Lead Opinion
Pеtitioner Lawrence Jefferson, who has been sentenced to death, claimed in both state and federal courts that his lawyers were constitutionally inadequate because they failed to investigate a traumatic head injury that he suffered as a child. The state court rejected that claim after making a finding that the attorneys were'advised by an expert that such investigation was unnecessary. Under the governing federal statute, that factual finding is presumed correct unless any one of eight exceptions applies. See 28 U. S. C. §§2254(d)(l)-(8) (1994 ed.). But the Court of Appeals considered only one of those exceptions (specifically § 2254(d)(8)). And on that basis, it considered itself “duty-bound” to aсcept the state court’s finding, and rejected Jefferson’s claim. Because the Court of Appeals did not fully consider several remaining potentially applicable exceptions, we vacate its judgment and remand.
I
When Jefferson was a child, he “suffered a serious injury to his head.” Jefferson v. Terry, 490 P. 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,
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 of his behavior, and to engage in premeditated or intentional acts.’” Id., at 1327. But they testified he is neither psychotic nor retarded. Id., at 1319. Thus, they said, to a lay observer or even to a professional psychologist, Jefferson does not outwardly appear mentally impaired. Indeed, according to the experts, “ ‘the behavior that may result from’ ” his condition “‘could, without the administration of proper testing, be mistaken for volitional.’” Id., at 1322.
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.’”
Although “it is undisputed that the testing” Dr. Dudley recommended “could have easily been performed,”
Jefferson sought habeas relief in state court, arguing that his two trial attorneys unreasonably failed to pursue brain-damage testing. In response, the trial attorneys testified that they did not pursue such testing becаuse, after delivering his formal written report, Dr. Dudley later told them that further 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,
The attorneys for the State prepared an opinion finding that “Dr. Dudley led [Jefferson’s trial attorneys] to believe that further invеstigation would simply be a waste of time because Petitioner [i]s not psychotic.” Jefferson v. Zant, Civ. Action No. 87-V-1241 (Super. Ct. Butts Cty., Ga., Oct. 7, 1992), p. 16, App. 4 to Pet. for Cert. 16 (hereinafter State Order); see also id., at 37. The opinion “specifically credits the testimony of [the trial attorneys] with regard to their efforts to investigate Petitioner’s mental condition.” Id., at 18; see also id., at 36. And relying on these findings, it concludes that Jefferson’s attorneys “made a reasonable investigation into [his] mental health” and were thus not ineffective. Id., at 37.
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.
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. l: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 “raisfes] serious doubts as to whether [the judge] even read, much less carefully considered, the proposed order submitted by the State.” Ibid.
The District Court ruled in Jefferson’s favor. It noted that under the relevant statute “factual findings of state courts are presumed to be correct unless one of . . . eight enumerated exceptions . applies.”
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 оf 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 “ 'reason[s] to doubt’” the state court’s findings). Cf. Lebron v. National Railroad Passenger Corporation,
Ill
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,
“(1) [T]he merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly suрported 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) there 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,
“In any proceeding instituted in a Federal court by an application for a writ of habeas corрus by a person in custody pursuant to the judgment of a State court, a determination ... of a factual issue, made by a State 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 рerson of the applicant in the State court proceeding;
""(5) that the applicant was an indigent and the State court, 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 quotеd above, and as the District Court correctly stated, if any “one of the eight enumerated exceptions ... applies” then “the state court’s fact-finding is not presumed correct.”
Jefferson has consistently argued that the federal courts “should harbor serious doubts about” and should not “give any deference to” the “findings of fact and credibility determinations” made by the state habeas court because those findings were drafted exclusively by the attorneys for the State pursuant to an ex parte request from the state-court judge, who made no such request of Jefferson, failed to notify Jefferson of the request made to opposing counsel, and adopted the State’s proposed opinion verbatim even though it recounted evidence from a nonexistent witness. See, e. g., Appeals Brief 32, n. 10; District Court Brief 4, n. 1; Pet. for Cert. 12. These are arguments that the state court’s process was deficient. In other words, they are arguments that Jefferson “did not receive a full and fair evidentiary hearing in . . . state court.” Townsend, supra, at 312. Or, to use the statutory language, they are arguments that the state court’s “factfinding procedure,” “hearing,” and “proceeding” were not “full, fair, and adequate.” §§ 2254(d)(2), (6), (7).
But the Court of Aрpeals did not consider the state court’s process when it applied the statutory presumption of correctness. Instead, it invoked Circuit precedent that applied only paragraph (8) of § 2254(d), which, codifying the second Townsend exception,
In our view, the Court of Appeals did not properly consider the legal status of the state court’s factual findings. Under Townsend, as codified by the governing statute, a federаl court is not “duty-bound” to accept any and all state-court findings that are “fairly supported by the record.” Those words come from § 2254(d)(8), which is only one of eight enumerated exceptions to the presumption of correctness. But there are seven others, see §§2254(d)(l)-(7), none of which the Court of Appeals considered when addressing Jefferson’s claim. To be sure, we have previously stated in cases applying § 2254(d)(8) that “a federal court” may not overturn a state court’s factual conclusion “unless the conclusion is not ‘fairly supported by the record.’ ” Parker v. Dug-ger,
Although we have stated that a court’s “verbatim adoption of findings of fact prepared by prevailing parties” should be treated as findings of the court, we have also criticized that practice. Anderson,
We decline to determine in the first instance whether any of the exceptions enumerated in §§2254(d)(l)-(8) apply in this case, see, e. g., Cutter v. Wilkinson,
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,
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The petition for a writ of certiorari and motion to proceed informa 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.
Dissenting Opinion
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
I
A
The prior version of 28 TJ. S. C. § 2254(d) (1994 ed.) applicable in this case provided that in federal habeas proceedings the factual determinations of a state court “shall be presumed to be correct,” unless the applicant proves, the respondent admits, or a federal court determines that one of eight exceptions set forth in § 2254(d)(l)-(8) applies. The Court concludes that the Eleventh Circuit misapрlied that provision and our precedents by treating one of those exceptions, § 2254(d)(8), “as the exclusive statutory exception” to the presumption of correctness, and by failing to address whether § 2254(d)(2), (6), or (7) might also bar application of that presumption.
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 subsection (d) — let alone of paragraphs (2), (6), or (7) — and the courts below understandably never passed upon the application of those provisions. Under our longstanding practice, that should be the end of the matter. See, e. g., Pennsylvania Dept. of Corrections v. Yeskey,
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 § 2254(d)(2), (6), and (7). But the handful of isolated, vague statements it musters (buried in hundreds of pages of briefs) show no such thing. The Court’s only evidence that Jefferson presented the point to the District Court, ante, at 288, 292, consists of a single sentence of text (and an accompanying two-sentence footnote) in the “Prior Proceedings” section of his 180-page brief. Brief for Petitioner in No. l:96-CV-989-CC (ND Ga.), Doc. 105 (hereinafter District Court Brief). The sentence is: “In entering the State Habeas Corpus Order Judge Newton merely signed an order drafted by the State without revision of a single word.” Id., at 4. The footnote adds:
“[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 apparentlyno 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, § 2254(d)(2), that Jefferson was denied a full, fair, and adequate hearing, § 2254(d)(6), or that Jefferson was denied due process of law, § 2254(d)(7). And it only appeared, I emphasize again, in the “Prior Proceedings” section of the brief The argument section of Jefferson’s District Court Brief, consisting of 164 pages and containing separate assignments of error from III to XLIV (44), makes no mention of the ground upon which the Court today relies. And the assignment of error that is the basis for the question presented in Jefferson’s petition, VI, id., at 48-80, did not dispute the state courts’ factual findings under § 2254(d), but only challenged the state courts’ legal conclusion that his attorneys’ failure to conduct a fuller investigation into the head injury he suffered as a child was not deficient performance under Strickland v. Washington,
Jefferson also did not raise the point in the Eleventh Circuit. His brief to that court acknowledged that the state courts’ “[findings 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 ineffeetive-assistance-of-counsel claim. Id., at 21 (some capitalization and boldface type deleted); see also id., at 29, and n. 7, 31. And it conceded that with respect to the ineffective-assistance claim, “[t]he relevant facts are not in dispute.” Id., at 24. Jefferson did characterize the state habeas court’s factual findings as generally “dubious” and suggested there were “serious doubts” about them, id., at 31-32, n. 10. But not once did he argue that the dubiousness of the findings was the consequence of a failure to meet the requirements of § 2254(d)(2), (6), or (7) — or even more generally that the findings should not be presumed correct under § 2254(d). Instead, he pressed the same argument he made in the District Court: Even if the state courts’ factual findings were correct, his trial attorneys rendered ineffective assistance in deciding to forgo further investigation of his childhood head injury. Id., at 31-33, 50-51.
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,
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,
“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 arе ‘subject to the presumption of correctness.’ Freund v. Butterworth,165 F. 3d 839 , 861 (11th Cir. 1999). Althoughthese 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 ‘clear error’ standard of review.” Id., at 1300 (emphasis added; footnote omitted).
Confronted with no argument that §2254(d)(l)-(7) applied or that it must disregard the state courts’ factual findings, the Court of Appeals understandably did not pass upon those questions.
The Court of Appeals did consider the record on its own, as required by § 2254(d)(8), to determine whether the state courts’ factual determinations were fairly supported by the record. Id., at 1303-1304, and n. 8. In doing so, the court “specifically note[d] that neither Jefferson nor the district court questioned the state court’s factual finding that [the defense’s psychiatriс expert] led [one of Jefferson’s attorneys] to believe that further investigation would simply be a waste of time, . . . despite [his attorney’s] testimony that [the expert] told him it ‘may’ be a waste of time.” Id., at 1303, n. 8 (some internal quotation marks omitted). It added that Jefferson did not “point to any particular factual finding that was clearly erroneous,” id., at 1304, n. 8 — applying the same standard Jefferson had proposed in his brief, see supra, at 297. Even the dissent agreed that the court was “obliged to accept” the state courts’ credibility determination, despite the “reasons to doubt it.”
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,
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 § 2254(d). Nor does that question necessarily encompass whether the Court of Appeals misapplied that version of
As for the body of Jefferson’s petition: Far from invoking §2254(d)’s exceptions to the presumption of correctness to support the Sixth Amendment claim, the petition does not even mention subsection (d), let alone paragraphs (2), (6), or (7). There is no argument, anywhere in the section entitled “Reasons for Granting the Writ,” that the state courts’ factual findings are not entitled to a presumption of correctness. Pet. for Cert. 31.
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,
“The premise of our adversarial system is that appellate courts do not sit as sеlf-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,
II
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 § 2254(d)(8) as “the exclusive statutory exception” to the presumption of correctness. Ante, at 293. It is true that the majority’s opinion — as well as the dissent’s — discussed only § 2254(d)(8). But that is because only § 2254(d)(8), and not § 2254(d)(2), (6), or (7), was ever brought to the court’s attention. On the fair reading we owe the Eleventh Circuit’s opinion, there simply was no error in its application of § 2254(d).
The Court asserts, however, that the Eleventh Circuit ignored the other seven paragraphs in § 2254(d) when it “invoked Circuit precedent that applied only paragraph (8) of § 2254(d).” Ante, at 292. It did nothing of the sort. The Court of Appeals said that a state court’s factual findings “may be disregarded if, for example, they are ‘not fairly supported by the record,’ Jackson v. Herring,
Next, the Court states:
“And even though the Court of Appeals ‘reeognize[d]’ that Jefferson had argued that the state court’s process had produced factual 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 82, 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.”
By the way, even if the Court of Appeals had carelessly described application of the pre-AEDPA version of § 2254(d) in the manner which the Court suggests, that would have been no worse than what we have done. For example, in Demosthenes v. Baal,
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Generally speaking, we have no power to set aside the duly entered judgment
Notes
These four exceptions in 28 U. S. C. §2254(d) (1994 ed.) were:
“(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
“(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 relevаnt] part of the record as a whole concludes that such factual determination is not fairly supported by the record ....”
The Court attempts to distinguish these two cases on the ground that they contained “no suggestion that any other provisions enumerated in § 2254(d) were at issue,” whereas “[t]hat is not the case here. ” Ante, at 293. That is simply not so. As already noted, there was no “suggestion” here (let alone an actual argument) that paragraphs (2), (6), or (7) were in issue. And if the Court means no more than that petitioner here made some process-type noises, the same was true — and indeed more true — of Parker and Demosthenes. In Parker, we stated the “crux of [petitioner’s] contentions” was that the state courts “fail[ed] to treat adequately” the evidence he presented.