Amicus Brief for the United States — Strickland v. Washington

ie Ae te ees, Ce

| iprame Court, U.S,

Oe OR ye

No. 82-1554 | AUG 18 1983

7 L. STEVAS,

Iu the Supreme Court of the Un

CLERK

OCTOBER TERM, 1983

CHARLES E, STRICKLAND, SUPERINTENDENT,

FLORIDA STATE PRISON, ET AL., PETITIONERS

Vv.

DAviy) LEROY WASHINGTON

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT |

OF APPEALS FOR THE FORMER FIFTH CIRCUIT (UNIT B)

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONERS

Rex E, LEE

Solicitor General

STEPHEN S. TRoTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

Department of Justice

Washinyion, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

The United States will address the following question:

Whether a defendant is constitutionally entitled to a

new trial on account of his attorney’s asserted ineffec-

tiveness in failing to investigate and present certain evi-

dence at trial, without demonstrating that the additional

evidence probably would have affected the outcome of the

trial.

(1)

TABLE OF CONTENTS

Interest of the United States oo... cccccccccccccccccccceeees

I i iinn i icsinncesshcdaatininceaieanene teem

Summary of argument .................... jatehasbeceptdendeabetessedaniee

Argument:

IO sesdccticcsdinpeintencidiigsisnaialioeai alee

I,

II.

Where a claim of ineffective assistance of coun-

sel is based on counsel's alleged failure to in-

vestigate and develop evidence to be presented at

trial, the defendant must demonstrate that the

evidence probably would have affected the out-

come of the proceedings ..........600.06000.

A. The court of appeals correctly held that a

showing of prejudice is an essential element

of an ineffective assistance of counsel claim..

B. Relief cannot be granted unless the Court

finds that counsel's failure to investigate cer-

tain matters and produce evidence at trial

probably affected the outcome of the pro-

SOD scnsicsstrstinnnaectanteiinbibceessadehaans

The distinct question of whether the attorney’s

performance fell measurably below the range of

competence demanded of defense counsel should

be judged, as a threshold matter, by an objective

ITE, ccctniicsticcnsesansscevosadsnccotaniondnaaeaekameennaae

CIID | «i vicsinizecsndiessisiostisusnieanessadenanniedtentesaiesniesamaaianaaan

Cases:

TABLE OF AUTHORITIES

Armstrong V. State, 429 So.2d 287 ooo...

Barclay Vv. Florida, No. 81-6908 (July 6, 1983)......

Baumann Vv. United States, 692 F.2d 565 ..............

Barey V. Tenbe, BO Ges GEA vacistscsecickssnsitcontenkcen

Brooks Vv. Tennessee, 406 U.S. 608 .0......c..0ccccccccccee

(111)

12

12

i8

26

30

IV

Cases—Continued: Page

Chambers v. Maroney, 399 U.S. 42 ..0..........0000. 12

Chapman V. California, 386 U.S. 18 00.0... 13

Cooper V. Fitzharris, 586 F.2d 1325, cert. denied,

i casnnoennnegetocoton 13, 14, 15, 16

Cuyler Vv. Sullivan, 446 U.S. 335 0.0.0... 12, 16

Eddings v. Oklahoma, 455 U.S. 104 00.0... 10, il

Engle Vv. Isaac, 456 U.S. 107........ 7, 10, 18, 15, 16, 17, 24, 28

Estelle v. Williams, 425 U.S. 501 20.00.0000... 14, 27, 28

FTC v. Grolier, Inc., No, 82-372 (June 6, 1983).... 27

Geders V. United States, 425 U.S. 80 ........0.0..00. 12

Gideon V. Wainwright, 372 U.S. 386 .......0000000..... 12,18

Hallman Vv. State, 371 So.2d 482 .0.....00...ccees 20

Harlow v. Fitzgerald, No. 80-945 (June 24, 1982) . 8, 27,

28, 29

Henry V. Mississippi, 379 U.S. 448 00.000. 21

Herring V. New York, 422 U.S. 868 ............. erent 13

Hickman V. Taylor, 329 U.S. 496 .0............0..00000 27

Holloway v. Arkansas, 425 U.S. 476 200.000. 13

Jackson V. Der-no, $78 U.S. 368 2.0.00... ceceeees. a 26

Jones Vv. Barnes, No. 81-1794 (July 5, 1983)........ 14

I UE GME MD ccccacsoascoccnsscssnscccccecccssceses 28

Knight v. State, 394 So.2d 997 .2..........ccccceeecceeees 5, 6

Lockett V. Ohio, 488 U.S. 686 .0..........ccccccccceceeeees 10, 24

Matthews v. United States, 518 F.2d 1246 ........ a 29

McMann V. Richardson, 397 U.S. 759 ............ 14, 26, 27, 29

Mesarosh Vv. United States, 352 U.S. 1 .....000.0.00000.. 20

Mills v. United States, 281 F.2d 786 ...........0...00.. 19

Morris v. Slappy, No. 81-1095 (Apr. 20, 1983) ...... 12,14

Pickens v. Lockhart, No. 82-1836 (8th Cir. Aug.

Bi ee 17, 23

Polk County Vv. Dodson, 454 U.S. 312 ........0.0..000 29

Powell v. Alabama, 287 U.S. 46 o.....0....ccccccececees 14, 29

Smith v. Phillips, 456 U.S. 209 ..........:cccccccccccceeees 17

Saath ¥. Sbate, 400 GO.Bd GSE .........20..000.0...ccrcccece0e00 20

Songer V. State, 8365 So.2d 696 ..........0..ccccccceccceeseeee 10

Stone V. Powell, 428 U.S. 466 .0.0.......ccccccsccccsssccceesees 27

Thomas v. State, 374 So.2d 508, cert. denied, 445

ae EE a 20

Townsend V. Sain, 872 U.S. 298 ...........ccccccccceeeessees 16

United States v. Agurs, 427 U.S. 97 .............. .8, 15, 17, 20,

22, 23, 25

Cases—Continued: Page

United States v. Alessi, 638 F.2d 466 oo... 19

United States v. Ash, 413 U.S. 300 ooo. 29

United States v. Atkins, 545 F.2d 1153 20000000... 21

United States v. Atkinson, 297 U.S. 1857 ................ 16

United States v. Barlow, 693 F.2d 954 .................. 19

United States V. Bujese, 371 F.2d 120 200.000.0000... 21

United States v. Burns, 668 F.2d 855 00000000000... 19

United States v. Cotner, 657 F.2d 1171 2000000000... 19

United States Vv. Cronic, cert. granted, No, 82-660

(Feb. 22, 1983) ....... : 9, 10, 18

United States v. Decoster, 624 F.2d 196, ‘cert. ‘de

nied, 444 U.S. 944 ...... sass, hcscanquisacabesbadiie Mitel Mate uae

United States v. Diggs, 649 F.2d 731, cert. denied,

454 U.S. 970 . Brome ki 19

United States v. Eldred, 588 F. 2d 746 caeeechssegstiied 21

United States v. Frady, 456 U.S. 152........ 7, 10, 12, 15, 16,

17, 23, 24

United States v. Green, 680 F.2d 183, cert. denied,

No. 82-6552 (Feb. 22, 1983) .u.....0.0....cc ce. ’ 15

United States v. Herman, 614 F.2d 369 ................ 19

United States v. Iannelli, 528 F.2d 1290 ................ 21

United States v. Johnson, 327 U.S. 106 ......... ae ae 19, 20

United States v. Mangieri, 694 F.2d 1270 .............. 19

United States v. Martorano, 663 F.2d 1113, cert.

denied sub nom. Goldenberg v. United States,

No. 81-1889 (Feb. 28, 1988) 0.00.00... 19

United States Vv. Morrison, 449 U.S. 361 ................ 12

United States v. Oliver, 683 F.2d 224 2000000000000... 19

United States v. Provenzano, 620 F.2d 985, cert.

ee TID, GD cmechicte lhethonasnniebsbivttiekcteccabbols 21

United States v. Swarek, 677 F.2d 41, cert. denied,

Bes ee Cis I RD mie eccccccesesecentscccntennens 19

United States v. Valenzuela-Bernal, No. 81-450

i Beane eee ee wie PL PA 15, 23

Wainwright v. Sykes, 483 U.S. 72....14, 16, 19, 21, 28, 28

Washington Vv. State, 362 So.2d 668 000000000000... 2,4,9

Zant V. Stephens, No. 81-89 (June 22, 1983)........ 11

VI

Constitution, statutes and rules: Page

U.S. Const. :

Amend. V (Due Process Clause) .....00.....0...... 22

NII a ey cs aieceaecneeicaiie 27

(0 GRR ee Ree eee Renae 7,9, 18, 14, 17, 21

Act of Apr. 30, 1790, ch. 9, Section 29, 1 Stat.

REINS RN a Se AO ELE AR RELA el ba ott ll

CE: SO So casa pega 11

BUI I hse edsciceeaichcoccudiacdons LAT eee Re EE 16

Fla. Stat. Ann. (West 1973) :

IN, WIRD CODD cai deicccactuctacccesicectcchnnsisiness 4

Section 921.141(5) (b)o(G) .........cccccccccssrscceseees 4

I STOOD orcas css ccdiossccisnacsspsnnccneps 4

ID TIN OD cio cccccccceseessennsncccecnoninns 4

BARR, TD COD © venscckscccccsncnccstlssassocdecnsosce 4

I aces 4

I PCED ota hctnscnbcctncossncesccnnincestanie 4

Fed. R. Crim. P.:

I aos ssc ste dn aahslgih oni ttaslnadamabadonanlonide 16, 19, 20

SI IIE 2-1-1 osu gested eicchsanuenssnnasacodnpsectineianolds 16

Fla. R. Crim. P.:

Rule 3.690(¢) ............. ignathinininialiaknaiey tesligemeaadaes 20

ON 7 ERR EIA A ES RA NU a eb 2 20

I III IND scihsesnessxecciksdnsoseibinkecsadepatanansbcates 20

Miscellaneous:

58 Am. Jur. 2d New Trial §§ 166-173 (1971)........ 20

Bines, Remedying Ineffective Representation in

Criminal Cases: Departures from Habeas Cor-

pus, 6B Va. L. Rev. 987 (1978) ......cccccccocsccscssese 27

D. Graham & T. Waterman, A Treatise on the Law

of New Trials (2d ed. 1855) :

Eh Re Ree Rae ERS 7 MES aA D rc ede es EPR 19, 21

Fat PERN PARE RR Sy Re ries Pa ens oF 19, 20, 21

8A J. Moore, Moore's Federal Practice (2d ed.

SERS ERE are eee Tee Sey AN 16, 19, 20

Tague, Federal Habeas Corpus and Ineffective

Representation of Counsel: The Supreme Court

Has Work To Do, 31 Stan. L. Rev. 1 (1978) ...... 15

8 C. Wright, Federal Practice and Procedure (2d

SARIS eae ee hike 19, 20, 21

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

No, 82-1554

CHARLES E, STRICKLAND, SUPERINTENDENT,

FLORIDA STATE PRISON, ET AL., PETITIONERS

v.

DAVID LEROY WASHINGTON

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FORMER FIFTH CIRCUIT (UNIT B)

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

Claims of ineffective assistance of counsel are raised

with increasing frequency in federal criminal cases, and

the principles laid down in this case are likely to govern

the disposition of such claims.

STATEMENT

1. Respondent pleaded guilty in Florida state court

to three counts of murder in the first degree and related

charges in connection with three brutal killings in late

September 1976. First, according to a prearranged plan,

an accomplice induced Daniel Pridgen, a minister, to

engage in homosexual activities in the latter’s apart-

ment. Respondent entered the apartment after Pridgen

was undressed and in bed. While the accomplice covered

Pridgen’s face with a pillow and held him helpless, re-

spondent stabbed Pridgen 11 times. Respondent and the

accomplice then searched for money in Pridgen’s apart-

(1)

2

ment, painted slogans on the wall to suggest that the

killing was the work of a homosexual lover, wiped their

fingerprints from surfaces, and stole some jewelry, a

small amount of cash, and Pridgen’s car (J.A. 28-30,

51, 83-87, 111-147, 155-161).

Three days later, respondent went to the residence of

Katrina Birk, where her three elderly sisters-in-law were

visiting while her husband was in the hospital. When,

after a period of surveillance, he observed that the four

women were together in one room, respondent entered

the house and bound the women. When he saw Mrs.

Birk inching toward the kitchen, respondent shot her

in the head and repeatedly stabbed her, causing her death.

He then shot the other victims in the head, stabbed them,

and fled with a small amount of money. One of the

sisters-in-law remained comatose as a result of knife

wounds and subsequently died, and another was perma-

nently blinded (J.A. 33-38, 87-92, 162-182, 189-218, 223-

236).

Four days after the murder of Mrs. Birk, respondent

contacted Frank Meli, a 20-year old college student, in

response to Meli’s newspaper advertisement offering a

ear for sale. Pursuant to a preconceived plan, respon-

dent persuaded Meli to go to respondent’s home to obtain

the purchase money. Once inside, respondent bound Meli

to a bed. Respondent subsequently sold Meli’s car and

forced him to telephone his family to request a ransom.

Three days after the kidnapping, respondent stabbed

Meli 11 times while he was tied to the bed and a com-

panion covered his face wtih a pillow. Respondent then

went to an intersection where he had arranged to pick

up the ransom money, but left after determining that

the police were watching the area. Respondent disposed

of the proceeds of the sale of Meli’s car by buying a

motorcycle, paying off his accomplices, entertaining him-

self at the dog track, and, apparently, giving some money

to his wife (J.A. 39-48, 65-66, 92-100, 146-147, 237-310).

See Washington v. State, 362 So. 2d 658, 660-661 (Fla.

1978).

3

2. a. On October 1, 1976, following the arrest of his

companions in the Meli case, respondent surrendered to

police. After being advised of his rights and choosing to

speak without the presence of an attorney, respondent

gave a detailed confession to the Meli murder. Attorney

William Tunkey, who had extensive experience in more

than 500 criminal cases (J.A. 424), was appointed to

represent him. Tunkey was regarded by the state sen-

tencing judge as “highly competent” (J.A. 54; see also

J.A. 448) and by the judge who presided at the state

collateral proceedings as “one of the leading criminal

defense attorneys in Dade County” (Pet. App. A216).

While he was in jail on the Meli charges, respondent was

informed that he was suspected of having committed the

Pridgen and Birk murders as well. Respondent initially

denied the accusations. But after being informed that

an accomplice had told police about the murders, respond-

ent, against Tunkey’s advice (J.A. 22, 24), chose to speak

to police without the presence of an attorney and con-

fessed in detail to the murders.

On December 1, 1976, again against Tunkey’s advice,

respondent pleaded guilty to all of the charges. Respond-

ent acknowledged at the guilty plea hearing, as he had

in his confession (J.A. 200-202), that he had committed

a string of burglaries and had been selling stolen mer-

chandise to the Birks (J.A. 37). Respondent also ad-

mitted that he planned to kill Pridgen before he entered

the apartment (J.A. 51). He stated, however, that he

did not at first intend to kill Mrs. Birk or Meli, and that

he was in financial difficulty because he was out of a job

and his wife had just had a baby (J.A. 36, 50-53, 65-

66). Respondent also stated that he could not have had

a better lawyer than Tunkey, but that he did not believe

there was any basis on which Tunkey could contest the

charges (J.A. 54-56). See 362 So. 2d at 662; J.A. 24-25,

140-144, 152-153, 387, 399, 400.

b. Following a sentencing hearing, the court sentenced

respondent to death on each of the first degree murder

convictions. The court found four statutory aggravating

4

factors present in all three murders, concluding that each

was (i) “especially heinous, atrocious, or cruel,” (ii)

“committed for pecuniary gain,” (iii) committed while

respondent was engaged in another violent crime (rob-

bery, burglary, or kidnapping), and (iv) committed for

the purpose of avoiding or preventing arrest. Fla. Stat.

Ann, § 921.141(5) id), (e), (f) and (g). The court also

found in the Birk case that respondent knowingly had

created a great risk of death to many persons by stab-

bing and shooting Mrs. Birk’s sisters-in-law. Fla. Stat.

Ann. § 921.141(5) (c). See 362 So. 2d at 662-664.

Tunkey urged as statutory mitigating circumstances

that respondent had no significant history of prior crimi-

nal activity, that he was acting under the influence of

extreme mental or emotional disturbance, and that he

was 26 years of age (J.A. 334). See Fla. Stat. Ann.

§ 921.141(5) (a), (b) and (g). In addition, Tunkey urged

the court to consider that respondent had surrendered to

police, confessed his culpability, voluntarily entered guilty

pleas, offered to testify against his accomplices, and

not tried to escape following his arrest (J.A. 335-336).

The court, however, explicitly found no statutory miti-

gating factor for any of the murders‘ and held that any

other mitigating circumstances were insufficient to out-

weigh the aggravating circumstances. 362 So.2d at

663-664. The Florida Supreme Court affirmed these hold-

ings and upheld the sentences (id. at 665-667), and this

Court denied certiorari (441 U.S. 937 (1979) ).

1 The court noted that respondent had admitted to engaging in a

course of burglaries and dealing in stolen property, thereby render-

ing inapplicable the statutory factor of an absence of prior criminal

activity. The court also found that respondent was not acting

under extreme mental! or emotional disturbance and that his ability

to conform his conduct to the law was not substantially impaired ;

that the victims had not participated in or consented to the acts;

that respondent’s participation in the crimes was not insignificant;

and that his age could not be considered in mitigation, especially

in view of his acts in planning and perpetrating the crimes and

disposing of the proceeds. Fla. Stat. Ann. § 921.141(5) (b)-(g). See

862 So.2d at 662-664.

v0

8. Respondent then filed a motion for post-conviction

relief in state court, contending that Tunkey had rendered

ineffective assistance. The state court held that in order

to obtain relief under controlling Florida precedent, re-

spondent had to prove (i! “a substantial and serious

deficiency measurably below that of competent counsel,”

and (ii) “a likelihood that the deficient conduct affected

the outcome of the court proceedings” (Pet. App. A213-

A214, quoting Knight v. State, 394 So. 2d 997, 1000-1001

(Fla. 1981)). The court observed that the aggravating

circumstances in this case were “simply overwhelming”

and that respondent did not contend that Tunkey was

ineffective in failing to rebut them or in failing to present

evidence of any statutory mitigating circumstances ( Pet.

App. A216-A218).

Respondent did contend, however, that Tunkey was

ineffective in not conducting an investigation of certain

nostatutory mitigating factors: his allegedly difficult

childhood, lack of a job, new baby, and need for money.

The court concluded, however, that many of these con-

siderations in fact had been made known to the sentencing

judge and that, in any event, none of Tunkey’s alleged

failings constituted a serious deficiency because various

circumstances suggested valid tactical grounds for his

actions (Pet. App. A224, A226, A228, A229-A230). The

court further found “beyond any doubt” that “there is

not even the remotest chance that the outcome would have

been any different” if Tunkey had taken the measures

respondent identified (id, at A231). The Florida Supreme

Court unanimously affirmed the trial court’s findings and

denial of relief (id. at A248-A250).

4. Respondent then sought habeas corpus relief in the

United States District Court for the Southern District of

Florida. After a hearing, the district court denied relief

(Pet. App. A253-A295). The court concluded that Tunkey

had made an error of judgment in not conducting an

investigation of family, friends and medical experts (id.

at A282-A283). But the court found that there was

not “a likelihood, or even a significant possibility that the

6

balancing of aggravating against mitigating circum-

stances under the Florida death penalty statute would

have been altered in [respondent's] favor” if Tunkey had

done so (id. at A286). “Critically,” the court observed,

“the character and medical testimony cannot reasonably

be characterized as evidence of extreme mental or emo-

tional disturbance’—the relevant statutory mitigating

factor—and does not “provide persuasive rationalization

for [respondent’s] extended and calculated course of

violence” (ibid.).

5. A divided en bane court of appeals vacated and

remanded for further proceedings (Pet. App. Al-A205).

The court noted that although the district court concluded

that Tunkey committed an error of judgment, it stopped

short of finding him ineffective (id. at Al6). The court

of appeals believed that Tunkey might have made a legit-

imate tactical decision to introduce limited character evi-

dence at the plea colloquy and thereafter to rely on ex-

pressions of frankness, sincerity, and remorse—a course

that would have made extensive investigation into re-

spondent’s background unnecessary (id. at A24-A28).

The court therefore remanded for further proceedings on

the question whether Tunkey had made such a legitimate

tactical choice (id. at A54-A55, A81-A82).

The court of appeals made clear that, in order to obtain

relief, respendent also would have to demonstrate some

degree of prejudice by showing that counsel’s errors

“resulted in actual and substantial disadvantage to the

course of his defense.” If respondent carried this burden,

the State then could attempt to show that the error was

harmless beyond a reasonable doubt (Pet. App. A75-A76).

In formulating this test, the court declined to follow the

decision of the District of Columbia Circuit in United

States v. Decoster, 624 F.2d 196 (en banc), cert. denied,

444 U.S. 944 (1979), and the Florida Supreme Court’s

decision in Knight v. State, supra, which require the de-

fendant to demonstrate a likelihood that counsel’s errors

had an effect on the outcome of the proceedings (Pet.

App. A71-A72).

7

SUMMARY OF ARGUMENT

A claim of ineffective assistance of counse] has two

necessary and independent elements: (1) proof that the

attorney’s performance fell measurably below the range

of competence demanded of defense counsel, and (2) a

showing that substantial prejudice resulted. In this case,

relief must be denied for failure to satisfy the prejudice

element, without regard to whether counsel performed in

a reasonably competent manner.

I

A. The requirement that prejudice be shown in order

to obtain relief on a claim of ineffective assistance of

counsel is solidly grounded in this Court’s precedents.

Sixth Amendment cases in which the Court has reversed

convictions without a specific inquiry into prejudice are

readily distinguishable, because they involved either a

total denial of counsel or restraints on counsel’s inde-

pendence and undivided loyalty that are essential attri-

butes of the Sixth Amendment guarantee. In addition,

where, as here, a claim of ineffective assistance of counsel

is raised on collateral attack, a requirement that prejudice

be shown is compelled by the “cause and actual prejudice”

standard of Engle v. Isaac, 456 U.S. 107 (1982), and

United States v. Frady, 456 U.S. 152 (1982).

B. The nature of the prejudice inquiry may vary de-

pending upon the particular type of error counsel is ac-

cused of having committed. In this case, there is a readily

available standard particularly adapted to respondent’s

claim. Because the failing identified by respondent is that

additional evidence should have been presented by his at-

torney at trial, the appropriate showing of prejudice is

the one universally accepted as necessary to obtain a new

trial on the basis of newly discovered evidence: that the

evidence would probably result in an acquittal (or, here,

in a sentence of life imprisonment). While it may be ap-

propriate in ineffective assistance cases to waive the cus-

tomary requirement that such evidence must be shown

8

not to have been discoverable prior to trial in the exercise

of due diligence, there is no reason—at least in the ordi-

nary, non-capital case—why the quantum of prejudice re-

quired for relief should be relaxed.

Even if a lesser showing were thought appropriate be-

cause of a special sensitivity in capital cases, it at least

would be necessary for the defendant to show that the

new evidence creates a reasonable doubt about the validity

of the judgment that did not previously exist. Cf. United

States v. Agurs, 427 U.S. 97, 112-1138 (1976). Relief

must be denied here even under this standard, because

the state courts found “beyond any doubt” and “to the

point of a moral certainty” that there was no likelihood

of an effect on the outcome if Tunkey had done the things

respondent suggests (Pet. App. A231, A250), and the

district court also found no likelihood that the outcome

would have been altered if he had done so (id. at A286).

No colorable basis exists for overturning those conclusions.

ll

Whether an attorney's errors caused his performance

to fall measurably below the range of competence de-

manded of attorneys in criminal cases should be deter-

mined, at least as an initial matter, in objective terms.

If the defendant asserts that counsel committed legal

errors, the defendant first should be required to show

that the legal right involved was clearly established at

the time of counsel’s actions (cf. Harlow v. Fitzgerald,

No. 80-945 ‘June 24, 1982)) and was of substantial im-

portance to the outcome of the case. By the same token,

where, as here, the defendant asserts that counsel should

have investigated certain matters and thereby produced

additional evidence at trial, the defendant should be re-

quired to satisfy a comparable threshold burden by show-

ing that such an investigation was equivalent, in its

degree of obviousness and likelihood of proving fruitful,

to the vindication of a clearly settled legal right that was

of substantial importance in the case.

ARGUMENT

Introduction

The Sixth Amendment provides that “[{i]n all criminal

prosecutions, the accused shall enjoy the right * * * to

have the Assistance of Counsel for his defence.” In this

case, as in United States v. Cronic, cert. granted, No.

82-660 (Feb, 22, 1983), the explicit Sixth Amendment

guarantee was satisfied: respondent had the assistance of

William Tunkey, “one of the leading criminal defense at-

torneys in Dade County” (Pet. App. A216). Respondent

nevertheless contends that the assistance Tunkey rendered

was constitutionally inadequate. He of course does not

maintain that Tunkey was ineffective in failing to estab-

lish his innocence. Respondent voluntarily gave detailed

confessions to the murders and, against Tunkey’s advice,

pleaded guilty to them. Respondent does contend, how-

ever, that Tunkey rendered ineffective assistance in con-

nection with the sentencing hase of the case. It is

useful to place this claim in perspective under the Florida

capital sentencing procedure.

There is no suggestion that Tunkey could have rebutted

the existence of any of the statutory aggravating circum-

Stances the state trial and supreme courts found with

respect to each murder, since respondent’s detailed con-

fessions and guilty pleas effectively conceded the factual

basis for each of those aggravating circumstances. More-

over, the sentencing judge found no statutory mitigating

circumstances in any of the murders (862 So.2d at 662-

664), and, on collateral attack, the state courts and fed-

eral district court all held that the additional evidence

respondent now contends Tunkey should have explored

would not have shown the existence of any statutory

mitigating circumstances (Pet. App. A217-A218, A248-

A250, A276, A286). Respondent’s claim therefore is that

Tunkey was ineffective because he did not develop evi-

dence in support of arguments in mitigation that are not

specifically listed in the statute but that, he contends,

might have influenced the sentencing judge. While the

10

defendant is entitled to have nonstatutory mitigating

circumstances considered (Lockett v. Ohio, 488 U.S. 586

(1978)), a claim resting solely on such factors is con-

siderably attenuated, because it is the statutory mitigat-

ing factors—entirely absent here—that are the principal

ones to be taken into account under state law. See

Songer Vv. State, 365 So, 2d 696, 700 (Fla. 1978); Arm-

strong V. State, 429 So, 2d 287, 288-289 (Fla. 1983).

Cf, Eddings v. Oklahoma, 455 U.S, 104, 114-115 (1982).

Accordingly, in light of the overwhelming aggravating

circumstances present in this case, the state courts and

federal district court properly rejected respondent’s col-

lateral attack on his sentence—unless respondent was

entitled to relief even though correction of his attorney’s

alleged omissions could not have affected the outcome of

the proceeding. We submit that relief is not available in

such circumstances.

As we explain in United States v, Cronic (U.S, Br, at

32-33, 35, 47 and Apps. B and C (No, 82-660, 1983

Term) ), the federal courts of appeals generally have iden-

tified (albeit it in varying terms) two necessary and in-

dependent showings that must be made in order to obtain

relief on the basis of ineffective assistance of counsel. The

defendant must show (1) that his attorney committed

significant errors that caused his performance to fall

measurably below the range of competence demanded of

defense counsel, and (2) that he was prejudiced as a re-

sult. Like the “cause” and “actual prejudice” standards

for obtaining relief on collateral attack on a claim not

raised at trial, the two prongs of the ineffective assistance

of counsel test are in the conjunctive, and relief therefore

must be denied if the defendant fails to satisfy either.

Compare Engle v. Isaac, 456 U.S, 107, 184-185 & n.48

(1982), with United States v. Frady, 456 U.S. 152, 168,

175 (1982). And as with the “cause” and “actual prej-

udice” standards, there is no particular order in which

the range-of-competence and prejudice elements of an in-

effective assistance of counsel claim must be explored.

Because, in our submission, respondent cannot prevail

even if his attorney’s performance was defective, sinca

11

any defects could not have affected the outcome of the

sentencing proceeding, we believe it was unwarranted for

the court of appeals to remand for further inquiry into

the range-of-competence element of respondent’s claim.

Similarly, there should be no need for this Court to pass

upon that complex question in this case.”

Finally, we suggest that any temptation to deal broadly

and abstractly with the general subject of ineffective

assistanve of counsel should be resisted. The content of

the “prejudice” and “range-of-competence” components of

such claims may well vary depending upon the type of

dereliction with which counsel is charged. In this case,

attention is best focused upon the particular type of claim

asserted, i.¢e., the failure of counsel to adduce additional

evidence, As we argue below, that type of alleged defect

in counsel’s performance cannot justify setting aside the

result of the trial unless a sufficient probability is demon-

strated that the outcome of the proceeding would have

been affected if the additional evidence had been de-

veloped,"

* We endorse the analysis in Judge Hill's dissenting opinion re-

garding this point (Pet. App. A195-A208),

"Two other characteristics of this case that could influence the

Court’s analysis should be noted, First, although the court of appeals

did not believe that different standards were applicable here be-

cause this is a capital case (Pet. App. A21-A22 n.12), it seems to us

entirely possible that the evaluation of respondent’s claim would be

affected by that factor. Such a view has been endorsed in other

contexts by this Court (see, ¢.g., Zant v, Stephens, No, 81-89 (June

22, 1983), slip op, 22; Eddings v. Oklahoma, 455 U.S, 104, 110-112

(1982)), and it is certainly arguable that capital cases demand

special efforts by counsel and special sensitivity by courts to the im-

pact of counsel's actions. Cf. 18 U.S.C, 8005 (derived from Section

29 of the Act of Apr. 30, 1790, ch. 9, 1 Stat. 118), which provides for

two attorneys for defendants in capital cases. Second, this case .

involves a challenge only to the sentence, and not to the underlying

conviction, Because resentencing is generally less burdensome than

retrial, the government's interest in the finality of its judgments

may weigh less heavily in this context.

For the reasons discussed in the text (see pages 25-26, infra),

however, any special weight that might be given to these two factors

12

I, WHERE A CLAIM OF INEFFECTIVE ASSISTANCE

OF COUNSEL IS BASED ON COUNSEL’S ALLEGED

FAILURE TO INVESTIGATE AND DEVELOP EVI-

DENCE TO BE PRESENTED AT TRIAL, THE

DEFENDANT MUST DEMONSTRATE THAT

THE EVIDENCE PROBABLY WOULD HAVE AF-

FECTED THE OUTCOME OF THE PROCEEDINGS

A. The Court Of Appeals Correctly Held That A Show-

ing Of Prejudice Is An Essential Element Of An

Ineffective Assistance Of Counsel Claim

The court of appeals was correct in holding that a

finding of substantial prejudice is required in order for

a court to grant relief on a claim of ineffective assistance

of counsel, although the court erred in its formulation of

the prejudice element (see pages 23-24, infra). As re-

spondent concedes, the requirement of a showing of preju-

dice “is solidly grounded in this Court’s precedent” (Br.

in Opp. 13). Under United States v. Morrison, 449 U.S.

861, 365 (1981), if asserted defects in defense counsel’s

performance did not have an “impact on the criminal

proceeding, * * * there is no basis for imposing a remedy

in that proceeding.” See also Chambers v. Maroney, 399

U.S, 42, 58-54 (1970); Morris v. Slappy, No. 81-1095

(Apr. 20, 1983), slip op. 9-10; id, at 12-13 (Brennan, J.,

coneurring). And under United States v. Frady, where,

as here, the defendant raises matters on collateral attack

that were not presented at trial, he must demonstrate

“actual prejudice” to obtain relief. 456 U.S. at 168.

Although respondent appears to concede the point, we

undertake a brief discussion of the prejudice requirement

for the light it sheds on the nature of the showing of

prejudice required.

1, This Court’s decisions in Gideon v. Wainwright,

872 U.S. 335 (1963); Geders v. United States, 425 U.S.

80 (1976); and Cuyler v. Sullivan, 446 U.S. 335 (1980),

do not suggest that a showing of prejudice is unnecessary

is insufficient to support the result reached by the court of appeals

in the circumstances shown by the record of this case.

13

in an ineffective assistance of counsel case. The action

of the state in imprisoning a convicted defendant who

has been totally denied counse! in violation of Gideon is

so fundamentally incompatible with basic fairness that

courts will not conduct an inquiry into whether the out-

come of the trial was affected by the absence of counsel

in the particular case (Pet. App. A58, citing Chapman v.

California, 386 U.S. 18, 48 (1967) (Stewart, J., con-

curring)). No comparable state action is involved when

the claim is that the lawyer who was provided was,

through no fault of the state, ineffective.

In Geders and related cases, such as Herring v. New

York, 422 U.S. 853 (1975), and Brooks v. Tennessee,

406 U.S. 605 (1972), the government affirmatively inter-

fered with the relationship between attorney and client

or with counsel’s freedom of action in conducting the de-

fense, both of which are essentia] attributes of the assist-

ance of counsel guaranteed by the Sixth Amendment.

Similarly, a finding that counsel labored under an actual

conflict of interest that adversely affected his performance

establishes that the attorney did not adhere to the duty

of undivided loyalty to his client that also is an essential

attribute of the Sixth Amendment guarantee. Because of

the subtle but pervasive effect of conflicting loyalties upon

an attorney, an inquiry into what prejudice resulted may

be little more than “unguided speculation.” Holloway v.

Arkansas, 435 U.S. 475, 491 (1978). See also Pet. App.

A57-A60; United States v. Decoster, 624 F.2d at 201

(plurality opinion of Leventhal, J.) ; Cooper v. Fitzharris,

586 F.2d 1325, 1831-13383 (9th Cir. 1978) (en banc),

cert. denied, 440 U.S. 974 (1979).

Cases involving allegations that an attorney who was

unencumbered by such inhibitions upon his independence

and loyalty nonetheless made a mistake in his handling of

the case are materially different. “Every trial presents a

myriad of possible claims,” and it is virtually inevitable

that counsel in any given case will overlook or choose to

omit certain claims while pursuing others. Engle v.

Isaac, 456 U.S. at 128-129 & n.84, 188-184. No funda-

14

mental unfairness results when this occurs, and the Court

has made clear that the Constitution does not require that

counsel recognize and raise every potentially meritorious

claim. Id. at 184; Wainwright v. Sykes, 488 U.S, 72, 91

(1977); Estelle v. Williams, 425 U.S. 501, 512-518

(1976); id. at 514-515 (Powell, J., concurring); cf.

Jones V. Barnes, No. 81-1794 (July 5, 1983). Only if

counsel’s errors were of sufficient magnitude to under-

mine the fairness of the proceedings—i.e., only if they

were equivalent in their severity to an actual denial of

the “Assistance of Counsel” to which the Sixth Amend-

ment explicitly refers—is a Sixth Amendment violation

established.‘

Nor does an inquiry into whether prejudice resulted re-

quire “unguided speculation,” as in the conflict of in-

terest cases. A claim of ineffective assistance of counsel

necessarily is based on identifiable acts or omissions by

the attorney that the defendant asserts reasonably com-

petent counsel would not have committed. Pet. App.

A61; Cooper v. Fitzharris, 586 F.2d at 1331; Morris v.

Slappy, slip op. 12-13 (Brennan, J., concurring). A re-

viewing court can assess the probable impact of those

errors in the proceedings, just as courts routinely assess

the impact of other errors that the defendant does not

attribute to the incompetence of his attorney.

Moreover, as the court of appeals observed (Pet. App.

A64), a requirement that prejudice be shown is appro-

priate in ineffective assistance of counsel] cases because

4In our brief in United States vy. Cronic (U.S. Br. 25-30, 33-34),

we discuss in some detail the historical evolution of the judicially

fashioned right to “effective” assistance of counsel, beginning with

Powell v. Alabama, 287 U.S. 45 (1932), and explain why claims of a

Sixth Amendment violation based on assertedly incompetent assist-

ance of counsel must be comparable in their level of severity to an

actual] denial of counsel. We also explain in that brief (U.S. Br. 34)

why this Court’s decision in McMann v. Richardson, 397 U.S. 759

(1970), supports this position, and identify (U.S. Br. 16-25) a num-

ber of other considerations that further reinforce this conclusion.

We will not repeat that discussion here.

15

neither the prosecution nor the court is responsible for

the alleged defects in the proceedings. This conclusion

would seem to follow a fortiori from cases such as United

States v. Agurs, 427 U.S. 97, 111 (1976), and United

States v. Valenzuela-Bernal, No. 81-450 (July 2, 1982),

slip op. 7, 10, 14-15; id. at 2, 5 (O’Connor, J., concur-

ring), in each of which the Court considered the preju-

dicial impact on the outcome of the proceedings even

though the government was responsible for the deficiency.

See also United States v. Green, 680 F.2d 183, 188-189

(D.C. Cir. 1982), cert. denied, No. 82-5552 (Feb. 22,

1983); Decoster, 624 F.2d at 214 (plurality opinion).

Where there has been no arguable government misconduct,

setting aside a conviction without a showing of preju-

dicial impact on the outcome of the proceedings there-

fore cannot be justified on the ground that it would de-

ter constitutional violations; to do so would simply bestow

a windfall on a defendant who was not injured by coun-

sel’s conduct.

2. The requirement of a concrete showing of preju-

dice has particular force where, as here, the ineffective

assistance of counsel claim is raised in a collateral at-

tack on the conviction. If counsel fails to take certain

actions at trial, the substantive defects in the proceed-

ings that result from counsel’s failure may be raised on

collateral attack only if the defendant satisfies the “cause”

and “actual prejudice” standards of the line of cases cul-

minating with Engle v. Isaac and United States v. Frady.

If a lesser showing were required for ineffective as-

sistance of counsel claims, the convicted defendant would

be encouraged to raise his substantive claims indirectly

rather than forthrightly, recasting them as attacks on his

attorney’s performance in causing the trial error or al-

lowing it to go uncorrected. See Pet. App. A67-A68; De-

coster, 624 F.2d at 207 (plurality opinion); Cooper v.

Fitzharris, 586 F.2d at 1333; Tague, Federal Habeas

Corpus and Ineffective Representation of Counsel: The

Supreme Court Has Work To Do, 31 Stan. L. Rev. 1, 60-

61 (1978). Such an approach would vitiate the cause-

16

and-prejudice standard. It also would improperly de-

flect the court’s attention from the central question on

collateral review— whether there was fundamenta! un-

fairness to the accused in light of the error that assertedly

occurred at trial °—to a more peripheral concern with the

lawyer’s actions and thought processes in connection

with that error and, all too frequently, a separate trial of

the attorney’s performance.*

It is also significant in this case that there is no con-

stitutional requirement that the State furnish an oppor-

tunity to present new evidence on the question of guilt

or sentence for a defendant whose judgment of conviction

has become final. As a result, a state prisoner cannot

obtain federal habeas corpus relief on the basis of newly

discovered evidence unless that evidence bears upon the

constitutionality of his detention. Townsend v. Sain, 372

U.S. 293, 317 (1963).* Requiring a state prisoner to

show substantial prejudice in order to obtain habeas

corpus relief on the basis of such evidence when its ab-

sence at trie) is attributed to errors by counsel serves

6 Engle Vv. Isaac, 456 U.S. at 184; Wainwright v. Sykes, 433 U.S.

at 90-91. Cf. Cuyler v. Sullivan, 446 U.S. at 343, 348.

* Similar considerations arise on direct appeal in the federal

system. If the particular issue was not raised in the trial ocurt,

the conviction may be set aside on appeal only upon a finding of

plain error affecting substantial rights. Fed. R. Crim. P. 52(b).

This remedy is available only in exceptional circumstances, in order

to avoid a miscarriage of justice. United States v. Frady, 456 U.S.

at 163 & nn.13 & 14; United States v. Atkinson, 297 U.S. 157, 160

(1936). In those few cases in which a claim of ineffective assistance

of counsel might be considered on direct appeal because the claim

does not turn on matters outside the record, to dispense with the

prejudice element would mean that the strict standard used to re-

view issues raised for the first time on direct appeal could be cir-

cumvented by couching the issue as an ineffective assistance of

counsel claim. See Cooper v. Fitzharris, 586 F.2d at 1333.

7 Collateral relief likewise is not available under 28 U.S.C. 2255

on the basis of newly discovered evidence; such a claim must

brought within two years under Fed. R. Crim. P. 33. See 8A

Moore, Moore's Federal Practice § 33.02(3)[a), at 33-12 to 33-

2d ed. 1982).

be

J.

13

~

17

to ensure that nonconstitutional newly discovered evi-

dence claims are not too readily transformed into Sixth

Amendment ineffective assistance of counsel claims in

order to obtain collateral relief. See, e.g., Baumann V.

United States, 692 F.2d 565, 578-581 (9th Cir. 1982).

Quite aside from this potential for circumvention, there

is no basis in law or logic for dilution of the “actual

prejudice” requirement where the defendant attacks his

lawyer’s performance. The governmental interest in en-

forcing procedural rules to maintain the finality of a

judgment of conviction is as weighty when defense coun-

sel could be regarded as blameworthy for not complying

with those rules as it is when counsel could not be faulted

by his client or a neutral observer (because, for example,

he made a reasonable tactical choice). Cf. Agurs, 427 U.S.

at 110; Smith v. Phillips, 455 U.S. 209, 219 (1982). In-

deed, it is self-evident that the efficacy of contemporaneous

objection rules and like principles governing the con-

duct of criminal prosecutions depends on the premise that

a party to litigation and his attorney are to be regarded

as one, and the “actual prejudice’ requirement clearly

applies where the failure to raise an issue at trial is

attributable to counsel. See, e.g., Engle v. Isaac and

United States v. Frady, supra. While a claim of attorney

incompetence, if substantiated, arguably might satisfy

(or excuse) the requirement of showing “cause” for

the procedural default (see, e.g., Pickens v. Lockhart,

No. 82-1836 (8th Cir. Aug. 12, 1983) (slip op. 23)), it is

utterly illogical to permit it to have any bearing on the

“actual prejudice” component of the test.

This case implicates a principle of both criminal and

civil litigation that is even more fundamental than

contemporaneous objection and like procedural rules:

that all relevant evidence should be presented by the

parties at the trial itself, and that a judgment entered at

the close of the evidence therefore should not lightly be

disturbed simply because additional evidence has become

available to one of the parties. This principle likewise

18

does not lose its force whenever the party seeking re-

lief from the judgment chooses to blame his attorney for

the failure to produce the evidence at the time of

trial. Accordingly, a valid judgment should not be set

aside in such circumstances absent a showing of substan-

tial unfairness or prejudice to the accused that outweighs

the interest in finality.

B. Relief Cannot Be Granted Unless The Court Finds

That Counsel’s Failure To Investigate Certain Mat-

ters And Produce Evidence At Trial Probably

Affected The Outcome Of The Proceedings

1. We have argued above (see pages 15-16, supra) and

in our brief in United States v. Cronic (U.S. Br. 18, 22,

32, 34, 46-47) that a court considering an ineffective as-

sistance of counsel claim should focus on the nature of

the particular defect in the proceedings that is said to

have resulted from counsel’s assertedly inadequate per-

formance. This is so because the ultimate inquiry must

be into whether the accused received a fair trial in light

of any errors that were caused or uncorrected by counsel,

not the performance of the Jawyer in its own right. Ac-

cordingly, the showing of prejudice that must be made in

any given case should be determined, at least in the first

instance, by reference to the showing of prejudice that

would be required to obtain relief from the particular

substantive defect in the proceedings that is alleged to

have resulted from counsel’s actions.

In this case, the trial defect alleged by respondent is

that additional evidence should have been presented on a

particular issue—the possible mitigation of sentence.

American courts long have agreed upon a set of prin-

ciples to be applied in determining whether a valid

judgment should be set aside when one of the parties

proffers new evidence relevant to an issue in the original

proceedings. Those principles embody a virtually unan-

imous consensus regarding the appropriate balance to

be struck between enforcing the fundamental principle

19

that the trial itself is the “decisive and portentous event” *

at which the parties are to present all relevant evidence on

the issues in the suit, and yet providing a safety valve to

prevent an obvious injustice when new evidence has come

to light after judgment has been entered.” We submit that

this deeply entrenched consensus also is the proper source

of guidance in fashioning the standard of prejudice here.

The essential elements for obtaining a new trial on

the basis of newly discovered evidence are: (1) the evi-

dence is in fact newly discovered and was unknown to

the defendant at the time of trial; (2) failure to learn

of the evidence at the time of trial was not the result of

a lack of due diligence; (3) the evidence is materia! to

the issues at trial, and is not merely cumulative or im-

peaching; and (4) the evidence probably would produce

an acquittal in the event of a retrial. These requirements

are uniformly followed by the federal courts of appeals

with respect to new trial motions under Fed. R. Crim. P.

33° and are generally applied by state courts, includ-

5 Wainwright v. Sykes, 483 U.S. at 90.

® United States v. Johnson, 327 U.S. 106, 112 (1946) ; see also 1 D.

Graham & T. Waterman, A Treatise on the Law of New Trials 4-9

(2d ed. 1855) ; id., Vol. 3, at 805, 1016, 1020-1021, 1026-1027, 1043-

1044, 1085-1086; 8A Moore's Federal Practice, supra, © 33.08[1], at

83.17; 3C. Wright, Federal Practice and Procedure § 557, at 315 (2d

ed. 1982).

10 United States v. Mangieri, 694 F.2d 1270, 1285 (D.C. Cir.

1982); United States v. Martorano, 668 F.2d 1113, 1119 (1st Cir.

1981), cert. denied sub nom, Goldenberg v. United States, No. 81-

1389 (Feb. 28, 1988) ; United States v. Alessi, 688 F.2d 466, 479 (2d

Cir. 1980); United States v. Herman, 614 F.2d 369, 371 (8d Cir.

1980); Mille v. United States, 281 F.2d 736, 738 (4th Cir. 1960) ;

United States Vv. Burns, 668 F.2d 855, 8569 (5th Cir. 1982); United

States v. Barlow, 693 F.2d 954, 966 (6th Cir. 1982) ; United States v.

Oliver, 683 F.2d 224, 228 (7th Cir. 1982); United States v. Swarek,

677 F.2d 41, 43 (8th Cir. 1982), cert. denied, No. 82-175 (Jan. 10,

1983); United States v. Diggs, 649 F.2d 731, 739 (9th Cir.), cert.

denied, 454 U.S. 970 (1981); United States v. Cotner, 657 F.2d

1171, 1178 (10th Cir. 1981).

20

ing those of Florida." 8A J. Moore, Moore’s Federal

Practice {| 33.03[1], at 33-18 to 33-19 (2d ed. 1982); 3

C. Wright, Federal Practice and Procedure § 557, at 315,

317-328 (2d ed. 1982); 58 Am. Jur. 2d New Trial §§ 166-

173 (1971). See Agurs, 427 U.S. at 111 & n.19; Mesarosh

v. United States, 352 U.S. 1, 9 (1956); United States v.

Johnson, 327 U.S. at 110 n.4."° The elements of the test

for obtaining a new trial on the basis of newly discovered

evidence often are traced to the opinion of the Supreme

Court of Georgia more than a century ago in Berry Vv.

State, 10 Ga. 511 (1851)."" But in fact even in 1855 a

leading treatise observed that these elements, “founded

on solid reasons of utility as well as justice,” were “so

clear and well settled, that courts scarcely ever need to

doubt or hesitate as to their application.” 3 D. Graham

& T. Waterman, supra, at 1021.

It is the fourth element of the newly discovered evi-

dence test set forth above—that the evidence probably

would produce an acquittal in the event of a retrial—that

" Fla. R. Crim. P. 3.600(a) (3) provides that a new trial may be

granted if “new and material evidence, that if introduced at the trial

would probably have changed the verdict or finding of the court,

and that the defendant could not with reasonable diligence have

discovered and produced upon the trial, has been discovered.” See

also Thomas Vv. State, 374 So.2d 508, 515 (Fla. 1979), cert. denied,

445 U.S. 972 (1980).

12 Strict time restrictions also typically are imposed on such mo-

tions. See, e.g., Fed. R. Crim. P. 33 (2 years). Under Fla. R. Crim.

P. 3.600, a motion for a new trial on the basis of newly discovered

evidence must be made within 10 days after the verdict or finding

of the court. Fla. R. Crim. P. 3.590(c). After that period has

elapsed, the only available judicial remedy is a writ of error coram

nobis, under which the defendant must conclusively establish that

the newly discovered evidence would have changed the result. See,

e.g., Smith v. State, 400 So.2d 956 (Fla. 1981); Hallman v. State,

871 So.2d 482 (Fla. 1979). See also United States v. Johnson, 327

U.S. at 112 (referring to the 60-day period then allowed in federal

cases as an “extraordinary” length of time).

48 See United States v. Johnson, 327 U.S. at 110 n.4; 8A Moore's

Federal Practice, supra, { 33.08(1), at 33-18 n.4; 3 C. Wright, supra,

{ 567, at 316-816.

21

in our view defines the showing of prejudice required in

an ineffective assistance of counsel case based on coun-

sel’s alleged failure to investigate and produce evidence.

This requirement is essentially the equivalent of the

standard announced by the District of Columbia Circuit

in Decoster—-another case involving an alleged failure

to investigate—that the defendant must demonstrate “a

likelihood that counsel’s inadequacy affected the outcome

of the trial” (624 F.2d at 208 ( plurality opinion) ).

New trial rules, like other procedural rules governing

the conduct of criminal prosecutions, . historically have

regarded the accused and his attorney as one. Consistent

with this principle, relief has been denied if the attorney

knew of the evidence at the time of trial but the accused

did not, or if the attorney could be charged with a lack of

due diligence in failing to discover or produce the evi-

dence at the time of trial. Under Sixth Amendment

doctrine, however, there now may be “exceptional” cir-

cumstances * in which actions by counsel so depart from

the range of competence and standards of fairness that

define the scope of the agency relationship established by

law between the defendant and his attorney in a criminal

case that the defendant should not be bound by his

attorney’s defaults. Accordingly, where an attorney’s per-

formance in investigation and use of evidence falls meas-

urably below the range of competence demanded of

defense counsel, it may be appropriate to dispense with

the usual rule in this area that the client is bound by

his attorney’s lack of due diligence or knowledge of facts

See 1 D. Graham & T. Waterman, supra, at 192-193; id., Vol. 3,

at 1025-1026, 1029-1030, 1085, 1105-1106; 3 C. Wright, supra, § 557,

at 317, 8327-329; United States v. Provenzano, 620 F.2d 985, 997 (3d

Cir.), cert. denied, 449 U.S. 899 (1980); United States v. Eldred,

588 F.2d 746, 753 (9th Cir. 1978) ; United States v. Atkins, 545 F.2d

1153, 1154 (8th Cir. 1976) ; United States v. Jannelli, 528 F.2d 1290,

1292-1293 (3d Cir. 1976) ; United States v. Bujese, 371 F.2d 120, 125

(3d Cir. 1967).

“ See Wainwright v. Sykes, 433 U.S. at 91 n.14, quoting Henry v.

Mississippi, 379 U.S. 448, 461 (1965).

22

that were not produced at trial. The effect of doing so

would simply be to excuse the defendant from satisfying

those elements of the newly discovered evidence test that

are intended to ensure that the party seeking relief is not

himself at fault for failing to produce the evidence at

trial.

It is clear, however, that excusing the defendant who

raises an ineffective assistance of counsel claim from

satisfying the due diligence element of the newly dis-

covered evidence test—on the ground that the client

should not be charged with his attorney’s serious de-

faults—furnishes no basis for also dispensing with the

distinct requirement that the defendant show that the

additional evidence he proffers after judgment probably

would produce a different result on retrial. This element

is not concerned with the relative fault of the parties.

It protects the core interests in repose and finality by

assuring that a valid judgment of conviction will not

lightly be set aside simply because additional evidence

has become available, irrespective of the fault of the

party seeking relief. Cf. Agurs, 427 U.S. at 110.

To be sure, the Agurs Court declined to adopt the

newly discovered evidence standard in determining when

evidence in the possession of the prosecutor was suffi-

ciently material that the Due Process Clause required its

disclosure to the defense. But the Court’s rationale was

that “the fact that such evidence was available to the

prosecutor and not submitted to the defense places it in

a different category than if it had simply been discovered

from a neutral source after trial.” 427 U.S. at 111.

That rationale has no application here, because there is

no suggestion that the prosecution was responsible in any

way for the unavailability of the evidence. Indeed, re-

spondent does not even rest his claim for relief on the

availability of new evidence from a “neutral source.” A

necessary element of his ineffective assistance of counsel

claim is that the evidence was available or should have

been available to his attorney, a participant in the defense.

23

A fortiori, the logic of Agurs does not support a departure

from the newly discovered evidence test here.

2. The court of appeals in this case specifically de

clined to follow Decoster and to formulate the prejudice

element in terms of whether counsel’s failure to produce

evidence had a likely effect on the outcome, because it

believed that such a formulation would require respond-

ent to carry a greater burden than that imposed under

the “actual prejudice” standard for raising claims on

collateral attack. Drawing on language from United

States v. Frady (456 U.S. at 170), the court instead

stated that respondent must show that counsel’s perform-

ance resulted in “actual and substantial disadvantage to

the course of his defense.” Pet. App. A75. If this burden

were met, the State then could show that any error

that occurred was harmless beyond a reasonable doubt.

Id, at A76. The court’s reasoning was seriously flawed.

Contrary to the court of appeals’ belief, the phrase

“actual and substantial disadvantage,” which the court

drew from Frady, itself indicates that the inquiry can-

not be divorced from the fundamental fairness of the

proceedings or the accuracy of the judgment. See, ¢..,

Pickens v. Lockhart, supra, slip op. 22, 28-25. Indeed,

the Court in Frady twice stressed that there was no

“substantial likelihood” that the jury would have reached

a different result if it had not been given the instruc-

tion about which Frady belatedly complained. 456 U.S.

at 172, 174. Similarly, in Wainwright v. Sykes, upon

which the court of appeals also relied in rejecting the

Decoster approach (see Pet. App. A71), the Court con-

sidered the “actual prejudice’ element in terms of

whether admission of the inculpatory statement at issue

had a likely effect on the jury’s verdict. 483 U.S. at

91. The Court also has made clear that the nature of

In United States v, Valenzuela-Bernal, also relied upon by

the court of appeals (see Pet. App. A69, A73-A74), the Court again

stressed the importance of finding a “reasonable likelihood” that the

evidence could have affected the outcome. Slip op. 16; see also id. at

9, 16 n.10,

24

the showing of “actual prejudice’ may vary depending

on the underlying substantive claim. Engle v. Isaac, 456

U.S. at 129; United States v. Frady, 456 U.S. at 168.

Here, the underlying claim is essentially equivalent to

one of newly discovered evidence. Accordingly, it is en-

tirely appropriate and consistent with this Court’s deci-

sions to apply the newly discovered evidence requirement

of a probable effect on the outcome.

The court of appeals believed, however, that it would

be unfair to require the defendant to bear the burden

of showing a probable effect on the outcome, because he

is in no better position than the prosecution to demon-

strate whether the new evidence would be likely to alter

the outcome. See Pet. App. A72. The court lost sight

of the fact that it is the defendant who is seeking to

have a valid judgment set aside because of the avail-

ability of new evidence he asserts should have been pre-

sented on his behalf at trial. There is nothing unfair

in requiring him to demonstrate that there are suffi-

cient grounds for doing so, by showing that the new

evidence casts substantial doubt on the validity of the

findings underlying that judgment; as we have explained,

defendants routinely must carry this burden in newly

discovered evidence cases. Conversely, because neither

the prosecution nor the court is responsible for the al-

leged errors by defense counsel, it would be unfair to

require, as the court of appeals has done, that the gov-

ernment bear the burden on the question of a possible

effect on the outcome by demonstrating that counsel’s

errors were harmless beyond a reasonable doubt.

The only conceivable reason for not requiring a show-

ing of probable effect on the outcome in this case—a

reason eschewed by the court of appeals (Pet. App. A21

n.12)—would be that the evidence at issue here is rele-

vant to the imposition of a sentence of death. This Court

has stressed that the sentencing court must be free to

consider a]! matters bearing on the defendant's character

and record in such a case. Lockett v. Ohio, supra. But

even if this unique and peculiarly sensitive factor places

25

the evidence at issue in this case in a special category for

which the traditional newly discovered evidence standard

is inappropriate, as in Agurs, the standard of prejudice

nevertheless must be tailored to the interest in the justice

and accuracy of the findings underlying the judgment

that respondent seeks to have set aside. Agurs, 427 U.S.

at 112, If the Agurs test were to be applied for this rea-

son, the relevant inquiry would be whether the additional

evidence creates a reasonable doubt about the validity of

the judgment that otherwise would not exist. Jd. at 113.

It is clear that respondent is not entitled to relief even

under this relaxed standard.

As the state trial court found on collateral review (Pet.

App. A231), this was not a close case in which the bal-

ance might have been tipped in respondent’s favor by

additional evidence of nonstatutory mitigating circum-

stances, which are of secondary significance under Florida

law (see page 10, supra) and which already were ad-

dressed to some extent in the plea colloquy and argument

of counsel. The multiple aggravating factors in this case

were “simply overwhelming” (Pet. App. A216), and, on

collateral attack, the state courts and federal district

court found no evidence of any statutory mitigating

factors in connection with any of the murders (id, at

A217-A218, A248-A250, A256, A286). The Florida trial

court, on collateral review, explicity found “beyond any

doubt” that “there is not even the remotest chance that

the outcome would have been any different” if Tunkey

had done the things respondent suggests (id. at A230),

because “as a matter of law” the nonstatutory factors in

mitigation would “be insufficient to outweigh the multiple

aggravating circumstances” (id, at A281). The Florida

Supreme Court, which reviews every death sentence to

assure that the State’s capital punishment statute is con-

sistently applied, found “to the point of moral certainty”

that respondent was not entitled to relief (id. at A250).

Cf. Barclay v. Florida, No, 81-6908 (July 6, 1983), slip

op. 17-18 (opinion of Rehnquist, J.).

26

These concurrent findings by the state courts, based on

the application of state law, must be respected by the

federal courts. And indeed the federal district court

too found no “likelihood” or “significant possibility” that

the balancing of aggravating and mitigating circum-

stances would have been altered if counsel had performed

differently (Pet. App. A286). The judgment of the dis-

trict court denying habeas corpus relief because of the

absence of a showing of prejudice therefore should be

reinstated.

IL THE DISTINCT QUESTION OF WHETHER THE

ATTORNEY’S PERFORMANCE FELL MEASUR-

ABLY BELOW THE RANGE OF COMPETENCE

DEMANDED OF DEFENSE COUNSEL SHOULD

BE JUDGED, AS A THRESHOLD MATTER, BY AN

OBJECTIVE STANDARD

Neither court below resolved the application to this

case of the second necessary element of an ineffective

assistance of counsel claim: whether the attorney’s per-

formance fell measurably below the range of competence

demanded of defense counsel. Nor need this Court reach

that issue, because, as we show in Point I, relief must be

denied here in any event because respondent has failed to

make the requisite showing of prejudice. We therefore

shall make only a few brief observations regarding the

second element. |

In McMann v. Richardson, 397 U.S. 759 (1970), the

Court did not attempt to give precise content to the

proposition that relief may be granted in certain in-

stances in which counsel’s performance was not “within

the range of competence demanded of attorneys in crim-

inal cases.” Jd. at 771.7. The Court instead concluded

17 We also note that in McMann the issue on which counsel's ad-

vice was relevant in connection with the guilty plea—the possible

use at trial of an allegedly coerced confession—itself implicated the

fairness of the trial and the integrity of the truth-finding process.

Jackson V. Denno, 378 U.S. 368 (1964). It does not follow from

27

that the matter for the most part “should be left to the

good sense and discretion of the trial courts” (ibid.). In

one respect, we believe this observation remains true: in

a close case, judgment and discretion must play a role in

the ultimate determination whether the defendant re-

ceived a fair trial and reliable verdict in light of coun-

sel’s alleged shortcomings. But the close case is not the

typical case. With increasing frequency, defendants at-

tack their convictions by attacking their attorneys, often

prompting a wide-ranging inquiry into counsel’s litigat-

ing judgments long after memories have faded. Compare

Harlow v. Fitzgerald, No. 80-945 (June 24, 1982). We

have serious reservations about the wisdom of an ap-

proach that would require such an inquiry without com-

pelling reasons.

Unduly intrusive, post-hoc scrutiny of the lawyer’s

strategy may require an unseemly probing of attorney-

client communications and the attorney’s thought proc-

esses, thereby dampening the ardor of defense counsel,

undermining the sense of mutual trust in criminal cases

generally, and perhaps discouraging lawyers from ac-

cepting appointments in criminal cases. Cf. Hickman v.

Taylor, 329 U.S. 495, 510-511 (1947); FTC v. Grolier,

Inc., No, 82-372 (June 6, 1983). A hearing such as that

McMann that a conviction should be set aside if the assertedly in-

competent advice of counsel in connection with a guilty plea con-

cerned matters that do not raise those concerns, such as the ad-

missibility of evidence allegedly seized in violation of the Fourth

Amendment. Cf. Stone v. Powell, 428 U.S. 465 (1976). For the

same reason, it would seem that the principles of Stone v. Powell

may not be circumvented by asserting on collateral attack that the

use at trial of evidence seized in violation of the Fourth Amend-

ment resulted from counsel's incompetence. There may well be ad-

ditional situations in which countervailing interests in finality,

enforcing state procedural rules, or other factors foreclose relief

even if the defendant shows that counsel's actions were outside

the range of competence demanded of defense counsel and that he

suffered prejudice as a result. See Bines, Remedying Ineffective

Representation in Criminal Cases: Departures from Habeas Corpus,

59 Va. L. Rev. 927, 969-970 (1978); cf. Estelle v. Williams, 425

U.S. 601, 512-618 (1976) ; id. at 614-515 (Powell, J., concurring).

28

held in district court in this case also places the attorney

in the awkward position of defending himself while not

wishing to harm his former client, and it places the

prosecutor in the awkward position of defending the liti-

gation judgments of his former adversary.

In many instances, this sensitive and awkward in-

quiry into counsel’s litigation strategy can be preter-

mitted because application of the proper test of prejudice

will make clear that relief cannot be granted whether or

not the attorney acted with reasonable competence. Even

where that is not so, however, the court should not

embark upon a probing inquiry into the attorney’s mo-

tives and strategy unless it is first shown that the

attorney’s performance fell outside an objectively dis-

cernible range of competence. For example, where the

defendant asserts that his attorney committed a legal

error at trial, such as failing to object to jury instruc-

tions, the defendant first should be required to show that

the right involved was clearly established under con-

trolling statutory or case law at the time of coun-

sel’s actions (Harlow vy. Fitzgerald, supra, slip op. 14-

18) and was of substantial importance to the case. Com-

pare Engle v. Isaac, 456 U.S. at 130-134; Jones v. Jago,

701 F.2d 45, 47 (6th Cir. 1983). A number of con-

siderations in addition to avoiding unnecessary inquiry

into counsel’s litigating strategy support this requirement.

First, if the right involved did not clearly govern the

conduct of criminal prosecutions at the time the defendant

was tried, counsel’s failure to assert that right does not in

itself render the trial fundamentally unfair. Cf. Engle v.

Isaac, 456 U.S. at 131. This conclusion is consistent with

the central role of counsel in criminal cases of enabling

the accused to meet the prosecution’s case within the

18 Even then, it often may be unnecessary to require testimony

by counsel regarding his actual reasons for pursuing a particular

course if a plausible tactical basis reasonably may be ascribed to

his actions. Cf. Estelle v. Williams, supra, 425 U.S. at 508; Wain-

wright v. Sykes, supra, 483 U.S. at 96-97 (Stevens, J., concurring).

29

framework of existing procedures that ordinarily are

too complex for an untrained layman to grasp. United

States v. Ash, 413 U.S. 300, 309 (1973); Powell v.

Alabama, supra, 287 U.S. at 60.

Second, given the subtleties of the art of advocacy, the

uncertainties in the future course of the law ‘see Harlow

v. Fitzgerald, supra, slip op. 17-18; McMann v. Richard-

son, supra, 397 U.S. at 771), and the inherent subjec-

tivity of reviewing a lawyer’s tactical judgments, an ob-

jective benchmark of attorney competence presents the

most promising way of assuring some consistency and

ease of application of the governing rules. Third, de-

fining the range of competence in this manner as a

threshold matter would allow sufficient latitude for coun-

sel to exercise the independent judgment and freedom

of action that the Constitution requires. Polk County v.

Dodson, 454 U.S. 312, 318-319, 321-322 (1981). It also

would best effectuate the “presumption that [counsel]

was conscious of his duties to his clients and that he

sought conscientiously to discharge those duties” (Mat-

thews v. United States, 518 F.2d 1245, 1246 (7th Cir.

1975) (Stevens, J.) )}.

Similar considerations apply where, as here, counsel’s

alleged errors relate to a failure to investigate and

produce evidence, rather than to the handling of legal

issues. Accordingly, the defendant should be required to

show at the outset that the course he suggests counsel

should have followed was equivalent, in its degree of

obviousness and likelihood of proving fruitful, to the

vindication of a clearly settled lega! right that is of sub-

stantial importance to the defense of the case. The cir-

cumstances present in this case at the time of sentencing,

objectively viewed, plainly disclosed no such obvious and

substantial likelihood that material evidence would have

been developed by the sort of investigation respondent

now contends his lawyer should have undertaken. At

least in the typical crimina! case, the absence of such a

lielihood should be a sufficient basis on which to reject

30

a claim that counsel’s performance infected the trial with

error of constitutional dimension, without the need for

the sort of inquiry into counsel’s actual litigation de-

cisions apparently contemplated by the court of appeals’

remand order. There is no need to consider whether the

capital aspect of this case would suggest a different

analysis, because it is in any event clear that respondent

is not entitled to relief because of his failure to satisfy

the independent prejudice prong of the ineffective as-

sistance of counsel test.

CONCLUSION

The judgment of the court of appeals should be va-

cated and the case remanded to the court of appeals with

directions to affirm the judgment of the district court.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

Y EDWIN S. KNEEDLER

Assistant to the Solicitor General

AUGUST 1983

W os. &. coveemment painting orice, 1983 414154 «670