Opposition Brief — Leslie Galloway, III, Petitioner v. Mississippi

No. 23-7187

IN THE

Supreme Court of the United States

————

LESLIE GALLOWAY, III,

Petitioner,

v.

THE STATE OF MISSISSIPPI,

Respondent.

————

On Petition for a Writ of Certiorari to the

Supreme Court of Mississippi

————

BRIEF IN OPPOSITION

————

LYNN FITCH

Attorney General

PARKER A. PROCTOR JR.

Special Assistant

Attorney General

Counsel of Record

MISSISSIPPI ATTORNEY

GENERAL’S OFFICE

P.O. Box 220

Jackson, MS 39205-0220

Parker.Proctor@ago.ms.gov

(601) 359-3747

Counsel for Respondent

CAPITAL CASE

QUESTION PRESENTED

Petitioner raped, tortured, and murdered a 17-year-old girl. To spare him from

the death penalty, petitioner’s trial counsel sought at the penalty phase to humanize

petitioner by stressing his connections to and support from his family. The jury

nevertheless sentenced petitioner to death. On state post-conviction review,

petitioner claimed that his counsel conducted an inadequate mitigation investigation

and should have pursued and presented evidence on petitioner’s troubled childhood

and mental-health issues. Applying the standard established in Strickland v.

Washington, 466 U.S. 668 (1984), and this Court’s decisions following it, the

Mississippi Supreme Court rejected that argument, ruling that counsel adequately

investigated based on a reasonable strategic decision to humanize petitioner (and so

counsel performed adequately) and that the new mitigation evidence on which

petitioner relied was damaging to him and was not reasonably likely to have changed

petitioner’s sentence (and so counsel’s performance did not prejudice petitioner).

The question presented is whether this Court should review the Mississippi

Supreme Court’s fact-bound rejection of petitioner’s ineffective-assistance-of-counsel

claim, when that decision applies legal standards that have been settled for 40 years,

those standards and their application are uniform across the lower courts, and the

decision soundly applies those standards to correctly reject petitioner’s claim.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................................................................. i

TABLE OF AUTHORITIES ......................................................................................... iii

OPINION BELOW......................................................................................................... 1

JURISDICTION............................................................................................................. 1

STATEMENT ................................................................................................................. 1

REASONS FOR DENYING THE PETITION ............................................................ 13

CONCLUSION............................................................................................................. 29

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abdul-Salaam v. Sec’y of Pa. Dep’t of Corr.,

895 F.3d 254 (3d Cir. 2018)...................................................................................... 24

Ambrose v. State,

323 So. 3d 482 (Miss. 2021) ..................................................................................... 26

Andrews v. Davis,

944 F.3d 1092 (9th Cir. 2019) (en banc) .................................................................. 25

Andrus v. Texas,

140 S. Ct. 1875 (2020) (per curiam) ......................................................................... 20

Burns v. Mays,

31 F.4th 497 (6th Cir. 2022)..................................................................................... 26

Cullen v. Pinholster,

563 U.S. 170 (2011) .................................................................................................. 23

Ex Parte Garza,

620 S.W.3d 801 (Tex. Crim. App. 2021) .................................................................. 25

Frederick v. Quick,

79 F.4th 1090 (10th Cir. 2023)................................................................................. 26

Galloway v. Mississippi,

572 U.S. 1134 (2014) .................................................................................................. 8

Galloway v. State,

122 So. 3d 614 (Miss. 2013) ....................................................................................... 8

Galloway v. State,

374 So. 3d 452 (Miss. 2023) ....................................................................................... 1

Jefferson v. GDCP Warden¸

941 F.3d 452 (11th Cir. 2019) .................................................................................. 27

Jenkins v. Comm’r, Ala. Dep’t of Corr.,

963 F.3d 1248 (11th Cir. 2020) ................................................................................ 27

Keller v. State,

306 So. 3d 706 (Miss. 2020) ..................................................................................... 26

iv

Neal v. Vannoy,

78 F.4th 775 (5th Cir. 2023) .................................................................................... 28

Noguera v. Davis,

5 F.4th 1020 (9th Cir. 2021)..................................................................................... 24

Pruitt v. Neal¸

788 F.3d 248 (7th Cir. 2015) .................................................................................... 25

Sears v. Upton,

561 U.S. 945 (2010) (per curiam) ............................................................................. 20

State v. Allen,

861 S.E.2d 273 (N.C. 2021) ...................................................................................... 28

Strickland v. Washington,

466 U.S. 668 (1984) ........................................................... i, 10, 15, 17, 19, 20, 22, 24

Thornell v. Jones,

No. 22-982 (S. Ct. May 30, 2024) ........................................................................ 22-23

United States v. Scott,

11 F.4th 364 (5th Cir. 2021) .................................................................................... 28

Walker v. State,

303 So. 3d 720 (Miss. 2020) ..................................................................................... 26

Wiggins v. Smith,

539 U.S. 510 (2003) .......................................................................... 10, 15, 17, 19, 24

Williams v. Taylor,

529 U.S. 362 (2000) .................................................................................................. 19

Constitutional Provision

U.S. Const. amend. VI ................................................................................................. 15

Statutes

28 U.S.C. § 1257 ............................................................................................................. 1

Miss. Code Ann. § 99-19-101 ................................................................................... 3, 20

1

OPINION BELOW

The Mississippi Supreme Court’s opinion denying post-conviction relief

(Petition Appendix (App.) 1a-101a) is reported at 374 So. 3d 452.

JURISDICTION

The Mississippi Supreme Court’s judgment was entered on October 5, 2023.

App.1a. That court denied rehearing on December 7, 2023. App.102a. On February

29, 2024, Justice Alito extended the time to file a petition for a writ of certiorari to

April 5, 2024. The petition was filed on April 5, 2024. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1257(a).

STATEMENT

In 2008, petitioner Leslie Galloway III raped, tortured, and murdered 17-yearold Shakeylia Anderson in Harrison County, Mississippi. A jury convicted him of

capital murder and, after finding four aggravating circumstances, sentenced him to

death. The Mississippi Supreme Court affirmed. The petition here arises from that

court’s denial of petitioner’s application for post-conviction relief.

1. On the evening of December 5, 2008, Shakeylia Anderson was at her

grandmother’s house with her cousin, Dixie Brimage. App.2a. Anderson’s uncle, Alan

Graham, stopped by. Ibid. Anderson’s phone rang, and Graham saw on the caller I.D.

that the call was from “Bo.” Ibid. Graham told Anderson about the call and then heard

her make plans to meet someone. Ibid. At about 10:00 pm, a white Ford Taurus

arrived. App.3a. Anderson left the house, she walked to the Taurus, and, after

speaking with the driver, she got in and the car drove away. Ibid.

2

The next night, a hunter discovered Anderson’s naked body in a secluded

wooded area in Harrison County. App.3a. The body had scrapes, gouges, and

lacerations. Ibid. It was missing hair, was smeared with blood and dirt, and appeared

partially burned. Ibid. The body had at least three tire marks, and the surrounding

area was covered in tire tracks in a turning pattern. Ibid.

Law enforcement arrived, determined that the body was Anderson’s, and

learned from Brimage that Anderson was last seen with a black man who went by

“Bo” and drove a white Ford Taurus. App.3a-4a. Officers matched that description to

petitioner and arrested him on an outstanding warrant. App.4a, 207a.

Officers obtained warrants to search petitioner’s Ford Taurus and home.

App.4a-5a. On the car’s exterior they found tissue matching Anderson’s DNA. App.4a.

From the home they seized a Burger King shirt with the nametag “Bo,” along with

shoes and a hat that had Anderson’s DNA on them. App.4a-5a.

Anderson’s autopsy revealed stretching wounds, abrasions, and a tear to the

anus, which the medical examiner determined was characteristic of forceful anal

penetration. App.5a. A vaginal swab revealed the presence of petitioner’s DNA. Ibid.

The tire marks on Anderson’s body showed that she had been run over by a car.

App.3a. Tire tracks from the scene matched petitioner’s Ford Taurus. App.4a.

Petitioner admitted to law enforcement that his nickname was “Bo,” that he

had had sex with Anderson, and that he picked her up on December 5 in a white Ford

Taurus. App.5a. Phone records showed that he and Anderson exchanged at least 14

calls on December 5, but that he did not call her after 11:12 p.m. that night. Ibid.

3

2. Petitioner was tried for capital murder. App.5a. The State introduced

evidence (described above) showing that he raped Anderson, set her on fire, ran her

over with his car, and killed her. App.3a-6a. The jury found him guilty. App. 5a-6a.

The State sought the death penalty. App.6a. At the penalty phase, the trial

judge told the jury to consider four aggravating circumstances: whether petitioner

was under a sentence of imprisonment when he committed the murder; whether he

had previously been convicted of a felony involving a threat of violence to another

person; whether he committed the murder while also committing sexual battery; and

whether the murder was especially heinous, atrocious, or cruel. App.1a-2a, 33a. To

impose the death penalty, the jury needed to find only one aggravating circumstance.

Miss. Code Ann. § 99-19-101(3)(b).

Petitioner was represented at trial by Harrison County Public Defender Glen

Rishel and two assistant public defenders. App.19a. Rishel was responsible for the

penalty phase. App.19a-20a. The defense retained psychologist Dr. Beverly

Smallwood to evaluate petitioner before trial. App.20a.

The defense faced a formidable challenge at the penalty phase. The jury had

just found petitioner guilty of a horrific murder. App.6a. There was no doubt that the

jury would find multiple aggravating circumstances, and likely all four: petitioner

was indisputably under a sentence of imprisonment when he killed Anderson (he was

on supervised release for carjacking); his carjacking conviction involved a threat of

violence (petitioner had admitted as much in pleading guilty to that crime); the

evidence showed that petitioner raped Anderson in the course of killing her; and the

murder was manifestly heinous, atrocious, and cruel. App.1a-2a, 2a-5a, 17a-19a. And

4

two months after murdering Anderson, petitioner was indicted for sexual battery and

burglary. App.24a. Those charges were pending during his capital-murder trial. Ibid.

The defense’s investigation also showed that two common lines of mitigation—

emphasizing to the jury the defendant’s particularly bad childhood and features of

his mental health—were not promising for the defense. App.20a-24a.

Dr. Smallwood’s examination did not reveal fruitful lines of mitigation on

petitioner’s childhood or mental health. Petitioner “denie[d] any abuse or trauma in

his childhood.” App.21a. He said that “his mother loved him and tried to raise him

right.” Ibid. As he put it, his mother “tried to keep me away from wrong activities. If

there was something I needed or wanted, she’d try to get it for me.” Ibid. He denied

any family history of alcoholism. App.22a. He denied “any significant medical history”

or “any significant problems with depression.” App.21a, 34a. And he showed no signs

of “clouded consciousness or dissociation.” App.34a. After meeting with petitioner and

reviewing every document that she asked for, App.20a, 41a, Dr. Smallwood found “no

indication” that, when he killed Anderson, petitioner “was experiencing any mental

problems that would have rendered him unable to distinguish between right and

wrong.” App.22a. Rather, he “was functioning normally.” Ibid. Dr. Smallwood

concluded, “to a reasonable degree of psychological certainty,” that petitioner “did not

have a mental disorder at the time of the alleged crimes which prevented him from

knowing right from wrong,” was “competent to assist counsel in his defense,” and was

“not impaired intellectually.” Ibid. She also determined that petitioner’s IQ was 106,

within the “Average” range. Ibid. She did say that a full mitigation study was outside

the scope of her practice and suggested obtaining such a study from a forensic

5

psychiatrist. App.22a-23a. But she did not point to fruitful lines of mental-health

inquiry, “did not see a need for neuropsychological testing,” and determined that “[n]o

further forensic evaluation [was] needed to determine competency or legal sanity at

the time of the alleged crimes.” App.22a, 35a. Dr. Smallwood told defense counsel

that calling her at the penalty phase “would not help [petitioner].” App.23a.

Defense counsel’s further investigation likewise signaled that petitioner’s

childhood and mental health were not strong avenues for mitigation. That

investigation instead suggested that humanizing petitioner—by stressing his

connections to and support from his family—could be a basis for mitigation.

The defense team repeatedly met with petitioner, met with his mother 7 or 8

times, and spoke with other members of petitioner’s family. App.23a. Counsel “d[id]

not recall being told about any ... records” on petitioner’s upbringing besides some

“school records from Greene County,” which counsel obtained. App.24a. Counsel

therefore worked with petitioner and his family to provide a history of petitioner’s life

and upbringing. Neither petitioner nor any of his family members told counsel about

any “domestic violence issues.” Ibid. To the contrary, counsel “was led to believe by

[petitioner] and his mother that [petitioner] had no remarkable history of any kind.”

Ibid. Neither petitioner nor any of his family members gave any “indication that

[petitioner] suffered from any kind of disability or mental health problems.” Ibid.

Rather, the conversations aligned with Dr. Smallwood’s assessment and indicated

that petitioner “had average or above average intellectual functioning and no

psychosis.” Ibid. So, based on counsel’s investigation, “there was nothing in

[petitioner’s] history that would shock the conscience of the jury in terms of

6

mitigation.” Ibid. Indeed, the investigation suggested that presenting evidence on

petitioner’s upbringing would harm the mitigation effort. App.20a-24a. Evidence on

petitioner’s background could be countered by evidence of his extensive criminal

history. App.24a, 32a. Beyond the carjacking conviction, petitioner had two drugrelated convictions stemming from the carjacking and pending indictments for sexual

battery and burglary. App.29a. And any presentation about his background could

lead the prosecution to tell the jury that petitioner’s brother was serving a life

sentence for murder—a fact that defense counsel feared would further harden the

jury against petitioner. App.23a, 27a. Against all these findings adverse to a strong

mitigation case, however, counsel did learn that petitioner’s relatives still loved him,

hoped to continue visiting him in prison, and expected that he “could still have a

positive impact on his family and on his children.” App.23a.

Based on all this investigation, defense counsel determined that the best way

to convince the jury to reject the death penalty was to stress petitioner’s connections

to his family, his ability to have a positive impact on his children, and the likelihood

that he would be a good inmate. App.23a-24a. Counsel therefore focused on getting

“as many witnesses as they could find” to support those themes. App.23a.

Defense counsel ultimately called several witnesses to support this effort to

humanize petitioner. Two corrections officers testified to petitioner’s good behavior

while incarcerated. Deborah Whittle, who oversaw offender services at petitioner’s

detention center, testified that she had known petitioner for two years and that he

was “very quiet,” was “never ... disrespectful,” and had only one “very minor” rule

violation (for talking to an inmate in an unauthorized area). App.24a-25a. Corrections

7

officer Dawn Denise Catchings, who interacted with petitioner daily for a year,

testified that he never lost his temper or got in trouble. App.25a. Counsel also called

several of petitioner’s family members and friends to testify about their desire to visit

petitioner in prison and about his love for his children. App.25a-26a. Jeles Galloway,

petitioner’s then-13-year-old sister, testified that she loved her brother and that “it

would be good for her to go visit him in prison as often as she could.” App.25a. Vincent

Bishop, petitioner’s brother-in-law, testified that he visited petitioner every few

months and planned to continue doing so if petitioner were sentenced to prison. Ibid.

He said that petitioner was an “excellent father” to his three children. Ibid. Angelo

Ash, petitioner’s long-time friend, testified that he would visit petitioner in prison

and that petitioner loved his children and treated them with respect and kindness.

Ibid. Red Galloway, petitioner’s father, testified that he loved his son, wanted him to

live, and would visit him in prison, and that petitioner had a good relationship with

his children. Ibid. Mary Taylor, petitioner’s older sister, testified that she was close

to petitioner, that they loved each other, that she had left her own children in

petitioner’s care, and that she and her children would continue to visit petitioner in

prison. App.25a-26a. And Ollie Varghese, petitioner’s mother, testified that her son

was a good father, described the love he and his children had for each other, and said

that she wanted her son to live and that she would visit him in prison. App.26a.

At the close of the penalty phase, the jury found that the State had proved all

four aggravating circumstances and that those factors outweighed petitioner’s

mitigation case. App.6a. The jury found, first, that petitioner was under a sentence

of imprisonment—for carjacking—when he committed murder. App.18a, 33a. Second,

8

the jury found that petitioner was previously convicted of a felony involving the use

of threat of violence. App.33a. In the carjacking, petitioner had admitted, he “took [a]

car by force” and left the victim injured. App.32a. Third, the jury found that petitioner

committed murder while committing sexual battery: he brutally raped Anderson.

App.33a; see App.3a-5a. Fourth, the jury found that the capital offense was especially

heinous, atrocious, or cruel. App.33a. Petitioner not only raped Anderson but also

tortured her by running her over with his car, setting her on fire, and inflicting many

other injuries on her. App.3a-5a. The jury sentenced petitioner to death. App.6a.

The Mississippi Supreme Court affirmed. 122 So. 3d 614 (Miss. 2013). This

Court denied certiorari. 572 U.S. 1134 (2014).

3. a. Petitioner applied to the Mississippi Supreme Court for post-conviction

relief. He claimed ineffective assistance of counsel at the penalty phase, arguing that

counsel conducted an inadequate mitigation investigation and so failed to fully inform

the jury about his “difficult childhood history” and “mental illness.” App.10a-11a.

Petitioner offered affidavits from family, friends, and childhood girlfriends who

claimed that he had a “traumatic upbringing” involving “poverty, trauma, family

dysfunction, abandonment, neglect, domestic violence, and the sexual abuse of his

sister by [petitioner’s] step-father.” App.11a-12a. Affiants said that petitioner

“suffered from panic attacks” in his youth, was at times “sad and/or depressed,” had

difficulty “manag[ing] his emotions,” and once “threatened to kill himself.” App.12a.

Petitioner also offered affidavits from medical professionals stating that he

“suffer[ed] from” “Post-Traumatic Stress Disorder (PTSD),” “complex PTSD,” and

“Depressive Disorder and Psychotic Disorder.” App.33a-34a. A clinical psychologist

9

said that petitioner “had significant exposure to traumatic events,” including:

“domestic violence” by petitioner’s father against petitioner’s mother and his father’s

girlfriend; “physical violence” by petitioner’s father against petitioner and his

siblings; “physical violence” against petitioner by his grandfather; “fights” resulting

in trips to the emergency room; and suicide threats by petitioner’s brother. App.36a.

A psychologist likened petitioner’s “neuropsychological testing” results to those “of

people with mild Traumatic Brain Injury.” App.35a. A neuropsychiatrist said that

petitioner reported “severe sleep disturbances” and “exhibited slow processing speed”

that could mean that he had “serious mental health problems, including brain

damage.” App.37a-38a. And a “[p]ost-conviction expert” said that a behavioral

analysis showed that petitioner had “abnormalities” implicating “brain systems that

are important for regulating behavior.” App.38a.

After seeing these affidavits, Dr. Smallwood “changed her position” on

petitioner’s mental health. App.34a. She signed an affidavit saying that she now

“would have testified that [he] met the criteria for Major Depressive Disorder” and

PTSD. App.35a. She “admit[ted] that when she evaluated [petitioner], she did not see

a need for neuropsychological testing.” Ibid. But she now said that “such testing

would have been appropriate and should have been employed.” Ibid. She concluded

that she “did the best [she] could with what was available to [her] at the time of

[petitioner’s] trial, but [she was] disappointed that [she] had only a fraction of this

powerful and compelling story with which to work.” App.36a.

Petitioner argued that his counsel’s deficient investigation left him—and the

jury—in the dark about all of these “relevant and mitigating facts.” App.11a. He

10

claimed that if the jury had learned about his childhood and mental health, it “would

have sentenced him to life in prison rather than death.” Ibid.

b. The Mississippi Supreme Court denied post-conviction relief, rejecting (as

relevant here) petitioner’s ineffective-assistance claim. App.26a-43a.

The court began by recognizing the legal standards, set forth in this Court’s

cases, that govern petitioner’s claim. A reviewing court “must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” App.26a (quoting Strickland v. Washington, 466 U.S. 668,

689 (1984)). Counsel must “make reasonable investigations or ... make a reasonable

decision that makes particular investigations unnecessary,” and “a particular

decision not to investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference.” App.29a (quoting Wiggins v.

Smith, 539 U.S. 510, 521-22 (2003)). “Defense counsel is not required to pursue an

investigation that would be fruitless, much less one that might be harmful to the

defense.” App.30a. And “[t]he reasonableness of counsel’s actions” in investigating

“may be determined or substantially influenced by the defendant’s own statements

or actions.” Ibid. (quoting Strickland, 466 U.S. at 691). Last, an ineffective-assistance

claim requires showing not only that counsel performed deficiently but also that the

deficiency “prejudiced the defense”—that is, it must be “reasonably likely” that “the

result would have been different” with adequate assistance of counsel. App.8a, 31a.

Applying these principles, the court rejected petitioner’s claim. First, the court

held that petitioner failed to show that counsel’s mitigation investigation and

presentation was “objectively deficient and unreasonable.” App.26a; see App.26a-31a,

11

33a-43a. On petitioner’s childhood: Counsel met with petitioner and his mother

repeatedly and spoke with other family members. App.23a. None of these discussions

suggested that petitioner had a “remarkable history of any kind.” App.24a, 30a. Nor

did anything from Dr. Smallwood’s investigation. App.20a-22a. What counsel did

learn of petitioner’s background suggested that it could hurt the mitigation case.

Counsel “was aware of [petitioner’s] history of criminal convictions and pending

criminal charges.” App.27a. And they knew that petitioner’s “brother was serving a

life sentence for murder,” which counsel “did not want the jury to hear.” App.27a, 32a.

Given what counsel learned after reasonable investigation, the court ruled that

counsel reasonably ended the investigation into petitioner’s upbringing and “made a

strategic choice to humanize [petitioner] rather than risk harmful evidence being

presented to the jury on cross-examination of mitigation witnesses.” App.30a.

On petitioner’s mental health: Counsel retained Dr. Smallwood, a mentalhealth expert, whose assessment indicated that petitioner “denied any significant

medical history,” “denie[d] any abuse or trauma in his childhood,” “denied any

significant problems with depression,” and showed no signs of “clouded consciousness

or dissociation.” App.34a. Dr. Smallwood “concluded that ... [n]o further forensic

evaluation [was] needed to determine competency or legal sanity.” Ibid. (formatting

omitted). Although in post-conviction proceedings petitioner claimed that counsel

“fail[ed] to provide Dr. Smallwood with sufficient information to conduct a

comprehensive analysis,” App.38, counsel in fact “provided Dr. Smallwood with

everything she requested” and was “unaware of any information that Dr. Smallwood

needed that she did not have in order to make her evaluation” of petitioner, App.20a,

12

41a. And although Dr. Smallwood later “changed her position” on petitioner’s mental

health, App.34a, “nothing” in her original report “signal[ed] an incomplete medical

diagnosis.” App.40a. In light of Dr. Smallwood’s original findings—which aligned

with the information provided directly to counsel by petitioner and his family

members—the court ruled that counsel reasonably did not pursue mental-health

mitigation further and instead reasonably made the “tactical[ ] deci[sion] to

humanize” petitioner. App.41a. For similar reasons, the court ruled that counsel did

not act unreasonably by not hiring a mitigation specialist. App.41a-42a. Dr.

Smallwood’s report “did not signal to defense counsel that further medical diagnosis

was necessary” and counsel made the reasonable “strategic decision to humanize

[petitioner]” instead of delving further into his mental health. App.42a.

Second, the court held that petitioner could not “show prejudice” from counsel’s

performance. App.31a; see App.31a-33a, 33a-43a. Although petitioner’s “difficult

childhood” involved “mitigating circumstances,” his background “was also damaging.”

App.31a, 32a. Sharing his upbringing with the jury “may well have exposed” his

“felony drug convictions,” his “pending burglary and sexual assault charges,” and his

brother’s murder conviction. App.32a. And information about petitioner’s childhood

contrasted “starkly” with the circumstances of the murder: petitioner “anally raped

seventeen-year-old Anderson, cut her throat, and burned her before ultimately

ending her life by repeatedly running her over with an automobile.” App.32a-33a.

When weighed against the “aggravating evidence”—including the four aggravating

circumstances—the “new mitigating evidence” was “not reasonably likely” to have

changed petitioner’s sentence. App.33a.

13

REASONS FOR DENYING THE PETITION

Petitioner asks this Court to decide whether the Mississippi Supreme Court,

“by excusing trial counsel’s failure to conduct a minimally adequate investigation on

the basis of an attribution of trial strategy,” departed from caselaw “requiring counsel

to conduct sufficient investigation to inform a strategic decision.” Pet. i. This case

does not present that question, the decision below is correct, and this case does not

satisfy any of the traditional certiorari criteria. The petition should be denied.

1. This case does not present the question that petitioner urges this Court to

decide. The petition rests on the view that the Mississippi Supreme Court “excus[ed]”

trial

counsel’s

penalty-phase performance by

“attribut[ing]”

to

counsel a

“hypothesiz[ed]” strategy that counsel never had: to “humaniz[e]” petitioner. Pet. i.

That is wrong. The Mississippi Supreme Court did not engage in “post hoc speculation

about strategy” or “excuse” counsel’s performance based on a “hypothetical strategy.”

Pet. 29 (capitalization and formatting omitted). Rather, the court correctly

recognized, based on the record, that counsel “made a strategic choice to humanize”

petitioner and shaped the mitigation investigation accordingly. App.30a.

Counsel’s investigation showed that two common lines of mitigation—the

defendant’s bad childhood or mental-health challenges—were not promising.

App.20a-24a. The defense knew this based on many interviews with petitioner and

his family (which showed no “domestic violence” or “remarkable history,” App.24a),

on Dr. Smallwood’s examination (where petitioner “denie[d] any abuse or trauma,”

App.21a), on Dr. Smallwood’s findings (including that petitioner was not

“experiencing any mental problems” when he killed Anderson, “did not have a mental

14

disorder at [that] time” that “prevented him from knowing right from wrong,” and

had “no evidence of clouded consciousness or dissociation,” App.20a-22a), and on Dr.

Smallwood’s failure to identify a fruitful line of further mental-health inquiry (she

said that “[n]o further forensic evaluation [was] needed to determine competency or

legal sanity,” App.22a). Besides the absence of anything helpful on petitioner’s

background, counsel learned of petitioner’s criminal history (including his drug

convictions and pending indictment for sexual battery and burglary) and his brother’s

life sentence for murder—which showed significant downside to using his background

in mitigation. App.27a, 32a. But counsel did learn of one possible line of mitigation.

The investigation disclosed that petitioner’s relatives still loved him, hoped to

continue visiting him, and expected that he “could still have a positive impact on his

family and on his children.” App.23a. So counsel decided to focus the investigatory

efforts on finding “as many witnesses” as possible “to testify that [petitioner] would

have visitors [in] prison,” “would be a good prisoner,” was “loved” by his “family,” and

“could still have a positive impact” on his family and children. Ibid.

Which is to say: Counsel made a strategic decision to investigate and present

a mitigation case that sought to “humanize” petitioner to the jury, without exposing

him to rebuttal evidence on his prior felony convictions, pending criminal charges, or

brother’s murder conviction. App.27a, 39a; see App.26a-31a, 33a-43a. The Mississippi

Supreme Court’s characterization is not “hypothesized post hoc speculation.” Pet. 21;

see Pet. 2-3, 12-13, 16-21. It correctly describes counsel’s strategy—of focusing on

petitioner’s connections to his family, ability to have a positive impact on his children,

and likelihood that he would be a good inmate—to humanize him and thus (counsel

15

hoped) spare him from execution. App.23a-24a. So this case does not present a

question about a hypothetical, post hoc attribution of strategy. The question that

petitioner presses is not presented. Contra Pet. 29.

2. The decision below is correct. Petitioner’s counsel provided the penaltyphase assistance that the Constitution requires. App.26a-43a; contra Pet. 14-21.

a. Counsel performed adequately at the penalty phase. App.26a-31a, 33a-43a.

Defense counsel must meet “an objective standard of reasonableness.”

Strickland v. Washington, 466 U.S. 668, 688 (1984). At the penalty phase, counsel

thus has “a duty to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.” Id. at 691; see Wiggins v. Smith,

539 U.S. 510, 521 (2003) (same). “[W]hat investigation decisions are reasonable

depends critically” “on information supplied by the defendant.” Strickland, 466 U.S.

at 691. And “the need for further investigation may be considerably diminished or

eliminated altogether” “when a defendant has given counsel reason to believe that

pursuing certain investigations would be fruitless or even harmful.” Ibid.

The Mississippi Supreme Court recognized the governing legal standards,

App.26a, 28a-29a, 30a-31a—as petitioner acknowledges, Pet. 16; see Pet. 14-16. And,

as that court concluded, counsel’s performance met those standards. As explained:

Counsel investigated petitioner’s mental health and upbringing—two often

important lines of mitigation—but neither was promising. App.20a-24a. Counsel

reached that assessment based on Dr. Smallwood’s examination of petitioner and on

counsel’s many interviews with petitioner, his mother, and his other family members.

App.20a-23a, 30a, 35a. The mental-health examination did not yield helpful lines of

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further mitigation investigation. Dr. Smallwood found that petitioner was not

“experiencing any mental problems” when he killed Anderson, that he “did not have

a mental disorder” that “prevented him from knowing right from wrong” at that time,

and that “[n]o further forensic evaluation [was] needed to determine competency or

legal sanity at the time of the alleged crimes.” App.20a-22a. What counsel learned of

petitioner’s upbringing was even more disheartening. Far from aiding the mitigation

case, that information appeared to harm that case by showing that petitioner was

violent, dangerous, and irredeemable. App.24a, 29a. But counsel did find one

potential lifeline: counsel learned that petitioner’s family still loved him, hoped to

continue visiting him in prison, and expected that he “could still have a positive

impact on his family and on his children.” App.23a.

Given what reasonable investigation uncovered, counsel “made a strategic

choice to humanize [petitioner] rather than risk harmful evidence being presented to

the jury on cross-examination of mitigation witnesses.” App.30a. So counsel ended

the investigation into petitioner’s mental health and upbringing and instead focused

on his connections to his family, ability to have a positive impact on his children, and

likelihood that he would be a good inmate—to humanize him and (counsel hoped)

persuade the jury to spare him the death penalty. App.23a-24a. Counsel presented a

mitigation case consistent with that strategy. App.24a-26a.

Counsel’s performance was reasonable. Counsel retained an experienced

mental-health expert and conducted many interviews with petitioner, his mother,

and his family members. App.20a-24a. That investigation gave “no indication” that

petitioner had any history of “abuse or trauma” or any “mental disorder[s].” App.21a,

17

22a; see App.24a. None of what the investigation uncovered “would lead a reasonable

attorney to investigate further” on petitioner’s childhood or mental health. Wiggins,

539 U.S. at 527. Rather, “[t]rial counsel could reasonably surmise”—including from

“conversations with” and “information supplied by” petitioner—that “psychological

evidence” and evidence of petitioner’s background “would be of little help.” Strickland,

466 U.S. at 691, 699. So counsel reasonably pursued a mitigation case centered on

humanizing petitioner. App.30a. “[A]pplying a heavy measure of deference to

counsel’s judgments,” the court below was right to conclude that the decision “not to

[further] investigate” petitioner’s childhood and mental health was “reasonable[ ]”

under “all the circumstances.” Strickland, 466 U.S. at 691.

Petitioner does not contest that an attorney can perform adequately yet not

discover mitigating evidence. He does not dispute that counsel may rightly end one

line of mitigation investigation to pursue what appears to be a more promising line

of investigation—even if that causes counsel not to uncover helpful evidence that the

abandoned line of investigation may have disclosed. E.g., Strickland, 466 U.S. at 691;

Wiggins, 539 U.S. at 533. But, in faulting his counsel’s performance, petitioner claims

that that is not what happened here. His arguments lack merit.

To start, petitioner claims that the Mississippi Supreme Court attributed to

counsel—without basis—a strategy of “humanizing” petitioner and that only through

this flawed attribution of strategy was the court able to rule that counsel did not need

to further investigate petitioner’s “upbringing” and its effects on his “mental health.”

Pet. 16, 17; see Pet. 16-18. But again, the court was right that counsel’s strategy was

to “humanize” petitioner. App.30a; supra pp. 13-15. Petitioner claims otherwise by

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stressing that counsel did not use the word “humanize.” E.g., Pet. 17 (counsel “never

stated that they chose to ‘humanize’ their client”). But counsel’s failure to intone that

word does not erase the manifest strategy of focusing on petitioner’s connections to

and ability to have a positive impact on his family—in a word, to “humanize”

petitioner—to persuade a juror to spare his life. App.19a-26a, 29a-30a.

Petitioner relatedly claims that the Mississippi Supreme Court excused

counsel for not giving Dr. Smallwood information on petitioner’s “upbringing and

resulting impairments,” based on reasoning that “makes no sense”: that providing

that information “to the mental health expert would somehow compromise any

strategy about what counsel presented to the jury.” Pet. 18; see Pet. 17-18; cf. Pet. 1920 (similar argument). But the court did not excuse counsel for holding back

information: the court recognized that counsel “provided Dr. Smallwood with

everything she requested.” App.20a. Rather, the court credited counsel’s decision not

to further investigate petitioner’s upbringing, given what counsel’s reasonable

investigation uncovered and the strategy that counsel reasonably pursued based on

that investigation. App.20a-24a, 32a, 39a; supra pp. 13-15, 16-17.

Petitioner also contends that counsel “did not even investigate” petitioner’s

upbringing and so “was not in a position to make an informed strategic decision to

‘humanize’ him rather than present that evidence to the jury.” Pet. 18; see Pet. 18-19.

The record belies that claim. Counsel investigated petitioner’s upbringing through

Dr. Smallwood’s examination of petitioner and through many interviews with

petitioner, his mother, and his other family members. App.20a-23a, 30a, 35a. None

of that disclosed any violence or abuse in petitioner’s past: it instead suggested that

19

he “had no remarkable history.” App.24a. Petitioner faults counsel for not contacting

more people or probing deeper. Pet. 18. But counsel reasonably halted investigation

into petitioner’s upbringing to pursue a more promising investigation into

humanizing him. “[W]hen a defendant has given counsel reason to believe that

pursuing certain investigations would be fruitless,” “counsel’s failure to pursue those

investigations may not later be challenged as unreasonable.” Strickland, 466 U.S. at

691. Given what counsel had learned and what little of it was promising, counsel

made “reasonable professional judgments” to “limit[ ]” part of the investigation while

expanding another. Ibid.; Wiggins, 539 U.S. at 533 (same).

Counsel’s performance here contrasts sharply with performances this Court

has faulted. In Wiggins, this Court faulted a mitigation investigation where (unlike

here) counsel “abandoned their investigation” of the defendant’s background “after

having acquired only rudimentary knowledge of his history from a narrow set of

sources” and despite knowing facts that should have prompted them to investigate

further—including about the defendant’s “chronic alcoholic” mother, many fostercare placements, “lengthy absences from school,” and “emotional difficulties.” 539

U.S. at 524-25. Counsel also (unlike here) “uncovered no evidence” that a mitigation

case “would have been counterproductive” or that more investigation “would have

been fruitless.” Id. at 525. And (again unlike here) counsel avoided a defense based

on the defendant’s troubled background even though the defendant “d[id] not have a

record of violent conduct that could have ... offset [the] powerful mitigating

narrative.” Id. at 537. Similar points distinguish other cases (Pet. 15-16) on which

petitioner relies. See Williams v. Taylor, 529 U.S. 362, 395-96 (2000) (State “barely

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disputed” that counsel performed deficiently when, among other things, counsel: “did

not begin to prepare for” the penalty phase “until a week before the trial”; failed “to

conduct an investigation that would have uncovered extensive records graphically

describing [defendant’s] nightmarish childhood”—because of an “incorrect[ ]” belief

“that state law barred access to such records” rather than “because of any strategic

calculation”; and failed to introduce “available evidence” that defendant was

“borderline mentally retarded”); Andrus v. Texas, 140 S. Ct. 1875, 1881-83 (2020) (per

curiam) (counsel was advised “well before trial” that defendant had been “diagnosed

with affective psychosis” and other mental-health issues “[y]et counsel disregarded,

rather than explored, the[se] multiple red flags,” “performed almost no mitigation

investigation,” was “barely acquainted with” the mitigation witnesses, and offered no

“tactical rationale for the pervasive oversights and lapses” in his “nonexistent”

mitigation investigation); Sears v. Upton, 561 U.S. 945, 952 (2010) (per curiam)

(“facially inadequate mitigation investigation” that was “limited to one day or less”).

The Mississippi Supreme Court correctly held that petitioner did not overcome

the “strong presumption” that his counsel’s performance “f[ell] within the wide range

of reasonable professional assistance.” App.26a (quoting Strickland, 466 U.S. at 689).

b. Counsel’s performance did not prejudice petitioner. App.31a-33a, 33a-43a.

The case for imposing the death penalty on petitioner was overwhelming. The

State established—and the jury found—four aggravating factors. Any one of those

factors justified a death sentence. Miss. Code Ann. § 99-19-101(3)(b). And those

factors made a powerful case for the death penalty. They showed that petitioner was

irredeemable and despicable: he murdered Anderson while he was under a sentence

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of imprisonment, his crime for that sentence involved yet more violence, he raped

Anderson in the course of killing her, and he tortured her before he killed her.

App.32a-33a; see supra pp. 2, 3-4, 7-8. Petitioner does not contend that the evidence

presented at trial failed to justify a death sentence.

Petitioner’s new mitigation case does not remotely overcome that case for the

death penalty. App.31a-33a. Evidence of petitioner’s “difficult childhood”—involving

“violence [and] extreme poverty”—paled against “the circumstances surrounding the”

murder, which was clearly “especially heinous, atrocious, or cruel.” App.32a, 33a.

Indeed, evidence of petitioner’s childhood “was ... damaging” to the mitigation case.

App.31a. That evidence would have opened the door to a presentation about his

brother’s life sentence for murder and exposed petitioner’s “prior felony drug

convictions” and “burglary and sexual assault charges,” as well as the injuries

suffered by petitioner’s carjacking victim. App.19a, 32a. So evidence on petitioner’s

background would have reaffirmed that he is irredeemably violent. Nor would his

new mental-health evidence have helped him. He now offers reports claiming that he

suffered from mental disorders, PTSD, and brain abnormality. App.33a-38a; see Pet.

11-12. But the jury would have had strong reason to discount those reports. The

defense’s mental-health expert who examined petitioner before trial (Dr. Smallwood)

concluded that he was “not impaired intellectually,” showed no signs of “clouded

consciousness or dissociation,” and, ultimately, “did not have a mental disorder” that

would have “prevented him from knowing right from wrong” when he murdered

Anderson. App.21a-22a. Jurors would have heard that petitioner told Dr. Smallwood

that he did not have “any significant problems with depression” (App.21a, 34a) and

22

that petitioner’s family members also gave “no indication” that he “suffered from any

kind of disability or mental health problems” (App.24a). Dr. Smallwood did “change[ ]

her position” on petitioner’s mental health years later after being shown reports

selected by post-conviction counsel. App.34a. But the jury would have heard that

“nothing” in her original report “signal[ed] an incomplete medical diagnosis” and that

her contemporaneous examination showed no “need for neuropsychological testing”

or “further forensic evaluation.” App.22a, 35a, 40a. “Given the overwhelming

aggravating factors, there is no reasonable probability that the omitted evidence

would have changed the conclusion that the aggravating circumstances outweighed

the mitigating circumstances.” Strickland, 466 U.S. at 700.

Petitioner argues only briefly that the Mississippi Supreme Court erred in

assessing prejudice. Pet. 19-21. Yet he never confronts the horrific facts of his crime:

his 30-page petition devotes one grudging sentence to what he did to Anderson. Pet.

3. So he makes no real attempt to show how his new evidence could have overcome

what he did. Instead, he faults the court below for purportedly not considering his

new mental-health evidence “in reweighing the aggravating and mitigating

evidence.” Pet. 20; accord Pet. 19. But the court thoroughly reviewed that evidence

(App.33a-38a; see App.12a-13a, 38a-43a) and recognized that it “may have” given

petitioner some “benefit[ ],” but found that the aggravating evidence substantially

outweighed it, App.31a, 32a-33a. And petitioner disregards that his new mitigation

evidence “contrasts sharply with”—and is doomed by—“the strength of the

aggravating circumstances.” Thornell v. Jones, No. 22-982, slip op. 13-14 (S. Ct. May

23

30, 2024). He cannot show what he must: a “substantial,” not just “conceivable,”

“likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011).

3. Last, this case does not implicate any lower-court conflict or satisfy any of

the other traditional certiorari criteria. Contra Pet. 22-30.

a. Petitioner claims that lower courts are divided on whether “a hypothesized

post hoc strategy justification can excuse trial counsel’s failure to conduct sufficient

investigation to inform any strategic decision they might actually make.” Pet. 22; see

Pet. 22-29. He says that some courts hold that counsel “must conduct sufficient

investigation to inform their strategic choices,” but other courts (including the

Mississippi Supreme Court) “excuse counsel’s failure to conduct even minimal

investigation” based on a “hypothesized post hoc strategy.” Pet. 22.

Even if lower courts were divided over whether “a hypothesized post hoc

strategy justification can excuse trial counsel’s failure to conduct sufficient

investigation,” Pet. 22, this case does not present that issue. Again, the court below

did not “invoke[ ] ‘strategy’ not supported by the record to excuse a failure to

investigate.” Pet. 24 (formatting omitted). Rather, the court recognized that counsel

made the strategic decision to focus additional investigation on finding “as many

witnesses” as possible “to testify that [petitioner] would have visitors if he went to

prison,” “would be a good prisoner,” was “loved” by his “family,” and “could still have

a positive impact on his family and on his children.” App.23a; supra pp. 13-15, 16-17.

So this case does not provide an opportunity to resolve a conflict over whether “a

hypothesized post hoc strategy” can excuse a failure to investigate. Pet. 22.

24

In any event, there is no lower-court conflict on that issue. Lower courts apply

the decades-old legal standards set forth by this Court: counsel must meet “an

objective standard of reasonableness” (Strickland, 466 U.S. at 688); counsel thus

must “make reasonable investigations or ... make a reasonable decision that makes

particular investigations unnecessary” (Wiggins, 539 U.S. at 521); and, when courts

assess a mitigation investigation, “a particular decision not to investigate must be

directly assessed for reasonableness in all the circumstances, applying a heavy

measure of deference to counsel’s judgments” (id. at 521-22). Each case that petitioner

invokes, Pet. 22-29, applies those standards to reach the result the facts demand.

Fact-based differences in outcomes do not amount to a lower-court conflict.

Start with the cases that, petitioner says, “faithfully followed this Court’s

guidance that an attorney must conduct sufficient investigation to make an informed

strategic choice.” Pet. 22 (formatting omitted); see Pet. 22-24. The court in each case

invoked both Strickland and Wiggins in ruling that counsel performed deficiently by

conducting a woefully inadequate mitigation investigation that could not be justified

as a reasonable strategic decision. See Abdul-Salaam v. Sec’y of Pa. Dep’t of Corr.,

895 F.3d 254, 267-69 (3d Cir. 2018) (counsel: (a) failed to pursue expert mental-health

testimony even though he had “no basis to presume that” expert reports would hurt

the mitigation case and so no strategic reason not to seek them; and (b) “interview[ed]

only three family witnesses” for the mitigation case—“seem[ingly]” “due to a lack of

preparation and not for any strategic reason”); Noguera v. Davis, 5 F.4th 1020, 104142 (9th Cir. 2021) (by counsel’s “admission,” they “settled on a penalty-phase

strategy” despite “having conducted no investigation into [defendant’s] ‘family

25

situation or background’” and “despite” “know[ing]” of defendant’s “turbulent

upbringing”—failures that could not be excused by a State-offered “post hoc

rationalization” that was “inconsistent with” counsel’s “admitted failure to

investigate”); Andrews v. Davis, 944 F.3d 1092, 1108, 1112-16 (9th Cir. 2019) (en

banc) (counsel “performed almost no [penalty-phase] investigation,” and so “simply

did not know about [defendant’s] background” and thus “could not have intelligently

chosen one strategy over another”); Pruitt v. Neal¸ 788 F.3d 248, 270-73 (7th Cir.

2015) (counsel knew that defendant had been diagnosed with schizophrenia and had

been prescribed “anti-psychotic medication,” and was advised by “the defense’s own

expert” to contact an expert “in dealing with psychosis”—yet counsel “did not contact

such an expert” and “offered no reason for failing to do so,” even though part of

counsel’s strategy was to show that defendant did not deserve the death penalty

because of his mental illness); Ex Parte Garza, 620 S.W.3d 801, 823-24 (Tex. Crim.

App. 2021) (counsel outsourced investigation to Garza’s mother (who had a conflict of

interest) and failed to investigate Garza’s mental health despite many “red flags”).

Petitioner next cites cases where, he says, courts invoked “strategy” that was

“not supported by the record” to “excuse a failure to investigate basic facts necessary

to inform a defense strategy.” Pet. 24 (formatting omitted); see Pet. 24-27. These

cases, he claims, show that courts “are divided on the extent to which a hypothesized

post hoc strategy justification can excuse trial counsel’s failure to conduct sufficient

investigation to inform any strategic decision they might actually make.” Pet. 22.

The five cited cases establish no such thing. One case does not assess counsel’s

mitigation performance and instead upholds, on federal habeas review, a state-court

26

ruling that counsel’s allegedly deficient performance did not prejudice the defendant.

Frederick v. Quick, 79 F.4th 1090, 1116, 1119-20 (10th Cir. 2023), cert. denied, No. 236888 (June 10, 2024). In the other four cases the courts applied the legal standards

that petitioner agrees are correct, in none did the court rely on a hypothesized

strategy to excuse a failure to investigate, and in all the court credited a mitigation

investigation because—in contrast to the cases just addressed—the facts showed that

the investigation was reasonable. See Walker v. State, 303 So. 3d 720, 724, 726-28

(Miss. 2020) (counsel made “very clear that he pursued a tactical decision to

humanize” Walker; Walker did not show a failure to investigate; and counsel

reasonably pursued his strategy rather than post-conviction attorneys’ “alternative

reasonable strategy” of showing that Walker had a troubled childhood); Ambrose v.

State, 323 So. 3d 482, 490-91 (Miss. 2021) (counsel adopted a reasonable “strategy ...

to humanize” Ambrose—rather than present or pursue more mental-health

evidence—where counsel performed a “thorough” investigation that produced nine

penalty-phase witnesses and the defense’s psychologist concluded that Ambrose

“needed no further psychological evaluation”); Keller v. State, 306 So. 3d 706, 711,

712-13 (Miss. 2020) (although counsel did not obtain the “mitigation study” that an

expert recommended, counsel investigated Keller’s “mental status” and presented

evidence on it, consistent with counsel’s strategy); Burns v. Mays, 31 F.4th 497, 50405 (6th Cir. 2022) (after “a fair amount of investigation” that disclosed Burns’

extensive criminal history and “did not uncover anything” that “should have

prompted further investigation,” counsel reasonably adopted “a strategy of focusing

on” Burns’ “good character” and made a “deliberate decision” not to further

27

investigate Burns’ upbringing where counsel feared “a narrative that risked opening

the door to character evidence that” could harm the mitigation presentation). These

cases confirm that lower courts apply the same legal standards, that each result turns

on the facts, and that there is no lower-court conflict.

That reality is driven home by the last group of cases that petitioner cites. Pet.

27-29. Petitioner claims that some courts “have rendered conflicting decisions within

their jurisdictions on whether post hoc strategy can excuse a failure to investigate.”

Pet. 27 (formatting omitted). That is not so. These cases apply the same legal

standards as the cases addressed above and their outcomes turn on the facts.

Start with the Eleventh Circuit. In Jefferson v. GDCP Warden¸ 941 F.3d 452

(11th Cir. 2019), that court ruled that counsel performed deficiently when he

“inexplicably” “turned a blind eye” to the many “red flags” demanding further mentalhealth investigation—the “serious head injury” that Jefferson had suffered as a child,

the many oddities in his behavior, and “crystal clear” expert advice that “further

neuropsychological testing would be worthwhile.” Id. at 478, 481-82. Counsel failed

to cite “anything remotely suggesting that further testing would have impaired their

case” or a “strategic reason” not to pursue that testing. Id. at 479, 482; see id. at 47781. In Jenkins v. Commissioner, Alabama Dep’t of Corrections, 963 F.3d 1248 (11th

Cir. 2020), by contrast, the Eleventh Circuit rejected an ineffective-assistance claim

because “[t]he limited record” developed by the defendant supported the conclusion

that trial counsel reasonably and adequately pursued “a penalty-phase strategy of

residual doubt.” Id. at 1266; see id. at 1264-70. In the Fifth Circuit cases that

petitioner cites (Pet. 28), the court applied the same legal standard but the facts

28

demanded different outcomes. Compare Neal v. Vannoy, 78 F.4th 775, 789-93 (5th

Cir. 2023) (counsel deficient when—as “the result of neglect” and in defiance of his

“actual trial strategy”—he failed to review and investigate forensic analyses that

could have “impeach[ed]” a key witness), with United States v. Scott, 11 F.4th 364,

372-73 (5th Cir. 2021) (counsel adequate when she limited a line of investigation

based on a reasonable strategy to limit defendant’s exposure to more serious charges).

And the same is true of State v. Allen, 861 S.E.2d 273 (N.C. 2021), which credits one

ineffective-assistance claim but rejects another—based on the facts. Compare id. at

283-84 (counsel deficient if he failed—without “reasonable strategic” basis—to

investigate possible “inconsistencies between” witness testimony and crime-scene

evidence despite “red flags” demanding such investigation), with id. at 293-94

(counsel adequate in mitigation investigation where he retained mental-health

experts who examined the defendant and interviewed others but did not uncover

support for a “mental health disorder that would assist [the] defense”).

In sum, petitioner has not cited any case ruling that “a hypothesized post hoc

strategy justification can excuse” counsel’s “failure to conduct sufficient investigation

to inform” a “strategic decision.” Pet. 22. He has identified no lower-court conflict.

b. This case does not satisfy any of the traditional certiorari criteria. Contra

Pet. 29-30. It is a poor vehicle for resolving the question the petition presses. Supra

pp. 13-15. And the absence of any lower-court conflict underscores that the petition

does not seek review of a recurring legal question—let alone one of nationwide

importance—but instead asks this Court to address petitioner’s fact-bound

disagreement with a decision that applies decades-old, settled legal standards and

29

aligns with a legion of cases from this Court and other courts. This case does not

warrant further review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

LYNN FITCH

Attorney General

Parker A. Proctor Jr.

Special Assistant

Attorney General

Counsel of Record

STATE OF MISSISSIPPI

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 220

Jackson, Mississippi 39205-0220

(601) 359-3747

Parker.Proctor@ago.ms.gov

Counsel for Respondent

June 10, 2024