Wood v. Allen

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

WOOD v. ALLEN, COMMISSIONER, ALABAMA

DEPARTMENT OF CORRECTIONS, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 08–9156. Argued November 4, 2009—Decided January 20, 2010

Under 28 U. S. C. §2254(d)(2), a federal court may grant a state pris

oner habeas relief if his claim was adjudicated on the merits in state

court and “resulted in a decision . . . based on an unreasonable de

termination of the facts in light of the evidence presented in the State

court proceeding.” Under §2254(e)(1), “a determination of a factual

issue made by a State court [is] presumed to be correct,” and the peti

tioner has “the burden of rebutting the presumption of correctness by

clear and convincing evidence.”

Petitioner Wood was convicted of capital murder and sentenced to

death in Alabama state court. Two of his court-appointed attorneys,

Dozier and Ralph, had significant trial experience, but the third,

Trotter, had only recently been admitted to the bar. After exhausting

his appeals, Wood sought postconviction relief under Alabama Rule of

Criminal Procedure 32, arguing, among other things, that he was

mentally retarded and not eligible for the death penalty, and that his

trial counsel were ineffective because they failed to investigate and

present evidence of his mental deficiencies during the trial’s penalty

phase. The Rule 32 court conducted evidentiary hearings and denied

the claims initially and on remand. As to the mental retardation

claim, it found that Wood had not shown deficits in his adaptive func

tioning. As to the ineffective-assistance-of-counsel claim, it concluded

that he had not established that his counsel’s performance was defi

cient or that any deficiency prejudiced his defense. In so doing, it

made a factual finding that counsel had made a strategic decision not

to pursue evidence of Wood’s alleged retardation. Observing that

counsel had asked Dr. Kirkland to conduct a mental evaluation, had

thoroughly reviewed his report, and had determined that no further

2 WOOD v. ALLEN

Syllabus

investigation was warranted, the court additionally held that counsel

appeared to have made a strategic decision not to present their lim

ited mental-deficiency evidence to the jury because having Dr. Kirk

land testify was not in Wood’s best interest. It also found no reason

able probability of a different outcome had the evidence developed in

the Rule 32 proceedings been presented at trial. Woods subsequently

sought federal habeas relief under §2254. The District Court rejected

all but his ineffective-assistance-of-counsel claim. The District Court

concluded that the state court’s finding that counsel made a strategic

decision was an unreasonable determination of the facts. The court

further held that counsel’s performance was deficient and had preju

diced Wood, and that the state court’s contrary holdings were an un

reasonable application of federal law under Strickland v. Washing

ton, 466 U. S. 668. Reversing, the Eleventh Circuit held that the

state court’s rejection of Wood’s ineffective-assistance claim was nei

ther an unreasonable application of clearly established law nor based

on an unreasonable determination of the facts. With respect to the

facts, it concluded that the evidence in the Rule 32 hearings sup

ported the state court’s strategic-decision finding, and it agreed with

the state court’s legal conclusion that counsel’s strategic decision was

reasonable and that Wood had failed to show prejudice. Wood’s cer

tiorari petition raises the questions (1) whether, in order to obtain re

lief under §2254(d)(2), a petitioner must establish only that the state

court factual determination on which the decision was based was

“unreasonable,” or whether §2254(e)(1) additionally requires a peti

tioner to rebut a presumption that the determination was correct

with clear and convincing evidence; and (2) whether the state court’s

strategic-decision determination was reasonable.

Held:

1. Even under Wood’s reading of §2254(d)(2), the state court’s con

clusion that his counsel made a strategic decision not to pursue or

present evidence of his mental deficiencies was not an unreasonable

determination of the facts in light of the evidence presented in the

state-court proceedings. This Court need not reach the question

whether §2254(e)(1) applies in every case presenting a challenge un

der §2254(d)(2), see Rice v. Collins, 546 U. S. 333, 339, because its

view of the state court’s factual determination here does not depend

on an interpretative difference regarding the relationship between

those provisions. While “[t]he term ‘unreasonable’ is . . . difficult to

define,” Williams v. Taylor, 529 U. S. 362, 410, it suffices to say that

a state-court factual determination is not unreasonable merely be

cause the federal habeas court would have reached a different conclu

sion in the first instance. See Rice, supra, at 341–342. Here, the

state-court record shows that all of Wood’s counsel read the Kirkland

Cite as: 558 U. S. ____ (2010) 3

Syllabus

report. Trotter testified that Dozier told him that nothing in the re

port merited further investigation, a recollection supported by the at

torneys’ contemporaneous letters; and Trotter told the sentencing

judge that counsel did not intend to introduce the report to the jury.

This evidence can fairly be read to support the Rule 32 court’s factual

determination that counsel’s failure to pursue or present evidence of

Wood’s mental deficiencies was not mere oversight or neglect but the

result of a deliberate decision to focus on other defenses. Most of the

contrary evidence Wood highlights—e.g., that Dozier and Ralph put

the inexperienced Trotter in charge of the penalty phase proceed

ings—speaks not to whether counsel made a strategic decision, but to

whether counsel’s judgment was reasonable, a question not before

this Court. Any evidence plausibly inconsistent with the strategic

decision finding does not suffice to show that the finding was unrea

sonable. Pp. 8–12.

2. Because Wood’s argument that the state court unreasonably ap

plied Strickland in rejecting his ineffective-assistance claim on the

merits is not “fairly included” in the questions presented under this

Court’s Rule 14.1(a), it will not be addressed here. Pp. 12–13.

542 F. 3d 1281, affirmed.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, THOMAS, GINSBURG, BREYER, and ALITO, JJ., joined.

STEVENS, J., filed a dissenting opinion, in which KENNEDY, J., joined.

Cite as: 558 U. S. ____ (2010) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–9156

_________________

HOLLY WOOD, PETITIONER v. RICHARD F. ALLEN,

COMMISSIONER, ALABAMA DEPARTMENT OF

CORRECTIONS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[January 20, 2010]

JUSTICE SOTOMAYOR delivered the opinion of the Court.

The Antiterrorism and Effective Death Penalty Act of

1996 contains two provisions governing federal-court

review of state-court factual findings. Under 28 U. S. C.

§2254(d)(2), a federal court may not grant a state pris

oner’s application for a writ of habeas corpus based on a

claim already adjudicated on the merits in state court

unless that adjudication “resulted in a decision that was

based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceed

ing.” Under §2254(e)(1), “a determination of a factual

issue made by a State court shall be presumed to be cor

rect,” and the petitioner “shall have the burden of rebut

ting the presumption of correctness by clear and convinc

ing evidence.” In this case, petitioner, a capital defendant,

challenges the key factual finding made by the Alabama

state court that denied his application for postconviction

relief: that his attorneys’ failure to pursue and present

mitigating evidence of his borderline mental retardation

was a strategic decision rather than a negligent omission.

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Opinion of the Court

Petitioner argues that the state court’s finding was unrea

sonable under §2254(d)(2) and that, in denying his federal

habeas petition, the Court of Appeals for the Eleventh

Circuit erroneously conflated this standard with that of

§2254(e)(1), which petitioner contends is not applicable in

cases, such as this one, not involving a separate federal

habeas evidentiary hearing.

We granted certiorari to address the relationship be

tween §§2254(d)(2) and (e)(1). We conclude, however, that

the state court’s factual determination was reasonable

even under petitioner’s reading of §2254(d)(2), and there

fore we need not address that provision’s relationship to

§2254(e)(1). Accordingly, we affirm the judgment of the

Court of Appeals on that basis.

I

In 1993, petitioner Holly Wood broke into the home of

his ex-girlfriend and shot her in the head and face as she

lay in her bed. The victim was pronounced dead on arrival

at the hospital. Charged with capital murder during a

first-degree burglary, Wood was represented at trial in

Alabama state court by three court-appointed attorneys:

Cary Dozier and Frank Ralph, both of whom had signifi

cant trial experience, and Kenneth Trotter, who had been

admitted to the bar for five months at the time he was

appointed. The jury convicted Wood at the guilt phase of

trial and recommended a death sentence at the penalty

phase by a vote of 10 to 2. After a separate sentencing

hearing, the trial judge imposed the death penalty. The

Alabama Court of Criminal Appeals affirmed Wood’s

conviction and sentence, Ex parte Wood, 715 So. 2d 812

(1996), as did the Alabama Supreme Court, Wood v. State,

715 So. 2d 819 (1998). This Court denied certiorari. Wood

v. Alabama, 525 U. S. 1042 (1998).

Wood petitioned for state postconviction relief under

Alabama Rule of Criminal Procedure 32 (2009), arguing,

Cite as: 558 U. S. ____ (2010) 3

Opinion of the Court

among other things, that he was mentally retarded and

not eligible for the death penalty, and that his trial coun

sel were ineffective under Strickland v. Washington, 466

U. S. 668 (1984), because they failed to investigate and

present evidence of his mental deficiencies during the

penalty phase of trial. App. to Pet. for Cert. 198a–202a,

207a–210a, 213a–216a, 220a–221a, 225a. The Rule 32

court held two evidentiary hearings and denied Wood’s

claims. On appeal, the Alabama Court of Criminal Ap

peals remanded for further consideration in light of Atkins

v. Virginia, 536 U. S. 304 (2002), which held that the

Eighth Amendment prohibits the execution of the men

tally retarded. Wood v. State, 891 So. 2d 398 (2003).

On remand, the Rule 32 court conducted a third eviden

tiary hearing and once again denied relief. As to Wood’s

claim of mental retardation, the court found that, while

the evidence suggested that he “probably does exhibit

significantly subaverage general intellectual functioning,”

he had failed to show “that he has significant or substan

tial deficits in his adaptive functioning.” App. to Pet. for

Cert. 236a–237a.

The court also rejected Wood’s factually related claim of

ineffective assistance of counsel, concluding that Wood

had failed to establish that his counsel’s performance was

deficient or that any deficiency prejudiced his defense. Id.,

at 257a–275a. The court first made a factual finding that

Wood’s counsel had made a strategic decision not to pur

sue evidence of his alleged mental retardation. The court

observed that counsel had requested that a Dr. Karl Kirk

land conduct a mental evaluation, had “thoroughly re

viewed Dr. Kirkland’s report,” and had “determined that

nothing in that report merited further investigation.” Id.,

at 264a, 271a. The court additionally found that counsel

appeared to have made a strategic decision not to present

to the jury the limited evidence of Wood’s mental deficien

cies in their possession, because “calling Dr. Kirkland to

4 WOOD v. ALLEN

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testify was not in Wood’s best interest.” Id., at 271a–272a.

The court concluded that these strategic decisions were

reasonable and thus that counsel had not performed defi

ciently. Ibid. The court further concluded that there was

“no reasonable probability” of a different outcome had the

evidence developed in the Rule 32 hearings been presented

to the jury or to the sentencing court. Id., at 273a. The

Alabama Court of Criminal Appeals affirmed, App. 589–

610, and the Alabama Supreme Court denied certiorari,

id., at 4.

Wood then filed a petition for federal habeas relief

under §2254. The District Court rejected all of Wood’s

claims save one: that counsel’s failure to investigate and

present mitigation evidence of his mental deficiencies

during the penalty phase constituted ineffective assistance

of counsel. 465 F. Supp. 2d 1211, 1239–1245 (MD Ala.

2006). According to the court, there was “nothing in the

record to even remotely support a finding that counsel

made a strategic decision not to let the jury at the penalty

stage know about Wood’s mental condition.” Id., at 1242.

Ralph and Dozier, the court noted, had placed the inexpe

rienced Trotter in charge of the penalty phase. At the

Rule 32 hearing, Trotter testified that he had seen the

references to Wood’s intellectual functioning in the Kirk

land report but did not recall considering whether to

pursue that issue. Trotter further testified that he had

unsuccessfully attempted to subpoena Wood’s school re

cords and that he did not recall speaking to any of Wood’s

teachers. Trotter had also written to an attorney at the

Southern Poverty Law Center explaining that he was

“ ‘stressed out over this case and [didn’t] have anyone with

whom to discuss the case, including the other two attor

neys.’ ” Id., at 1241. Shortly before the penalty phase

began, Trotter told the judge that he would request fur

ther psychological evaluation before the judge’s sentencing

hearing, even though the evaluation would come too late

Cite as: 558 U. S. ____ (2010) 5

Opinion of the Court

to be considered by the jury. Id., at 1241–1242. Based on

this evidence, the District Court concluded that the state

court’s finding “that a strategic decision was made not to

investigate or introduce to the sentencing jury evidence of

mental retardation [was] an unreasonable determination

of the facts in light of the clear and convincing evidence

presented in the record.” Ibid.

Having rejected the state court’s factual determinations,

the District Court held that counsel’s performance was

deficient and that counsel’s deficient performance preju

diced Wood, concluding that the state court’s holdings to

the contrary constituted “an unreasonable application of

federal law under Strickland.” Id., at 1245. The court

granted the petition on this claim and ordered the State

either to resentence Wood to life without parole or to

conduct a new sentencing hearing.

In a divided opinion, the Eleventh Circuit reversed the

grant of habeas relief. 542 F. 3d 1281 (2008). The major

ity began by explaining the standard of review: “Section

2254(d) permits federal habeas relief only where the state

courts’ decisions were (1) ‘contrary to, or involved an un

reasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States,’

or (2) ‘based on an unreasonable determination of the facts

in light of the evidence presented in the State court pro

ceeding.’ ” Id., at 1285 (quoting §§2254(d)(1)–(2)). A “ ‘de

termination of a factual issue made by a State court shall

be presumed to be correct,’ ” the majority explained, and

the petitioner “ ‘shall have the burden of rebutting the

presumption of correctness by clear and convincing evi

dence.’ ” Ibid. (quoting §2254(e)(1)). “Thus,” the majority

stated, the federal habeas court’s “ ‘review of findings of

fact by the state court is even more deferential than under

a clearly erroneous standard of review.’ ” Ibid.

The majority then held that the Alabama court’s rejec

tion of Wood’s ineffective-assistance-of-counsel claim was

6 WOOD v. ALLEN

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neither an unreasonable application of clearly established

law nor based on an unreasonable determination of the

facts. With respect to the facts, the court concluded that

the evidence presented in the Rule 32 hearings supported

the state court’s findings that counsel made a strategic

decision not to present mental health evidence during the

penalty phase. “At a minimum,” the court noted, “Wood

has not presented evidence, much less clear and convinc

ing evidence, that counsel did not make such decisions.”

Id., at 1304, n. 23. The court also agreed with the state

court’s legal conclusion that counsel’s strategic decision

was reasonable. According to the court, the silent record

created a presumption that counsel exercised sound pro

fessional judgment, supported by ample reasons, not to

present the information they had obtained. These reasons

included unfavorable information in Dr. Kirkland’s report,

such as details about Wood’s 19 earlier arrests and his

previous attempt to murder another ex-girlfriend, as well

as Dr. Kirkland’s conclusion that, notwithstanding Wood’s

mental deficiencies, Wood had a high level of adaptive

functioning. Id., at 1304–1306. The court added that the

investigation preceding counsel’s decision was sufficient to

permit them to make a reasoned decision, crediting the

Rule 32 court’s findings that, inter alia, counsel not only

employed an investigator who sought mitigation evidence

from family members but also themselves met with family

members and sought guidance from capital defense or

ganizations. Id., at 1307–1308. The court also accepted as

not “objectively unreasonable” the state court’s determina

tion that Wood had failed to show prejudice from counsel’s

failure to present evidence of his mental deficiencies. Id.,

at 1309, 1314.

The dissent, implicitly considering the factual question

whether counsel made a strategic decision as part and

parcel of the legal question whether any strategic decision

was reasonable, concluded that “[n]o such strategic deci

Cite as: 558 U. S. ____ (2010) 7

Opinion of the Court

sions could possibly have been made in this case because

counsel had failed to adequately investigate the available

mitigating evidence.” Id., at 1316. According to the dis

sent, “the weight of the evidence in the record demon

strates that Trotter, an inexperienced and overwhelmed

attorney,” unassisted by senior counsel, “realized too

late”—only in time to present it to the sentencing judge,

not to the penalty jury—“what any reasonably prepared

attorney would have known: that evidence of Wood’s men

tal impairments could have served as mitigating evidence

and deserved investigation so that it could properly be

presented before sentencing.” Id., at 1320. The dissent

also concluded that there was a reasonable probability of a

different outcome at the penalty phase had the evidence

been presented, because the jury could have concluded

that Wood was less culpable as a result of his diminished

abilities. Id., at 1322–1325. The dissent therefore con

cluded that the state court’s application of Strickland to

the facts of this case was unreasonable. 542 F. 3d, at

1326.

We granted certiorari to resolve two related questions

raised by Wood’s petition. First, we granted review of a

question that has divided the Courts of Appeals: whether,

in order to satisfy §2254(d)(2), a petitioner must establish

only that the state-court factual determination on which

the decision was based was “unreasonable,” or whether

§2254(e)(1) additionally requires a petitioner to rebut a

presumption that the determination was correct with clear

and convincing evidence.1 We also granted review of the

——————

1See, e.g., 542 F. 3d 1281, 1285, 1304, n. 23 (CA11 2008) (decision

below); Taylor v. Maddox, 366 F. 3d 992, 999–1000 (CA9), cert. denied,

543 U. S. 1038 (2004) (where a habeas petitioner challenges state-court

factual findings “based entirely on the state record,” the federal court

reviews those findings for reasonableness only under §2254(d)(2), but

where a petitioner challenges such findings based in part on evidence

that is extrinsic to the state-court record, §2254(e)(1) applies); Lambert

8 WOOD v. ALLEN

Opinion of the Court

question whether the state court reasonably determined

that Wood’s counsel made a “strategic decision” not to

pursue or present evidence of his mental deficiencies. 556

U. S. __ (2009). Wood’s petition raised two additional

questions on which we declined to grant certiorari. Ibid.

Neither of these asked us to review whether the state

court’s resolution of Wood’s ineffective-assistance-of

counsel claim was “contrary to, or involved an unreason

able application of, clearly established Federal law” under

§2254(d)(1) and Strickland.

II

A

Notwithstanding statements we have made about the

relationship between §§2254(d)(2) and (e)(1) in cases that

did not squarely present the issue, see Brief for Petitioner

37–38; Brief for Respondents 28–29, we have explicitly left

open the question whether §2254(e)(1) applies in every

case presenting a challenge under §2254(d)(2), see Rice v.

Collins, 546 U. S. 333, 339 (2006). The parties and their

——————

v. Blackwell, 387 F. 3d 210, 235 (CA3 2004) (“§2254(d)(2)’s reasonable

ness determination turns on a consideration of the totality of the

‘evidence presented in the state-court proceeding,’ while §2254(e)(1)

contemplates a challenge to the state court’s individual factual deter

minations, including a challenge based wholly or in part on evidence

outside the state trial record”); Trussell v. Bowersox, 447 F. 3d 588, 591

(CA8) (federal habeas relief is available only “if the state court made ‘an

unreasonable determination of the facts in light of the evidence pre

sented in the State court proceeding,’ 28 U. S. C. §2254(d)(2), which

requires clear and convincing evidence that the state court’s presump

tively correct factual finding lacks evidentiary support”), cert. denied,

549 U. S. 1034 (2006); Ben-Yisrayl v. Buss, 540 F. 3d 542, 549 (CA7

2008) (§2254(d)(2) can be satisfied by showing, under §2254(e)(1), that a

state-court decision “rests upon a determination of fact that lies against

the clear weight of the evidence” because such a decision “is, by defini

tion, a decision so inadequately supported by the record as to be arbi

trary and therefore objectively unreasonable” (internal quotation marks

omitted)).

Cite as: 558 U. S. ____ (2010) 9

Opinion of the Court

amici have offered a variety of ways to read the relation

ship between these two provisions.2 Although we granted

certiorari to resolve the question of how §§2254(d)(2) and

(e)(1) fit together, we find once more that we need not

reach this question, because our view of the reasonable

ness of the state court’s factual determination in this case

does not turn on any interpretive difference regarding the

relationship between these provisions. For present pur

poses, we assume for the sake of argument that the factual

determination at issue should be reviewed, as Wood urges,

only under §2254(d)(2) and not under §2254(e)(1). We

conclude that, under §2254(d)(2), the state court’s finding

that Wood’s counsel made a strategic decision not to pur

sue or present evidence of Wood’s mental deficiencies was

not an unreasonable determination of the facts in light of

the evidence presented in the state-court proceedings. We

therefore do not need to decide whether that determina

tion should be reviewed under the arguably more deferen

tial standard set out in §2254(e)(1).

As we have observed in related contexts, “[t]he term

‘unreasonable’ is no doubt difficult to define.” Williams v.

Taylor, 529 U. S. 362, 410 (2000). It suffices to say, how

ever, that a state-court factual determination is not un

——————

2 In Wood’s view, when a petitioner seeks relief based entirely on the

state-court record, a federal court reviews the state court’s findings for

reasonableness under §2254(d)(2). Section 2254(e)(1) comes into play,

according to Wood, only when a petitioner challenges individual state

court factual findings based in part on evidence that is extrinsic to the

state-court record. Brief for Petitioner 38–39. According to respon

dents, §2254(e)(1) applies to any challenge to a state court’s factual

findings under §2254(d)(2), including a challenge based solely on the

state-court record. Brief for Respondents 35–37. Respondents’ amici

offer still further variations, although they all agree with respondents

that §2254(e)(1) applies in some fashion in every habeas case reviewing

state-court factual findings. Brief for Criminal Justice Legal Founda

tion as Amicus Curiae 5, 10–14; Brief for State of Indiana et al. as

Amici Curiae 2, 12–18.

10 WOOD v. ALLEN

Opinion of the Court

reasonable merely because the federal habeas court would

have reached a different conclusion in the first instance.

Cf. id., at 411. In Rice, for example, in which we assumed,

arguendo, that only §2254(d)(2) and not §2254(e)(1) ap

plied, 546 U. S., at 339, we rejected the Ninth Circuit’s

conclusion that a state-court factual determination was

unreasonable. We noted that even if “[r]easonable minds

reviewing the record might disagree” about the finding in

question, “on habeas review that does not suffice to super

sede the trial court’s . . . determination.” Id., at 341–342.

In this case, the evidence in the state-court record dem

onstrated that all of Wood’s counsel read the Kirkland

report. App. 12, 174, 210, 283. Trotter testified that

Dozier told him that nothing in the report merited further

investigation, a recollection that is supported by contem

poraneous letters Trotter wrote to Dozier and Ralph not

ing that no independent psychological evaluations had

been conducted because Dozier had said they would not be

needed. Id., at 283, 343, 345. Trotter also told the sen

tencing judge that counsel did not intend to introduce the

Kirkland report to the jury. Id., at 12. This evidence in

the state-court record can fairly be read to support the

Rule 32 court’s factual determination that counsel’s failure

to pursue or present evidence of Wood’s mental deficien

cies was not mere oversight or neglect but was instead the

result of a deliberate decision to focus on other defenses.

Arguing that the state court’s factual determination to

this effect was unreasonable, Wood calls our attention to

Dozier’s testimony during the Rule 32 proceedings that

evidence of Wood’s mental health problems would have

been presented during the penalty phase if counsel had

been aware of it, id., at 169; that Dozier did not recall

whether he had decided not to present evidence based on

the Kirkland report, id., at 168, 171; and that Dozier and

Ralph had designated the inexperienced Trotter to be in

charge of the penalty phase proceedings, id., at 270–271.

Cite as: 558 U. S. ____ (2010) 11

Opinion of the Court

Trotter, in turn, testified that he did not recall considering

Wood’s mental deficiencies. Id., at 288. Wood also ob

serves that the Kirkland report was prepared for the guilt

phase, not the penalty phase, and a strategic decision not

to use the Kirkland report in the former does not necessar

ily carry over into the latter. Id., at 324. Wood notes that

his counsel sought to obtain additional evidence about his

mental health to use in mitigation after reviewing the

Kirkland report, but they failed to pursue it, in part out of

a belief that the sentencing judge would not grant a con

tinuance to permit them to investigate. Id., at 285, 343–

346. Finally, Wood emphasizes that his counsel must

have thought that evidence of his mental deficiencies was

important because they presented it to the judge at the

final sentencing hearing. Id., at 88.

Most of the evidence Wood highlights, however, speaks

not to whether counsel made a strategic decision, but

rather to whether counsel’s judgment was reasonable—a

question we do not reach. See Part II–B, infra. As for any

evidence that may plausibly be read as inconsistent with

the finding that counsel made a strategic decision, we

conclude that it does not suffice to demonstrate that the

finding was unreasonable.3

——————

3 The dissent suggests that counsel could not have made a strategic

decision not to pursue evidence of Wood’s mental deficiencies because

there could be no reasonable justification for doing so. Post, at 3–5

(opinion of STEVENS, J., joined by KENNEDY, J.). This interpretation

conflates the question whether a decision was strategic with the ques

tion whether a strategic decision was reasonable. Cf. post, at 2, n. 1.

Without expressing a view on the ultimate reasonableness of the

decision not to pursue this evidence further, we note that the Eleventh

Circuit majority observed that the state court could reasonably have

determined that counsel had strategic grounds for their decision. In

particular, evidence about Wood’s mental deficiencies may have led to

rebuttal testimony about the capabilities he demonstrated through his

extensive criminal history, an extraordinarily limited amount of which

was actually admitted at the penalty phase of the trial. Counsel’s

12 WOOD v. ALLEN

Opinion of the Court

Reviewing all of the evidence, we agree with the State

that even if it is debatable, it is not unreasonable to con

clude that, after reviewing the Kirkland report, counsel

made a strategic decision not to inquire further into the

information contained in the report about Wood’s mental

deficiencies and not to present to the jury such informa

tion as counsel already possessed about these deficiencies.

Cf. Rice, supra, at 341–342. For that reason, we agree

with the Court of Appeals that the District Court erred in

holding to the contrary.

B

Wood also argues that the state-court decision involved

an unreasonable application of Strickland under

§2254(d)(1) because counsel failed to make a reasonable

investigation of Wood’s mental deficiencies before deciding

not to pursue or present such evidence. Without a reason

able investigation, Wood contends, these decisions were an

unreasonable exercise of professional judgment and con

stituted deficient performance under Strickland. We

agree with the State, however, that this argument is not

“fairly included” in the questions presented under this

Court’s Rule 14.1(a). Whether the state court reasonably

determined that there was a strategic decision under

§2254(d)(2) is a different question from whether the stra

tegic decision itself was a reasonable exercise of profes

——————

decision successfully thwarted the prosecutor’s efforts to admit evidence

that Wood murdered his ex-girlfriend while on parole for an attempted

murder of a different ex-girlfriend that was strikingly similar in execu

tion to the subsequent successful murder. App. 23–24. Moreover, as

the Eleventh Circuit majority noted, evidence of Wood’s mental defi

ciencies also could have undercut the defense’s argument that he left

school to support his family, suggesting instead that he left school

because of educational difficulties. 542 F. 3d, at 1305–1306. Counsel’s

decision about which avenues to investigate can therefore plausibly be

described as strategic rather than necessarily being the product of

“happenstance, inattention, or neglect,” post, at 4.

Cite as: 558 U. S. ____ (2010) 13

Opinion of the Court

sional judgment under Strickland or whether the applica

tion of Strickland was reasonable under §2254(d)(1). Cf.

Rice, 546 U. S., at 342 (“The question whether a state

court errs in determining the facts is a different question

from whether it errs in applying the law”). These latter

two questions may be “related to the one petitione[r] pre

sented, and perhaps complementary to the one petitione[r]

presented,” but they are “not fairly included therein.” Yee

v. Escondido, 503 U. S. 519, 537 (1992) (internal quotation

marks omitted).

It is true that Wood’s petition discussed the Eleventh

Circuit’s misapplication of §2254(d)(1) and Strickland.

Pet. for Cert. 22–27. But “the fact that [petitioner] dis

cussed 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.” Izumi Seimitsu Kogyo Kabu

shiki Kaisha v. U. S. Philips Corp., 510 U. S. 27, 31, n. 5

(1993) (per curiam). We therefore do not address Wood’s

argument that the state court unreasonably applied

Strickland in rejecting his ineffective-assistance-of-counsel

claim on the merits.

* * *

Because the resolution of this case does not turn on

them, we leave for another day the questions of how and

when §2254(e)(1) applies in challenges to a state court’s

factual determinations under §2254(d)(2). We hold simply

that, even under petitioner’s reading of §2254(d)(2), the

state court’s conclusion that Wood’s counsel made a stra

tegic decision not to pursue or present evidence of his

mental deficiencies was not an unreasonable determina

tion of the facts. Accordingly, we affirm the judgment of

the Court of Appeals for the Eleventh Circuit.

It is so ordered.

Cite as: 558 U. S. ____ (2010) 1

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–9156

_________________

HOLLY WOOD, PETITIONER v. RICHARD F. ALLEN,

COMMISSIONER, ALABAMA DEPARTMENT OF

CORRECTIONS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[January 20, 2010]

JUSTICE STEVENS, with whom JUSTICE KENNEDY joins,

dissenting.

There is a world of difference between a decision not to

introduce evidence at the guilt phase of a trial and a fail

ure to investigate mitigating evidence that might be ad

missible at the penalty phase. Wood’s experienced counsel

made a perfectly sensible decision not to introduce Dr.

Kirkland’s report into evidence or to call him as a witness.

That was a strategic decision based on their judgment that

the evidence would do more harm than good. But it does

not follow from this single strategic decision that counsel

also made a strategic decision to forgo investigating pow

erful mitigating evidence of Wood’s mental deficits for the

penalty phase. On the contrary, the only reasonable

factual conclusion I can draw from this record is that

counsel’s decision to do so was the result of inattention

and neglect. Because such a decision is the antithesis of a

“strategic” choice, I would reverse the decision of the Court

of Appeals.

Assuming that the Court is correct to decline to consider

whether the state court’s application of Strickland v.

Washington, 466 U. S. 668 (1984) was reasonable, see

ante, at 12–13, the question whether the decision itself

was the product of a strategy is still before us. The Court

2 WOOD v. ALLEN

STEVENS, J., dissenting

may well be correct that the state court reasonably con

cluded that counsel made a decision not to pursue Dr.

Kirkland’s report for either guilt or penalty phase pur

poses, ante, at 10–12, but to reject Wood’s claim the state

court also had to reasonably conclude that such a decision

was borne of strategy. And whether counsel’s decision was

the product of strategy is a question of fact for purposes of

28 U. S. C. §2254(d)(2).1 Cf. Wiggins v. Smith, 539 U. S.

510, 526–527 (2003) (observing that “the ‘strategic deci

sion’ the state courts and respondents all invoke to justify

counsel’s limited pursuit of mitigating evidence resembles

more a post hoc rationalization of counsel’s conduct than

an accurate description of their deliberations prior to

sentencing”); Carr v. Schofield, 364 F. 3d 1246, 1264

(CA11 2004) (identifying “whether counsel’s decisions were

tactical or strategic” as a question of fact (citing Horton v.

Zant, 941 F. 2d 1449, 1462 (CA11 1991)));2 Berryman v.

Morton, 100 F. 3d 1089, 1095 (CA3 1996) (same). In other

words, the Court correctly concludes that the record rea

sonably supports a finding that counsel decided not to

——————

1 TheCourt explains: “Whether the state court reasonably determined

that there was a strategic decision under §2254(d)(2) is a different

question from whether the strategic decision itself was a reasonable

exercise of professional judgment under Strickland or whether the

application of Strickland was reasonable under §2254(d)(1).” Ante, at

12–13. I agree with the majority that whether a particular strategic

decision is reasonable or not is the Strickland question we would

address were we reviewing Wood’s claim for habeas relief under

§2254(d)(1).

2 Indeed, the law in the Eleventh Circuit on this point is well settled:

“ ‘The question of whether an attorney’s actions were actually the

product of a tactical or strategic decision is an issue of fact . . . . ’ ”

Fotopoulos v. Secretary, Dept. of Corrections, 516 F. 3d 1229, 1233

(CA11 2008) (quoting Provenzano v. Singletary, 148 F. 3d 1327, 1330

(CA11 1998)); see also Lamarca v. Secretary, Dept. of Corrections, 568

F. 3d 929, 938 (CA11 2009) (same). Thus, it is quite understandable

that Wood framed the questions presented in his petition for certiorari

as arising under §2254(d)(2).

Cite as: 558 U. S. ____ (2010) 3

STEVENS, J., dissenting

investigate Wood’s mental retardation further, but the

Court fails to engage with the requisite second question:

Does the record reasonably support finding that counsel’s

decision was a strategic one? The answer to this question

is unequivocally no.

Before petitioner’s trial, his counsel learned that Wood

had an “IQ in the borderline range of intellectual function

ing,” App. 327, and was “functioning, at most,” in this

borderline range, id., at 328. Wood was “reading on less

than a 3rd grade level.” Id., at 327. His former special

education teacher testified during postconviction review

that Wood was classified as “educable mentally retarded”

by the local school system. Id., at 403. In short, Wood has

the type of significant mental deficits that we recognize as

“inherently mitigating,” Tennard v. Dretke, 542 U. S. 274,

287 (2004).3

Despite the powerful mitigating value of this evidence,

“[n]o evidence of Wood’s mental retardation was ever

presented to the jury.” 542 F. 3d 1281, 1314 (CA11 2008)

(Barkett, J., concurring in part, dissenting in part). Coun

sel was clearly aware that this evidence existed, id., at

1318, but chose not to investigate it beyond the conclu

sions outlined in Dr. Kirkland’s report, App. 283. In the

Court’s view, the record reasonably supports the state

court’s conclusion that “counsel made a strategic decision

not to inquire further into” Wood’s mental deficiencies,

ante, at 12. Although I agree with the majority that the

failure was the result of a “decision,” albeit a hasty one,

the Court regrettably fails to consider whether the deci

sion was also “strategic” as a matter of fact.

——————

3 Although Wood does not fall within the class of individuals we iden

tified in Atkins v. Virginia, 536 U. S. 304 (2002), against whom the

death penalty may not be constitutionally imposed, “the reality that

[the defendant] was ‘borderline mentally retarded,’ might well . . .

influenc[e] the jury’s appraisal of his moral culpability.” Williams v.

Taylor, 529 U. S. 362, 398 (2000).

4 WOOD v. ALLEN

STEVENS, J., dissenting

A decision cannot be fairly characterized as “strategic”

unless it is a conscious choice between two legitimate and

rational alternatives. It must be borne of deliberation and

not happenstance, inattention, or neglect. See Wiggins,

539 U. S., at 526 (concluding that counsel’s “failure to

investigate thoroughly resulted from inattention, not

reasoned strategic judgment”); Strickland, 466 U. S., at

690–691. Moreover, “a cursory investigation” does not

“automatically justif[y] a tactical decision with respect to

sentencing strategy.” Wiggins, 539 U. S., at 527. Al

though we afford deference to counsel’s strategic decisions,

Strickland, 466 U. S., at 690–691, for this deference to

apply there must be some evidence that the decision was

just that: strategic.

The lawyers’ duty to conduct a thorough investigation of

possible mitigating evidence is well established by our

cases, Porter v. McCollum, 558 U. S. ___, ___ (2009) (per

curiam) (slip op., at 10); Rompilla v. Beard, 545 U. S. 374,

387 (2005); Wiggins, 539 U. S., at 522–523; Williams v.

Taylor, 529 U. S. 362, 396 (2000); Strickland, 466 U. S., at

688. These cases also make clear that counsel’s unconsid

ered decision to fail to discharge that duty cannot be stra

tegic. The only conceivable strategy that might support

forgoing counsel’s ethical obligations under these circum

stances would be a reasoned conclusion that further inves

tigation is futile and thus a waste of valuable time. Cf. id.,

at 691 (recognizing that counsel’s decision to abandon an

investigation is entitled to deference “when a defendant

has given counsel reason to believe that pursuing certain

investigations would be fruitless or even harmful”). There

is no evidence in the record to suggest that Wood’s counsel

reached such a conclusion.4 See 542 F. 3d, at 1321–1322

——————

4 The Court conflates the strategic decision to present mitigating

evidence to the jury with the strategic decision to investigate avenues

of mitigating evidence fully, see ante, at 11–12, n. 3. My concern is that

Cite as: 558 U. S. ____ (2010) 5

STEVENS, J., dissenting

(Barkett, J., concurring in part, dissenting in part). On

the contrary, the Court recognizes that Wood has pointed

to substantial evidence that Trotter, the attorney who had

primary responsibility for Wood’s penalty phase, believed

that further investigation had value, ante, at 10–11.

Despite the fact that Trotter had a meager five months of

experience as a lawyer when he was appointed to repre

sent Wood, App. 261, even he knew that further investi-

gation into any mental or psychological deficits was in

order.5

In my view, any decision to abandon an investigation

into the mitigating evidence signaled by Dr. Kirkland’s

report was so obviously unreasonable that the decision

itself is highly persuasive evidence that counsel did not

have any strategy in mind when they did so. I share the

view of my dissenting colleague below that the District

——————

there is no evidence to support a conclusion that there was a strategic

decision on the latter, which is a necessary prerequisite for counsel to

make reasoned choices with respect to what evidence should go before

the jury during the penalty phase of a capital trial. See, e.g., Wiggins,

539 U. S., at 522 (explaining that “counsel’s failure to uncover and

present voluminous mitigating evidence at sentencing could not be

justified as a tactical decision to focus on [defendant’s] voluntary

confessions, because counsel had not ‘fulfill[ed] their obligation to

conduct a thorough investigation of the defendant’s background’ ”

(quoting Williams, 529 U. S., at 396)).

5 Shortly before the penalty phase commenced, Trotter sent letters to

his two more experienced co-counsel imploring that “we should request

an independent psychological evaluation—even if that means asking for

a postponement of the sentencing hearing.” App. 343 (letter from

Trotter to Dozier); id., at 345 (letter from Trotter to Ralph). Trotter

attempted to procure Wood’s school records and speak to his former

special education teachers in order to obtain “anything that would be

able to be used as a mitigating factor,” id., at 267 (testimony of Trotter),

but he failed to follow up on a subpoena issued for the records and

never spoke at length with any of Wood’s teachers, id., at 267–268.

Notably, at least two of these former teachers were willing to testify on

Wood’s behalf at the state postconviction hearing, see id., at 401–421

(testimony of Maddox and Penn).

6 WOOD v. ALLEN

STEVENS, J., dissenting

Court correctly concluded that the failure to investigate

was the product of inattention and neglect by attorneys

preoccupied with other concerns and not the product of a

deliberate choice between two permissible alternatives.

For the state court to conclude otherwise was thus “an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding” within

the meaning of 28 U. S. C. §2254(d)(2).6

I therefore respectfully dissent.

——————

6 I would also reach the same conclusion were I to agree with the

respondents and their amici that a habeas petitioner must pierce

§2254(e)(1)’s presumption of correctness with respect to state-court

findings of fact before he can proceed to show he is entitled to relief

under §2254(d)(2). See ante, at 9, n. 2.