JEFFERSON v. UPTON
No. 09-8852
United States Supreme Court
Decided May 24, 2010
560 U.S. 284
PER CURIAM.
Pеtitioner Lawrence Jefferson, who has been sentenced to death, claimed in both state and federal courts that his law-
I
When Jefferson was a child, he “suffered a serious injury to his head.” Jefferson v. Terry, 490 F. Supp. 2d 1261, 1326 (ND Ga. 2007); see id., at 1320 (quoting Jefferson‘s mother‘s testimony that “a car ran over the top of his head” when he was two years old). The accident left his skull swollen and misshapen and his forehead visibly scarred. Jefferson v. Hall, 570 F. 3d 1283, 1311, 1315, n. 4 (CA11 2009) (Carnes, J., dissenting). During the District Court proceedings below, uncontroverted experts testified that, as a result of his head injury, Jefferson has “permanent brain damage” that “causes abnormal behavior” over which he “has no or substantially limited contrоl.” 490 F. Supp. 2d, at 1321-1322. According to these experts, Jefferson‘s condition causes “emotional dullness,” “restless or aggressive characteristics,” “impulsiveness,” “temper outbursts,” “markedly diminished impulse control,” “impaired social judgment,” and “transient outbursts of rage which are totally inconsistent with his normal behavioral pattern.” Id., at 1322, 1327.
The experts further testified that Jefferson‘s “severe cognitive disabilities” ““profoundly alter” his “ability to plan and coordinate his actions, to be aware of the consequences
Jefferson faced a death sentence for killing his co-worker while the two men were fishing. Id., at 1271-1272. Prior to trial, he was examined by a psychologist named Dr. Gary Dudley, who prepared a formal report in which he concluded that Jefferson‘s mental deficiencies do not impair “his judgment or decision-making capacity.” 570 F. 3d, at 1294 (quoting report). But Dr. Dudley‘s report included a caveat: “One possibility that could not be explored because of [Jefferson‘s] incarceratiоn has to do with the sequelae,” i. e., pathologies, related to a “head injury experienced during childhood.” Ibid. “In my opinion,” he wrote, “it would be worthwhile to conduct neuropsychological evaluation of this individual to rule out an organic etiology,” i. e., to rule out brain damage. Ibid.
Although “it is undisputed that the testing” Dr. Dudley recommended “could have easily been performed,” 490 F. Supp. 2d, at 1322, and that Jefferson‘s attorneys possessed police reports and hospital records recounting his head injury, id., at 1323, the attorneys did not have Jefferson tested. At sentencing, they presented only testimony from two prison guards, who stated that Jefferson was an unproblematic inmate, and from three members of Jefferson‘s family, whо testified that he is a “responsible, generous, gentle, and kind” person and “a good father.” 570 F. 3d, at 1290-1291. And while Jefferson‘s mother briefly mentioned the car accident, “she was not questioned and did not offer any testimony regarding the impact, if any, that the accident had on him.” Id., at 1291. Thus, “[a]s far as the jury knew, Jeffer-
Jefferson sought habeas relief in state court, arguing that his two trial attorneys unreasonably failed to pursue braindamage testing. In response, the trial attorneys testified that they did not pursue such testing because, after delivering his formal written report, Dr. Dudley later told them that furthеr investigation “may be a waste of time because the rest of [his] report‘” had “said that [Jefferson] was non psychotic.” Id., at 1295 (quoting testimony). Dr. Dudley did not testify in person at the hearing, but he submitted a sworn affidavit denying that he had ever made such statements. He said “it had always been his expert opinion ‘that neuropsychological testing was necessary” and that when he wrote as much in his formal report “he ‘meant it.” Id., at 1312 (Carnes, J., dissenting) (quoting affidavit). He added, “I never, before or after that report, suggested to [Jefferson‘s attorneys] that such an evaluation was not necessary or that it would not be worthwhile.” Ibid.; cf. Pet. for Cert. 17, n. 12.
Jefferson contends, and the State has not disputed, that after the hearing concluded the state-court judge contacted the attorneys for the State ex parte. And in a private conversation that included neither Jefferson nor his attorneys, the judge asked the State‘s attorneys to draft the opinion of the court. See id., at 3, 12. According to Jefferson, no such request was made of him, nor was he informed of the request made to opposing counsel. Id., at 12, n. 8, 13; see also Jefferson v. Zant, 263 Ga. 316, 431 S. E. 2d 110, 111 (1993) (“Jefferson contends [the order] amounts to no more and no less than a reply brief to which [he] has not had a chance to respond“).
The attorneys for the State prepared an opinion finding that “Dr. Dudley led [Jefferson‘s trial attorneys] to believe that further investigation would simply be a waste of time
Notably, as the Georgia Supreme Court acknowledged, the State‘s opinion discusses statements purportedly made on Jefferson‘s behalf by a witness “who did not testify” or participate in the proceedings. 263 Ga., at 318, 431 S. E. 2d, at 112; see State Order 24-25. Nonetheless, the opinion “was adopted verbatim by the [state] court.” 263 Ga., at 317, 431 S. E. 2d, at 111. And while the State Supreme Court recognized that we havе “‘criticized” such a practice, it affirmed the judgment. Id., at 317, 320, 431 S. E. 2d, at 112, 114 (quoting Anderson v. Bessemer City, 470 U.S. 564, 572 (1985)).
II
Jefferson next sought federal habeas relief in the District Court. In his opening brief, he argued that “there is no reason under principles of comity or otherwise to give any deference to the findings of the State Habeas Corpus Court.” Brief for Petitioner in No. 1:96-CV-989-CC (ND Ga.), Doc. 105, p. 4, and n. 1 (hereinafter District Court Brief). In support of that argument, he claimed that the state court “merely signed an order drafted by the State without revision of a single word,” even though the order “described witnesses who never testified.” Ibid. And he said that such a process “rais[es] serious doubts as to whether [the judge] even read, much less carefully considered, the proposed order submitted by the State.” Ibid.
On appeal, Jefferson defended the District Court‘s judgment primarily on its own terms. But he also argued that the state court‘s factfinding was “dubious at best” in light of the process that court employed, and that the Court of Appeals therefore “should harbor serious doubts about the findings of fact and credibility determinations in the state court record.” Brief for Petitioner/Appellee in No. 07-12502 (CA11), pp. 31-32, n. 10 (hereinafter Appeals Brief).
A divided Court of Appeals panel reversed, and Jefferson filed this petition for certiorari asking us to review his claim of ineffective assistance of counsel. And, in so doing, he challenges—as he did in the State Supreme Court, the District Court, and the Court of Appeals—“the fact findings of the state court,” given what he describes as the deficient procedure employed by that court while reviewing his claim. Pet. for Cert. 11-13, 17, n. 12, 18, n. 13 (recounting “rеason[s] to doubt” the state court‘s findings). Cf. Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 379 (1995) (stating standard for preserving an issue for review in this Court).
III
This habeas application was filed prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 and is therefore governed by federal habeas law as it existed prior to that point. Lindh v. Murphy, 521 U. S. 320, 326-336 (1997). In 1963, we set forth the “appropriate standard” to be applied by a “federal court in habeas corpus” when “the facts” pertinent to a habeas application “are in dispute.” Townsend v. Sain, 372 U. S. 293, 312. We held that when “the habeas applicant was afforded a full and fair hearing by the state court resulting in reliable findings” the district court “ordinarily should . . . accept the facts as found” by the state-court judge. Id., at 318. However, “if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding,” we held that the federal court “must hold an evidentiary hearing” to resolve any facts that “are in dispute.” Id., at 312. We further “explain[ed] the controlling criteria” by enumerating six circumstances in which such an evidentiary hearing would be required:
“(1) [T]he merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) therе is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.” Id., at 313 (emphasis added).
Three years later, in 1966, Congress enacted an amendment to the federal habeas statute that “was an almost verbatim codification of the standards delineated in Townsend v. Sain.” Miller v. Fenton, 474 U. S. 104, 111 (1985). That codification read in relevant part as follows:
“In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination . . . of a factual issue, made by a Stаte
court of competent jurisdiction . . . , shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit— “(1) that the merits of the factual dispute were not resolved in the State court hearing;
“(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
“(3) that the material facts were not adequately developed at the State court hearing;
“(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
“(5) that the applicant was an indigent and the State сourt, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
“(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
“(7) that the applicant was otherwise denied due process of law in the State court proceeding;
“(8) or unless . . . the Federal court on a consideration of [the relevant] part of the record as a whole concludes that such factual determination is not fairly supported by the record.”
§ 2254(d) (emphasis added).
As is clear from the statutory text quoted above, and as the District Court correctly stated, if any “one of the eight enumerated excеptions . . . applies” then “the state court‘s factfinding is not presumed correct.” 490 F. Supp. 2d, at 1280; accord, Miller, supra, at 105 (“Under
But the Court of Appeals did not consider thе state court‘s process when it applied the statutory presumption of correctness. Instead, it invoked Circuit precedent that applied only paragraph (8) of
In our view, the Court of Appeals did not properly consider the legal status of the state court‘s factual findings. Under Townsend, as cоdified by the governing statute, a federal court is not “duty-bound” to accept any and all state-court findings that are “fairly supported by the record.” Those words come from
Although we have stated that a court‘s “verbatim adoption of findings of fact prepared by prevailing parties” should be
We decline to determine in the first instance whether any of the exceptions enumerated in
Accordingly, we believe it necessary for the lower courts to determine on remand whether the state court‘s factual findings warrant a presumption of correctness, and to conduct any further proceedings as may be appropriate in light of their resolution of that issue. See Townsend, 372 U. S., at 313-319; Keeney v. Tamayo-Reyes, 504 U. S. 1 (1992). In so holding, we express no opinion as to whether Jefferson‘s Sixth Amendment rights were violated assuming the state court‘s factual findings to be true.
The petition for a writ of certiorari and motion to proceed in forma pauperis are granted. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
The question presented by Jefferson‘s petition for writ of certiorari is whether his trial attorneys rendered ineffective assistance of counsel when they declined to pursue further investigation of Jefferson‘s childhood head injury. In my view the Court should either answer that question or (as I would prefer) deny the petition. Instead, it summarily vacates the judgment of the Court of Appeals on an altogether different ground that was neither raised nor passed upon below and that is not fairly included within the sole question presented. To make matters worse, the Court conjures up an “error” with respect to that ground by misquoting and mischaracterizing the Court of Appeals’ opinion, ante, at 293, and by overlooking relevant authority from this Court. I respectfully dissent.
I
A
The prior version of
The Court‘s opinion, however, is the first anyone (including Jefferson) has heard of this argument. Jefferson‘s briefs below contain no discussion or even citation of
But the Court insists, ante, at 289, 292, that if we squint at them long enough we can see in Jefferson‘s briefs below a challenge to the state court‘s factfinding process cognizable under
“[T]he order signed by Judge Newton described witnesses who never testified, raising serious doubts as to whether he even read, much less carefully considered, the proposed order submitted by the State. In this circumstance, there is no reason under principles of comity or otherwise to give any deference to the findings of the State Habeas Corpus Court, because there was apparently no serious consideration or deliberation of the factual and legal issues raised.” Ibid., n. 1.
This passing suggestion that deference would be unwarranted is, to put it mildly, an elliptical way to argue that the state factfinding procedure was inadequate,
Jefferson also did not raise the point in the Eleventh Circuit. His brief to that court acknowledged that the state courts’ “[f]indings of fact and credibility determinations are reviewed for clear error.” Brief for Petitioner/Appellee in No. 07-12502, pp. 16-17 (hereinafter Appeals Brief). It declared that “The District Court Correctly Deferred to the Fact Findings of the State Court” in adjudicating his ineffective-assistance-of-counsel claim. Id., at 21 (some capitalization and boldface type deleted); see also id., at 29,
Nor did the courts below pass upon the argument the Court now addresses. The District Court did not dispute the state courts’ factual findings. Jefferson v. Terry, 490 F. Supp. 2d 1261, 1319-1320 (ND Ga. 2007). It accepted those findings as true, including the state habeas court‘s credibility findings, id., at 1323-1324, and n. 17, but held “as a matter of law” that it was objectively unreasonable for Jefferson‘s attorneys “not to investigate” further into the effect, if any, of the accident on Jefferson‘s mental capacity and health, id., at 1324. Concluding that Jefferson was thereby prejudiced, the court ordered a new sentencing hearing. Id., at 1328.
The Court of Appeals disagreed with that determination and reversed, holding that his trial attorneys’ performance was not objectively unreasonable under Strickland. Jefferson v. Hall, 570 F. 3d 1283, 1301-1309 (CA11 2009). That court correctly stated the applicable framework under
“Pre-AEDPA, questions of law and mixed questions of law and fact resolved by state habeas courts are reviewed de novo, while the state courts’ factual findings are ‘subject to the presumption of correctness.’
Freund v. Butterworth, 165 F. 3d 839, 861 (11th Cir. 1999). Although these findings may be disregarded if, for example, they are ‘not fairly supported by the record,’ Jackson v. Herring, 42 F. 3d 1350, 1366 (11th Cir. 1995) (quoting 28 U.S. C. § 2254(d)(8) ), this Court has construed the ‘presumption of correctness’ standard to be the same as the ‘cleаr error’ standard of review.” Id., at 1300 (emphasis added; footnote omitted).
Confronted with no argument that
The Court of Appeals did consider the record on its own, as required by
B
It is bad enough that the Court decides an issue not raised or resolved in the lower courts. It is much worse that it decides an issue Jefferson has not even asked us to address. Under this Court‘s Rule 14.1(a), “[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court.” We apply that rule in all but “the most exceptional cases, where reasons of urgency or of economy suggest the need to address the unpresented question in the case under consideration.” Yee v. Escondido, 503 U. S. 519, 535 (1992) (citation and internal quotation marks omitted).
Jefferson‘s petition for writ of certiorari presents a single question:
“[W]hether the majority opinion, in affording trial counsel‘s decision to limit the scope of investigation in a death penalty case ‘higher-than-strong presumption of reasonableness’ [sic] conflicts with this Court‘s precedent as announced in Williams v. Taylor, 529 U. S. 362 (2000), Wiggins v. Smith, 539 U. S. 510 (2003), Rompilla v. Beard, 545 U. S. 374 (2005), and Porter v. McCollum, 558 U. S. 30 (2009) (per curiam).” Pet. for Cert. i.
This is a straightforward request for error correction on a constitutional claim in light of those four decisions, and neither the request nor those cases have anything to do with the pre-AEDPA version of
The Court claims, ante, at 289, that Jefferson sufficiently presented the statutory issue by his characterizations of the state courts’ factual findings in the “Statement of the Case” section of his petition, see Pet. for Cert. 2, 11-13, 17, n. 12, 18, n. 13. Even if that were so, “the fact that [petitioner] discussed this issue in the text of [his] petition for certiorari does not bring it before us. Rule 14.1(a) requires that a subsidiary question be fairly included in the question presented for our review.” Wood v. Allen, 558 U. S. 290, 304 (2010) (quoting Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S. 27, 31, n. 5 (1993) (per curiam)). But in any event, the cited passages do not remotely present the statutory issue. They contain no argument that
“The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F. 2d 171, 177 (CADC 1983) (opinion for the court by Scalia, J.). Our refusal to abide by standard rules of appellate practice is unfair to the Eleventh Circuit, whose judgment the Court vacatеs, and especially to the respondent here, who suffers a loss in this Court without ever having an opportunity to address the merits of the statutory question the Court decides.
The Court‘s approach would be objectionable even if it were correct that the Court of Appeals went astray. But it is not. The Court of Appeals did not treat
The Court asserts, however, that the Eleventh Circuit ignored the other seven paragraphs in
Next, the Court states:
“And even though the Court of Appeals ‘recognize[d]’ that Jefferson had argued that the state court‘s process had produced faсtual findings that were ““dubious at best,” and that federal courts should therefore “harbor serious doubts about” the state court‘s “findings of fact and credibility,” the Court of Appeals nonetheless held that the state court‘s findings are ““entitled to a presumption of correctness” that it was ‘duty-bound’ to
apply. 570 F. 3d, at 1304, n. 8 (quoting Appeals Brief 32, n. 10).” Ante, at 292.
Again, the Court has plucked isolated language from here and there in the Court of Appeals’ opinion, to produce a reading which suggests that the Court of Appeals agreed with, or at least did not contest, Jefferson‘s claim of “serious doubts.” That is not so. In the first paragraph of footnote eight of its opinion, the panel reasoned that it was “duty-bound to accept” the state courts’ factual findings because it concluded they “are clear, unambiguous, and fairly supported by the record.” 570 F. 3d, at 1303-1304, n. 8. That language precedes the panel‘s analysis—in the second paragraph of footnote eight—regarding Jefferson‘s statements that the findings were “dubious” and raised “serious doubts.” The Court omits the panel‘s actual explanation for declining to credit Jefferson‘s general characterization of the quality of the record, which is: “Jefferson does not point to any particular factual finding that was clearly erroneous, and Jefferson even says in the argument section of his brief that ‘[t]he relevant facts are not in dispute.” Id., at 1304, n. 8.
By the way, even if the Court of Appeals had carelessly describеd application of the pre-AEDPA version of
* * *
Generally speaking, we have no power to set aside the duly entered judgment of a lower federal court unless we find it to have been in error. More specifically, except where there has been an intervening legal development (such as a subsequently announced opinion of ours) that might alter the judgment below, we cannot grant a petition for certiorari, vacate the judgment below, and remand the case (GVR) simply to obtain a re-do. Webster v. Cooper, 558 U. S. 1039, 1041-1042 (2009) (SCALIA, J., dissenting). Yet today the Court vacates the judgment of the Eleventh Circuit on the basis of an error that court did not commit, with respect to a statutory issue that had never previously been raised, and remands for more extensive consideration of a new argument that might affect the judgment. Under the taxonomy of our increasingly unprincipled GVR practice, this сreature is of the same genus as the “Summary Remand for a More Extensive Opinion than Petitioner Requested” (SRMEOPR). Id., at 1042. But it is a distinctly odious species, deserving of its own name: Summary Remand to Ponder a Point Raised Neither Here nor Below (SRPPRNHB).