Porter v. McCollum

Cite as: 558 U. S. ____ (2009) 1

Per Curiam

SUPREME COURT OF THE UNITED STATES

GEORGE PORTER, JR. v. BILL MCCOLLUM,

ATTORNEY GENERAL OF FLORIDA, ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 08–10537. Decided November 30, 2009

PER CURIAM.

Petitioner George Porter is a veteran who was both

wounded and decorated for his active participation in two

major engagements during the Korean War; his combat

service unfortunately left him a traumatized, changed

man. His commanding officer’s moving description of

those two battles was only a fraction of the mitigating

evidence that his counsel failed to discover or present

during the penalty phase of his trial in 1988.

In this federal postconviction proceeding, the District

Court held that Porter’s lawyer’s failure to adduce that

evidence violated his Sixth Amendment right to counsel

and granted his application for a writ of habeas corpus.

The Court of Appeals for the Eleventh Circuit reversed, on

the ground that the Florida Supreme Court’s determina

tion that Porter was not prejudiced by any deficient per

formance by his counsel was a reasonable application of

Strickland v. Washington, 466 U. S. 668 (1984). Like the

District Court, we are persuaded that it was objectively

unreasonable to conclude there was no reasonable prob

ability the sentence would have been different if the sen

tencing judge and jury had heard the significant mitiga

tion evidence that Porter’s counsel neither uncovered nor

presented. We therefore grant the petition for certiorari in

part and reverse the judgment of the Court of Appeals.1

——————

1 We deny the petition insofar as it challenges his conviction.

2 PORTER v. MCCOLLUM

Per Curiam

I

Porter was convicted of two counts of first-degree mur

der for the shooting of his former girlfriend, Evelyn Wil

liams, and her boyfriend Walter Burrows. He was sen

tenced to death on the first count but not the second.

In July 1986, as his relationship with Williams was

ending, Porter threatened to kill her and then left town.

When he returned to Florida three months later, he at

tempted to see Williams but her mother told him that

Williams did not want to see him. He drove past Williams’

house each of the two days prior to the shooting, and the

night before the murder he visited Williams, who called

the police. Porter then went to two cocktail lounges and

spent the night with a friend, who testified Porter was

quite drunk by 11 p.m. Early the next morning, Porter

shot Williams in her house. Burrows struggled with Por

ter and forced him outside where Porter shot him.

Porter represented himself, with standby counsel, for

most of the pretrial proceedings and during the beginning

of his trial. Near the completion of the State’s case in

chief, Porter pleaded guilty. He thereafter changed his

mind about representing himself, and his standby counsel

was appointed as his counsel for the penalty phase. Dur

ing the penalty phase, the State attempted to prove four

aggravating factors: Porter had been “previously con

victed” of another violent felony (i.e., in Williams’ case,

killing Burrows, and in his case, killing Williams);2 the

murder was committed during a burglary; the murder was

committed in a cold, calculated, and premeditated man

——————

2 It is an aggravating factor under Florida law that “[t]he defendant

was previously convicted of another capital felony or of a felony involv

ing the use or threat of violence to the person.” Fla. Stat.

§921.141(5)(b) (1987). In Porter’s case, the State established that factor

by reference to Porter’s contemporaneous convictions stemming from

the same episode: two counts of murder and one count of aggravated

assault. Tr. 5 (Mar. 4, 1988).

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Per Curiam

ner; and the murder was especially heinous, atrocious, or

cruel. The defense put on only one witness, Porter’s ex

wife, and read an excerpt from a deposition. The sum

total of the mitigating evidence was inconsistent testi

mony about Porter’s behavior when intoxicated and testi

mony that Porter had a good relationship with his son.

Although his lawyer told the jury that Porter “has other

handicaps that weren’t apparent during the trial” and

Porter was not “mentally healthy,” he did not put on any

evidence related to Porter’s mental health. 3 Tr. 477–478

(Jan. 22, 1988).

The jury recommended the death sentence for both

murders. The trial court found that the State had proved

all four aggravating circumstances for the murder of

Williams but that only the first two were established with

respect to Burrows’ murder. The trial court found no

mitigating circumstances and imposed a death sentence

for Williams’ murder only. On direct appeal, the Florida

Supreme Court affirmed the sentence over the dissent of

two justices, but struck the heinous, atrocious, or cruel

aggravating factor. Porter v. State, 564 So. 2d 1060 (1990)

(per curiam). The court found the State had not carried its

burden on that factor because the “record is consistent

with the hypothesis that Porter’s was a crime of passion,

not a crime that was meant to be deliberately and ex

traordinarily painful.” Id., at 1063 (emphasis deleted).

The two dissenting justices would have reversed the pen

alty because the evidence of drunkenness, “combined with

evidence of Porter’s emotionally charged, desperate, frus

trated desire to meet with his former lover, is sufficient to

render the death penalty disproportional punishment in

this instance.” Id., at 1065–1066 (Barkett, J., concurring

in part and dissenting in part).

In 1995, Porter filed a petition for postconviction relief

in state court, claiming his penalty-phase counsel failed to

investigate and present mitigating evidence. The court

4 PORTER v. MCCOLLUM

Per Curiam

conducted a 2-day evidentiary hearing, during which

Porter presented extensive mitigating evidence, all of

which was apparently unknown to his penalty-phase

counsel. Unlike the evidence presented during Porter’s

penalty hearing, which left the jury knowing hardly any

thing about him other than the facts of his crimes, the new

evidence described his abusive childhood, his heroic mili

tary service and the trauma he suffered because of it, his

long-term substance abuse, and his impaired mental

health and mental capacity.

The depositions of his brother and sister described the

abuse Porter suffered as a child. Porter routinely wit

nessed his father beat his mother, one time so severely

that she had to go to the hospital and lost a child. Porter’s

father was violent every weekend, and by his siblings’

account, Porter was his father’s favorite target, particu

larly when Porter tried to protect his mother. On one

occasion, Porter’s father shot at him for coming home late,

but missed and just beat Porter instead. According to his

brother, Porter attended classes for slow learners and left

school when he was 12 or 13.

To escape his horrible family life, Porter enlisted in the

Army at age 17 and fought in the Korean War. His com

pany commander, Lieutenant Colonel Sherman Pratt,

testified at Porter’s postconviction hearing. Porter was

with the 2d Division, which had advanced above the 38th

parallel to Kunu-ri when it was attacked by Chinese

forces. Porter suffered a gunshot wound to the leg during

the advance but was with the unit for the battle at Kunu

ri. While the Eighth Army was withdrawing, the 2d Divi

sion was ordered to hold off the Chinese advance, enabling

the bulk of the Eighth Army to live to fight another day.

As Colonel Pratt described it, the unit “went into position

there in bitter cold night, terribly worn out, terribly

weary, almost like zombies because we had been in con

stant—for five days we had been in constant contact with

Cite as: 558 U. S. ____ (2009) 5

Per Curiam

the enemy fighting our way to the rear, little or no sleep,

little or no food, literally as I say zombies.” 1 Tr. 138 (Jan.

4, 1996). The next morning, the unit engaged in a “fierce

hand-to-hand fight with the Chinese” and later that day

received permission to withdraw, making Porter’s regi

ment the last unit of the Eighth Army to withdraw. Id., at

139–140.

Less than three months later, Porter fought in a second

battle, at Chip’yong-ni. His regiment was cut off from the

rest of the Eighth Army and defended itself for two days

and two nights under constant fire. After the enemy broke

through the perimeter and overtook defensive positions on

high ground, Porter’s company was charged with retaking

those positions. In the charge up the hill, the soldiers

“were under direct open fire of the enemy forces on top of

the hill. They immediately came under mortar, artillery,

machine gun, and every other kind of fire you can imagine

and they were just dropping like flies as they went along.”

Id., at 150. Porter’s company lost all three of its platoon

sergeants, and almost all of the officers were wounded.

Porter was again wounded and his company sustained the

heaviest losses of any troops in the battle, with more than

50% casualties. Colonel Pratt testified that these battles

were “very trying, horrifying experiences,” particularly for

Porter’s company at Chip’yong-ni. Id., at 152. Porter’s

unit was awarded the Presidential Unit Citation for the

engagement at Chip’yong-ni, and Porter individually

received two Purple Hearts and the Combat Infantryman

Badge, along with other decorations.

Colonel Pratt testified that Porter went absent without

leave (AWOL) for two periods while in Korea. He ex

plained that this was not uncommon, as soldiers some

times became disoriented and separated from the unit,

and that the commander had decided not to impose any

punishment for the absences. In Colonel Pratt’s experi

ence, an “awful lot of [veterans] come back nervous

6 PORTER v. MCCOLLUM

Per Curiam

wrecks. Our [veterans’] hospitals today are filled with

people mentally trying to survive the perils and hardships

[of] . . . the Korean War,” particularly those who fought in

the battles he described. Id., at 153.

When Porter returned to the United States, he went

AWOL for an extended period of time.3 He was sentenced

to six months’ imprisonment for that infraction, but he

received an honorable discharge. After his discharge, he

suffered dreadful nightmares and would attempt to climb

his bedroom walls with knives at night.4 Porter’s family

eventually removed all of the knives from the house.

According to Porter’s brother, Porter developed a serious

drinking problem and began drinking so heavily that he

would get into fights and not remember them at all.

In addition to this testimony regarding his life history,

Porter presented an expert in neuropsychology, Dr. Dee,

who had examined Porter and administered a number of

psychological assessments. Dr. Dee concluded that Porter

suffered from brain damage that could manifest in impul

sive, violent behavior. At the time of the crime, Dr. Dee

testified, Porter was substantially impaired in his ability

to conform his conduct to the law and suffered from an

extreme mental or emotional disturbance, two statutory

mitigating circumstances, Fla. Stat. §921.141(6). Dr. Dee

also testified that Porter had substantial difficulties with

——————

3 Porter explained to one of the doctors who examined him for compe

tency to stand trial that he went AWOL in order to spend time with his

son. Record 904.

4 Porter’s expert testified that these symptoms would “easily” warrant

a diagnosis of posttraumatic stress disorder (PTSD). 2 Tr. 233 (Jan. 5,

1996). PTSD is not uncommon among veterans returning from combat.

See Hearing on Fiscal Year 2010 Budget for Veterans’ Programs before

the Senate Committee on Veterans’ Affairs, 111th Cong., 1st Sess., 63

(2009) (uncorrected copy) (testimony of Eric K. Shinseki, Secretary of

Veterans Affairs (VA), reporting that approximately 23 percent of the

Iraq and Afghanistan war veterans seeking treatment at a VA medical

facility had been preliminarily diagnosed with PTSD).

Cite as: 558 U. S. ____ (2009) 7

Per Curiam

reading, writing, and memory, and that these cognitive

defects were present when he was evaluated for compe

tency to stand trial. 2 Tr. 227–228 (Jan. 5, 1996); see also

Record 904–906. Although the State’s experts reached

different conclusions regarding the statutory mitigators,5

each expert testified that he could not diagnose Porter or

rule out a brain abnormality. 2 Tr. 345, 382 (Jan. 5,

1996); 3 id., at 405.

The trial judge who conducted the state postconviction

hearing, without determining counsel’s deficiency, held

that Porter had not been prejudiced by the failure to in

troduce any of that evidence. Record 1203, 1206. He

found that Porter had failed to establish any statutory

mitigating circumstances, id., at 1207, and that the non

statutory mitigating evidence would not have made a

difference in the outcome of the case, id., at 1210. He

discounted the evidence of Porter’s alcohol abuse because

it was inconsistent and discounted the evidence of Porter’s

abusive childhood because he was 54 years old at the time

of the trial. He also concluded that Porter’s periods of

being AWOL would have reduced the impact of Porter’s

military service to “inconsequential proportions.” Id., at

1212. Finally, he held that even considering all three

categories of evidence together, the “trial judge and jury

still would have imposed death.” Id., at 1214.

The Florida Supreme Court affirmed. It first accepted

the trial court’s finding that Porter could not have estab

lished any statutory mitigating circumstances, based on

the trial court’s acceptance of the State’s experts’ conclu

sions in that regard. Porter v. State, 788 So. 2d 917, 923

(2001) (per curiam). It then held the trial court was cor

——————

5 The State presented two experts, Dr. Riebsame and Dr. Kirkland.

Neither of the State’s experts had examined Porter, but each testified

that based upon their review of the record, Porter met neither statutory

mitigating circumstance.

8 PORTER v. MCCOLLUM

Per Curiam

rect to find “the additional nonstatutory mitigation to be

lacking in weight because of the specific facts presented.”

Id., at 925. Like the postconviction court, the Florida

Supreme Court reserved judgment regarding counsel’s

deficiency. Ibid.6 Two justices dissented, reasoning that

counsel’s failure to investigate and present mitigating

evidence was “especially harmful” because of the divided

vote affirming the sentence on direct appeal—“even with

out the substantial mitigation that we now know ex

isted”—and because of the reversal of the heinous, atro

cious, and cruel aggravating factor. Id., at 937 (Anstead,

J., concurring in part and dissenting in part).

Porter thereafter filed his federal habeas petition. The

District Court held Porter’s penalty-phase counsel had

been ineffective. It first determined that counsel’s per

formance had been deficient because “penalty-phase coun

sel did little, if any investigation . . . and failed to effec

tively advocate on behalf of his client before the jury.”

Porter v. Crosby, No. 6:03–cv–1465–Orl–31KRS, 2007 WL

1747316, *23 (MD Fla., June 18, 2007). It then deter

mined that counsel’s deficient performance was prejudi

cial, finding that the state court’s decision was contrary to

clearly established law in part because the state court

failed to consider the entirety of the evidence when re

——————

6 The postconviction court stated defense counsel “was not ineffective

for failing to pursue mental health evaluations and . . . [Porter] has

thus failed to show sufficient evidence that any statutory mitigators

could have been presented.” Record 1210. It is not at all clear whether

this stray comment addressed counsel’s deficiency. If it did, then it was

at most dicta, because the court expressly “decline[d] to make a deter

mination regarding whether or not Defense Counsel was in fact defi

cient here.” Id., at 1206. The Florida Supreme Court simply para

phrased the postconviction court when it stated “trial counsel’s decision

not to pursue mental evaluations did not exceed the bounds for compe

tent counsel.” Porter v. State, 788 So. 2d 917, 923–924 (2001) (per

curiam). But that court also expressly declined to answer the question

of deficiency. Id., at 925.

Cite as: 558 U. S. ____ (2009) 9

Per Curiam

weighing the evidence in mitigation, including the trial

evidence suggesting that “this was a crime of passion, that

[Porter] was drinking heavily just hours before the mur

ders, or that [Porter] had a good relationship with his

son.” Id., at *30.

The Eleventh Circuit reversed. It held the District

Court had failed to appropriately defer to the state court’s

factual findings with respect to Porter’s alcohol abuse and

his mental health. 552 F. 3d 1260, 1274, 1275 (2008) (per

curiam). The Court of Appeals then separately considered

each category of mitigating evidence and held it was not

unreasonable for the state court to discount each category

as it did. Id., at 1274. Porter petitioned for a writ of

certiorari. We grant the petition and reverse with respect

to the Court of Appeals’ disposition of Porter’s ineffective-

assistance claim.

II

To prevail under Strickland, Porter must show that his

counsel’s deficient performance prejudiced him. To estab

lish deficiency, Porter must show his “counsel’s represen

tation fell below an objective standard of reasonableness.”

466 U. S., at 688. To establish prejudice, he “must show

that there is a reasonable probability that, but for coun

sel’s unprofessional errors, the result of the proceeding

would have been different.” Id., at 694. Finally, Porter is

entitled to relief only if the state court’s rejection of his

claim of ineffective assistance of counsel was “contrary to,

or involved an unreasonable application of” Strickland, or

it rested “on an unreasonable determination of the facts in

light of the evidence presented in the State court proceed

ing.” 28 U. S. C. §2254(d).

Because the state court did not decide whether Porter’s

counsel was deficient, we review this element of Porter’s

Strickland claim de novo. Rompilla v. Beard, 545 U. S.

374, 390 (2005). It is unquestioned that under the prevail

10 PORTER v. MCCOLLUM

Per Curiam

ing professional norms at the time of Porter’s trial, counsel

had an “obligation to conduct a thorough investigation of

the defendant’s background.” Williams v. Taylor, 529

U. S. 362, 396 (2000). The investigation conducted by

Porter’s counsel clearly did not satisfy those norms.

Although Porter had initially elected to represent him

self, his standby counsel became his counsel for the pen

alty phase a little over a month prior to the sentencing

proceeding before the jury. It was the first time this law

yer had represented a defendant during a penalty-phase

proceeding. At the postconviction hearing, he testified

that he had only one short meeting with Porter regarding

the penalty phase. He did not obtain any of Porter’s

school, medical, or military service records or interview

any members of Porter’s family. In Wiggins v. Smith, 539

U. S. 510, 524, 525 (2003), we held counsel “fell short of

. . . professional standards” for not expanding their inves

tigation beyond the presentence investigation report and

one set of records they obtained, particularly “in light of

what counsel actually discovered” in the records. Here,

counsel did not even take the first step of interviewing

witnesses or requesting records. Cf. Bobby v. Van Hook,

ante, at 6–8 (holding performance not deficient when

counsel gathered a substantial amount of information and

then made a reasonable decision not to pursue additional

sources); Strickland, 466 U. S., at 699 (“[Counsel’s] deci

sion not to seek more character or psychological evidence

than was already in hand was . . . reasonable”). Beyond

that, like the counsel in Wiggins, he ignored pertinent

avenues for investigation of which he should have been

aware. The court-ordered competency evaluations, for

example, collectively reported Porter’s very few years of

regular school, his military service and wounds sustained

in combat, and his father’s “over-disciplin[e].” Record

902–906. As an explanation, counsel described Porter as

fatalistic and uncooperative. But he acknowledged that

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Per Curiam

although Porter instructed him not to speak with Porter’s

ex-wife or son, Porter did not give him any other instruc

tions limiting the witnesses he could interview.

Counsel thus failed to uncover and present any evidence

of Porter’s mental health or mental impairment, his family

background, or his military service. The decision not to

investigate did not reflect reasonable professional judg

ment. Wiggins, supra, at 534. Porter may have been

fatalistic or uncooperative, but that does not obviate the

need for defense counsel to conduct some sort of mitigation

investigation. See Rompilla, supra, at 381–382.

III

Because we find Porter’s counsel deficient, we must

determine whether the Florida Supreme Court unrea

sonably applied Strickland in holding Porter was not

prejudiced by that deficiency. Under Strickland, a defen

dant is prejudiced by his counsel’s deficient performance if

“there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different.” 466 U. S., at 694. In Florida, the

sentencing judge makes the determination as to the exis

tence and weight of aggravating and mitigating circum

stances and the punishment, Fla. Stat. §921.141(3), but he

must give the jury verdict of life or death “great weight,”

Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975) (per cu

riam). Porter must show that but for his counsel’s defi

ciency, there is a reasonable probability he would have

received a different sentence. To assess that probability,

we consider “the totality of the available mitigation evi

dence—both that adduced at trial, and the evidence ad

duced in the habeas proceeding”—and “reweig[h] it

against the evidence in aggravation.” Williams, supra, at

397–398.

This is not a case in which the new evidence “would

barely have altered the sentencing profile presented to the

12 PORTER v. MCCOLLUM

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sentencing judge.” Strickland, supra, at 700. The judge

and jury at Porter’s original sentencing heard almost

nothing that would humanize Porter or allow them to

accurately gauge his moral culpability. They learned

about Porter’s turbulent relationship with Williams, his

crimes, and almost nothing else. Had Porter’s counsel

been effective, the judge and jury would have learned of

the “kind of troubled history we have declared relevant to

assessing a defendant’s moral culpability.” Wiggins, su

pra, at 535. They would have heard about (1) Porter’s

heroic military service in two of the most critical—and

horrific—battles of the Korean War, (2) his struggles to

regain normality upon his return from war, (3) his child

hood history of physical abuse, and (4) his brain abnormal

ity, difficulty reading and writing, and limited schooling.

See Penry v. Lynaugh, 492 U. S. 302, 219 (1989)

(“ ‘[E]vidence about the defendant’s background and char

acter is relevant because of the belief, long held by this

society, that defendants who commit criminal acts that are

attributable to a disadvantaged background . . . may be

less culpable’ ”). Instead, they heard absolutely none of

that evidence, evidence which “might well have influenced

the jury’s appraisal of [Porter’s] moral culpability.” Wil

liams, 529 U. S., at 398.

On the other side of the ledger, the weight of evidence in

aggravation is not as substantial as the sentencing judge

thought. As noted, the sentencing judge accepted the

jury’s recommendation of a death sentence for the murder

of Williams but rejected the jury’s death-sentence recom

mendation for the murder of Burrows. The sentencing

judge believed that there were four aggravating circum

stances related to the Williams murder but only two for

the Burrows murder. Accordingly, the judge must have

reasoned that the two aggravating circumstances that

were present in both cases were insufficient to warrant a

death sentence but that the two additional aggravating

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circumstances present with respect to the Williams mur

der were sufficient to tip the balance in favor of a death

sentence. But the Florida Supreme Court rejected one of

these additional aggravating circumstances, i.e., that

Williams’ murder was especially heinous, atrocious, or

cruel, finding the murder “consistent with . . . a crime of

passion” even though premeditated to a heightened de

gree. 564 So. 2d, at 1063–1064. Had the judge and jury

been able to place Porter’s life history “on the mitigating

side of the scale,” and appropriately reduced the ballast on

the aggravating side of the scale, there is clearly a reason

able probability that the advisory jury—and the sentenc

ing judge—“would have struck a different balance,” Wig

gins, 539 U. S., at 537, and it is unreasonable to conclude

otherwise.

The Florida Supreme Court’s decision that Porter was

not prejudiced by his counsel’s failure to conduct a thor

ough—or even cursory—investigation is unreasonable.

The Florida Supreme Court either did not consider or

unreasonably discounted the mitigation evidence adduced

in the postconviction hearing. Under Florida law, mental

health evidence that does not rise to the level of establish

ing a statutory mitigating circumstance may nonetheless

be considered by the sentencing judge and jury as mitigat

ing. See, e.g., Hoskins v. State, 965 So. 2d 1, 17–18 (Fla.

2007) (per curiam). Indeed, the Constitution requires that

“the sentencer in capital cases must be permitted to con

sider any relevant mitigating factor.” Eddings v. Okla

homa, 455 U. S. 104, 112 (1982). Yet neither the postcon

viction trial court nor the Florida Supreme Court gave any

consideration for the purpose of nonstatutory mitigation to

Dr. Dee’s testimony regarding the existence of a brain

abnormality and cognitive defects.7 While the State’s

——————

7 The Florida Supreme Court acknowledged that Porter had pre

sented evidence of “statutory and nonstatutory mental mitigation,” 788

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experts identified perceived problems with the tests that

Dr. Dee used and the conclusions that he drew from them,

it was not reasonable to discount entirely the effect that

his testimony might have had on the jury or the sentenc

ing judge.

Furthermore, the Florida Supreme Court, following the

state postconviction court, unreasonably discounted the

evidence of Porter’s childhood abuse and military service.

It is unreasonable to discount to irrelevance the evidence

of Porter’s abusive childhood, especially when that kind of

history may have particular salience for a jury evaluating

Porter’s behavior in his relationship with Williams. It is

also unreasonable to conclude that Porter’s military ser

vice would be reduced to “inconsequential proportions,”

788 So. 2d, at 925, simply because the jury would also

have learned that Porter went AWOL on more than one

occasion. Our Nation has a long tradition of according

leniency to veterans in recognition of their service, espe

cially for those who fought on the front lines as Porter

did.8 Moreover, the relevance of Porter’s extensive combat

experience is not only that he served honorably under

extreme hardship and gruesome conditions, but also that

the jury might find mitigating the intense stress and

mental and emotional toll that combat took on Porter.9

——————

So. 2d, at 921, but it did not consider Porter’s mental health evidence in

its discussion of nonstatutory mitigating evidence, id., at 924.

8 See Abbott, The Civil War and the Crime Wave of 1865–70, 1 Soc.

Serv. Rev. 212, 232–234 (1927) (discussing the movement to pardon or

parole prisoners who were veterans of the Civil War); Rosenbaum, The

Relationship Between War and Crime in the United States, 30 J. Crim.

L. & C. 722, 733–734 (1940) (describing a 1922 study by the Wisconsin

Board of Control that discussed the number of veterans imprisoned in

the State and considered “the greater leniency that may be shown to ex

service men in court”).

9 Cf. Cal. Penal Code Ann. §1170.9(a) (West Supp. 2009) (providing a

special hearing for a person convicted of a crime “who alleges that he or

she committed the offense as a result of post-traumatic stress disorder,

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The evidence that he was AWOL is consistent with this

theory of mitigation and does not impeach or diminish the

evidence of his service. To conclude otherwise reflects a

failure to engage with what Porter actually went through

in Korea.

As the two dissenting justices in the Florida Supreme

Court reasoned, “there exists too much mitigating evi

dence that was not presented to now be ignored.” Id., at

937 (Anstead, J., concurring in part and dissenting in

part). Although the burden is on petitioner to show he

was prejudiced by his counsel’s deficiency, the Florida

Supreme Court’s conclusion that Porter failed to meet this

burden was an unreasonable application of our clearly

established law. We do not require a defendant to show

“that counsel’s deficient conduct more likely than not

altered the outcome” of his penalty proceeding, but rather

that he establish “a probability sufficient to undermine

confidence in [that] outcome.” Strickland, 466 U. S., at

693–694. This Porter has done.

The petition for certiorari is granted in part, and the

motion for leave to proceed in forma pauperis is granted.

The judgment of the Court of Appeals is reversed, and the

case is remanded for further proceedings consistent with

this opinion.

It is so ordered.

——————

substance abuse, or psychological problems stemming from service in a

combat theater in the United States military”); Minn. Stat. §609.115,

Subd. 10 (2008) (providing for a special process at sentencing if the

defendant is a veteran and has been diagnosed as having a mental

illness by a qualified psychiatrist).