Amicus Curiae Brief — Bell v. Cone

— | JAN 29 200?

No. 01-400 :

———

In the Supreme Court of the United States

RICKY BELL, WARDEN, PETITIONER

v.

GARY BRADFORD CONE

ON WRIT OF CERTIORARI

TO THE UNTIED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CAPITAL CASE

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel of Record

MICHAEL CHERTOFF

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

LISA SCHIAVO BLATT

Assistant to the Solicitor

General

STEVEN L. LANE

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

~~

QUESTION PRESENTED

The United States will address the following

question:

Whether respondent’s claim that counsel rendered

ineffective assistance at a capital sentencing hearing by

failing to present mitigating evidence and a closing

argument is analyzed under Strickland v. Washington,

466 U.S. 668 (1984), or is subject to a presumption of

prejudice under United States v. Cronic, 466 U.S. 648

(1984).

(I)

TABLE OF CONTENTS

Interest of the United States mutities

EE LSS I ETE

SII scsi scsecrnsnnenseepsnstennesnsnescnnsssenaseensasecnssnsnanase

Argument:

Counsel’s performance does not violate the Sixth

Amendment absent a showing of prejudice under

A. Strickland v. Washington governs all claims

of ineffective assistance of counsel based on

attorney error

B. Respondent’s claim that his counsel was in-

effective at sentencing in failing to present

mitigating evidence and to make a closing

argument is subject to the prejudice prong of

Strickland v. Washington ..........0ccserererernereenernennees

C. The court of appeals erred in presuming

prejudice under United States v. Cronic

because counsel did not entirely fail to present a

defense

Conclusion

TABLE OF AUTHORITIES

Cases:

Anders v. California, 386 U.S. 788 (1967) ...........cccse000e

Brecht v. Abrahamson, 507 U.S. 619 (1993)

Brooks v. Tennessee, 406 U.S. 605 (1972)

Burdine v. Johnson, 262 F.3d 336 (5th Cir.),

petition for cert. pending, No. 01-495

Burger v. Kemp, 483 U.S. 776 (1987)

Chapman v. California, 386 U.S. 18 (1967)

(III)

10

10

16

& 8

IV

Cases—Continued:

Cuyler v. Sullivan, 446 U.S. 335 (1980)

Darden v. Wainwright, 477 U.S. 168 (1986)

Davis v. Alaska, 415 U.S. 308 (1974) ..

Dawson v. State, 10 P.3d 49 (Mont. 2000), cert.

denied, 121 S. Ct. 1372 (2001)

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ............+-

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

Ferguson v. Georgia, 365 U.S. 570 (1961)

Flamer v. Delaware, 68 F.3d 710 (3d Cir. 1995),

cert. denied, 516 U.S. 1088 (1996)

Fox v. Ward, 200 F.3d 1286 (10th Cir.), cert.

denied, 531 U.S. 938 (2000)

Geders v. United States, 425 U.S. 80 (1976)

Gideon v. Wainwright, 372 U.S. 335 (1963)

Glover v. United States, 531 U.S. 198 (2001)

Godinez v. Moran, 509 U.S. 389 (1993)

Green v. Arn, 809 F.2d 1257 (6th Cir.), vacated on

other grounds, 484 U.S. 806 (1987)

Hamilton v. Alabama, 368 U.S. 52 (1961)

Harding v. Davis, 878 F.2d 1341 (11th Cir. 1989) ..........

Herring v. New York, 422 U.S. 853 (1975)

Hill v. Lockhart, 474 U.S. 52 (1985)

Javor v. United States, 724 F 2d 831 (9th Cir.

1984)

Johnson v. Zerbst, 304 U.S. 458 (1938)

Kimmelman v. Morrison, 477 U.S. 365 (1986) ...........-.0-+-

Lawhorn v. State, 756 So. 2d 971 (Ala. Crim. App.

1999), cert. denied, 531 U.S. 835 (2000)

Lockhart v. Fretwell, 506 U.S. 364 (1993)

Lowe v. State, 779 S.W 2d 334 (Mo. Ct. App. 1989) .........

Martin v. Rose, 744 F.2d 1245 (6th Cir. 1984) ........oc00

Medina v. State, 626 S.W.2d 83 (Tex. Ct. App.

1981)

Melvin v. Laird, 365 F. Supp. 511 (E.D.N.Y.

1973)

State v. Burke, 653 N.E.2d 242 (Ohio 1995),

cert. denied, 517 U.S. 1112 (1996)

V

Cases—Continued: Page

Moore v. Reynolds, 153 F.3d 1086 (10th Cir. 1998),

cert. denied, 526 U.S. 1025 (1999) 0.0.0.0... 17, 18

Neder v. United States, 527 U.S. 1 (1999) 24

Nix v. Whiteside, 475 U.S. 157 (1986) 11

Nutall v. Greer, 764 F.2d 462 (7th Cir. 1985) ...........-.c000+. 18, 21

People v. Conley, 454 N.E.2d 1107 (Ill. App. Ct.

SRE cxcescaseenstctensnciinitionnasintigecrennas 7 18

People v. Espinoza, 99 Cal. App.3d 44 (Cal. Ct.

App. 1979) 18

People v. Gaines, 375 P.2d 296 (Cal. 1962), cert.

denied, 373 U.S. 928 (1963) ... 17,18

People v. Goodwin, 322 N.E.2d 569 (Ill. App. Ct.

1975) 18

People v. Miller, 413 N.E.2d 143 (Ill. App. Ct.

1980) 18

Pickens v. Gibson, 206 F 3d 988 (10th Cir. 2000) ............. 17, 18

Powell v. Alabama, 287 U.S. 45 (1932) 13

Ransonette v. State, 550 S.W.2d 36 (Tex. Crim.

App. 1976) 18

Roe v. Flores-Ortega, 528 U.S. 470 (2000) 12, 15

Rogers v. Clark, 478 U.S. 570 (1986) 24

Salinas v. State, 773 S.W.2d 779 (Tex. Ct. App.

ED entetcnsnsertiseeteanmenencscces 18

Scarpa v. DuBois, 38 F.3d 1 (1st Cir. 1994),

cert. denied, 513 U.S. 1129 (1995) 19, 23

Schiro v. Farley, 510 U.S. 222 (1994) 24

Shockley v. State, 565 A.2d 1373 (Del. 1989) 18

Siverson v. O'Leary, 764 F 2d 1208 (7th Cir.

1985) 22

Smith v. Murray, 477 U.S. 527 (1986) 12

Smith v. Robbins, 528 U.S. 259 (2000) 8, 12, 13, 15

Sparks v. State, 499 N.E.2d 738 (Ind. 1986) 18

State v. Bojorquez, 675 P.2d 1314 (Ariz. 1984) ................. 18

17

VI

Cases—Continued: Page

State v. Chee, 680 P.2d 1232 (Ariz. Ct. App. 1984) .......... 18

State v. Johnson, 551 So. 2d 14 (La. Ct. App. 1989),

writ denied, 556 So. 2d 56 (La. 1990) 18

State v. Keith, 684 N.E.2d 47 (Ohio 1997), cert.

denied, 523 U.S. 1063 (1998) ... »-

State v. Menn, 668 S.W.2d 671 (Tenn. Crim. App.

1984) _ 18

State v. Robb, 723 N.E.2d 1019 (Ohio 2000) 17

Strickland v. Washington, 466 U.S. 668 (19864) ............ passim

Teague v. Lane, 489 U.S. 288 (1989) 24

Tippins v. Walker, 77 F.3d 682 (2d Cir. 1996) ...........-.0-0«: 22

Tucker v. Day, 969 F.2d 155 (5th Cir. 1992) 21

United States v. Cronic, 466 U.S. 648 (1984) ................ passim

United States v. Mechanik, 475 U.S. 66 (1986) ............0-+- 23

United States v. Morrison, 449 U.S. 361 (1981) ......... 9, 10, 11

United States v. Natanel, 938 F.2d 302 (1st Cir.

1991), cert. denied, 502 U.S. 1079 (1992) 17

United States ex rel. Spears v. Johnson, 463 F.2d

1024 (3d Cir. 1972) 17-18

United States ex rel. Taylor v. Barnett, 109

F. Supp. 2d 911 (N.D. Ill. 2000) 18

United States ex rel. Turner v. Cuyler, 443 F. Supp.

263 (E.D. Pa. 1977), aff'd, 595 F.2d 1215 (3d Cir.

1979) 18

White v. Maryland, 373 U.S. 59 (1963) 13

Williams v. Taylor, 529 U.S. 362 (2000) ......... 8-9, 12, 15,

16, 17, 26

Constitution and statutes:

US. Const.:

Amend. IV 11

Amend. VI 1, 8, 9, 10, 11, 12, 25

28 U.S.C. 2254 (1994 & Supp. V 1999) 1,6

28 U.S.C. 2254(d)\(1) 26

28 U.S.C. 2255 (1994 & Supp. V 1999) 2

Tenn. Code Ann. § 39-2-203(e) (1982) 3

In the Supreme Court of the Gnited States

No. 01-400

RICKY BELL, WARDEN , PETITIONER

Vv.

GARY BRADFORD CONE

ON WRIT OF CERTIORARI

TO THE UNTIED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CAPITAL CASE

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether defense

counsel’s failure at a capital sentencing hearing to pre-

sent mitigating evidence and a closing argument

constitutes deficient representation that is conclusively

presumed to be prejudicial. The United States has a

substantial interest in the resolution of the question

presented because claims of ineffective assistance of

counsel under the Sixth Amendment are frequently

asserted on collateral review in federal criminal cases.

Although this case involves a state prisoner seeking

relief under 28 U.S.C. 2254, the Court’s decision is also

(1)

2

likely to affect ineffective-assistance-of-counsel claims

brought by federal prisoners under 28 U.S.C. 2255.

STATEMENT

1. On August 9, 1980, respondent embarked on a

violent two-day crime spree when he robbed a jewelry

store in Memphis, Tennessee, of approximately

$112,000 worth of watches, rings, and other items. Pet.

App. 40. After the owner of the store alerted authori-

ties and provided a description of the robber, police

spotted respondent, who led them on a high-speed

chase through mid-town Memphis and into a residential

neighborhood. Jd. at 85. There he abandoned his

vehicle, and shot pursuing police officer B.C. Allen and

a citizen, John Douglas Clark. Respondent also at-

tempted to shoot another citizen, Herschel Dalton, after

Dalton refused to surrender his car. Id. at 40.

On the following morning, respondent appeared at

the door of an apartment in the same neighborhood and

drew a pistol on resident Lucille Tuech when she re-

fused to allow him to enter. Later that day, respondent

broke through the back door of the home of an elderly

couple, Shipley and Cleopatra Todd. Mr. Todd was 93

years old; Mrs. Todd was 79. Respondent killed the

Todds after they refused to cooperate with him. Their

brutally beaten and mutilated bodies were discovered

three days later. Pet. App. 40-41.

2. a. A Tennessee grand jury indicted respondent on

two counts each of first degree murd~~ and murder in

the perpetration of a burglary against Mr. and Mrs.

Todd; three counts of assault with intent to commit

murder in the first degree against Dalton, Allen, and

Clark; and one count of robbery with a deadly weapon

of the jewelry store. In April 1982, respondent was

tried before a jury in the Criminal Court of Shelby

3

County. Pet. App. 41-42. The defense admitted

committing the charged acts but contended that

respondent was insane or lacked the mental capacity for

the offenses because of drug abuse and stress arising

from respondent’s prior military service in Vietnam.

Id. at 86, 103. In support of that theory, defense

counsel presented two medical experts who testified

that respondent suffered from “amphetamine psycho-

sis” and post-traumatic stress syndrome. Trial Tr.

1670-1677, 1722-1762. The jury found respondent guilty

on all counts.

b. During the penalty phase, defense counsel gave

an opening statement in which he told the jurors that

they could consider as mitigating evidence the proof of

respondent’s mental condition that was presented

during the guilt phase, and that the judge would so

instruct them. Pet. App. 114.' Counsel reviewed for

the jury the testimony of the defense’s two medical

experts that respondent suffered from “amphetamine

psychosis” and post-traumatic stress syndrome. Id. at

90, 115. Defense counsel concluded his opening remarks

by arguing that “[t]here is good reason for maintaining

life if you look at the whole man in this particular case”

and by arguing that the jury’s “mercy” would “raise[]

[the jurors] to the level of God.” Jd. at 116, 117.

Defense counsel also elicited, on cross-examination of a

prosecution witness, testimony that respondent had

1 Section 39-2-203(e) of the 1982 Tennessee Code Annotated

provides that the judge shall instruct the jury to consider “any

mitigating circumstances and any statutory aggravating circum-

stances * * * which may be raised by the evidence at either the

guilt or sentencing hearing, or both.” The jury in this case was so

instructed. Trial Tr. 2219. The jury was also instructed that miti-

gating circumstances could include the defendant’s mental condi-

tion at the time of the offenses. Jd. at 2221.

4

received a Bronze Star for his military service in

Vietnam and had been honorably discharged. Trial Tr.

2123-2124. Counsel also interposed several objections

during the prosecution’s direct examinations, id. at

2129, 2130, one of which thwarted the prosecution’s

attempt to show the jury photographs of the murder

victims’ bodies taken several days after death, id. at

2134-2143. After the junior prosecuting attorney made

a brief closing statement, respondent’s counsel waived

final argument. Jd. at 2144-2147. The jury unanimously

found four aggravating factors and no countervailing

mitigating circumstances for each of the murders and

sentenced respondent to death. Jd. at 2223-2226. The

Tennessee Supreme Court affirmed his convictions and

sentence, State v. Cone, 665 S.W.2d 87 (1984) (Pet. App.

84-100), and this Court denied certiorari, 467 U.S. 1210

(1984).?

8. a. On June 22, 1984, respondent filed his first

state court petition for post-conviction relief con-

tending, inter alia, that trial counsel had rendered

constitutionally ineffective assistance during the death

penalty phase of the trial by failing to present

mitigating evidence and by waiving final argument.

The court rejected those contentions after a hearing in

which trial counsel testified. Post-Conviction Hearing

Tr. 91-173. The court found that counsel had “put a

great deal of thought and preparation in this case.” Pet.

App. 29. With respect to mitigating evidence, the court

found that counsel had “interviewed numerous family

2 The Tennessee Supreme Court expressed doubt that the

record supported the jury’s finding of the fourth aggravating

factor that respondent knowingly created a great risk of death to

two or more people other than the murder victims, but the court

held that any error was harmless. Pet. App. 98-99.

5

members and relatives whose testimony was

contradictory and generally not helpful,” and that his

strategy was “to get as much mitigation in during the

guilt/innocence phase as he could.” Jbid. The court also

found that counsel did not present a final argument as

part of counsel’s strategy to prevent the senior

prosecutor from making a “devastating” closing argu-

ment of the type for which he was well known. Ibid.

b. The Tennessee Court of Criminal Appeals

affirmed. Pet. App. 101-111. The court rejected re-

spondent’s claim that counsel was ineffective in failing

to present mitigating evidence during the penalty

phase. Jd. at 108-110. The court explained that two

defense medical experts had testified during the guilt

phase, and that trial counsel was aware that the judge

would instruct the jury during the penalty phase to

consider mitigating evidence presented during the

earlier phase. Jd. at 108. The court further explained

that counsel reasonably declined to present respon-

dent’s relatives and associates as witnesses at sentenc-

ing and that “(tjhere is nothing in the record to show

that the testimony of these witnesses would have

benefited the defense.” Jd. at 109. The court also held

that it was “a legitimate trial tactic” for counsel to

waive closing argument to prevent the prosecution

from making a “very devastating closing argument{ ]”

that “could not be answered by defense counsel.” Jd. at

110. The court concluded that “trial counsel’s work and

diligence could not remove the overwhelming evidence

against [respondent]” and that “the findings of guilt and

the imposition of the death penalty were based upon

the facts and the law—not [on] shortcomings of

counsel.” Jd. at 111.

6

The Tennessee Supreme Court denied respondent’s

permission to appeal, and this Court denied certiorari.

488 U.S. 871 (1988).

4. After respondent’s second. state petition for

collateral relief was rejected as procedurally barred,

respondent filed a petition for federal habeas corpus

relief under 28 U.S.C. 2254 in the United States District

Court for the Western District of Tennessee. In deny-

ing the petition, the district court held that respondent

had failed to show any prejudice from counsel’s failure

to offer mitigating evidence during the penalty phase.

Pet. App. 77-80. The court observed that counsel’s per-

formance did not involve a “total abdication of repre-

sentation,” because “counsel had already introduced

some mitigating evidence, and his rejection of other

evidence was based on specific analysis of the tactical

effect of that evidence.” Jd. at 80.

The district court also found that respondent had not

refuted the state court’s determination that counsel’s

decision to forego closing argument was “a tactical

choice to foreclose rebuttal argument by the prosecu-

tion.” Pet. App. 81. The district court reasoned that

[a] review of the closing remarks by the first prose-

cutor confirm that they were relatively straight-

forward—simply a recitation of the existence of four

aggravating circumstances. There was no dispute

that three of these circumstances definitely existed,

and [respondent] presents no argument that any

statement counsel might have made would have

persuaded the jury to give greater consideration to

the evidence of mitigation introduced during the

guilt phase.

“Ibid. (citation and footnote omitted).

7

5. The Sixth Circuit rejected respondent’s attacks

on his convictions but found merit in his challenge to his

sentence. Pet. App. 1-38. The court of appeals con-

cluded that counsel’s performance at sentencing in

failing to present mitigating evidence and to give a

closing argument was deficient under the performance

prong of Strickland v. Washington, 466 U.S. 668, 687

(1984). Pet. App. 31-36. The court reasoned that coun-

sel “presented no mitigating evidence at all,” id. at 33,

and that “a reasonable attorney would have realized the

absolute necessity of arguing for his client’s life by

making a closing argument.” Jd. at 35. The court fur-

ther stated that the jury “could only have inferred that

[respondent’s] counsel was, by his silence, acquiescing

to the prosecutor’s plea that [respondent] be sentenced

to death.” Jd. at 36.

The court concluded that “a presumption of prejudice

is raised by counsel’s behavior; thus [respondent] need

not show actual prejudice.” Pet. App. 37. The court

observed (Pet. App. 32) that this Court in United States

v. Cronic, 466 U.S. 648, 659 (1984), stated that prejudice

may be presumed where “counsel entirely fails to sub-

ject the prosecution’s case to meaningful adversarial

testing.” The court of appeals held that, “[e]ssentially,

[respondent] did not have counsel during the sentenc-

ing phase of his trial and thus the prosecutor’s insis-

tence that justice required that [respondent] be put to

death was not subjected to ‘meaningful adversarial

testing.” Pet. App. 37 (quoting Cronic, 466 U.S. at

656).

SUMMARY OF ARGUMENT

A. In Strickland v. Washington, 466 U.S. 668

(1984), this Court announced a two-part test to govern

all ineffective assistance of counsel claims alleging

8

attorney error. First, the defendant must show that

“counsel’s representation fell below an objective

standard of reasonableness.” Jd. at 688. Second, the

defendant must show that “the deficient performance

prejudiced the defense.” Jd. at 687.

Only in narrowly defined contexts has this Court not

required a showing of prejudice to establish a Sixth

Amendment violation. This Court has applied a con-

clusive presumption of prejudice when the government

has totally denied counsel to a defendant, or when the

government has interfered with counsel’s ability to

function at a critical stage of a proceeding. Strickland,

466 U.S. at 686, 692; United States v. Cronic, 466 U.S.

648, 659 n.25 (1984). The Court also has applied a

“limited” presumption of prejudice when counsel

labored under a conflict of interest. Strickland, 466 U.S.

at 692 (discussing Cuyler v. Sullivan, 446 U.S. 335

(1980)). Those contexts are fundamentally different

from a claim that counsel rendered ineffective assis-

tance by making specific errors during the presentation

of the case. Such conduct is not directly attributable to

government action. Nor is any deficiency in perfor-

mance readily identifiable without contextual inquiry.

And prejudice from attorney error is not so likely in

every case that a fact-specific inquiry into prejudice is

not worth the cost. Strickland, 466 U.S. at 692-693;

Smith v. Robbins, 528 U.S. 259, 287 & n. 15 (2000).

B. Respondent’s claim that his counsel was ineffec-

tive at his capital sentencing hearing by failing to

present mitigating evidence and a closing statement is

subject to the prejudice prong of Strickland. This

Court already has held that Strickland’s two-part test

applies to claims raising attorney error in failing to

present mitigating evidence at a capital sentencing

hearing. Williams v. Taylor, 529 U.S. 362, 395-399

9

(2000); Burger v. Kemp, 483 U.S. 776, 788 (1987);

Darden v. Wainwright, 477 U.S. 168, 184 (1986); Strick-

land, 466 U.S. at 698-699. There is no basis for a

different treatment of claims of attorney error in failing

to give a closing argument at sentencing. Like any trial

decision, a waiver of closing argument may be both

reasonable and non-prejudicial depending on the facts

and circumstances of a particular case. The gov-

ernment has not prevented counsel from presenting

closing argument, and it is not easy to identify such a

decision as a denial of the right to counsel that is likely

to be prejudicial in all cases. |

C. The court of appeals erred in presuming preju-

dice based on this Court’s statement in Cronic, 466 U.S.

at 659, that prejudice may be presumed “if counsel en-

tirely fails to subject the prosecution’s case to meaning-

ful adversarial testing.” That statement is best under-

stood as reserving the possibility that this Court would

presume prejudice where counsel totally fails to partici-

pate in the defense. Extending the dicta in Cronic to

claims that an attorney committed error by failing to

_ present certain evidence or make certain arguments,

however, would swallow the rule in Strickland. It

would also undermine society’s interest in the finality of

convictions without serving any countervailing Sixth

Amendment values. Properly understood, Cronic’s

presumption of prejudice has no application to this case

because counsel actively participated and assisted

respondent at sentencing.

10

ARGUMENT

COUNSEL’S PERFORMANCE DOES NOT VIO-

LATE THE SIXTH AMENDMENT ABSENT A

SHOWING OF PREJUDICE UNDER STRICK-

LAND v. WASHINGTON

A. Strickland v. Washington Governs All Claims Of

Ineffective Assistance Of Counsel Based On Attorney

Error

1. The Sixth Amendment provides that “{iJn all

criminal prosecutions, the accused shall enjoy the right

* * * to have the Assistance of Counsel for his

defence.” That right is “fundamental to our system of

justice.” United States v. Morrison, 449 U.S. 361, 364

(1981); see Strickland v. Washington, 466 U.S. 668, 685

(1984); Gideon v. Wainwright, 372 U.S. 335, 344 (1963).

As this Court has explained, “[lJawyers in criminal

cases ‘are necessities, not luxuries.’ Their presence is

essential because they are the means through which the

other rights of the person on trial are secured.” United

States v. Cronic, 466 U.S. 648, 653 (1984) (footnote

omitted). “The right to counsel plays a crucial role in

the adversarial system embodied in the Sixth Amend-

ment, since access to counsel’s skill and knowledge is

necessary to accord defendants the ‘ample opportunity

to meet the case of the prosecution’ to which they are

entitled.” Strickland, 466 U.S. at 685.

This Court’s decision in Strickland, supra, announced

a general test for reviewing claims of ineffective assis-

tance of counsel. Under Strickland, a claim of ineffec-

tive assistance of counsel at trial or capital sentencing

has two components. First, the defendan* must show

that counsel’s performance was deficient, in that “coun-

sel’s representation fell below an objective standard of

reasonableness.” 466 U.S. at 688. Second, the defen-

1]

dant must show that “the deficient performance preju-

‘diced the defense” (id. at 687) in the sense that “there is

a reasonable probability that, but for counsel’s unpro-

fessional errors, the result of the proceeding would

have been different” (id. at 694).

The requirement that a defendant must show preju-

dice reflects the principle that “the right to the effec-

tive assistance of counsel is recognized not for its own

sake, but because of the effect it has on the ability of

the accused to receive a fair trial.” Cronic, 466 U.S. at

658. “Absent some effect of challenged conduct on the

reliability of the trial process, the Sixth Amendment

guarantee is generally not implicated.” J/bid.; see also

Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); Kimmel-

man v. Morrison, 477 U.S. 365, 374 (1986); Strickland,

466 U.S. at 686; Nix v. Whiteside, 475 U.S. 157, 175

(1986); United States v. Morrison, 449 U.S. at 364-365.

Accordingly, “any deficiencies in counsel’s performance

must be prejudicial to the defense in order to constitute

ineffective assistance under the Constitution.” Strick-

land, 466 U.S. at 692.

2. Strickland involved a capital sentencing proceed-

ing, which the Court found enough like a trial to make

the description of the duties of counsel in the two

»ontexts essentially equivalent. 466 U.S. at 686-687.

Since Strickland, the Court has applied its two-part

test in a variety of contexts besides trial and capital

sentencing. The Court has employed Strickland to

evaluate ineffectiveness claims in the entry of a guilty

plea (Hill v. Lockhart, 474 U.S. 52, 59 (1985)); in failing

to file pre-trial motions to suppress evidence on Fourth

Amendment grounds (Kimmelman v. Morrison, 477

U.S. 365, 390-391 (1986)); and in failing to pursue claims

arising from sentencing determinations made under the

United States Sentencing Guidelines (Glover v. United

12

States, 531 U.S. 198, 203-204 (2001)). The Court has

also applied Strickland to several types of ineffective-

ness claims connected with the appeals process. The

Court has employed Strickland to evaluate counsel’s

failure to raise a capite] sentencing claim on appeal

(Smith v. Murray, 477 U.S. 527, 535-536 (1986)); coun-

sel’s failure to file a notice of appeal (Roe v. Flores-

Ortega, 528 U.S. 470, 477 (2000)); and counsel’s decision

to file an Anders (or equivalent) brief rather than a full

merits brief on appeal (Smith v. Robbins, 528 U.S. 259,

285 (2000)). Considering the wide range of claims to

which the Court has applied Strickland, it is not sur-.

prising that the Court recently noted that “the Strick-

land test provides sufficient guidance for resolving

virtually all ineffective-assistance-of-counsel claims.”

Williams v. Taylor, 529 U.S. 362, 391 (2000).

3. This Court has presumed prejudice only in nar-

rowly defined Sixth Amendment contexts. Strickland,

466 U.S. at 692; see also Smith v. Robbins, 528 U.S. at

287; Kimmelman v. Morrison, 477 U.S. at 381 n.6. This

Court has not required any showing of prejudice when

the government has totally denied a defendant the

assistance of counsel, or when the government has in-

terfered with counsel’s ability to represent the defen-

dant at a critical stage of the proceeding. See

Strickland, 466 U.S. at 692 (“Actual or constructive

denial of the assistance of counsel altogether is legally

presumed to result in prejudice.”) see also Cronic, 466

U.S. at 659 & n.25 (“The presumption that counsel’s

assistance is essential ires us to conclude that a

trial is unfair if the accused is denied counsel at a

critical stage of his trial” or if counsel is “prevented

from assisting the accused during a critical stage of the

proceeding.”). “Prejudice in these circumstances is so

likely that case-by-case inquiry into prejudice is not

13

worth the cost.” Strickland, 466 U.S. at 692; Cronic, 466

U.S. at 658. “Moreover, such circumstances involve

impairments of the Sixth Amendment right that are

easy to identify and, for that reason and because the

prosecution is directly responsible, easy for the

government to prevent.” Strickland, 466 U.S. at 692.

The Court has also applied a “limited[{] presumption

of prejudice” when the claim is that counsel repre-

sented conflicting interests. Strickland, 466 U.S. at

692. When counsel is burdened by an actual conflict of

interest, prejudice is presumed “if the defendant dem-

onstrates that counsel ‘actively represented conflicting

interests’ and that ‘an actual conflict of interest ad-

versely affected his lawyer’s performance.” Ibid.

(quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350

(1980)); see also Smith v. Robbins, 528 U.S. at 287. The

Court in Strickland reasoned that when counsel is

burdened by an actual conflict of interest, he breaches

“the most basic of counsel’s duties” and “it is difficult to

3 The Court has found constitutional error without any showing

of prejudice where the defendant was denied counsel at trial

(Johnson v. Zerbst, 304 U.S. 458, 467-468 (1938)); at arraignment

(Hamilton v. Alabama, 368 U.S. 52, 53-54 (1961)); or at a prelimi-

nary hearing (White v. Maryland, 373 U.S. 59, 60 (1963) (per cu-

riam). The Court similarly has not required a showing of prejudice

when the government “interferes in certain ways with the ability

of counsel to make independent decisions about how to conduct the

defense.” Strickland, 466 U.S. at 686 (citing e.g., Geders v. United

States, 425 U.S. 80 (1976) (bar on attorney-client consultation

during overnight recess); Herring v. New York, 422 U.S. 853 (1975)

(bar on summation at bench trial); Brooks v. Tennessee, 406 US.

605, 612-613 (1972) (requirement that defendant be first defense

witness); Ferguson v. Georgia, 365 U.S. 570, 593-596 (1961) (bar on

direct examination of defendant)); see also Cronic, 466 U.S. at 660-

661 (describing appointment of counsel on the day of capital trial in

Powell v. Alabama, 287 US. 45 (1932)).

14

measure the precise effect on the defense of representa-

tion corrupted by conflicting interests.” 466 U.S. at

692. The Court also explained that “a fairly rigid rule”

is justified “[gliven the obligation of counsel to avoid

conflicts of interest and the ability of trial courts to

make early inquiry in certain situations likely to give

rise to conflicts.” [bid.

By contrast, a defendant claiming ineffective assis-

tance of counsel from attorney errors must always

show prejudice. “Conflict of interest claims aside, ac-

tual ineffectiveness claims alleging a deficiency in attor-

ney performance are subject to a general requirement

that the defendant affirmatively prove prejudice.”

Strickland, 466 U.S. at 693. The Court in Strickland

explained that a presumption of prejudice is funda-

mentally inconsistent with the fact-specific nature of a

claim based on attorney error:

The government is not responsible for, and hence

not able to prevent, attorney errors that will result

in reversal of a conviction or sentence. Attorney

errors come in an infinite variety and are as likely to

be utterly harmless in a particular case as they are

to be prejudicial. They cannot be classified accord-

ing to likelihood of causing prejudice. Nor can they

be defined with sufficient precision to inform de-

fense attorneys correctly just what conduct to avoid.

Representation is an art, and an act or omission that

is unprofessional in one case may be sound or even

brilliant in another. Even if a defendant shows that

particular errors of counsel were unreasonable,

therefore, the defendant must show that they

actually had an adverse effect on the defense.

Ibid.; see also id. at 702 (Brennan, J., concurring in part

and dissenting in part) (“{CJlaims of ineffective assis-

15

tance based on allegations of specific errors by counsel

* * * by their very nature[] require courts to evaluate

both the attorney’s performance and the effect of that

performance on the reliability and fairness of the

proceeding.”).

This Court has applied those principles in the appel-

late context by “distinguish{ing] [between] denial of

counsel altogether on appeal, which warrants a pre-

sumption of prejudice, from mere ineffective assistance

of counsel on appeal, which does not.” Smith v. Rob-

bins, 528 U.S. at 286. The Court refused to presume

prejudice in Smith v. Robbins when the defendant

received appellate counsel who declined to file a full

merits brief on appeal pursuant to a valid state

procedure under Anders v. California, 386 U.S. 738

(1967). The Court explained that “it is not the case

that, if an attorney unreasonably chooses to follow a

procedure such as Anders * * * instead of filing a

merits brief, prejudice is so likely that case-by-case

inquiry into prejudice is not worth the cost. * * * [A]n

error by counsel is neither ‘easy to identify’ (since it is

necessary to evaluate a defendant’s case in order to find

the error) nor attributable to the prosecution.” Jd. at

287 & n.15 (internal quotation marks omitted); see also

Roe v. Flores-Ortega, 528 U.S. at 483-484 (2000) (declin-

ing to presume prejudice per se where counsel ne-

glected to file notice of appeal and holding that under

Strickland defendant must show reasonable probability

that he would have timely appealed but for counsel’s

errors).

16

B. Respondent’s Claim That His Counsel Was Ineffective

At Sentencing In Failing To Present Mitigating

Evidence and To Make A Closing Argument Is Subject

To The Prejudice Prong Of Strickland v. Washington

1. This Court’s decisions firmly establish that a

claim that counsel was constitutionally deficient in fail-

ing to present mitigating evidence at a capital sentenc-

ing proceeding must be evaluated under both prongs of

Strickland. Strickland itself involved allegations of

attorney error in failing to investigate and present

mitigating evidence during the sentencing phase in a

capital murder case, 466 U.S. at 675, and the Court

found that, “even assuming the challenged conduct of

counsel was unreasonable, respondent suffered insuffi-

cient prejudice to warrant setting aside his death

sentence,” id. at 698-699.

Two years after Strickland was decided, the Court

held in Darden v. Wainwright, 477 U.S. 168, 184 (1986),

that a claim that trial counsel had rendered ineffective

assistance by failing to present mitigating evidence at a

capital sentencing hearing “must be evaluated against

the two-part test announced in Strickland v. Washing-

ton, 466 U.S. 668 (1984).” The Court followed the same

approach the following year in Burger v. Kemp, 483

U.S. 776, 788 (1987), which rejected under the perform-

ance prong of Strickland a prisoner’s claim that his trial

attorney rendered ineffective assistance by “offer[ing]

no mitigating evidence at all” at two capital sentencing

hearings.

Most recently, in Williams v. Taylor, 529 U.S. at 395- .

399, the Court found both prongs of Strickland satisfied

in evaluating claims that counsel rendered ineffective

assistance in failing to investigate and present miti-

gating evidence in the sentencing phase of a capital

case. Despite the seriousness of the errors claimed in

17

that case, the Court did not bypass the prejudice prong

of Strickland, but concluded that the errors were

prejudicial only after carefully assessing whether there

was a reasonable probability that the errors affected

the outcome of the proceeding. /d. at 396-399.

2. There is no basis for a bypassing a prejudice

inquiry when the ineffective assistance claim is that

counsel failed to give a closing argument at a capital

sentencing hearing. That claim is indistinguishable

from any number of challenged attorney actions or

omissions that may or may not be deficient or prejudi-

cial depending on the facts of a particular case. “[I]t is

well-settled that the decision to waive an opening or

closing statement is a commonly adopted strategy” in

order to prevent a damaging rebuttal from the prosecu-

tion. Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir.), cert.

denied, 531 U.S. 938 (2000). Both state and federal deci-

sions have recognized that counsel may in a particular

case forego a closing statement both in capital‘ and non-

capital’ proceedings without engaging in constitution-

4 See, eg., Pickens v. Gibson, 206 F.3d 988, 1001 (10th Cir.

2000) (guilt phase); Fox v. Ward, 200 F.3d at 1296 (guilt phase);

Moore v. Reynolds, 153 F.3d 1086, 1104 (10th Cir. 1998) (penalty

phase), cert. denied, 526 U.S. 1025 (1999); Flamer v. Delaware, 68

F.3d 710, 732 (3d Cir. 1995) (guilt phase), cert. denied, 516 U.S.

1088 (1996); Lawhorn v. State, 756 So. 2d 971, 986-988 (Ala. Crim.

App. 1999) (penalty phase), cert. denied, 531 U.S. 835 (2000);

People v. Gaines, 375 P.2d 296, 298 (Cal. 1962) (in bank) (guilt

phase), cert. denied, 373 U.S. 928 (1963); Dawson v. State, 10 P.3d

49, 71 (Mont. 2000) (guilt phase), cert. denied, 121 S. Ct. 1372

(2001); State v. Keith, 684 N.E.2d 47, 67 (Ohio 1997) (penalty

phase), cert. denied, 523 U.S. 1063 (1998); State v. Burke, 653

N.E.2d 242, 248 (Ohio 1995) (penalty phase), cert. denied, 517 U.S.

1112 (1996).

5 See, ¢.g., United States v. Natanel, 938 F.2d 302, 310 (1st Cir.

1991), cert. denied, 502 U.S. 1079 (1992); United States ex rel.

18

ally deficient performance. The fact that counsel in a

particular case reasonably may waive a closing argu-

ment in furtherance of the defense is logically incon-

sistent with the conclusion that such conduct is invaria-

bly prejudicial in all cases. Indeed, courts in many

cases have concluded that the absence of a closing

argument was not prejudicial.°

For those reasons, a trial court cannot easily identify

-counsel’s decision to waive a final argument as con-

Spears v. Johnson, 463 F.2d 1024, 1026 (3d Cir. 1972); United

States ex rel. Taylor v. Barnett, 109 F. Supp. 2d 911, 923-924 (N.D.

Ill. 2000); United States ex rel. Turner v. Cuyler, 443 F. Supp. 263,

268 (E.D. Pa. 1977), aff’d, 595 F.2d 1215 (3d Cir. 1979); Melvin v.

Laird, 365 F. Supp. 511, 521-522 (E.D.N.Y. 1973); State v. Chee, 680

P.2d 1232, 1234 (Ariz. Ct. App. 1984); State v. Bojorquez, 675 P.2d

1314, 1319 (Ariz. 1984) (in banc); People v. Espinoza, 99 Cal. App.

3d 44, 48 (Cal. Ct. App. 1979); Shockley v. State, 565 A.2d 1373,

1382 (Del. 1989); People v. Conley, 454 N.E.2d 1107, 1113 (Ill. App.

Ct. 1983); People v. Goodwin, 322 N.E.2d 569, 573 (Ill. App. Ct.

1975); Sparks v. State, 499 N.E.2d 738, 743 (Ind. 1986); State v.

Johnson, 551 So. 2d 14, 16 (La. Ct. App. 1989), writ denied, 556 So.

2d 56 (La. 1990); Lowe v. State, 779 S.W.2d 334, 335, 337-338 (Mo.

Ct. App. 1989); State v. Menn, 668 S.W.2d 671, 673 (Tenn. Crim.

App. 1984); Salinas v. State, 773 S.W.2d 779, 783 (Tex. Ct. App.

1989); Medina v. State, 626 S.W.2d 83, 86 (Tex. Ct. App. 1981);

Ransonette v. State, 550 S.W.2d 36, 41 (Tex. Crim. App. 1976).

6 See, e.g., Pickens v. Gibson, 206 F.3d at 1001 (capital case);

Moore v. Reynolds, 153 F.3d at 1105 (capital case); Flamer v.

Delaware, 68 F.3d at 732 (capital case); Nutall v. Greer, 764 F.2d

462, 466-468 (7th Cir. 1985); United States ex rel. Taylor v.

Barnett, 109 F. Supp. 2d at 924; Lawhorn v. State, 756 So. 2d at

987-988 (capital case); State v. Chee, 680 P.2d at 1234; People v.

Gaines, 375 P.2d at 298 (capital case); Shockley v. State, 565 A.2d

at 1382; People v. Miller, 413 N.E.2d 143, 147 (Ill. App. Ct. 1980);

People v. Goodwin, 322 N.E.2d at 574; Sparks v. State, 499 N.E.2d

at 743; State v. Johnson, 551 So. 2d at 16; State v. Robb, 723 N.E.2d

1019, 1039 (Ohio 2000); State v. Keith, 684 N.E.2d at 68 (capital

case); Salinas v. State, 773 S.W.2d at 783.

-19

stitutionally deficient, or conclude that in all cases coun-

sel would err in making the strategic judgment that

closing argument would damage, rather than aid, the

defense: Furthermore, because determining whether

counsel’s decision is objectively unreasonable under the

first prong of Strickland requires a review of counsel’s |

action in light of the entire record at trial (see, e.g., Pet.

App. 33-36), skipping the prejudice prong of Strickland

would result in little (if any) added efficiency. See

Scarpa v. DuBois, 38 F.3d 1, 14 (1st Cir. 1994) (“{OJnce

it is necessary to examine the trial record in order to

evaluate counsel’s particular errors, resort to a per se

presumption is no longer justified by the wish to avoid

the cost of case-by-case litigation.”), cert. denied, 513

U.S. 1129 (1995). Indeed, because it will “often” be

“easier to dispose of an ineffective claim on the ground

of lack of sufficient prejudice,” Strickland, 446 U.S. at

697, an irrebuttable presumption of prejudice could

frustrate the efficient adjudication of claims of

ineffective assistance.’

7 The court of appeals opined that the jurors “must have”

inferred that counsel’s waiver of closing argument “was an implicit

agreement [by counsel] that justice required that [respdndent] be

put to death.” Pet. App. 36. Whether a jury is reasonably likely to

draw that inference, however, necessarily depends on the facts and

circumstances of a particular case, which is exactly the inquiry that

Strickland compels. There is no basis for the court of appeals’

apparent assumption that a jury will invariably draw that infer-

ence regardless of the underlying facts. For example, if counsel

were to close merely “to ask the jurors to spare [the defendant’s]

life in the name of simple mercy,” as suggested by the court of

appeals (ibid.), a closing could well damage the defense by giving

the prosecution the opportunity to give a fiery rebuttal that em- -

phasizes to the jurors the heinousness of the crime or the defen-

dant’s lack of “simple mercy” as he killed his victims. Waiving a

closing that invites such a response may be all the more warranted

20

C. The Court of Appeals Erred In Presuming Prejudice

Under United States v. Cronic Because Counsel Did

Not Entirely Fail To Present A Defense

1. In holding that “[respondent] need not show

actual prejudice” from counsel’s performance, the court

of appeals redsoned that, “[e]ssentially, [respondent]

did not have counsel during the sentencing phase of his

trial,” and thus the prosecution’s request for the death

penalty “was not subjected to ‘meaningful adversarial

testing.” Pet. App. 37 (quoting Cronic, 466 U.S. at

656)). The Court in Cronic, supra, which was decided

the same day as Strickland, observed that an accused

has the right “to require the prosecution’s case to

survive the crucible of meaningful adversarial testing”

and that, “if counsel entirely fails to subject the prose-

cution’s case to meaningful adversarial testing, then

there has been a denial of Sixth Amendment rights that

makes the adversary process itself presumptively

unreliable.” 466 U.S. at 656, 659.°

Cronic, however, did not purport to detract from

Strickland’s insistence that a defendant claiming inef-

fective assistance from attorney error must show

prejudice. Indeed, Cronic held that the court of appeals

erred in presuming prejudice from the appointment of a

if, as in this case (see pp. 24-25, supra), a closing statement would

only repeat defense counsel’s plea in his opening remarks.

8 Cronic, 466 U.S. at 659, explained that prejudice was pre-

sumed in Davis v. Alaska, 415 U.S. 308 (1974), which reversed a

conviction when the defense was prevented from ini

a government witness. In Delaware v. Van Arsdall, 475 U.S. 673,

683-684 (1986), however, this Court held that Davis did not estab-

lish a per se reversal rule and that the constitutionally improper

denial of a defendant’s opportunity to impeach a witness is subject

to a harmless-error analysis under Chapman v. California, 386

USS. 18 (1967).

21

young, inexperienced real-estate attorney 25 days

before trial to represent a defendant charged with

engaging in a complex check-kiting scheme. 466 U.S. at

663-666. The Court concluded that “[the defendant] can

* * * make out a claim of ineffective assistance only by

pointing to specific errors made by trial counsel” which

must “be evaluated under the standards enunciated in

Strickland v. Washington.” Id. at 666 & n.41. Thus,

the Court concluded that “there is generally no basis

for finding a Sixth Amendment violation unless the

accused can show how specific errors of counsel under-

mined the reliability of the finding of guilt.” Id. at 659

n.26.

The Court’s observation in Cronic that prejudice may

be presumed “if counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing,”

466 U.S. at 659 (emphasis added), is best understood as

referring to the possibility of a total failure by counsel

to participate in the defense at trial or at sentencing.

See, e.g., Tucker v. Day, 969 F.2d 155, 159 (5th Cir.

1992) (counsel silent through entire sentencing hear-

ing); Harding v. Davis, 878 F.2d 1341, 1345 (11th Cir.

1989) (counsel silent through entire trial, including

when judge directed verdict against his client); Martin

v. Rose, 744 F.2d 1245, 1247 (6th Cir. 1984) (counsel

refused to participate in trial). In that instance, it may

be readily apparent without a contextual analysis that

the defendant has faced the prosecution as his adver-

sary without the assistance of counsel. See Nutall v.

Greer, 764 F.2d 462, 467 (7th Cir. 1985) (“If counsel had

been totally passive, doing literally nothing in aid of his

client’s cause, we might infer prejudice without a

particularized showing; no assistance at all could hardly

be effective assistance.”).

22

The courts of appeals have also extended Cronic’s

presumption of prejudice when, during the trial or a

critical stage of it, counsel is either physically absent or

sleeping (and therefore unconscious). See Burdine v.

Johnson, 262 F.3d 336, 349 (5th Cir. 2001) (en banc)

(“the buried assumption [of Strickland] is that counsel

is present and conscious to exercise judgment, calcula-

tion and instinct”) (quoting Tippins v. Walker, 77 F.3d

682, 687 (2d Cir. 1996)), petition for cert. pending, No.

01-495. Even assuming the validity of those decisions,

there is no basis for further extending Cronic’s pre-

sumption of prejudice to claims of attorney error where

counsel is present, conscious, and representing the

defense. Such an expansion would divorce the pre-

sumptions noted in Strickland and Cronic from their

policy justification, i.e., that the denial of the right to

counsel is traceable to the government, or that the

court can easily identify the denial of the right to

counsel and prejudice is so likely that a case-by-case

examination of prejudice is not worth the effort.

Strickland, 466 U.S. at 692; Cronic, 466 U.S. at 658. ~

® See, e.g., Burdine v. Johnson, 262 F.3d at 348 (“counsel was

unconscious, and hence absent, repeatedly throughout the guilt-

innocence phase of [the defendant’s] trial.”); Tippins v. Walker, 77

F.3d at 687 (defendant “suffered prejudice, by presumption or

otherwise,” where counsel’s sleeping rendered him “repeatedly

unconscious at trial for periods of time in which defendant’s

interests were at stake”); Green v. Arn, 809 F.2d 1257, 1263 (6th

Cir.) (counsel was absent from trial during the taking of evidence

on the defendant’s guilt), vacated on other grounds, 484 U.S. 806

(1987); Siverson v. O’Leary, 764 F.2d 1208, 1217 (7th Cir, 1985)

(counsel was absent from courtroom during jury deliberations and

return of verdict); Javor v. United States, 724 F.2d 831, 833 (9th

Cir. 1984) (presuming prejudice pre-Cronic where counsel slept

through substantial portions of trial).

= _—_ — ewer

23

Such an expansion also would lack a limiting princi-

ple. Virtually any claimed attorney error of omission or

silence—e.g., failure to conduct pretrial investigation, to

file pre-trial motions, to make an opening or closing

statement, to present evidence, or to cross-examine a

key witness—could be characterized as a failure to sub-

ject the prosecution’s case to a “meaningful adversarial

testing” with respect to the matter at issue. Cronic,

466 U.S. at 659. And serious attorney missteps could be

similarly characterized as a “constructive” denial of

counsel at an important phase of the proceeding. See

Pet. App. 32 and 36 (“[Respondent] may well have fared

better if his counsel had left the courtroom entirely.”).

Such characterizations would swallow the rule of

Strickland and later decisions applying that rule. See

also Scarpa v. DuBois, 38 F.3d at 14 (“An overly gener-

ous reading of Cronic would do little more than replace

case-by-case litigation over prejudice with case-by-case

litigation over prejudice per se.”).

2. A broad application of Cronic’s presumption of

prejudice also would undermine society’s strong inter-

est in the finality of judgments. A retrial “imposes

social costs, including the expenditure of time and

resources for all concerned; the dispersal of witnesses

and the erosion of witnesses’ memories; and the

occurrence of sundry other events that make obtaining

a conviction more difficult on retrial.” Scarpa, 38 F.3d

at 15 (citing Brecht v. Abrahamson, 507 U.S. 619, 635-

638 (1993)); see also United States v. Mechanik, 475

US. 66, 73 (1986); Engle v. Isaac, 456 U.S. 107, 126-128

(1982).

Those factors strongly cut against upsetting the

outcome of a proceeding without a case-specific show-

ing of prejudice except in those rare cases in which the

defendant was denied the “‘basic protections’ without

24

\

which ‘a criminal trial cannot reliably serve its function

as a vehicle for determination of guilt or innocence . . .

and no criminal punishment may be regarded as

fundamentally fair.’”” Neder v. United States, 527 U.S.

1, 8-9 (1999) (quoting Rogers v. Clark, 478 U.S. 570, 577-

578 (1986)); id. at 8 (noting the “very limited class of

cases” in which reversal is warranted without a

showing of prejudice) (internal quotations marks

omitted). “An error by counsel, even if professionally

unreasonable, does not warrant setting aside the

judgment of a criminal proceeding if the error had no

effect on the judgment.” Strickland, 466 U.S. at 691;

see Hill v. Lockhart, 474 U.S. at 58 (“requiring a show-

ing of ‘prejudice’ from defendants who seek to challenge

the validity of their guilty pleas on the ground of

ineffective assistance of counsel will serve the funda-

mental interest in the finality of guilty pleas”).

3. Under a proper understanding of Cronic’s de-

scription of when prejudice can be presumed, the court

of appeals misapplied Cronic because there was not a

total denial of counsel at respondent’s capital sentenc-

ing.

Counsel had already presented mitigating evidence

in the guilt phase about respondent’s mental condition,

and counsel relied on that evidence at sentencing

pursuant to Tennessee’s capital sentencing statute. See

p. 3 & n.1, supra. Counsel’s opening statement at

sentencing advised the jury that it could consider the

10 The court of appeals did not consider whether its application

of the language in Cronic created a “new rule” under Teague v.

Lane, 489 U.S. 288 (1989). Because petitioner did not argue in the

petition that presuming prejudice under Cronic in this case would

create a “new rule” under Teague, this Court need not consider the

issue. See Schiro v. Farley, 510 U.S. 222, 229 (1994); Godinez v.

Moran, 509 U.S. 389, 397 n.8 (1993).

25

mitigating evidence that was presented during the guilt

phase. Pet. App. 114. That opening statement

reminded the jurors of the defense theory during the

guilt phase that respondent committed the murders

“while [he] was under the influence of extreme mental

or emotional disturbance,” and that the judge would

instruct them that they could consider respondent’s

mental capacity when determining whether to return a

verdict sentencing respondent to death. Jd. at 115. The

statement also summarized for the jury the testimony

of two defense experts, Dr. Matthew Jaremko and Dr.

Lipman, who opined that respondent was suffering

from “Vietnam Veteran’s Stress Syndrome” and

“Amphetamine Psychosis” as a result of drug abuse.

Ibid. Counsel concluded his remarks by pleading for

mercy and asking the jury to spare his client’s life. Jd.

at 116-117.

Counsel at sentencing also elicited testimony on

cross-examination of a prosecution witness that respon-

dent had a record of distinguished military service.

Trial Tr. 2123-2124. Counsel made several objections

during the prosecution’s presentation of aggravating

factors, id. at 2129, 2130, and counsel obtained a court

ruling excluding from the jury a series of gruesome

photographs of the murder victims’ dead bodies, id. at

2134-2143. In those circumstances, it can hardly be said

that respondent’s “counsel entirely failfed] to subject

the prosecution’s case to meaningful adversaria!

testing.” Cronic, 466 U.S. at 659 (emphasis added). Ac-

cordingly, there is no basis for departing from Strick-

land’s requirement that errors by counsel must be

prejudicial to justify relief under the Sixth Amendment.

Unless respondent can show both that counsel’s

performance was deficient, and that there is a reason-

26

able probability that but for the lapse, the outcome

would have been different, he is not entitled to relief."

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

MICHAEL CHERTOFF

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

LISA SCHIAVO BLATT

Assistant to the Solicitor

' General

STEVEN L. LANE

Attorney

JANUARY 2002

'! Because this case arises on federal habeas corpus, the district

court and court of appeals are also bound by 28 U.S.C. 2254(d)\(1),

which bars relief unless the state courts’ adjudication of the c'sim

“was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States.” See Williams v. Taylor, 529 U.S. at

407.