bar federal with diligent petitioners present relief cannot new for habeas who to a state court. evidence diligently example, petitioner for who at-

Consider, tempted develop factual of a claim in state court to the basis prosecutors exculpatory witness statements in withheld (1963). Brady Maryland, The violation 373 U. S. 83 v. ground the that the withheld evi- state relief on court denied materiality rise the level of known did not dence then filing required Brady. a federal Before the time for under expired, orders petition however, has state habeas petitioner had the the additional documents State to disclose timely public requested records Act. under the State’s ex- other reveal that the withheld State disclosed documents per- culpatory but law would statements, witness the mit petitioner the new evidence in present a succes- sive petition.6

Under our if the precedent, had not petitioner presented Brady his claim to the state court at all, claim would deemed defaulted, and petitioner could to show attempt See Michael cause and prejudice overcome the default. supra. Williams, S., 444; see also n. If, however, Brady new evidence merely bolsters a claim that was on the adjudicated merits in state court, it is unclear how can obtain petitioner federal habeas relief after today’s What may been holding. reasonable on decision state-court record no may be reasonable in longer light Kyles Whitley, the new evidence. See U. S. Brady

(1995) (materiality evidence is viewed “collectively, item”). not item by Because the state court adjudicated Brady claim on petitioner’s merits, 2254(d)(1) would Yet, still under apply. majority’s interpretation § 2254(d)(1), a federal court is now prohibited from consider- the new ing the reasonableness of determining the state-court decision.

The majority’s 2254(d)(1) §of interpretation thus suggests the anomalous result with petitioners new claims based newly obtained evidence can obtain federal habeas relief if can show they cause and prejudice their default but petitioners newly obtained evidence a claim supporting on adjudicated merits state court cannot obtain federal if 2254(d)(1) habeas relief cannot § first they satisfy without the new evidence. That the majority’s leads interpretation to this is reason to anomaly conclude that good its interpre- Keeney Tamayo-Reyes, tation is See wrong. 1, 504 U. S. (1992) (“ 7-8 is . . . to irrational fail- [I]t between distinguish ‍‌​​​​‌‌‌‌​‌​​‌​‌‌‌​‌​​‌​​‌‌​​‌‌‌‌​‌‌‌‌‌​‌​‌‌​‌‌​‍to ing assert a federal claim in fail- properly state court and claim”). in state court to ing such a properly develop id., (statement g., e. See, by 37-38 counsel respondent for the warden Virginia that law applications, bars all successive habeas even in cases evidence). petitioner where the has new by anomaly suggesting majority responds that to this

The hypothetical “may [have] my petitioner new well a claim.”7 suggestion puzzling. evi- is New Ante, n. 10. This merely usually give claim; it not rise to new does dence adjudicated already proof provides claim additional presumably suggest majority to means the merits.8 The might petitioner re- be able to obtain federal-court that the prejudice if he can cause and new show view his evidence present to a state court. his failure the “new” claim for to that court would review however, In the federal scenario, majority’s ap- purportedly The “new” claim de novo. replace proach new review of thus threatens deferential to 2254(d)(1) § evi- under with de novo review of new evidence unlikely it is in the form of “new” claims.9 Because dence sug- Congress de review—the result that intended novo by majority’s opinion gested must have intended —it newly con- courts discovered evidence in district to consider 2254(d)(1) § analysis. ducting the 2254(d)(1) ultimately majority’s reading appears The understanding to its that state courts must have the rest on adjudicate petitioners’ opportunity claims. first habeas (“It contrary [AEDPA’s would be ex- ante, at 182 petitioner requirement] an haustion to allow overcome evidence introduced adverse decision with new state-court that in a and reviewed federal habeas court declines, however, guidance to provide any the lower majority from new distinguish adjudicated on merits courts on how to claims claims. petitioner has a fairly my hypothetical argued Even can if it petitioner with new majority diligent claim, explain fails to how new evidence to a present his new existing claim can supporting federal court. seriously take vein, majority’s “would approach this decisions.” defer to state-court requirement federal courts AEDPA’s Ante, n. novo”).10 effectively

the first instance de Breyer Justice position. (opinion takes the same See ante, concur- (AEDPA ring part part) dissenting designed in in is “to give matters”). opportunity the State first to consider most fully agree I petitioners present attempt that habeas must evidence to state courts the instance, in first as does Justice disagree ante, see Where I with the 203-204. ma- Alito, 2254(e)(2) jority my § understanding already inis accom- plishes 2254(d)(1) § By reading this result. to do the work §2254(e)(2), 2254(e)(2) § majority gives unnaturally of the cramped reading. majority result, As a either has fore- diligent petitioners through closed habeas relief for who, no present exculpatory fault of their own, were unable evi- adjudicated dence to the state court that their or claims has procedural complexities created new set of for the lower navigate availability courts to to ensure the of the Great petitioners. diligent Writ for agree

These considerations me to lead of Courts Appeals that have concluded that a court as- federal should application sess of a reasonableness state court’s of 2254(d)(1) clearly § light established federal law under properly evidentiary hearing. evidence admitted a federal nоthing “strange” approach. There is about Ante, this §2254(d)(1), routinely engage 182. Under federal courts analysis might state court itself never have con- example, or not ducted did For when a conduct. court summarily explanation, denies a claim without as the Califor- deny nia here, did courts must ha- district 2254(d)(1) § any pursuant long beas relief so as “there argument” supporting petitioner’s reasonable the denial of 2254(d)(1), my reading course, Under district would review properly admitted new through lens deferential § 2254(d)(1), de novo. Harrington, ask likewise S., 105. We 562 U.

claim. clearly unreasonably applied a decision whether state-court a rea- court issued federal when the state established law altogether. See cite law federal soned decision but failed to curiam). (2002) Early (per Deter- Packer, 537 U. S. reasonably mining have denied a could whether state court newly petitioner light is not evidence a relief discovered any determining there reason- than is so different whether for a state court’s decision. able basis unreasoned §2254(d)(1), Admittedly, standing does alone, the text of construing compel reading provision. either But 2254(d)(1) § permit properly to of evidence in- consideration federal court with the text of troduced in best accords 2254(d)(2) § By inter- and AEDPA’s structure as whole. 2254(d)(1) § petitioners nondiligent preting prevent to from 2254(e)(2) § very gaming system purpose of —the —the majority potentially put reach habeas relief out of has diligent petitioners with claims based new meritorious evidence.

C holding majority is that its claims “consistent” opposite Ante, case is true: Orn- Quite our law. at 182. previous understanding prop- our eases reflect 2254(e)(2) § erly pursuant to to is relevant admitted 2254(d)(1) § analysis. today’s Landrigan, the author Thomas, Justice understanding interplay

opinion, of the be- confirmed this 2254(d)(1) 2254(e)(2). §§ we above, ad- As noted tween petitioner’s to consider whether a monished district courts 2254(d) § satisfy proved allegations, in de- true, would if hearing. highlighting grant termining After whether to 2254(d) §§ under owed to state courts deference 2254(e)(1), stated: we evidentiary grant deciding hearing, an to whether

“In hearing whether such consider a federal must applicant prove petition’s could enable factual allegations, applicant which, true, if would entitle federal habeas relief. Because the stand- deferential §2254 prescribed by grant ards control whether ha- relief, beas a federal court must take into those account deciding evidentiary hearing standards in whether an (citation omitted). appropriate.” S., By instructing 2254(d) district courts to consider stand- deciding grant hearing, ards whether we must hearing the understood that evidence at a could be admitted 2254(d)(1) § analysis. the considered in See Brief for Ameri- (“The can Civil Liberties Union as Amicus Curiae 9 whole point Landrigan’s of admonition that the court decide must 2254(d)(1) § hearing еye a whether to hold with an on is that proffers justify fact-finding some of evidence will not federal §2254(d)(1), proffers proof view of in will”).11 but that other 2254(e)(2) § argued In Williams, Michael the warden that evidentiary hearing petitioner an bars a whenever un- was develop able to the factual record in state “whether court, through neglect.” or not S., his own fault or 529 U. argument, petitioner Under the warden’s a not who de- did velop in the record court, state whatever the reason, would presenting barred from evidence be to the federal court. rejecting argument, we observed: prisoner developed

“A who in his claim state court and prove ‘contrary can to, state court’s decision was or clearly application involved an unreasonable of, estab- by law, lished Federal determined as Court obtaining of the from relief States,’ United barred Landrigan. aspect Landri majority The overlooks quotes this It gan’s allega that “if the refutes applicant’s observation record factual precludes relief, required or tions otherwise habeas a district court is not evidentiary S., to hold an hearing,”. has but statement bearing by question today. no on the decided 2254(e)(2) § 2254(d)(1). § cov- opening

by If the clause hearing evidentiary which request on claim an for ers undeveloped diligence pursued but remained prosecution con- because, instance, for convincing prisoner lacking clear and facts, cealed hearing from a be barred innocence could 2254(d).” § satisfy at 434 the claim even he could (citation if added). emphasis omitted; certainly petitioner almost would A the latter situation 2254(d)” § introducing “satisfy the con- without unable to passage our thus reflects in federal This cealed facts court. understanding petitioner circumstances, that, some evidentiary prove might hearing to an in federal court need 2254(d). § necessary satisfy To foreclos- avoid facts ing petitioners, for such we concluded habeas relief 2254(e)(2) reading,” § bear “harsh could not the warden’s strictly essentially petitioners at fault which would have held inability develop the facts in state court. Ibid. their today gives equally reading” majority “harsh 2254(d)(1) rejected we the result in Michael achieve Williams.12 majority supports the its

None of the other cases cited (2000) (Terry Taylor, 529 result. In v. U. S. Williams 2254(d)(1) Williams), § interpreted to ask the we whether legal governing the correct state-court decision “identifies unreasonably ap- principle from this Court’s decisions but plies prisoner’s principle Id., to the of the case.” that facts Michael Williams reading majority supports that its claims 2254(d)(1). by petitioner, § we ob respect to the one claim asserted With under Appeals rejected on the merits served Court of this claim “[t]he that 2254(e)(2) § unnecessary question § whether 2254(d)(1), it is to the sо reach S., statement permit hearing the at 444. That would on claim.” 529 U. rejected that claim merely Appeals the that the had fact Court of reflects 2254(d)(1) petitioner § was entitled considering under without whether the petitioner hearing requested to the that because had not hearing Taylor, (CA4 1999). Williams 425, 189 F. 428-429 claim. 3d See at 413. had no reason the However, we to decide whether 2254(d)(1) § inquiry record, was limited the as state-court evidentiary hearing the District Court did not in hold that id., case. at 372.

In Jackson, Holland v. we stated that “we have clear made whether state court’s decision was unreasonable must light be in assessed record the court had before it.” U, In S., the next we sentence, ob- however, served that the evidence “could have issue been the sub- ject evidentiary only hearing of an the District but Court, respondent develop if failing was not at fault in that evi- proceeded Id., dence state court.” at 652-653. We properly find evidence was not under admitted 2254(e)(2) § concluding Appeals that the Court of had before 2254(d)(1) § analysis. erred its 653; Brad- see also (2005) curiam). Richey, (per shaw v. 546 S. recognition In our sum, reflect cases our that it is some- appropriate deciding times to consider new evidence in 2254(d)(1). § petitioner satisfy reading whether a can our precedent require opposite majority conclusion, disregards the concerns that our motivated decision Mi- petitioners, diligent, may chael Williams: even Some if develop through unable to the factual record in state court 2254(d)(1) § interpret no fault of their We own. should not diligent accessing petitioners to foreclose these from Great Writ when the state court will not consider new reasonably evidence and could not have reached the same conclusion with new before it.

II disagree I also the Court’s conclusion the Court Appeals holding erred in that Pinholster had satisfied 2254(d)(1) on the record.13 basis of the state-court 13 1agree majority the that the case con state-court record this any . . ‘allegations petition sists of . . . . corpus [the] “the of habeas ” Ante, In re 188, of (quoting matter record to the n. 12 pertaining case.’ A relating perform- majority The details the omits critical mitigating of counsel, ance the evidence Pinholster’s trial they proceedings. history the of these failed to discover, and aspects history highlight I of the therefore facts several this case. guilty jury court in- verdict, After the the returned penalty days jury the the six later for structed return regarding phase. prompted This at sidebar discussion provided its to offer whether the notice of intent State had aggravating court-appointed attor- evidence. Pinholster’s ney, pre- argued that the Dettmar, Wilbur State should offering aggravating cluded from evidence: presently prepared аnything way “I offer am mitigation, mitigation. proceed going If I was on people right to with or would have the rebuttal without notice. given position, people

“I since had not took the by way prepared any notice, I had not evidence miti- Report- gation. I submit on that would basis.” (hereinafter Tr.) added). (emphasis er’s Tr. 7250 (1970); Hochberg, 2,471P. 1,3-4, n. 2 870,874, 3d n. 2d some internal 2 Cal. omitted). quotation marks which the two majority state-court decisions does not decide ante, that amicus argues n. One Pin- See

should be reviewed. an unreason- both prove holster state-court decisions involved must Legal Justice Foundation of law. Criminal application able See Brief amicus’ understanding as Amicus Curiae argument 26. This is based as rejected petition the second succes- that the California however, and, argued, has not alternatively, The State sive on the merits. ante, ground. ruling procedural on a the second rests and the petitions on merits differ- n. 2. When a state court denies two petition contains additional petitions second ence between is that why peti- claim, no I see reason supporting petitioner’s was unreasonable. the first decision independently tioner must show Undoubtedly anticipating might that counsel need additional prepare adequate mitigation defense, time helpful Dettmar would asked whether continuance be against the event ruled him. He declined the offer on the stating: spot, probably go “I we think would still forward on Monday. Clearly person one that comes to mind is the beyond defendant’s mother. How much I don’t know. pa[ss]age great I think don’t of time make a deal would hearing testimony, Id., of difference.” at 7257-7258. After preclude aggravat- the court denied Pinholster’s motion to ing evidence. penalty phase, only

theAt defense called one counsel wit- mother, ness: Pinholster’s Burnice Brashear Brashear. tes- really anything tified that “never Pinholster for wanted at everything normally too much” “had home materialwise people that most Id., have.” at 7395. She said that Pinhol- siblings, ster was “different” from his whom she character- good “basically very as Id., ized children.” at 7401-7402. “friendly” relationship she had Pinholster, said, with his stepfather, although stepfather his “sometimes would lose temper” with Pinholster, who “had a mind of his own.” (stating stepfa- Id., id., 7392-7393; see also at 7393 that his abusive”). “at ther was times” “abusive or near provided testimony regarding Brashear brief childhood. She described two car accidents—one when she driveway him through ran over in and one he when went Id., the windshield. stated that 7389-7391. She he failing grade in the started school first and that the school eventually educationally [an] handicapped “sent him psy- Id., class.” 7393-7394. When Pinholster was chologist placing institution, recommended him in a mental gone.” “didn’t he but she think was that far Id., at 7395. years spent A few later, testified, she he six months a state hospital emotionally handicapped children. Id., at 7402.

According epi- Brashear, suffered Pinholster had from lepsy age jail. he since when was beaten in at 7397. family given him doctor, Dr. had Dubin, said that her

She sug- epilepsy. also treat the Ibid. Brashear medication to stating long gested not have live, that Pinholster did “they floating chip and that he “a in his head around” had anyway.”14 very longer won’t here much don’t think —he Ibid. closing prosecutor argument, Brashear’s ridiculed (“She stepfather

testimony. dis- id., at 7442 said his See disciplined ciplined you all what? I am him. sure So (“He your disciplined myself”); I was ibid. was children. very by years run a car when was old. That’s over he three any damage. A unfortunate. There no brain evidence get dropped, or fall what- lot children from their cribs (“I ever”); you if this id., at 7444-7445 submit to defend- truly brought epilepsy,... a ant had would have been doctor something”). you tell that. The records, in to Medical testimony prosecutor highlighted Brashear’s about Pin- also arguing: “He came from environment, holster’s home stable good deprived that he was not a child. home. You heard many many things probably going him, more than Had children.” 7442. by

Notwithstanding meager mitigation presented case days jury it took the two to reach a counsel, His counsel decision to sentence Pinholster to death. later imprisonment. modify In de- the sentence life moved judge nying motion, trial “The evidence stated: concerning the defendant’s extenu- which the defense offered merely testimony from his mother was ation some opinion, persuasive. not, His in the court’s not mother did any present court would find to be evidence which the justification or No wit- extenuation for his conduct. moral supplied id., such evidence.” 54 7514. nesses upon testimony instructed judge jury disregard this motion prosecutor testimony in her by but then prosecutor, discussed infra, argument. closing appeal, After his conviction and sentence were affirmed petition Pinholster filed a habeas in the California alleging, among things, other had “un- that his counsel reasonably investigate, prepare present failed to avail- mitigating during penalty phase.” able evidence Record ER-103. petition

Pinholster’s state-court included exhibits. attorney Harry a series of his trial declarations, Brainard (who disbarred) had then been confirmed what Dettmar forthrightly had told the trial court: Dettmar Brainard and expected prepared present mitigation neither nor evi- (“Mr. id., dence.15 See at ER-333 Dettmar and I did not prepare mitigation. pen- a case in felt there no We would be alty phase hearing inasmuch as we did receive written aggravation pursuant notice to Penal Code §190.3”). apparent Brainard further confirmed what was mitigation they eventually put They from the case on: con- virtually mitigation investigation. ducted no id., at (“I having ER-182 have no recollection of Mr. Dettmar se- аny cured or reviewed of Scott’s nor medical did I records, any see of far Scott’s medical records. I recollect, So as nei- myself any pre- ther Mr. Dettmar nor interviewed of Scott’s (“I providers”); id., vious medical at ER-183 do recall interviewing attempting family or to interview mem- Scott’s any persons regarding penalty phase bers or other testi- (“I mony, except [sic]”); Mrs. Brashears ibid. no recol- have seeing attempting lection of or to secure school Scott’s juvenile prior records, records, medical or of records, records (“I placements”); interviewing ibid. no recollection of attempting or former teachers, interview Scott’s school officers”).16 juvenile counselors, or

15By petition, the time of state-court Pinholster’s habeas Dettmar was deceased. billing records, Counsel’s which were before California part record, Court as the trial of confirmed Brainard’s recollection. (none by had trial counsel of whom relatives Statements background) regarding attempted to Pinholster’s interview picture Pin- documentary revealed that and evidence by family painted trial false. mother at was holster’s his life poverty.” Id., ER- Pinholster was in chaos and “raised seeing children to- A mix relative remembered gether something attempt get flour and water in an stepfather week, times eat. including beat him several a Pinholster’s two-by-four “There a board. least once with [the] brother so much home” that Pinholster’s was violence day.” coming Id., at Pinhol- ER-313. “dreaded home each half from the home as a result of ster’s sister was removed beating stepfather. a directly contrary

Documentary to Bra- showed, testimony, siblings very trial had shear’s that Pinholster’s pasts. elder brother was troubled Pinholster’s arrested burglary, rape 14-year-old robbery, and armed forcible custody, deadly weapon. diagnosed with a While he “acutely suffering psychotic, probably as “catatonic-like” type schizophrenia.” Id., ER-219, ER-224. He some sister, a suicide.17 Pinholster’s half recover- later committed ing juvenile had been made a ward of court for alcoholic, battery 14-year-old. prostitution on and forcible sexual history long petition and exhibits described neurological problems. A of emotional for- disturbance that, child, mer as Pinholster “seemed schoolteacher stated peers incapable relating adults,” either to his or eye “[i]t contact with him,” was even hard to maintain [she] hyperactivity “[h]is extreme that formed was so organic opinion probably Id., at ER- base.” had “talk[ed] to self he contin- records 231. School revealed sleep, uously,” “many grimaces,” fought in his and could had of our Alvin sister, “The death brother According half to Pinholster’s I believed Scott. Scott’s sub me and to a severe emotional blow to was (herоin) death.” following as a result Alvin’s stance abuse arose Record ER-314. only day.” per

“control self for 1 hour at Id., EE- EE-230, “show[ed] progressive 233. He deterioration each semester Kindergarten.” since Id., at ER-230. officials rec- School placement emotionally ommended in a school for handi- capped neurologist. age students and referral a At he revealing an organic had abnormal EEG, “an basis for his Id., behavior.” ER-234. EE-157, Just months before placement Hope the homicides, a doctor recommended in the Psychiatric but Institute, this did occur. petition

This and other evidence attached to the sum- was by George a marized in declaration Dr. Woods. Dr. Woods opined that long “suffered] Pinholster from severe and standing seizure disorders,” id., at EE-156, that his child- “may precipitating hood head traumas have been the factors [his] seizure disorder,” id., ER-157, and that he suf- bipolar pointed fered from mood disorder. He tes- to trial timony immediately burglary night before the on the “'ha[d] of the homicides, Pinholster announced that a he message from God’”—which Dr. Woods believed to reflect “[a]uditory psychosis.” Id., hallucinations” and “severe He ER-169. concluded at the time the homicides suffering bipolar “was Pinholster from mood disorder psychotic suffering complex partial ideation and a sei- Id., at zure.” ER-170. He also observed that Pinholster’s dysfunctional “grossly family, the abuse he received as history suffering child, his from seizure and substantial psychiatric frequently mood disorders, untreated psychological handicaps were disabilities his educational gravity relevant circumstances which would extenuate the crime.” at ER-171.

On the basis of submission, the California Supreme Court denied Pinholster’s ineffective-assistance- claim. of-counsel petition then

Pinholster filed in Federal District habeas Court. He included additional exhibit: declaration Stalberg, psychiatrist hastily Dr. John who had examined 228 two-page report of produced middle

Pinholster and reviewing original col- After the new material trial.18 Stalberg counsel, stated Pinholster’s habeas Dr. lected history “se- showed a familial of available evidence history psychiatric “a of seizure disorders disorders,” vere etiology,” “repeated “an traumas,” head abnormal unknown during Pin- and “evidence mental disturbance Mr. EEG,” degree damage.” Id., some of brain holster’s childhood and [was] opined at that “there voluminous ER-493. He also physical mitigating evidence which a childhood of includes history neglect, family ill- mental abuse, emotional Id., at ER-494. and criminal behavior.” ness stayed proceedings the federal while District Court The sought Pinholster state-court review of claims District Pinholster’s second habeas Court deemed unexhausted. Supreme Court included Stal- submission California summarily berg’s Pinhol- declaration. That denied petition ster’s on the merits. filed an

Pinholster returned to Federal District Court and еvidentiary hearing, petition. the Dis- an amended After had demonstrated de- trict Court concluded that Pinholster performance prejudice under The ficient Strickland.19 sitting F. banc, affirmed. 590 3d 651. Circuit, Ninth en in the arranged Stalberg Dr. to examine Pinholster Counsel had for only they provided to him documents original of his trial. The middle report. reports probation the case and a police relating to were mental state two-page report primarily focused offenses, Stalberg “psy had concluded that Pinholster the time Dr. Id,., personality ER-187. chopathic traits.” on the adduced its decision The District Court based 2254(d) § apply not S. C. evidentiary Court did hearing. District had erroneously, the California thought, because to Pet. for Cert. App. on the merits. adjudicated Pinholster’s claim however, discuss, Court could I the District For the reasons 2254(d)(1) on the of the satisfied basis that Pinholster had concluded alone. record state-court

B majority As notes, Pinholster’s claim arises under Washington. judging Strickland v. “The benchmark any [under Strickland] claim of ineffectiveness be must proper whether counsel’s conduct so the undermined functioning process the of adversarial the trial can- having produced just not be relied on as result.” 466 satisfy S., benchmark, U. at 686. To this a defendant must performance show both that “counsel’s was deficient” and performance prejudiced that “the deficient the defense.” Id., at 687. §2254(d)(1) question applies,

When is whether “'fair- jurists disagree’ minded could on the of correctness the state Harrington, (quoting court’s 562 S., decision.” U. at 101 (2004)). Yarborough Alvarado, v. 541 S.U. 664 When 652, rejected pleadings the state court a Strickland claim on the assuming allegations ante, as at true, see here, any federal 12, n. court ask must whether “there is argument” supporting reasonable the state conclu- court’s petitioner’s allegations sion that the did not claim, state Harrington, 562 U. This S., “difficult,” 105. standard is impossible, but not “to Id., at This case meet.” 102. is jurists disagree one which could fairminded that the erred.

C Strickland, Under “the defendant must that coun show representation objective fell rea sel’s below an standard of according “prevailing professional sonableness,” measured “indulge strong presump S., norms.” 466 at 688. U. We range tion that counsel’s conduct falls within the wide of professional reasonable assistance.” When “ ” 2254(d) applies, 'doubly’ federal-court review is deferen Harrington, (quoting v. Mir S., tial. 562 U. at 105 Knowles (2009)). zayance, present S. In the AEDPA 556 U. posture, question any “[t]he reasonable is whether there is that counsel satisfied Strickland’s deferential

argument S., there Here, at 105. Harrington, standard.” none. counsel on a strategy

The decided majority surmises for excluded “to witnesses get prosecution’s aggravation notice, failed, if that put lack “ Ante, ‘post hoc ratio mother.” at 191. This is sort that contradicts nalization’ cоunsel’s decisionmaking in actions” that courts cannot available counsel’s evidence dulge. Harrington, (quoting Wiggins S., 562 U. (2003)). The Smith, expla 539 U. S. 510, 526-527 majority’s ev best nation for counsel’s conduct available contradicts frank, idence of actions: Dettmar’s contemporane counsel’s ous trial that he “had not statement to the judge prepared Tr. 7250. ma any way mitigation.” mitiga had fact a jority’s prepared counsel conjecture tion on entries in counsel’s defense, based isolated primarily records, it assume that Dettmar was lying to billing requires to the trial judge.20 had strategic

In even if Pinholster's a event, counsel any render actions, reason their that would not automatically decided actions reasonable. For had counsel example, their to their was to move exclude option best aggravating 20 showing that majority misleadingly entries counsel were cites testimony phase counsel learned that preparing penalty Brashear’s after The cited entries present aggravation the State intended evidence. to day’s only counsel about one predating that event show conducted talking researching Brashear and to investigation consisting worth — (1.5- See Tr. ‍‌​​​​‌‌‌‌​‌​​‌​‌‌‌​‌​​‌​​‌‌​​‌‌‌‌​‌‌‌‌‌​‌​‌‌​‌‌​‍phase. Clerk’s 798 epilepsy penalty months before —two (3-hour 13); id., meeting phone call on hour to Brashear Jan. id., 23); Feb. on regarding problems” with Brashear “childhood 25). “[rjesearch (3.5 nurse” Feb. re; on and conf. epilepsy hours for actually planned pre to There no evidence in the records counsel up to follow failure Indeed, complete mitigating sent evidence. their investigation only their minimal any they information learned in of the mitigating evidence. they present planning were not confirms that infra, at 234-235. forgo mitiga- it have

evidence, would been unreasonable to investigation hope tion on the that the motion would granted. pru- “flou[t] aWith client’s life at stake, would Rompilla (2005), dence,” v. Beard, 545 U. S. for an attorney rely possibility might pre- on the that the court aggravating pursuant “legal clude technicality” to a any backup plan place without in case the court denied attorney motion, ante, at pur- 191. No reasonable would risky strategy. sue such a majority I do not understand the suggest otherwise. majority’s I Instead, understand the conclusion that coun- sel’s actions were they reasonable to rest on its belief that backup plan: did family-sympathy defense. In reaching majority this conclusion, the commits the same applying 2254(d)(1), Strickland error that we corrected, Wiggins: purportedly It judgment” holds “tactical to be assessing reasonable adequacy without investiga- “the of the tio[n] supporting [that] judgment],” S., 521. As we stated in Strickland:

“[Strategic thorough investigation choices made after plausible options law and facts virtually relevant to are unсhallengeable; strategic choices made after less complete investigation than precisely are reasonable professional the extent judgments sup- that reasonable port investigation. the limitations on words, other duty counsel investigations has a to make reasonable or to make particular a reasonable decision that makes in- vestigations unnecessary. any In case, ineffectiveness particular investigate a directly decision not to must be assessed for reasonableness in all circumstances, heavy applying a judg- measure of deference to counsel’s ments.” 466 atS.,U. 690-691. repeatedly applied

We principle have this since Strickland. (2010) Upton, curiam); See Sears v. (per 561 945, U. S. 953 (2009) curiam); Porter v. (per McCollum, 558 30, U. S. 39-40 232 Terry at

Wiggins, at Williams, S., 539 529 S., U. 527; U. 396.21 prevailing professional clear,

As these make cases required attorneys norms at the time of Pinholster’s trial thorough investigation a of the to “conduct defendant’s back- ibid, ground,” (citing 1 ABA Standards for Criminal Justice (2d 1980) (hereinafter commentary, p. ABA 4-4.1, 4-55 ed. Standards)), a or “to make reasonable decision that makes particular investigations unnecessary,” Strickland, S., 466 U. judging investigation, in at “In as 691.22 the defense’s hindsight by applying generally, Strickland is discounted pegging adequacy perspective to ‘counsel’s at the time’ inves- tigative ‘heavy giving are a meas- made, decisions Rompilla, judgments.’” ure of 545 deference counsel’s (quoting 689, U. at cita- S., Strickland, S., 691; 381 466 U. at omitted). “reasonably diligent cases, In counsel tion some may they good draw a when to think fur- line have reason investigation Rompilla, S., ther be a would waste.” g., Bobby Hook, v. S. 11-12 383; see, 4, e. Van 558 U. (2009) curiam); (per Burger Kemp, v. 794-795 U. S. (1987). requires fur- cases, however, other Strickland investigation. ther required

Wiggins competence is illustrative of the we investigation capital of counsel in case. counsel’s There, a present family-sympathy mitigation 21 Ido not doubt that decision might professional competence defense “with standard consistent prevailed Angeles cases in 1984” some cases. capital Los Ante, strategic if made My point at 196. even counsel decision defense, proceed was unreasonable because with such decision incomplete investigation. unreasonably on an based (“Information 4-4.1, commentary, 4-55 See also ABA Standards record, education, background, employment concerning the defendant’s family relationships, like, will be stability, and the mental and emotional the commission relevant, mitigating surrounding as circumstances will Strickland, Standards, itself”). recognized in the ABA As we offense dispositive, what is reasonable.” guides determining “are though Smith, (2003). Wiggins S., 688; also 539 U. 466 U. see S. three was limited to sources: psychological presen- testing, tencing report, Baltimore of Social City Department Services records. S., at The records re- U. 523-524. vealed that the petitioner’s mother was an that he alcoholic, emotional displayed he care, difficulties foster that was absent from frequently school, occasion, and that on one Id., mother left him alone for without at days food. 525. these circumstances, we concluded, “any reasonably com- attorney would have that petent realized these pursuing leads was necessary an informed choice making among Ibid. defenses.” we possible held, state Accordingly, court’s that counsel’s assumption was investigation adequate of Strickland. unreasonable S., 539 U. application 52S.23 at Wiggins.

This case is similar to As ma- remarkably reads the record, counsel’s jority mitigation investigation consisted of mother, Pinholster’s with talking consulting Ante, Dr. at researching 192. Stalberg, epilepsy.24 What little information counsel from “rudimen- this gleaned Wiggins, tary” S., at investigation, U. would have further,” id., led reasonable “to any attorney investigate 527. he Counsel learned from Pinholster’s mother at- tended a for children, class that a educationally handicapped had recommended him in a mental insti- psychologist placing tution, he and that time in emotion- spent hospital knew ally They children. that Pinholster had handicapped been diagnosed epilepsy. ante, majority notes, As the Wiggins’ see trial counsel acknowl

edged investigation that the he conducted was inconsistent with standard Maryland. S., practice independently We con See 539 cluded, “was also unreasonable however, investigation light actually in the ... (empha what counsel discovered records.” at 525 added). sis 24The majority posits likely spent also time preparing that Brainard Terry. However, Terry Pinholster’s brother averred in declaration attorneys any questions relating to Scott’s [him] “never asked background history.” family or [their] Record ER-313.

“[A]ny competent attorney reasonably would have realized by pursuing” suggested “was this information that the leads neeessary possible among making de- choice to an informed Penry Lynaugh, 492 S. see also U. fenses.” at 525; (1989) (“[E]videnee about the defendant’s back- long ground belief, is relevant because of the character by society, who commit criminal held this that defendants background, disadvantaged or that are to acts attributable may culpable problems, to than emotional and mental less (internal quotation defendants who have no such excuse” omitted)). no marks Yet made effort to obtain counsel readily they suggested available the information evidence schooling learned, records, such as Pinholster’s or medical They to not or contact school authorities. did Pinholster’s providers many contact Dr. Dubin or other healthcare simply, had who treated Put “failed to Pinholster. counsеl powerful potentially mitigating act while evidence stared (citing Bobby, Wiggins, in the face.” at 11 S., them 525). S., 539 U. at jus- “impediments” facing ante, counsel, did not

tify investigation. It true their minimal that Pinholster unsympathetic “an But this fact com- was client.” Ibid. deficiency ignoring pounds, rather than counsel’s excuses, why explain investigation glaring avenues of could way Sears, S., Pinholster was the he 561 U. was. (“This any might more likable not have made Sears jury helped jury, might to the but under- well especially light Sears, stand and his horrendous acts— Stalberg’s purportedly upbringing”). can Dr. Nor stable very two-page report, limited record on a which based was primarily mental at the focused investigate failure counsel’s homicides, time excuse mitigating range potential circumstances. the broader sentencing proceedings under- “The record of the actual by suggest- conduct counsel’s the unreasonableness of scores that their ing failure to resulted from thoroughly investigate Wiggins, inattention, reasoned strategic judgment.” U. S., at 526. Dettmar told the trial that he was judge any unprepared present evidence. The mitigation mitiga- case tion described, counsel on can be eventually put Ibid. best, as “halfhearted.” made no effort Counsel bolster Brashear’s self-interested school or testimony records, medical as the prosecutor effectively emphasized closing And argument. they because did not obvious pursue leads, failed they Brashear’s recognize testimony Pinholster painting as in a normal, bad nonde- apple prived family false. claim, Pinholster’s the denying California Supreme overlooked Strickland’s clearly estab-

Court necessarily lished admonition that choices “strategic made after less than complete are to the investigation precisely reasonable extent that professional reasonable judgments support Wiggins, S., limitations.” 466 at U. 690-691. As in in light of the information available to it counsel, is plain that “reasonable not professional could have judgments” sup- S., their 466 ported woefully investigation.25 inadequate at 691. California Court could Accordingly, Supreme not have that reasonably concluded Pinholster had failed to that counsel’s was allege under investigation inadequate Strickland. majority Appeals “attributing The chastises the Court of for strict Ante, agree

rules this Court’s recent case I that courts law.” at 196. interpret prescribe should not rules the re regarding our cases strict Beard, Rompilla quired scope mitigation investigations. v. (2005) (O’Connor, J., longstanding concurring) (noting U. S. “our case-by-case performance approach attorney’s to determining whether an Strickland”). Circuit, unconstitutionally under The deficient Ninth however, thoughtful did such It thing. appropriately gave no consider just cases, pre guideposts ation to the contained in these as we have (2009) Bobby Hook, See, g., e. viously 11-12 Van done. U. S. curiam). (per D majority also concludes California reasonably concluded that did Court could Pinholster light prejudice. conclusion, not a This claim of overwhelming mitigating that was not before “[t]he wrong. prejudice, jury, is To defendant establish probability that, is a but must show there reasonable unprofessional proceeding of the errors, counsel’s the result When a habeas Id., have been different.” at 694. would petitioner challenges question is “the sentence, death probability that, there a reasonable absent whether the bal- the sentencer ... have concluded that errors, would aggravating mitigating circumstances did ance inquiry requires death.” warrant 695. This evaluat- ing mitigation totality “the of the available evidence—both trial, and the evidence the habeas adduced adduced aggra- proceeding reweighing against the evidence in —in Terry Williams, S., ulti- vation.” 529 U. at 397-398. The taking question all whether, into account mate this case is aggravating mitigating “there is reason- evidence, juror probability that at have struck able least one would Wiggins, S., see Penal 537; different balance.” 539 U. Cal. (West 190.4(b) 2008) (requiring jury Ann. unanimous Code sentence). impose to a death verdict

1 aggravating majority, and mit- the I first the Like consider By igating presented of at trial. virtue its verdict jury guilt phase, already that Pin- in concluded the had majority As the had and killed the victims. holster stabbed history jury bur- saw Pinholster “revel” in his states, jury during phase. glaries guilt heard at The Ante, 198. kidnaped violent He had tendencies: evidence Pinholster’s person razor, cut knife, arm with a with a someone history hitting kicking people. threat- He and had a

237 to had an exten- ened kill the lead witness. And he State’s disciplinary jail. sive record in testimony apparently

Brashear offered brief in- was swpra, mitigating. ante, to tended be at see also 224; See argued, prosecutor at 199-200.26 However, as the Brashear (“A was not a neutral witness. 53 Tr. 7441 mother See clearly gentlemen. Clearly son, loves her not the ladies and world”). Notwithstanding most unbiased witness in the self-interest, Brashear’s obvious counsel failed to offer readily objective available, evidence that have sub- would expanded testimony. stantiated and on her Their failure to prosecutor testimony do so allowed the belittle her clos- argument. ing supra, 224. See at And Brashear’s state- longer ment that Pinholster would not alive much because chip floating “a he had his head Tr. around,” 7397, 52 could only credibility, prosecutor have undermined her as (“Does urged, you id., see at 53 7447 she want believe county jail got sometime before he some doctor looked in crystal years you going ball said, Tn three are to die’? ridiculous”). judge thoroughly That’s The trial was unim- pressed testimony. supra, with Brashear’s at 224.

26The majority aspects mischaraeterizes severаl of Brashear’s testi mony. Although Brashear the family testified that “didn’t have lots of money,” up she stating followed that comment that Pinholster did not bring friends to the house “it too nice a Tr. because was house.” 52 7404. prosecutor The did not testified that Pinhol understand Brashear id., (“You deprived. childhood was ster’s See 53 heard that he child”). deprived not a was Nor California did People Pinholster, appeal. 910, direct Cal. 4th P. 2d (1992). testify stepfather “discipline” Brashear did that Pinholster’s tried to him and that he “at 52 Tr. was times” “abusive or near abusive.” suggested, however, She Pinholster deserved the “dis- 7392-7393. (“Scott id., g., See, e. always he had cipline” received. —he own”). jury unlikely mind It is understood Brashear to be suggesting prosecutor beat routinely that her husband Pinholster. id., understanding. away did come with this See 53 presented Pinholster’s state- in

Moreover, evidence in her petition distorted facts that Brashear revealed mitigation testimony ways Pinholster’s that undermined prosecutor used 947-948, case. Sears, S., As good testimony from a fam- came Brashear’s Pinholster ily against him. 53 Tr. 7442. way mitigating presented in the sum, counsel little effectively prosecutor used their half-

evidence, and the attempt mitigation present hearted case advocate days penalty. jury took two death The nonetheless impose reach a decision to sentence. death mitigating presented The additional evidence to the Cali- up mitigation fornia “adds to a case testimony, bears no relation” Brashear’s unsubstantiated Rompilla, S., 545 U.

Assuming presented the evidence to the California Su- preme required true, Court to that court to do, be as mitigating presented the new to that court would pov- that Pinholster shown was raised “chaos erty.” family Record home was filled ER-312. siblings extremely had violence. Pinholster’s troubled pasts. There evidence of “mental disturb- was substantial during degree ance Mr. childhood and some damage.” brain Id., ER-493. aggressive

Dr. conduct Woods concluded that Pinholster’s bipolar resulted from Just months before disorder. mood that Pinholster murders, had recommended doctor explained psychiatric also sent to a Dr. Woods institute. the murders re- before Pinholster’s bizarre behavior psychosis.” "[ajuditory and "severe flected hallucinations" that Pin- Id., at confirmed ER-169. The available records longstanding which disorders, suffered from seizure holster injuries. may head caused childhood have been “[t]he On this I record, do see it not how can be said that largely duplicated mitigation ‘new*evidence evidence trial.” Ante, at 200; Fulminante, see 499 U. Arizona v. S. (evidence (1991) “merely 279, 298-299 if cumulative” it corroborates other evidence that is “unbelievable” on its own). testimony Brashear’s was not self-interested con- objective prosecutor high- firmed with evidence, as the lighted. “destroyed [rel- The new evidence would have atively] benign conceptiоn [Pinholster’s] upbringing” presented by Rompilla, his S., mother. 545 U. at 391. The jury testimony likely heard no at all that Pinholster suffered damage bipolar from brain or mood disorder, and counsel of- help jury likely fered no evidence to understand the ef- injuries fect of Pinholster’s head or his bizarre behavior on night jury testimony of the homicides. The heard no recounting likely the substantial Pinholster’s neurological problems. And it heard no medical evidence epilepsy. that Pinholster suffered from majority responds that “much” of new mitigating questionable mitigating evidence “is of value.” By presenting psychiatric testimony, Ante, at 201. it con- opened tends, “Pinholster have would the door to rebuttal expert.” a state Ibid. But, because the California Su- preme petition pleadings, Court denied Pinholster’s on the it expert might had no reason to know a what have said. given reasonably proba- Moreover, the record it is evidence, juror expert. that at ble one least would have credited any expert event, even if a rebuttal Pinhol- testified that personality ster suffered from antisocial would disorder, this hardly surprise jury. have come as ante, See at 194 (describing “psychotic perform- Pinholster client as whose hardly jury”). ance at trial endeared him to the It is for especially important this reason that was for counsel to present jury help the available evidence to understand Sears, Pinholster. 561 S., U. at 951. investigation, adequate counsel

Had conducted judge showing jury have heard credible evidence would aggressive tendencies Pinholster’s criminal acts and disadvantaged background, were to a or “attributable Penry, problems.” S., emotional and mental at 319 omitted). (internal They quotation marks would history learned that had the “‘kind of troubled Pinholster assessing we moral have declared relevant to defendant’s culpability.’” Wiggins, (quoting at 41 Porter, 558 U. S., 535). repeatedly Applying S., Strickland, U. at we probability,” S., found “a 466 at that the 694, reasonable U. sentencer would have reached a different result had counsel presented g., Porter, atS., similar evidence. e. 558 See, U. (evidence history physi- 41-42 of the defendant’s childhood abnormality, schooling, abuse, cal brain limited and heroic (evidence service); military Rompilla, S., 545 at 392 of se- U. neglect damage); child, vere abuse and as as well as brain a (evidence Wiggins, 539 at “se- U. 535 of the defendant’s S., privation “di- child, homelessness, vere abuse” and and as Terry capacities”); Williams, S., mental U. at minished (evidence neglect, and head of childhood mistreatment impairments, injuries, possible organic mental and border- retardation). line mental similarity majority dispute this between does not it However,

case the cited criticizes the Court and cases. Rompilla Terry Appeals relying on the and for Williams prejudice question ground that we de novo reviewed Terry ante, at I do not read Williams those cases. question prejudice More fundamen- to de novo.27 review “[tjhose agree tally, premise that however, I cannot with the respect guidance to whether . . . offer no cases Terry court’s was “unreasonable Williams held that the state decision (1) standard, see 529 applied wrong legal It respects”: in at two least (2) body of weight to the S., appropriate “failed to accord U. and id., did not counsel,” to 398. We available trial mitigation evidence novo review. de conduct purport unreasonably prejudice

court has determined that lack- is deleted). ing.” (emphasis Ante, at 202 In each of these purport simply ap- did cases, we not law; create new we plied clearly precedent, the same Strickland, established a different set of these facts. Because cases Illuminate mitigation preju- kinds of evidence that suffice to establish they provide dice disposi- Strickland, under but useful, guidance determining tive, for courts consider when unreasonably applied whether state court has Strickland. many presented cases, state court with additional mit- igation reasonably evidence will conclude that there is no probability unprofessional that, “reasonable but counsel’s proceeding errors, the result of the would have been differ- Strickland, S., ent.” 466 U. at 694. This not case. such a Admittedly, unjustifiably Pinholster stabbed and two killed history people, burglaries violent outbursts surely jury. did not endear him to the But the homicides premeditated. appear aggravation did not And the State’s stronger Terry Rompilla case was no than in Williams. (the S., See 545 defendant committed murder significant history torture and had a violent felonies, including rape); (Rehnquist, a S., 529 U. at 418 concur- C. J., (the ring part dissenting part) in and in defendant had a “savagely crime, lifetime of and after the murder he beat (in- elderly a woman,” fire, set home on and stabbed man omitted)). quotation record, ternal marks Even on the trial jury days penalty. it took the two decide on a The con- by persuasive” mitigation put trast the between “not ease on mitiga- 54 Tr. and counsel, Pinholster’s the substantial fingertips tion at their con- was stark. Given these foregone majority siderations, is not as conclusion, the juror background it, deems that a familiar with his troubled psychiatric and issues would have reached the same conclu- regarding culpability. jurists sion Pinholster’s Fairminded the that, could not doubt on record before the California Su- preme [was] probability Court, “there reasonable that juror balance.”

least one have struck a different would Wiggins, 539 S.,U. at 537.

Ill adequate its own more than state-court record on was support Appeals’ the conclusion the Court of that Califor- reasonably rejected Pin- nia could prе- Strickland claim. The additional evidence holster’s only evidentiary hearing sented in the confirms federal conclusion.

A many hearing, docu- At of the same Pinholster offered ments that were He also of- before the state habeas court. attorneys’ billing records, were before fered his trial which part the state habeas as trial Of of the record. pre- lay hearing, seven witnesses had who testified six viously support Pinholster’s executed declarations in of (The pro- petition. uncle, seventh, state-court testimony testimony.) of vided cumulative other experts Two testified on Pinholster’s neither had behalf; presented to the habeas The first declarations court. neurology professor Olson, Dr. Donald assistant and neurological Epilepsy and director of the sciences Pediatric University appears Program It Medical Center. Stanford testimony rebut that Pinholster retained Dr. Olson to expert proceeding. disclosed in State federal Support Stipulated Abzug Ex Decl. of Michael D. Evidentiary Hearing Application Parte To Continue Dis- covery Pinholster v. To Counsel in Cut-Off Substitute (CD Cal.), Relying p. Calderon, No. CV 95-6240-GLT opined part Dr. EEG, Pinholster’s abnormal Olson “likely resulted] brain in- Pinholster’s childhood accidents epilepsy.” jury” injuries these risk “conferred it was rea- ER-700. concluded that Record ER-699 He partial sonably probable from suffered Pinholster had epilepsy since at least had from in- 1968 and suffered brain jury since at least 1964. Id., at ER-701. expert Sophia Vinogradov,

Pinholster’s second Dr. was as- professor psychiatry University sociate of of Califor- Vinogradov’s testimony nia, San Francisco. Dr. was based essentially the same Dr. Dr. facts as Woods’ and Stal- berg’s highlighted state-court declarations. She Pinhol- history epilepsy, ster’s childhood head traumas, abusive neglected history upbringing, and abuse, of substance night opined bizarre behavior on homicides. She aggressive that his behavior resulted from childhood head traumas:

“All data indicates that there were severe effects injuries age age two serious head sustained at changes dysfunc- with evidence for behavioral related to learning tion of frontal severe cortex: attentional and problems hyperactivity, aggressivity, in childhood, im- pulsivity, impairment, social-emotional disorder, seizure explosive dyscontrol.” Id., at ER-731. opined right She also Pinholster that, homicides, before “apparently hallucinatory likely [that] was in an was multiple the result of his intoxication with substances.” at ER-707. presented experts: Stalberg, psychi-

The two Dr. State atrist who had examined Pinholster the middle trial,28 Although Stalberg and Dr. David Dr. maintained Rudniek. hearing, Stalberg opined Before the Dr. had that Pinholster was “sub stantially bipolar impaired by operating disorder synergistically mood with intoxication and a crime seizure disorder the timе the deposition, however, prehearing committed.” Record At a ER-587. Stalberg opinion Dr. revised and stated that believe he continued to personality psychopathic Pinholster from traits. After the suffered deposition, proceed presum Pinholster expert, elected different ably light Stalberg’s position. of Dr. State unexpected change in expert. then retained Dr. as its own Stalberg disorder, from

that Pinholster suffered antisocial personality he trial, in the which was his middle diagnosis original that there was and again emphasized “compel- “voluminous” that made previously evidence had not been ling” mitigation Id., at ER-926, available to to the him or jury. presented ER-953. He that conversations with Pinholster’s stated and his were like family siblings revealed that he “raised id., ER-948, wild at he that animals, animals,” opined Pinholster’s factor for antisocial per- was risk upbringing See ibid. (Pinholster’s “would sonality disorder. upbringing volumes, at from speak looking mitigation point view”). And that evidence pre- he agreed mitigation Id., ER- sented at trial was at “profoundly misleading.” an- Dr. that Rudnick testified Pinholster suffered from disorder. tisocial personality into

The also introduced evidence the probation State in their at Pinholster’s counsel had possession report the time of trial. The demonstrated that counsel his report for educationally were aware that Pinholster was in classes children, he to a state hos- was committed handicapped that he suf- emotionally children, pital handicapped at two head fered “severe SER-243. injuries.” B evidence at the federal presented hearing Much to the the evidence submitted California Su- duplicative (cid:127) additional preme presented Court. Supreme confirmed that the California hearing only Pinholster’s claim.29 reasonably rejected could rely not entitled to Court was argues The State the District diligent Pinholster was not hearing the evidence adduced because hearing was therefore developing claims in state court and 2254(e)(2). imprecise. is somewhat argument by 28 S. C. barred U. This petition were “identical” allegations his amended federal ante, Court, presented allegations he to the California pre court. The in state State requested hearing he diligently expert testimony changed sumably argue that Pinholster’s new means example, probation presented by report For the State possession confirmed that counsel in their information had investigate any attorney that would have led “to reasonable Wiggins, further.” S., at 527. nevertheless Counsel investigate took no action to these leads. experts opined that his head trau- childhood likely injury

mas in resulted brain and of conferred risk epilepsy. Although presented testimony the Pin- State that personality holster had antisocial disorder, it was not clear jurors error for the District Court to conclude that could experts. have credited Pinholster’s Even own the State’s expert, Stalberg, Dr. mitigation to testified the “voluminous” in evidence Pinholster’s case. Record ER-926. already apparent

In sum, the evidence confirmed what was from the state-court record: Pinholster’s counsel failed to adequate mitigation investigation, conduct an and there was probability juror a reasonable that least one confronted mitigating with the “voluminous” evidence counsel should spare have discovered would have voted to Pinholster’s life. Accordingly, Ibid. the whether the basis or of state- correctly record, federal-court the courts below concluded that Pinholster had that shown the California that, “the of factual basis” his claim such the time of the 2254(e)(2). evidentiary § hearing, longer he no However, satisfied at oral argument, the suggested State that presenting Pinholster was an alto- gether new claim in Arg. the federal court. See Tr. of Oral 18. If that 2254(d)(1) § case, apply all, is the does not and State the should be arguing procedural lack of exhaustion I or default. do understand to presented Pinholster claim the a new to District Court. event, 2254(e)(2) § any Pinholster in made satisfied this ease. He attempt, time, “a reasonable light of information at the to available Williams,

investigate pursue Michael in state court.” claims S., experts very on the Has relied same facts and evidence. 2254(e)(2) I impose requirement petitioners cannot read to strict experts they presented ‍‌​​​​‌‌‌‌​‌​​‌​‌‌‌​‌​​‌​​‌‌​​‌‌‌‌​‌‌‌‌‌​‌​‌‌​‌‌​‍must use the same court. This state rule practical problems, example, would result for numerous the case unanticipated expert. death an reflected unreasonable application Court’s decision Strickland.30

[*] ^{[*] [*]} I of the Court’s ruling. cannot with either agree aspect novel I fear the Court’s consequences interpretation 2254(d)(1) with com- §of petitioners state habeas diligent who unable, their claims were evidence pelling supporting own, through no fault of present their Court’s their claims. And the adjudicated de- conclusion that Court reasonably the California Supreme over- nied Pinholster’s claim ineffective-assistance-of-counsel of miti- looks counsel’s obvious avenues investigate failure contrast between gation inadequate woefully case mitigation they the evidence should they presented I and would have dissent. discovered. respectfully to the questions whether challenge State’s in this Court limited additional evidence Federal District Court was entitled to consider 2254(d)(1) 2254(d)(1) § § analysis in the satisfied whether Pinholster challenged the It District basis of the state-court record. has proved that he was Court’s ultimate had “in conclusion Pinholster custody or of the in violation Constitution or laws treaties United 2254(a). States.”

Case Details

Case Name: Cullen v. Pinholster

Court Name: Supreme Court of the United States

Date Published: Apr 4, 2011

Citation: 563 U.S. 170

Docket Number: 09-1088

Court Abbreviation: SCOTUS