# Amicus Curiae Brief — Bell v. Cone

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0501%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 685

## Text

— | 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0501%3A08. Public record. Not legal advice.