Justice THOMAS delivered the opinion of the Court.
Scott Lynn Pinholster and two accomplices broke into a house in the middle of the night and brutally beat and stabbed to death two men who happened to interrupt the burglary. A jury convicted Pinholster of first-degree murder, and he was sentenced to death.
After the California Supreme Court twice unanimously denied Pinholster habeas relief, a Federal District Court held an evidentiary hearing and granted Pinholster habeas relief under 28 U.S.C. § 2254. The District Court concluded that Pinholster's trial counsel had been constitutionally ineffective at the penalty phase of trial. Sitting en banc, the Court of Appeals for the Ninth Circuit affirmed. Pinholster v. Ayers, 590 F.3d 651 (2009). Considering the new evidence adduced in the District Court hearing, the Court of Appeals held that the California Supreme Court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law." § 2254(d)(1).
We granted certiorari and now reverse.
On the evening of January 8, 1982, Pinholster solicited Art Corona and Paul David Brown to help him rob Michael Kumar, a local drug dealer. On the way, they stopped at Lisa Tapar's house, where Pinholster put his buck knife through her front door and scratched a swastika into her car after she refused to talk to him. The three men, who were all armed with buck knives, found no one at Kumar's house, broke in, and began ransacking the home. They came across only a small amount of marijuana before Kumar's friends, Thomas Johnson and Robert Beckett, arrived and shouted that they were calling the police.
Corona drove the three men to Pinholster's apartment. While in the car, Pinholster and Brown exulted, "`We got `em, man, we got `em good.'" Ibid. At the apartment, Pinholster washed his knife, and the three split the proceeds of the robbery: $23 and one quarter-ounce of marijuana. Although Pinholster instructed Corona to "lay low," Corona turned himself in to the police two weeks later. Id., at 4955. Pinholster was arrested shortly thereafter and threatened to kill Corona if he did not keep quiet about the burglary and murders. Corona later became the State's primary witness. The prosecution brought numerous charges against Pinholster, including two counts of first-degree murder.
The California trial court appointed Harry Brainard and Wilbur Dettmar to defend Pinholster on charges of first-degree murder, robbery, and burglary. Before their appointment, Pinholster had rejected other attorneys and insisted on representing himself. During that time, the State had mailed Pinholster a letter in jail informing him that the prosecution planned to offer aggravating evidence during the penalty phase of trial to support a sentence of death.
The guilt phase of the trial began on February 28, 1984. Pinholster testified on his own behalf and presented an alibi defense. He claimed that he had broken into Kumar's house alone at around 8 p.m. on January 8, 1982, and had stolen marijuana but denied killing anyone. Pinholster asserted that later that night around 1 a.m., while he was elsewhere, Corona went to Kumar's house to steal more drugs and did not return for three hours. Pinholster told the jury that he was a "professional robber," not a murderer. 43 id., at 6204. He boasted of committing hundreds of robberies over the previous six years but insisted that he always used a gun, never a knife. The jury convicted Pinholster on both counts of first-degree murder.
Before the penalty phase, Brainard and Dettmar moved to exclude any aggravating evidence on the ground that the prosecution had failed to provide notice of the evidence to be introduced, as required by Cal. Penal Code Ann. § 190.3 (West 2008). At a hearing on April 24, Dettmar argued that, in reliance on the lack of notice, he was "not presently prepared to offer anything by way of mitigation." 52 Tr. 7250. He acknowledged, however, that the prosecutor "possibly ha[d] met the [notice] requirement." Ibid. The trial court asked whether a continuance might be helpful, but Dettmar declined, explaining that he could not think of a mitigation witness other than Pinholster's mother and that additional time would not "make a great deal of difference." Id., at 7257-7258. Three days later, after hearing testimony, the court found that Pinholster had received notice while representing himself and denied the motion to exclude.
The penalty phase was held before the same jury that had convicted Pinholster.
After 2½ days of deliberation, the jury unanimously voted for death on each of the two murder counts. On mandatory appeal, the California Supreme Court affirmed the judgment. People v. Pinholster, 1 Cal.4th 865, 4 Cal.Rptr.2d 765, 824 P.2d 571 (1992).
In August 1993, Pinholster filed his first state habeas petition. Represented by new counsel, Pinholster alleged, inter alia, ineffective assistance of counsel at the penalty phase of his trial. He alleged that Brainard and Dettmar had failed to adequately investigate and present mitigating evidence, including evidence of mental disorders. Pinholster supported this claim with school, medical, and legal records, as well as declarations from family members, Brainard, and Dr. George Woods, a psychiatrist who diagnosed Pinholster with bipolar mood disorder and seizure disorders. Dr. Woods criticized Dr. Stalberg's report as incompetent, unreliable, and inaccurate. The California Supreme Court unanimously and summarily
Pinholster filed a federal habeas petition in April 1997. He reiterated his previous allegations about penalty-phase ineffective assistance and also added new allegations that his trial counsel had failed to furnish Dr. Stalberg with adequate background materials. In support of the new allegations, Dr. Stalberg provided a declaration stating that in 1984, Pinholster's trial counsel had provided him with only some police reports and a 1978 probation report. Dr. Stalberg explained that, had he known about the material that had since been gathered by Pinholster's habeas counsel, he would have conducted "further inquiry" before concluding that Pinholster suffered only from a personality disorder. App. to Brief in Opposition 219. He noted that Pinholster's school records showed evidence of "some degree of brain damage." Ibid. Dr. Stalberg did not, however, retract his earlier diagnosis. The parties stipulated that this declaration had never been submitted to the California Supreme Court, and the federal petition was held in abeyance to allow Pinholster to go back to state court.
In August 1997, Pinholster filed his second state habeas petition, this time including Dr. Stalberg's declaration and requesting judicial notice of the documents previously submitted in support of his first state habeas petition. His allegations
Having presented Dr. Stalberg's declaration to the state court, Pinholster returned to the District Court. In November 1997, he filed an amended petition for a writ of habeas corpus. His allegations of penalty-phase ineffective assistance of counsel were identical to those in his second state habeas petition. Both parties moved for summary judgment and Pinholster also moved, in the alternative, for an evidentiary hearing.
The District Court concluded that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, did not apply and granted an evidentiary hearing. Before the hearing, the State deposed Dr. Stalberg, who stated that none of the new material he reviewed altered his original diagnosis. Dr. Stalberg disagreed with Dr. Woods' conclusion that Pinholster suffers from bipolar disorder. Pinholster did not call Dr. Stalberg to testify at the hearing. He presented two new medical experts: Dr. Sophia Vinogradov, a psychiatrist who diagnosed Pinholster with organic personality syndrome and ruled out antisocial personality disorder, and Dr. Donald Olson, a pediatric neurologist who suggested that Pinholster suffers from partial epilepsy and brain injury. The State called Dr. F. David Rudnick, a psychiatrist who, like Dr. Stalberg, diagnosed Pinholster with antisocial personality disorder and rejected any diagnosis of bipolar disorder.
The District Court granted habeas relief. Applying pre-AEDPA standards, the court granted the habeas petition "for inadequacy of counsel by failure to investigate and present mitigation evidence at the penalty hearing." App. to Pet. for Cert. 262. After Woodford v. Garceau, 538 U.S. 202, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003), clarified that AEDPA applies to cases like Pinholster's, the court amended its order but did not alter its conclusion. Over a dissent, a panel of the Court of Appeals for the Ninth Circuit reversed. Pinholster v. Ayers, 525 F.3d 742 (2008).
On rehearing en banc, the Court of Appeals vacated the panel opinion and affirmed the District Court's grant of habeas relief. The en banc court held that the District Court's evidentiary hearing was not barred by 28 U.S.C. § 2254(e)(2). The court then determined that new evidence from the hearing could be considered in assessing whether the California Supreme Court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law" under § 2254(d)(1). See 590 F.3d, at 666 ("Congress did not intend to restrict the inquiry under § 2254(d)(1) only to the evidence introduced in the state habeas court"). Taking the District Court evidence into account, the en banc court determined that the California Supreme Court unreasonably applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in denying Pinholster's claim of penalty-phase ineffective assistance of counsel.
Three judges dissented and rejected the majority's conclusion that the District
We granted certiorari to resolve two questions. 560 U.S. ___, 130 S.Ct. 3410, 177 L.Ed.2d 323 (2010). First, whether review under § 2254(d)(1) permits consideration of evidence introduced in an evidentiary hearing before the federal habeas court. Second, whether the Court of Appeals properly granted Pinholster habeas relief on his claim of penalty-phase ineffective assistance of counsel.
We first consider the scope of the record for a § 2254(d)(1) inquiry. The State argues that review is limited to the record that was before the state court that adjudicated the claim on the merits. Pinholster contends that evidence presented to the federal habeas court may also be considered. We agree with the State.
As amended by AEDPA, 28 U.S.C. § 2254 sets several limits on the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner. Section 2254(a) permits a federal court to entertain only those applications alleging that a person is in state custody "in violation of the Constitution or laws or treaties of the United States." Sections 2254(b) and (c) provide that a federal court may not grant such applications unless, with certain exceptions, the applicant has exhausted state remedies.
If an application includes a claim that has been "adjudicated on the merits in State court proceedings," § 2254(d), an additional restriction applies. Under § 2254(d), that application "shall not be granted with respect to [such a] claim . . . unless the adjudication of the claim":
This is a "difficult to meet," Harrington v. Richter, 562 U.S. ___, ___, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011), and "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (citation and internal quotation marks omitted). The petitioner carries the burden of proof. Id., at 25, 123 S.Ct. 357.
We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same timei.e., the record before the state court.
This understanding of the text is compelled by "the broader context of the statute as a whole," which demonstrates Congress' intent to channel prisoners'
Limiting § 2254(d)(1) review to the state-court record is consistent with our precedents interpreting that statutory provision. Our cases emphasize that review under § 2254(d)(1) focuses on what a state court knew and did. State-court decisions are measured against this Court's precedents as of "the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). To determine whether a particular decision is "contrary to" then-established law, a federal court must consider whether the decision "applies a rule that contradicts [such] law" and how the decision "confronts [the] set of facts" that were before the state court. Williams v. Taylor, 529 U.S. 362, 405, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (Terry Williams). If the state-court decision "identifies the correct governing legal principle" in existence at the time, a federal court must assess whether the decision "unreasonably applies that principle to the facts of the prisoner's case." Id., at 413, 120 S.Ct. 1495. It would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court.
Our recent decision in Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007), is consistent as well with our holding here. We explained that "[b]ecause the deferential standards prescribed by § 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate." Id., at 474, 127 S.Ct. 1933. In practical effect, we went on to note, this means that when the state-court record "precludes habeas relief" under the limitations of § 2254(d), a district court is "not required to hold an evidentiary hearing." Id., at 474, 127 S.Ct. 1933 (citing with approval the Ninth Circuit's recognition that "an evidentiary hearing is not required on issues that can be resolved by reference to the state court record" (internal quotation marks omitted)).
The Court of Appeals wrongly interpreted Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (Michael Williams), as supporting the contrary view. The question there was whether the lower court had correctly determined that § 2254(e)(2) barred the petitioner's
If anything, the decision in Michael Williams supports our holding. The lower court in that case had determined that the one claim subject to § 2254(d)(1) did not satisfy that statutory requirement. In light of that ruling, this Court concluded that it was "unnecessary to reach the question whether § 2254(e)(2) would permit a [federal] hearing on th[at] claim." Id., at 444, 120 S.Ct. 1479. That conclusion is fully consistent with our holding that evidence later introduced in federal court is irrelevant to § 2254(d)(1) review.
The Court of Appeals' reliance on Holland v. Jackson, 542 U.S. 649, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam), was also mistaken. In Holland, we initially stated that "whether a state court's decision was unreasonable [under § 2254(d)(1)] must be assessed in light of the record the court had before it." Id., at 652, 124 S.Ct. 2736. We then went on to assume for the sake of argument what some Courts of Appeals had held that § 2254(d)(1), despite its mandatory language, simply does not apply when a federal habeas court has admitted new evidence that supports a claim previously adjudicated in state court.
Pinholster's contention that our holding renders § 2254(e)(2) superfluous is incorrect. Section 2254(e)(2) imposes a limitation on the discretion of federal habeas
Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas relief. For example, not all federal habeas claims by state prisoners fall within the scope of § 2254(d), which applies only to claims "adjudicated on the merits in State court proceedings." At a minimum, therefore, § 2254(e)(2) still restricts the discretion of federal habeas courts to consider new evidence when deciding claims that were not adjudicated on the merits in state court. See, e.g., Michael Williams, 529 U.S., at 427-429, 120 S.Ct. 1479.
Although state prisoners may sometimes submit new evidence in federal court, AEDPA's statutory scheme is designed to strongly discourage them from doing so. Provisions like §§ 2254(d)(1) and (e)(2) ensure that "[f]ederal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." Id., at 437, 120 S.Ct. 1479; see also Richter, 562 U.S., at ___, 131 S.Ct. at 787 ("Section 2254(d) is part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions"); Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) ("[T]he state trial on the merits [should be] the `main event,' so to speak, rather than a `tryout on the road' for what will later be the determinative federal habeas hearing").
Accordingly, we conclude that the Court of Appeals erred in considering the District Court evidence in its review under § 2254(d)(1). Although we might ordinarily remand for a properly limited review, the Court of Appeals also ruled, in the alternative, that Pinholster merited habeas relief even on the state-court record alone. 590 F.3d, at 669. Remand is therefore inappropriate, and we turn next to a review of the state-court record.
The Court of Appeals' alternative holding was also erroneous. Pinholster has failed to demonstrate that the California
Section 2254(d) applies to Pinholster's claim because that claim was adjudicated on the merits in state-court proceedings. No party disputes that Pinholster's federal petition alleges an ineffective-assistance-of-counsel claim that had been included in both of Pinholster's state habeas petitions. The California Supreme Court denied each of those petitions "on the substantive ground that it is without merit."
Section 2254(d) applies even where there has been a summary denial. See Richter, 562 U.S., at ___, 131 S.Ct., at 786. In these circumstances, Pinholster can satisfy the "unreasonable application" prong of § 2254(d)(1) only by showing that "there was no reasonable basis" for the California Supreme Court's decision. Id., at ___, 131 S.Ct. at 784. "[A] habeas court must determine what arguments or theories. . . could have supporte[d] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id., at ___, 131 S.Ct., at 786. After a thorough review of the state-court record,
There is no dispute that the clearly established federal law here is Strickland v. Washington. In Strickland, this Court made clear that "the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation . . . [but] simply to ensure that criminal defendants receive a fair trial." 466 U.S., at 689, 104 S.Ct. 2052. Thus, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id., at 686, 104 S.Ct. 2052 (emphasis added). The Court acknowledged that "[t]here are countless ways to provide effective assistance in any given case," and that "[e]ven the best criminal defense attorneys would not defend a particular client in the same way." Id., at 689, 104 S.Ct. 2052.
Recognizing the "tempt[ation] for a defendant to second-guess counsel's assistance after conviction or adverse sentence," ibid., the Court established that counsel should be "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment," id., at 690, 104 S.Ct. 2052. To overcome that presumption, a defendant must show that counsel failed to act "reasonabl[y] considering all the circumstances." Id., at 688, 104 S.Ct. 2052. The Court cautioned that "[t]he availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges." Id., at 690, 104 S.Ct. 2052.
The Court also required that defendants prove prejudice. Id., at 691-692, 104 S.Ct. 2052. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. That requires a "substantial," not just "conceivable," likelihood of a different result. Richter, 562 U.S., at ___, 131 S.Ct., at 791.
Our review of the California Supreme Court's decision is thus "doubly deferential." Knowles v. Mirzayance, 556 U.S. ___, ___, 129 S.Ct. 1411, 1413, 173 L.Ed.2d 251 (2009) (citing Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam)). We take a "highly deferential" look at counsel's performance, Strickland, supra, at 689, 104 S.Ct. 2052, through the "deferential lens of § 2254(d)," Mirzayance, supra, at ___, n. 2, 129 S.Ct., at 1419, n. 2. Pinholster must demonstrate that it was necessarily unreasonable for the California Supreme Court to conclude: (1) that he had not overcome the strong presumption of competence; and (2) that he had failed to undermine confidence in the jury's sentence of death.
Pinholster has not shown that the California Supreme Court's decision that he could not demonstrate deficient performance by his trial counsel necessarily involved an unreasonable application of
We begin with the premise that "under the circumstances, the challenged action[s] might be considered sound trial strategy." Strickland, supra, at 689, 104 S.Ct. 2052 (internal quotation marks omitted). The Court of Appeals dissent described one possible strategy:
Further, if their motion was denied, counsel were prepared to present only Pinholster's mother in the penalty phase to create sympathy not for Pinholster, but for his mother. After all, the "`family sympathy'" mitigation defense was known to the defense bar in California at the time and had been used by other attorneys. Id., at 707. Rather than displaying neglect, we presume that Dettmar's arguments were part of this trial strategy. See Gentry, supra, at 8, 124 S.Ct. 1 ("[T]here is a strong presumption that [counsel took certain actions] for tactical reasons rather than through sheer neglect" (citing Strickland, supra, at 690, 104 S.Ct. 2052)).
The state-court record supports the idea that Pinholster's counsel acted strategically to get the prosecution's aggravation witnesses excluded for lack of notice, and if that failed, to put on Pinholster's mother. Other statements made during the argument regarding the motion to exclude suggest that defense counsel were trying to take advantage of a legal technicality and were not truly surprised. Brainard and Dettmar acknowledged that the prosecutor had invited them on numerous occasions to review Pinholster's state prison file but argued that such an invitation did not meet with the "strict demands" of § 190.3. 52 Tr. 7260. Dettmar admitted that the prosecutor, "being as thorough as she is, possibly ha[d] met the requirement." Id., at 7250. But if so, he wanted her "to make that representation to the court."
Timesheets indicate that Pinholster's trial counsel investigated mitigating evidence.
The record also shows that Pinholster's counsel confronted a challenging penalty phase with an unsympathetic client, which limited their feasible mitigation strategies. By the end of the guilt phase, the jury had observed Pinholster "glor[y]" in "his criminal disposition" and "hundreds of robberies." Pinholster, 1 Cal.4th, at 945, 907, 4 Cal.Rptr.2d 765, 824 P.2d, at 611, 584. During his cross-examination, Pinholster laughed or smirked when he told the jury that his "occupation" was "a crook," when he was asked whether he had threatened a potential witness, and when he described thwarting police efforts to recover a gun he had once used. 44 Tr. 6225. He bragged about being a "professional robber." 43 id., at 6204. To support his defense, Pinholster claimed that he used only guns not knives to commit his crimes. But during cross-examination, Pinholster admitted that he had previously been convicted of using a knife in a kidnaping. Pinholster also said he was a white supremacist and that he frequently carved swastikas into other people's property as "a sideline to robbery." 44 id., at 6246.
Trial counsel's psychiatric expert, Dr. Stalberg, had concluded that Pinholster showed no significant signs or symptoms of mental disorder or defect other than his "psychopathic personality traits." App. 131. Dr. Stalberg was aware of Pinholster's hyperactivity as a youngster, hospitalization at age 14 for incorrigibility, alleged epileptic disorder, and history of drug dependency. Nevertheless, Dr. Stalberg told counsel that Pinholster did not appear to suffer from brain damage, was not significantly intoxicated or impaired on the night in question, and did not have an impaired ability to appreciate the criminality of his conduct.
Given these impediments, it would have been a reasonable penalty-phase strategy to focus on evoking sympathy for Pinholster's mother. In fact, such a family sympathy defense is precisely how the State understood defense counsel's strategy. The prosecutor carefully opened her cross-examination of Pinholster's mother with, "I
Pinholster's only response to this evidence is a series of declarations from Brainard submitted with Pinholster's first state habeas petition, seven years after the trial. Brainard declares that he has "no recollection" of interviewing any family members (other than Pinholster's mother) regarding penalty-phase testimony, of attempting to secure Pinholster's school or medical records, or of interviewing any former teachers or counselors. Pet. for Writ of Habeas Corpus in No. S004616 (Cal.), Exh. 3. Brainard also declares that Dettmar was primarily responsible for mental health issues in the case, but he has "no recollection" of Dettmar ever having secured Pinholster's medical records. Id., Exh. 2. Dettmar neither confirmed nor denied Brainard's statements, as he had died by the time of the first state habeas petition. 590 F.3d, at 700 (Kozinski, C. J., dissenting).
In sum, Brainard and Dettmar made statements suggesting that they were not surprised that the State intended to put on aggravating evidence, billing records show that they spent time investigating mitigating evidence, and the record demonstrates that they represented a psychotic client whose performance at trial hardly endeared him to the jury. Pinholster has responded to this evidence with only a handful of post-hoc nondenials by one of his lawyers. The California Supreme Court could have reasonably concluded that Pinholster had failed to rebut the presumption of competence mandated by Strickland—here, that counsel had adequately performed at the penalty phase of trial.
The Court of Appeals held that the California Supreme Court had unreasonably applied Strickland because Pinholster's attorneys "w[ere] far more deficient than. . . the attorneys in Terry Williams, Wiggins [v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)], and Rompilla [v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005)], where in each case the Supreme Court upheld the petitioner's ineffective assistance claim." 590 F.3d, at 671. The court drew from those cases a "constitutional duty to investigate," id., at 674, and the principle that "[i]t is prima facie ineffective assistance for counsel to `abandon[] their investigation of [the] petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources,'" ibid. (quoting Wiggins v. Smith, 539 U.S. 510, 524-525, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). The court explained that it could not "lightly disregard" a failure to introduce evidence of "excruciating life history" or "nightmarish childhood." 590 F.3d, at 684 (internal quotation marks omitted).
The Court of Appeals misapplied Strickland and overlooked "the constitutionally protected independence of counsel and . . . the wide latitude counsel must have in making tactical decisions." 466 U.S., at 689, 104 S.Ct. 2052. Beyond the general requirement of reasonableness, "specific guidelines are not appropriate." Id., at 688, 104 S.Ct. 2052. "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions. . . ." Id., at 688-689, 104 S.Ct. 2052. Strickland itself rejected the notion that the same investigation will be required in
Nor did the Court of Appeals properly apply the strong presumption of competence that Strickland mandates. The court dismissed the dissent's application of the presumption as "fabricat[ing] an excuse that the attorneys themselves could not conjure up." 590 F.3d, at 673. But Strickland specifically commands that a court "must indulge [the] strong presumption" that counsel "made all significant decisions in the exercise of reasonable professional judgment." 466 U.S., at 689-690, 104 S.Ct. 2052. The Court of Appeals was required not simply to "give [the] attorneys the benefit of the doubt," 590 F.3d, at 673, but to affirmatively entertain the range of possible "reasons Pinholster's counsel may have had for proceeding as they did," id., at 692 (Kozinski, C. J., dissenting). See also Richter, supra, at 1427, 131 S.Ct., at 791 ("Strickland . . . calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind").
Justice SOTOMAYOR questions whether it would have been a reasonable professional judgment for Pinholster's trial counsel to adopt a family-sympathy mitigation defense. Post, at 1427. She cites no evidence, however, that such an approach would have been inconsistent with the standard of professional competence in capital cases that prevailed in Los Angeles in 1984. Indeed, she does not contest that, at the time, the defense bar in California had been using that strategy. See supra, at 1404; post, at 1427, n. 21. Justice SOTOMAYOR relies heavily on Wiggins, but in that case the defendant's trial counsel specifically acknowledged a standard practice for capital cases in Maryland that was inconsistent with what he had done. 539 U.S., at 524, 123 S.Ct. 2527.
At bottom, Justice SOTOMAYOR's view is grounded in little more than her own sense of "prudence," post, at 1427 (internal quotation marks omitted), and what appears to be her belief that the only reasonable mitigation strategy in capital cases is to "help" the jury "understand" the defendant, post, at 1431-1432. According to Justice SOTOMAYOR, that Pinholster was an unsympathetic client "compound[ed], rather than excuse[d], counsel's deficiency" in pursuing further evidence "that could explain why Pinholster was the way he was." Post, at 1429. But it certainly can be reasonable for attorneys to conclude that creating sympathy for the defendant's family is a better idea because the defendant himself is simply unsympathetic.
Justice SOTOMAYOR's approach is flatly inconsistent with Strickland's recognition that "[t]here are countless ways to provide effective assistance in any given case." 466 U.S., at 689, 104 S.Ct. 2052. There comes a point where a defense attorney will reasonably decide that another strategy is in order, thus "mak[ing] particular investigations unnecessary." Id., at 691, 104 S.Ct. 2052; cf. 590 F.3d, at 692
We have recently reiterated that "`[s]urmounting Strickland's high bar is never an easy task.'" Richter, supra, at ___, 131 S.Ct., at 788 (quoting Padilla v. Kentucky, 559 U.S. ___, ___, 130 S.Ct. 1473, 1484, 176 L.Ed.2d 284, (2010)). The Strickland standard must be applied with "scrupulous care." Richter, supra, at ___, 131 S.Ct., at 788. The Court of Appeals did not do so here.
Even if his trial counsel had performed deficiently, Pinholster also has failed to show that the California Supreme Court must have unreasonably concluded that Pinholster was not prejudiced. "[T]he question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, supra, at 695, 104 S.Ct. 2052. We therefore "reweigh the evidence in aggravation against the totality of available mitigating evidence." Wiggins, supra, at 534, 123 S.Ct. 2527.
We turn first to the aggravating and mitigating evidence that the sentencing jury considered. See Strickland, supra, at 695, 104 S.Ct. 2052 ("[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury"). Here, the same jury heard both the guilt and penalty phases and was instructed to consider all the evidence presented. Cf. Visciotti, 537 U.S., at 25, 123 S.Ct. 357 (noting that the state habeas court had correctly considered mitigating evidence introduced during the guilt phase).
The State presented extensive aggravating evidence. As we have already discussed, the jury watched Pinholster revel in his extensive criminal history. Supra, at 1405. Then, during the penalty phase, the State presented evidence that Pinholster had threatened to kill the State's lead witness, assaulted a man with a straight razor, and kidnapped another person with a knife. The State showed that Pinholster had a history of violent outbursts, including striking and threatening a bailiff after a court proceeding at age 17, breaking his wife's jaw,
The mitigating evidence consisted primarily of the penalty-phase testimony of Pinholster's mother, Brashear, who gave a detailed account of Pinholster's troubled childhood and adolescence. Early childhood
Pinholster always struggled in school. He was disruptive in kindergarten and was failing by first grade. He got in fights and would run out of the classroom. In third grade, Pinholster's teacher suggested that he was more than just a "`disruptive child.'" Id., at 7394. Following tests at a clinic, Pinholster was sent to a school for educationally handicapped children where his performance improved.
At age 10, psychiatrists recommended that Pinholster be sent to a mental institution, although he did not go. Pinholster had continued to initiate fights with his brothers and to act like "Robin Hood" around the neighborhood, "[s]tealing from the rich and giving to the poor." Id., at 7395. Brashear had thought then that "[s]omething was not working right." Id., at 7396.
By age 10 or 11, Pinholster was living in boy's homes and juvenile halls. He spent six months when he was 12 in a state mental institution for emotionally handicapped children. By the time he was 18, Pinholster was in county jail, where he was beaten badly. Brashear suspected that the beating caused Pinholster's epilepsy, for which he has been prescribed medication. After a stint in state prison, Pinholster returned home but acted "unusual" and had trouble readjusting to life. Id., at 7405.
Pinholster's siblings were "basically very good children," although they would get into trouble. Id., at 7401. His brother, Terry, had been arrested for drunk driving and his sister, Tammy, for public intoxication. Tammy also was arrested for drug possession and was self-destructive and "wild." Ibid. Pinholster's eldest brother, Alvin, died a fugitive from California authorities.
In addition to Brashear's penalty-phase testimony, Pinholster had previously presented mitigating evidence during the guilt phase from his brother, Terry. Terry testified that Pinholster was "more or less in institutions all his life," suffered from epilepsy, and was "more or less" drunk on the night of the murders. 42 id., at 6015, 6036.
After considering this aggravating and mitigating evidence, the jury returned a sentence of death. The state trial court found that the jury's determination was "supported overwhelmingly by the weight of the evidence" and added that "the factors in aggravation beyond all reasonable doubt outweigh those in mitigation." Clerk's Tr. 1184, 1186.
There is no reasonable probability that the additional evidence Pinholster presented in his state habeas proceedings would have changed the jury's verdict. The "new" evidence largely duplicated the mitigation evidence at trial. School and medical records basically substantiate the
To the extent the state habeas record includes new factual allegations or evidence, much of it is of questionable mitigating value. If Pinholster had called Dr. Woods to testify consistently with his psychiatric report, Pinholster would have opened the door to rebuttal by a state expert. See, e.g., Wong v. Belmontes, 558 U.S. ___, ___, 130 S.Ct. 383, 389-90, 175 L.Ed.2d 328 (2009) (per curiam) (taking into account that certain mitigating evidence would have exposed the petitioner to further aggravating evidence). The new evidence relating to Pinholster's family—their more serious substance abuse, mental illness, and criminal problems, see post, at 1424—is also by no means clearly mitigating, as the jury might have concluded that Pinholster was simply beyond rehabilitation. Cf. Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (recognizing that mitigating evidence can be a "two-edged sword" that juries might find to show future dangerousness).
The remaining new material in the state habeas record is sparse. We learn that Pinholster's brother Alvin died of suicide by drug overdose, and there are passing references to Pinholster's own drug dependency. According to Dr. Stalberg, Pinholster's "school records" apparently evidenced "some degree" of brain damage. App. to Brief in Opposition 219. Mostly, there are just a few new details about Pinholster's childhood. Pinholster apparently looked like his biological father, whom his grandparents "loathed." Pet. for Writ of Habeas Corpus in No. S004616 (Cal.), Exh. 98, p. 1. Accordingly, whenever his grandparents "spanked or disciplined" the kids, Pinholster "always got the worst of it." Ibid. Pinholster was mostly unsupervised and "didn't get much love," because his mother and stepfather were always working and "were more concerned with their own lives than the welfare of their kids." Id., at 2. Neither parent seemed concerned about Pinholster's schooling. Finally, Pinholster's aunt once saw the children mixing flour and water to make something to eat, although "[m]ost meals consisted of canned spaghetti and foods of that ilk." Id., at 1.
Given what little additional mitigating evidence Pinholster presented in state habeas, we cannot say that the California Supreme Court's determination was unreasonable. Having already heard much of what is included in the state habeas record, the jury returned a sentence of death. Moreover, some of the new testimony would likely have undercut the mitigating value of the testimony by Pinholster's mother. The new material is thus not so significant that, even assuming Pinholster's trial counsel performed deficiently, it was necessarily unreasonable for the California Supreme Court to conclude that Pinholster had failed to show a "substantial" likelihood of a different sentence. Richter, 562 U.S., at ___, 131 S.Ct., at 792 (citing Strickland, 466 U.S., at 693, 104 S.Ct. 2052).
As with deficiency, the Court of Appeals found this case to be "materially indistinguishable" from Terry Williams and Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). 590 F.3d, at 684. But this Court did not apply AEDPA deference to the question of prejudice in those cases; each of them lack the important "doubly deferential" standard of Strickland and AEDPA. See Terry Williams, 529 U.S., at 395-397, 120 S.Ct. 1495
The judgment of the United States Court of Appeals for the Ninth Circuit is reversed.
It is so ordered.
Justice ALITO, concurring in part and concurring in the judgment.
Although I concur in the Court's judgment, I agree with the conclusion reached in Part I of the dissent, namely, that, when an evidentiary hearing is properly held in federal court, review under 28 U.S.C. § 2254(d)(1) must take into account the evidence admitted at that hearing. As the dissent points out, refusing to consider the evidence received in the hearing in federal court gives § 2254(e)(2) an implausibly narrow scope and will lead either to results that Congress surely did not intend or to the distortion of other provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and the law on "cause and prejudice." See post, at 1417-1419 (opinion of SOTOMAYOR, J.).
Under AEDPA evidentiary hearings in federal court should be rare. The petitioner generally must have made a diligent effort to produce in state court the new evidence on which he seeks to rely. See § 2254(e)(2); Williams v. Taylor, 529 U.S. 420, 433-434, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). If that requirement is not satisfied, the petitioner may establish the factual predicate for a claim in a federal-court hearing only if, among other things, "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." § 2254(e)(2)(B).
Even when the petitioner does satisfy the diligence standard adopted in Williams v. Taylor, supra, a hearing should not be held in federal court unless the new evidence that the petitioner seeks to introduce was not and could not have been offered in the state-court proceeding. Section 2254(e)(2) bars a hearing in certain situations, but it does not mean that a hearing is allowed in all other situations. See Schriro v. Landrigan, 550 U.S. 465, 473-474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). The whole thrust of AEDPA is
In this case, for essentially the reasons set out in the dissent from the Court of Appeals' en banc decision, see Pinholster v. Ayers, 590 F.3d 651, 688-691 (C.A.9 2009) (opinion of Kozinski, J.), I would hold that the federal-court hearing should not have been held because respondent did not diligently present his new evidence to the California courts. And I join all but Part II of the opinion of the Court, as I agree that the decision of the state court represented a reasonable application of clearly established Supreme Court precedent in light of the state-court record.
Justice BREYER, concurring in part and dissenting in part.
I join Parts I and II of the Court's opinion. I do not join Part III, for I would send this case back to the Court of Appeals so that it can apply the legal standards that Part II announces to the complex facts of this case. Compare ante, at 1401-1411 (majority opinion), with post, at 1421-1436 (SOTOMAYOR, J., dissenting).
Like the Court, I believe that its understanding of 28 U.S.C. § 2254(d)(1) does not leave AEDPA's hearing section, § 2254(e), without work to do. An offender who believes he is entitled to habeas relief must first present a claim (including his evidence) to the state courts. If the state courts reject the claim, then a federal habeas court may review that rejection on the basis of the materials considered by the state court. If the federal habeas court finds that the state-court decision fails (d)'s test (or if (d) does not apply), then an (e) hearing may be needed.
For example, if the state-court rejection assumed the habeas petitioner's facts (deciding that, even if those facts were true, federal law was not violated), then (after finding the state court wrong on a(d) ground) an (e) hearing might be needed to determine whether the facts alleged were indeed true. Or if the state-court rejection rested on a state ground, which a federal habeas court found inadequate, then an (e) hearing might be needed to consider the petitioner's (now unblocked) substantive federal claim. Or if the state-court rejection rested on only one of several related federal grounds (e.g., that counsel's assistance was not "inadequate"), then, if the federal court found that the state court's decision in respect to the ground it decided violated (d), an (e) hearing might be needed to consider other related parts of the whole constitutional claim (e.g., whether the counsel's "inadequate" assistance was also prejudicial). There may be other situations in which an (e) hearing is needed as well.
In this case, however, we cannot say whether an (e) hearing is needed until we know whether the state court, in rejecting Pinholster's claim on the basis presented to that state court, violated (d). (In my view, the lower courts' analysis in respect to this matter is inadequate.)
There is no role in (d) analysis for a habeas petitioner to introduce evidence that was not first presented to the state courts. But that does not mean that Pinholster is without recourse to present new evidence. He can always return to state court presenting new evidence not previously presented. If the state court again denies relief, he might be able to return to federal court to make claims related to the latest rejection, subject to AEDPA's limitations
I am not trying to predict the future course of these proceedings. I point out only that, in my view, AEDPA is not designed to take necessary remedies from a habeas petitioner but to give the State a first opportunity to consider most matters and to insist that federal courts properly respect state-court determinations.
Justice SOTOMAYOR, with whom Justice GINSBURG and Justice KAGAN join as to Part II, dissenting.
Some habeas petitioners are unable to develop the factual basis of their claims in state court through no fault of their own. Congress recognized as much when it enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and permitted therein the introduction of new evidence in federal habeas proceedings in certain limited circumstances. See 28 U.S.C. § 2254(e)(2). Under the Court's novel interpretation of § 2254(d)(1), however, federal courts must turn a blind eye to new evidence in deciding whether a petitioner has satisfied § 2254(d)(1)'s threshold obstacle to federal habeas relief—even when it is clear that the petitioner would be entitled to relief in light of that evidence. In reading the statute to "compe[l]" this harsh result, ante, at 1398-1399, the Court ignores a key textual difference between §§ 2254(d)(1) and 2254(d)(2) and discards the previous understanding in our precedents that new evidence can, in fact, inform the § 2254(d)(1) inquiry. I therefore dissent from the Court's first holding.
I also disagree with the Court that, even if the § 2254(d)(1) analysis is limited to the state-court record, respondent Scott Pinholster failed to demonstrate that the California Supreme Court's decision denying his ineffective-assistance-of-counsel claim was an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is no reason for the majority to decide whether the § 2254(d)(1) analysis is limited to the state-court record because Pinholster satisfied § 2254(d)(1) on either the state- or federal-court record.
The Court first holds that, in determining whether a state-court decision is an unreasonable application of Supreme Court precedent under § 2254(d)(1), "review. . . is limited to the record that was before the state court that adjudicated the claim on the merits." Ante, at 1398. New evidence adduced at a federal evidentiary hearing is now irrelevant to determining whether a petitioner has satisfied § 2254(d)(1). This holding is unnecessary to promote AEDPA's purposes, and it is inconsistent with the provision's text, the structure of the statute, and our precedents.
To understand the significance of the majority's holding, it is important to view the issue in context. AEDPA's entire structure—which gives state courts the opportunity to decide factual and legal questions in the first instance—ensures that evidentiary hearings in federal habeas proceedings are very rare. See N. King, F. Cheesman, & B. Ostrom, Final Technical Report: Habeas Litigation in U.S. District Courts 35-36 (2007) (evidentiary hearings under AEDPA occur in 0.4 percent of noncapital cases and 9.5 percent of capital cases). Even absent the new restriction created by today's holding, AEDPA erects multiple hurdles to a state prisoner's ability to introduce new evidence in a federal habeas proceeding.
Second, the exhaustion requirement is "complement[ed]" by the standards set forth in § 2254(d). Harrington, 562 U.S., at ___, 131 S.Ct., at 787. Under this provision, a federal court may not grant habeas relief on any "claim that was adjudicated on the merits in State court proceedings" unless the adjudication
These standards "control whether to grant habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Accordingly, we have said, if the factual allegations a petitioner seeks to prove at an evidentiary hearing would not satisfy these standards, there is no reason for a hearing. See id., at 481, 127 S.Ct. 1933. In such a case, the district court may exercise its "discretion to deny an evidentiary hearing." Ibid.; see also infra, at 1419-1420. This approach makes eminent sense: If district courts held evidentiary hearings without first asking whether the evidence the petitioner seeks to present would satisfy AEDPA's demanding standards, they would needlessly prolong federal habeas proceedings.
Third, even when a petitioner seeks to introduce new evidence that would entitle him to relief, AEDPA prohibits him from doing so, except in a narrow range of cases, unless he "made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court." Williams v. Taylor, 529 U.S. 420, 435, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (Michael Williams). Thus, § 2254(e)(2) provides:
In Michael Williams, we construed the opening clause of this provision—which triggers the bar on evidentiary hearings—
To the limited extent that federal evidentiary hearings are available under AEDPA, they ensure that petitioners who diligently developed the factual basis of their claims in state court, discovered new evidence after the state-court proceeding, and cannot return to state court retain the ability to access the Great Writ. See ante, at 1411-1412 (ALITO, J., concurring in part and concurring in judgment). "When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the `writ of habeas corpus plays a vital role in protecting constitutional rights.'" Holland v. Florida, 560 U.S. ___, ___, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010) (quoting Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). Allowing a petitioner to introduce new evidence at a hearing in the limited circumstance permitted by § 2254(e)(2) does not upset the balance that Congress struck in AEDPA between the state and federal courts. By construing § 2254(d)(1) to do the work of other provisions in AEDPA, the majority has subverted Congress' careful balance of responsibilities. It has also created unnecessarily a brand-new set of procedural complexities that lower courts will have to confront.
The majority's interpretation of § 2254(d)(1) finds no support in the provision's text or the statute's structure as a whole.
Section 2254(d)(1) requires district courts to ask whether a state-court adjudication on the merits "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Because this provision uses "backward-looking language"—i.e., past-tense verbs—the majority believes that it limits review to the state-court record. Ante, at 1398-1399. But both §§ 2254(d)(1) and 2254(d)(2) use "backward-looking language," and § 2254(d)(2)—unlike § 2254(d)(1)—expressly directs district courts to base their review on "the evidence presented in the State court proceeding." If use of the past tense were sufficient to indicate Congress' intent to restrict analysis to the state-court record, the phrase "in light of the evidence presented in the State court proceeding" in § 2254(d)(2) would be superfluous. The majority's construction of § 2254(d)(1) fails to give meaning to Congress' decision to include language referring to the evidence presented to the state court in § 2254(d)(2). Cf. Bates v. United States, 522 U.S. 23, 29-30, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997) ("Where Congress includes particular language in one section of a statute but omits it in another section of
Ignoring our usual "reluctan[ce] to treat statutory terms as surplusage in any setting," TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (internal quotation marks omitted), the majority characterizes the phrase appearing in § 2254(d)(2) as mere "clarifying language," ante, at 1400, n. 7. It speculates that "[t]he omission of clarifying language from § 2254(d)(1) just as likely reflects Congress' belief that such language was unnecessary as it does anything else." Ante, at 1400, n. 7. The argument that this phrase is merely "clarifying" might have more force, however, had Congress included this phrase in § 2254(d)(1) but not in § 2254(d)(2). As between the two provisions, § 2254(d)(2)—which requires review of the state court's "determination of the facts"—more logically depends on the facts presented to the state court. Because this provision needs less clarification on this point than § 2254(d)(1), it is all the more telling that Congress included this phrase in § 2254(d)(2) but elected to exclude it from § 2254(d)(1).
Unlike my colleagues in the majority, I refuse to assume that Congress simply engaged in sloppy drafting. The inclusion of this phrase in § 2254(d)(2)—coupled with its omission from § 2254(d)(2)'s partner provision, § 2254(d)(1)—provides strong reason to think that Congress did not intend for the § 2254(d)(1) analysis to be limited categorically to "the evidence presented in the State court proceeding."
The "`broader context of the statute as a whole,'" ante, at 1398-1399 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)), reinforces this conclusion. In particular, Congress' decision to include in AEDPA a provision, § 2254(e)(2), that permits federal evidentiary hearings in certain circumstances provides further evidence that Congress did not intend to limit the § 2254(d)(1) inquiry to the state-court record in every case.
We have long recognized that some diligent habeas petitioners are unable to develop all of the facts supporting their claims in state court.
Faced with situations in which a diligent petitioner offers additional evidence in federal court, the courts of appeals have taken two approaches to applying § 2254(d)(1). Some courts have held that when a federal court admits new evidence supporting a claim adjudicated on the merits in state court, § 2254(d)(1) does not apply at all and the federal court may review the claim de novo. See ante, at 1400; Holland v. Jackson, 542 U.S. 649, 653, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam); see, e.g., Winston v. Kelly, 592 F.3d 535, 555-556 (C.A.4 2010). I agree with the majority's rejection of this approach. See ante, at 1400. It would undermine the comity principles motivating AEDPA to decline to defer to a state-court adjudication of a claim because the state court, through no fault of its own, lacked all the relevant evidence.
Other courts of appeals, including the court below, have struck a more considered balance. These courts have held that § 2254(d)(1) continues to apply but that new evidence properly presented in a federal hearing is relevant to the reasonableness of the state-court decision. See Pinholster v. Ayers, 590 F.3d 651, 668 (C.A.9 2009) (en banc) ("If the evidence is admissible under Michael Williams or § 2254(e)(2), and if it does not render the petitioner's claims unexhausted . . ., then it is properly considered in evaluating whether the legal conclusion reached by the state habeas court was a reasonable application of Supreme Court law"); accord, Wilson v. Mazzuca, 570 F.3d 490, 500 (C.A.2 2009); Pecoraro v. Walls, 286 F.3d 439, 443 (C.A.7 2002); Valdez v. Cockrell, 274 F.3d 941, 952 (C.A.5 2001). This approach accommodates the competing goals, reflected in §§ 2254(d) and 2254(e)(2), of according deference to reasonable state-court decisions and preserving the opportunity for diligent petitioners to present evidence to the federal court when they were unable to do so in state court.
The majority charts a third, novel course that, so far as I am aware, no court of appeals has adopted: § 2254(d)(1) continues to apply when a petitioner has additional evidence that he was unable to present to the state court, but the district court cannot consider that evidence in deciding whether the petitioner has satisfied § 2254(d)(1). The problem with this approach is its potential to bar federal habeas relief for diligent habeas petitioners who cannot present new evidence to a state court.
Consider, for example, a petitioner who diligently attempted in state court to develop the factual basis of a claim that prosecutors withheld exculpatory witness statements in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The state court denied relief on the ground that the withheld evidence then known did not rise to the level of materiality required under Brady. Before the time for filing a federal habeas
Under our precedent, if the petitioner had not presented his Brady claim to the state court at all, his claim would be deemed defaulted and the petitioner could attempt to show cause and prejudice to overcome the default. See Michael Williams, 529 U.S., at 444, 120 S.Ct. 1479; see also n. 1, supra. If, however, the new evidence merely bolsters a Brady claim that was adjudicated on the merits in state court, it is unclear how the petitioner can obtain federal habeas relief after today's holding. What may have been a reasonable decision on the state-court record may no longer be reasonable in light of the new evidence. See Kyles v. Whitley, 514 U.S. 419, 436, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (materiality of Brady evidence is viewed "collectively, not item by item"). Because the state court adjudicated the petitioner's Brady claim on the merits, § 2254(d)(1) would still apply. Yet, under the majority's interpretation of § 2254(d)(1), a federal court is now prohibited from considering the new evidence in determining the reasonableness of the state-court decision.
The majority's interpretation of § 2254(d)(1) thus suggests the anomalous result that petitioners with new claims based on newly obtained evidence can obtain federal habeas relief if they can show cause and prejudice for their default but petitioners with newly obtained evidence supporting a claim adjudicated on the merits in state court cannot obtain federal habeas relief if they cannot first satisfy § 2254(d)(1) without the new evidence. That the majority's interpretation leads to this anomaly is good reason to conclude that its interpretation is wrong. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 7-8, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) ("[I]t is. . . irrational to distinguish between failing to properly assert a federal claim in state court and failing in state court to properly develop such a claim").
The majority responds to this anomaly by suggesting that my hypothetical petitioner "may well [have] a new claim."
The majority's reading of § 2254(d)(1) appears ultimately to rest on its understanding that state courts must have the first opportunity to adjudicate habeas petitioners' claims. See ante, at 1398-1399 ("It would be contrary to [AEDPA's exhaustion requirement] to allow a petitioner to overcome an adverse state-court decision with new evidence introduced in a federal habeas court and reviewed by that court in the first instance effectively de novo").
These considerations lead me to agree with the courts of appeals that have concluded that a federal court should assess the reasonableness of a state court's application of clearly established federal law under § 2254(d)(1) in light of evidence properly admitted in a federal evidentiary hearing. There is nothing "strange" about this approach. Ante, at 1399. Under § 2254(d)(1), federal courts routinely engage in analysis that the state court itself might never have conducted or did not conduct. For example, when a state court summarily denies a claim without explanation, as the California Supreme Court did here, district courts must deny habeas relief pursuant to § 2254(d)(1) so long as "there is any reasonable argument" supporting the denial of the petitioner's claim. Harrington, 562 U.S., at ___, 131 S.Ct., at 788. We likewise ask whether a state-court decision unreasonably applied clearly established federal law when the state court issued a reasoned decision but failed to cite federal law altogether. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). Determining whether a state court could reasonably have denied a petitioner relief in light of newly discovered evidence is not so different than determining whether there is any reasonable basis for a state court's unreasoned decision.
Admittedly, the text of § 2254(d)(1), standing alone, does not compel either reading of that provision. But construing § 2254(d)(1) to permit consideration of evidence properly introduced in federal court
The majority claims that its holding is "consistent" with our case law. Ante, at 1399. Quite the opposite is true: Our cases reflect our previous understanding that evidence properly admitted pursuant to § 2254(e)(2) is relevant to the § 2254(d)(1) analysis.
In Landrigan, Justice THOMAS, the author of today's opinion, confirmed this understanding of the interplay between §§ 2254(d)(1) and 2254(e)(2). As noted above, we admonished district courts to consider whether a petitioner's allegations, if proved true, would satisfy § 2254(d) in determining whether to grant a hearing. After highlighting the deference owed to state courts under §§ 2254(d) and 2254(e)(1), we stated:
By instructing district courts to consider the § 2254(d) standards in deciding whether to grant a hearing, we must have understood that the evidence admitted at a hearing could be considered in the § 2254(d)(1) analysis. See Brief for American Civil Liberties Union as Amicus Curiae 9 ("The whole point of Landrigan's admonition that the court must decide whether to hold a hearing with an eye on § 2254(d)(1) is that some proffers of evidence will not justify federal fact-finding in view of § 2254(d)(1), but that other proffers of proof will").
In Michael Williams, the warden argued that § 2254(e)(2) bars an evidentiary hearing whenever a petitioner was unable to develop the factual record in state court, "whether or not through his own fault or neglect." 529 U.S., at 430, 120 S.Ct. 1479. Under the warden's argument, a petitioner who did not develop the record in state court, whatever the reason, would be barred from presenting evidence to the federal court. In rejecting that argument, we observed:
A petitioner in the latter situation would almost certainly be unable to "satisfy § 2254(d)" without introducing the concealed facts in federal court. This passage thus reflects our understanding that, in some circumstances, a petitioner might need an evidentiary hearing in federal court to prove the facts necessary to satisfy § 2254(d). To avoid foreclosing habeas relief for such petitioners, we concluded that § 2254(e)(2) could not bear the warden's "harsh reading," which essentially would have held petitioners strictly at fault for their inability to develop the facts in state court. Ibid. The majority today gives an equally "harsh reading" to § 2254(d)(1) to achieve the result we rejected in Michael Williams.
None of the other cases cited by the majority supports its result. In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (Terry Williams), we interpreted § 2254(d)(1) to ask whether the state-court decision "identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., at 413, 120 S.Ct. 1495. However, we had no reason to decide whether the § 2254(d)(1) inquiry was limited to the state-court record, as the District Court did not hold an evidentiary hearing in that case. See id., at 372, 120 S.Ct. 1495.
In Holland v. Jackson, we stated that "we have made clear that whether a state court's decision was unreasonable must be assessed in light of the record the court had before it." 542 U.S., at 652, 124 S.Ct. 2736. In the next sentence, however, we observed that the evidence at issue "could have been the subject of an evidentiary hearing by the District Court, but only if respondent was not at fault in failing to develop that evidence in state court." Id., at 652-653, 124 S.Ct. 2736. We proceeded to find that the evidence was not properly admitted under § 2254(e)(2) before concluding that the Court of Appeals had erred in its § 2254(d)(1) analysis. Id., at 653, 124 S.Ct. 2736; see also Bradshaw v. Richey, 546 U.S. 74, 79, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (per curiam).
In sum, our cases reflect our recognition that it is sometimes appropriate to consider new evidence in deciding whether a petitioner can satisfy § 2254(d)(1). In reading our precedent to require the opposite conclusion, the majority disregards the concerns that motivated our decision in Michael Williams: Some petitioners, even if diligent, may be unable to develop the factual record in state court through no fault of their own. We should not interpret § 2254(d)(1) to foreclose these diligent petitioners from accessing the Great Writ when the state court will not consider the new evidence and could not reasonably have reached the same conclusion with the new evidence before it.
I also disagree with the Court's conclusion that the Court of Appeals erred in holding that Pinholster had satisfied
The majority omits critical details relating to the performance of Pinholster's trial counsel, the mitigating evidence they failed to discover, and the history of these proceedings. I therefore highlight several aspects of the facts and history of this case.
After the jury returned a guilty verdict, the court instructed the jury to return six days later for the penalty phase. This prompted discussion at sidebar regarding whether the State had provided notice of its intent to offer aggravating evidence. Pinholster's court-appointed attorney, Wilbur Dettmar, argued that the State should be precluded from offering aggravating evidence:
Undoubtedly anticipating that counsel might need additional time to prepare an adequate mitigation defense, the court asked Dettmar whether a continuance would be helpful in the event it ruled against him. He declined the offer on the spot, stating: "I think we would probably still go forward on Monday. Clearly the one person that comes to mind is the defendant's mother. How much beyond that I don't know. I don't think the pa[ss]age of time would make a great deal of difference." Id., at 7257-7258. After hearing testimony, the court denied Pinholster's motion to preclude aggravating evidence.
At the penalty phase, defense counsel called only one witness: Pinholster's mother, Burnice Brashear. Brashear testified that Pinholster "never really wanted for anything at home too much" and "had everything normally materialwise that most people have." Id., at 7395. She said that Pinholster was "different" from his siblings, whom she characterized as "basically very good children." Id., at 7401-7402. Pinholster, she said, had a "friendly" relationship with his stepfather, although his stepfather "sometimes would lose his temper" with Pinholster, who "had a mind of his own." Id., at 7392-7393; see also id., at 7293 (stating that his stepfather was "at times" "abusive or near abusive").
According to Brashear, Pinholster had suffered from epilepsy since age 18, when he was beaten in jail. Id., at 7397. She said that her family doctor, Dr. Dubin, had given him medication to treat the epilepsy. Ibid. Brashear also suggested that Pinholster did not have long to live, stating that he had "a chip in his head floating around" and that "they don't think—he won't be here very much longer anyway."
In closing argument, the prosecutor ridiculed Brashear's testimony. See 53 id., at 7442 ("She said his stepfather disciplined him. So what? I am sure you have all disciplined your children. I was disciplined myself"); ibid. ("He was run over by a car when he was three years old. That's very unfortunate. There is no evidence of any brain damage. A lot of children get dropped, fall from their cribs or whatever"); id., at 7444-7445 ("I submit to you that if this defendant truly had epilepsy,... a doctor would have been brought in to tell you that. Medical records, something"). The prosecutor also highlighted Brashear's testimony about Pinholster's stable home environment, arguing, "He came from a good home. You heard that he was not a deprived child. Had many things going for him, probably more than many children." Id., at 7442.
Notwithstanding the meager mitigation case presented by Pinholster's counsel, it took the jury two days to reach a decision to sentence Pinholster to death. His counsel later moved to modify the sentence to life imprisonment. In denying the motion, the trial judge stated, "The evidence which the defense offered concerning the defendant's extenuation was merely some testimony from his mother that was not persuasive. His mother did not, in the court's opinion, present any evidence which the court would find to be a moral justification or extenuation for his conduct. No witness supplied such evidence." 54 id., at 7514.
After his conviction and sentence were affirmed on appeal, Pinholster filed a habeas petition in the California Supreme Court alleging, among other things, that his counsel had "unreasonably failed to investigate, prepare and present available mitigating evidence during penalty phase." Record ER-103.
Pinholster's state-court petition included 121 exhibits. In a series of declarations, his trial attorney Harry Brainard (who had by then been disbarred) confirmed what Dettmar had forthrightly told the trial court: Brainard and Dettmar neither expected nor prepared to present mitigation evidence.
Statements by relatives (none of whom trial counsel had attempted to interview regarding Pinholster's background) and documentary evidence revealed that the picture of Pinholster's family life painted by his mother at trial was false. Pinholster was "raised in chaos and poverty." Id., at ER-312. A relative remembered seeing the children mix together flour and water in an attempt to get something to eat. Pinholster's stepfather beat him several times a week, including at least once with a two-by-four board. "There was so much violence in [the] home" that Pinholster's brother "dreaded coming home each day." Id., at ER-313. Pinholster's half sister was removed from the home as a result of a beating by his stepfather.
Documentary evidence showed, directly contrary to Brashear's trial testimony, that Pinholster's siblings had very troubled pasts. Pinholster's elder brother was arrested for armed burglary, robbery, and forcible rape of a 14-year-old with a deadly weapon. While in custody, he was diagnosed as "catatonic-like" and "acutely psychotic, probably suffering some type of schizophrenia." Id., at ER-219, ER-224. He later committed suicide.
Pinholster's petition and exhibits described a long history of emotional disturbance and neurological problems. A former schoolteacher stated that, as a child, Pinholster "seemed incapable of relating either to his peers or to adults," that "[i]t was even hard to maintain eye contact with him," and that "[h]is hyperactivity was so extreme that [she] formed the opinion it probably had an organic base." Id., at ER-231. School records revealed that he "talk[ed] to self continuously," had "many grimaces," fought in his sleep, and could "control self for only 1 hour per day." Id., at ER-230, ER-233. He "show[ed] progressive deterioration each semester since Kindergarten." Id., at ER-230. School officials recommended placement in a school for emotionally handicapped students and referral to a neurologist. At age nine, he had an abnormal
This and other evidence attached to the petition was summarized in a declaration by Dr. George Woods. Dr. Woods opined that Pinholster "suffer[ed] from severe and long standing seizure disorders," id., at ER-156, that his childhood head traumas "may have been the precipitating factors for [his] seizure disorder," id., at ER-157, and that he suffered from bipolar mood disorder. He pointed to trial testimony that immediately before the burglary on the night of the homicides, Pinholster announced that he "`ha[d] a message from God'"—which Dr. Woods believed to reflect "[a]uditory hallucinations" and "severe psychosis." Id., at ER-169. He concluded that at the time of the homicides Pinholster "was suffering from bipolar mood disorder with psychotic ideation and was suffering a complex partial seizure." Id., at ER-170. He also observed that Pinholster's "grossly dysfunctional family, the abuse he received as a child, his history of suffering from substantial seizure and mood disorders, his frequently untreated psychiatric and psychological disabilities and his educational handicaps were relevant circumstances which would extenuate the gravity of the crime." Id., at ER-171.
On the basis of Pinholster's submission, the California Supreme Court denied Pinholster's ineffective-assistance-of-counsel claim.
Pinholster then filed a habeas petition in Federal District Court. He included an additional exhibit: a declaration by Dr. John Stalberg, a psychiatrist who had hastily examined Pinholster and produced a two-page report in the middle of the original trial.
The District Court stayed the federal proceedings while Pinholster sought state-court review of claims the District Court deemed unexhausted. Pinholster's second habeas submission to the California Supreme Court included Stalberg's declaration. That court summarily denied Pinholster's petition on the merits.
Pinholster returned to Federal District Court and filed an amended petition. After an evidentiary hearing, the District Court concluded that Pinholster had demonstrated deficient performance and prejudice under Strickland.
As the majority notes, Pinholster's claim arises under Strickland v. Washington. "The benchmark for judging any claim of ineffectiveness [under Strickland] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." 466 U.S., at 686, 104 S.Ct. 2052. To satisfy this benchmark, a defendant must show both that "counsel's performance was deficient" and that "the deficient performance prejudiced the defense." Id., at 687, 104 S.Ct. 2052.
When § 2254(d)(1) applies, the question is whether "`fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S., at ___, 131 S.Ct. at 785 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). When the state court rejected a Strickland claim on the pleadings assuming the allegations to be true, as here, see ante, at 1402-1403, n. 12, the federal court must ask whether "there is any reasonable argument" supporting the state court's conclusion that the petitioner's allegations did not state a claim, Harrington, 562 U.S., at ___, 131 S.Ct., at 788. This standard is "difficult," but not impossible, "to meet." Id., at ___, 131 S.Ct., at 786. This case is one in which fairminded jurists could not disagree that the state court erred.
Under Strickland, "the defendant must show that counsel's representation fell below an objective standard of reasonableness," measured according to "prevailing professional norms." 466 U.S., at 688, 104 S.Ct. 2052. We "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id., at 689, 104 S.Ct. 2052. When § 2254(d) applies, federal-court review is "`doubly'" deferential. Harrington, 562 U.S., at ___, 131 S.Ct., at 788 (quoting Knowles v. Mirzayance, 556 U.S. ___, ___, 129 S.Ct. 1411, 1413, 173 L.Ed.2d 251 (2009)). In the present AEDPA posture, "[t]he question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S., at ___, 131 S.Ct., at 788. Here, there is none.
The majority surmises that counsel decided on a strategy "to get the prosecution's aggravation witnesses excluded for lack of notice, and if that failed, to put on Pinholster's mother." Ante, at 1404. This is the sort of "`post hoc rationalization' for counsel's decisionmaking that contradicts the available evidence of counsel's actions" that courts cannot indulge. Harrington, 562 U.S., at ___, 131 S.Ct., at 790 (quoting Wiggins v. Smith, 539 U.S. 510, 526-527, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). The majority's explanation for counsel's conduct contradicts the best available evidence of counsel's actions: Dettmar's frank, contemporaneous statement to the trial judge that he "had not prepared any evidence by way of mitigation." 52 Tr. 7250. The majority's conjecture that counsel had in fact prepared a mitigation defense, based primarily on isolated entries in counsel's billing records, requires it to assume that Dettmar was lying to the trial judge.
Instead, I understand the majority's conclusion that counsel's actions were reasonable to rest on its belief that they did have a backup plan: a family-sympathy defense. In reaching this conclusion, the majority commits the same Strickland error that we corrected, applying § 2254(d)(1), in Wiggins: It holds a purportedly "tactical judgment" to be reasonable without assessing "the adequacy of the investigatio[n] supporting [that] judgmen[t]," 539 U.S., at 521, 123 S.Ct. 2527. As we stated in Strickland:
We have repeatedly applied this principle since Strickland. See Sears v. Upton, 561 U.S. ___, ___, 130 S.Ct. 3259, 3266, 177 L.Ed.2d 1025 (2010) (per curiam); Porter v. McCollum, 558 U.S. ___, ___, 130 S.Ct. 447, 453, 175 L.Ed.2d 398 (2009) (per curiam); Wiggins, 539 U.S., at 527, 123 S.Ct. 2527; Terry Williams, 529 U.S., at 396, 120 S.Ct. 1495.
As these cases make clear, the prevailing professional norms at the time of Pinholster's trial required his attorneys to "conduct a thorough investigation of the defendant's background," ibid. (citing 1
Wiggins is illustrative of the competence we have required of counsel in a capital case. There, counsel's investigation was limited to three sources: psychological testing, a presentencing report, and Department of Social Services records. 539 U.S., at 523-524, 123 S.Ct. 2527. The records revealed that the petitioner's mother was an alcoholic, that he displayed emotional difficulties in foster care, that he was frequently absent from school, and that on one occasion, his mother left him alone for days without food. Id., at 525, 123 S.Ct. 2527. In these circumstances, we concluded, "any reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice among possible defenses." Ibid. Accordingly, we held, the state court's assumption that counsel's investigation was adequate was an unreasonable application of Strickland. 539 U.S., at 528, 123 S.Ct. 2527.
This case is remarkably similar to Wiggins. As the majority reads the record, counsel's mitigation investigation consisted of talking to Pinholster's mother, consulting with Dr. Stalberg, and researching epilepsy.
"[A]ny reasonably competent attorney would have realized that pursuing" the leads suggested by this information "was necessary to making an informed choice among possible defenses." Id., at 525, 123 S.Ct. 2527; see also Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) ("[E]vidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse" (internal quotation marks omitted)). Yet counsel made no effort to obtain the readily available evidence suggested by the information they learned, such as Pinholster's schooling or medical records, or to contact Pinholster's school authorities. They did not contact Dr. Dubin or the many other health-care providers who had treated Pinholster. Put simply, counsel "failed to act while potentially powerful mitigating evidence stared them in the face." Bobby, 558 U.S., at ___, 130 S.Ct., at 19 (citing Wiggins, 539 U.S., at 525, 123 S.Ct. 2527).
The "impediments" facing counsel, ante, at 1405, did not justify their minimal investigation. It is true that Pinholster was "an unsympathetic client." Ibid. But this fact compounds, rather than excuses, counsel's deficiency in ignoring the glaring avenues of investigation that could explain why Pinholster was the way he was. See Sears, 561 U.S., at ___, 130 S.Ct. at 3264 ("This evidence might not have made Sears any more likable to the jury, but it might well have helped the jury understand Sears, and his horrendous acts— especially in light of his purportedly stable upbringing"). Nor can Dr. Stalberg's two-page report, which was based on a very limited record and focused primarily on Pinholster's mental state at the time of the homicides, excuse counsel's failure to investigate the broader range of potential mitigating circumstances.
"The record of the actual sentencing proceedings underscores the unreasonableness of counsel's conduct by suggesting that their failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment." Wiggins, 539 U.S., at 526, 123 S.Ct. 2527. Dettmar told the trial judge that he was unprepared to present any mitigation evidence. The mitigation case that counsel eventually put on can be described, at best, as "halfhearted." Ibid. Counsel made no effort to bolster Brashear's self-interested testimony with school or medical records, as the prosecutor effectively emphasized in closing argument. And because they did not pursue obvious leads, they failed to recognize that Brashear's testimony painting Pinholster as the bad apple in a normal, nondeprived family was false.
In denying Pinholster's claim, the California Supreme Court necessarily overlooked Strickland's clearly established admonition that "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations." 466 U.S., at 690-691, 104 S.Ct. 2052. As in Wiggins, in light of the information available to Pinholster's counsel, it is plain that "reasonable professional judgments" could not have supported their woefully inadequate investigation.
The majority also concludes that the California Supreme Court could reasonably have concluded that Pinholster did not state a claim of prejudice. This conclusion, in light of the overwhelming mitigating evidence that was not before the jury, is wrong. To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., at 694, 104 S.Ct. 2052. When a habeas petitioner challenges a death sentence, "the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id., at 695, 104 S.Ct. 2052. This inquiry requires evaluating "the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding—in reweighing it against the evidence in aggravation." Terry Williams, 529 U.S., at 397-398, 120 S.Ct. 1495. The ultimate question in this case is whether, taking into account all the mitigating and aggravating evidence, "there is a reasonable probability that at least one juror would have struck a different balance." Wiggins, 539 U.S., at 537, 123 S.Ct. 2527; see Cal.Penal Code Ann. § 190.4(b) (West 2008) (requiring a unanimous jury verdict to impose a death sentence).
Like the majority, I first consider the aggravating and mitigating evidence presented at trial. By virtue of its verdict in the guilt phase, the jury had already concluded that Pinholster had stabbed and killed the victims. As the majority states, the jury saw Pinholster "revel" in his history of burglaries during the guilt phase. Ante, at 1408. The jury heard evidence of Pinholster's violent tendencies: He had kidnapped someone with a knife, cut a person in the arm with a razor, and had a history of hitting and kicking people. He threatened to kill the State's lead witness. And he had an extensive disciplinary record in jail.
Brashear offered brief testimony that was apparently intended to be mitigating. See supra, at 1423; see also ante, at 1408-1409.
Moreover, the evidence presented in Pinholster's state-court petition revealed that Brashear distorted facts in her testimony in ways that undermined Pinholster's mitigation case. As in Sears, 561 U.S., at ___, 130 S.Ct., at 3264, the prosecutor used Brashear's testimony that Pinholster came from a good family against him. See 53 Tr. 7442.
In sum, counsel presented little in the way of mitigating evidence, and the prosecutor effectively used their halfhearted attempt to present a mitigation case to advocate for the death penalty. The jury nonetheless took two days to reach a decision to impose a death sentence.
The additional mitigating evidence presented to the California Supreme Court "adds up to a mitigation case that bears no relation" to Brashear's unsubstantiated testimony. Rompilla, 545 U.S., at 393, 125 S.Ct. 2456.
Assuming the evidence presented to the California Supreme Court to be true, as that court was required to do, the new mitigating evidence presented to that court would have shown that Pinholster was raised in "chaos and poverty." Record ER-312. The family home was filled with violence. Pinholster's siblings had extremely troubled pasts. There was substantial evidence of "mental disturbance during Mr. Pinholster's childhood and some degree of brain damage." Id., at ER-493.
Dr. Woods concluded that Pinholster's aggressive conduct resulted from bipolar mood disorder. Just months before the murders, a doctor had recommended that Pinholster be sent to a psychiatric institute. Dr. Woods also explained that Pinholster's bizarre behavior before the murders reflected "[a]uditory hallucinations" and "severe psychosis." Id., at ER-169. The available records confirmed that Pinholster suffered from longstanding seizure disorders, which may have been caused by his childhood head injuries.
On this record, I do not see how it can be said that "[t]he `new' evidence largely duplicated the mitigation evidence at trial." Ante, at 1409; see Arizona v. Fulminante, 499 U.S. 279, 298-299, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (evidence is not "merely cumulative" if it corroborates other evidence that is "unbelievable" on its own). Brashear's self-interested testimony
The majority responds that "much" of Pinholster's new mitigating evidence "is of questionable mitigating value." Ante, at 1409-1410. By presenting psychiatric testimony, it contends, "Pinholster would have opened the door to rebuttal by a state expert." Ibid. But, because the California Supreme Court denied Pinholster's petition on the pleadings, it had no reason to know what a state expert might have said. Moreover, given the record evidence, it is reasonably probable that at least one juror would have credited his expert. In any event, even if a rebuttal expert testified that Pinholster suffered from antisocial personality disorder, this would hardly have come as a surprise to the jury. See ante, at 1406 (describing Pinholster as a "psychotic client whose performance at trial hardly endeared him to the jury"). It is for this reason that it was especially important for counsel to present the available evidence to help the jury understand Pinholster. See Sears, 561 U.S., at ___, 130 S.Ct., at 3264-65.
Had counsel conducted an adequate investigation, the judge and jury would have heard credible evidence showing that Pinholster's criminal acts and aggressive tendencies were "attributable to a disadvantaged background, or to emotional and mental problems." Penry, 492 U.S., at 319, 109 S.Ct. 2934 (internal quotation marks omitted). They would have learned that Pinholster had the "`kind of troubled history we have declared relevant to assessing a defendant's moral culpability.'" Porter, 558 U.S., at ___, 130 S.Ct., at 454 (quoting Wiggins, 539 U.S., at 535, 123 S.Ct. 2527). Applying Strickland, we have repeatedly found "a reasonable probability," 466 U.S., at 694, 104 S.Ct. 2052, that the sentencer would have reached a different result had counsel presented similar evidence. See, e.g., Porter, 558 U.S., at ___, 130 S.Ct., at 454 (evidence of the defendant's childhood history of physical abuse, brain abnormality, limited schooling, and heroic military service); Rompilla, 545 U.S., at 392, 125 S.Ct. 2456 (evidence of severe abuse and neglect as a child, as well as brain damage); Wiggins, 539 U.S., at 535, 123 S.Ct. 2527 (evidence of the defendant's "severe privation and abuse" as a child, homelessness, and "diminished mental capacities"); Terry Williams, 529 U.S., at 398, 120 S.Ct. 1495 (evidence of childhood mistreatment and neglect, head injuries, possible organic mental impairments, and borderline mental retardation).
The majority does not dispute the similarity between this case and the cited cases. However, it criticizes the Court of Appeals for relying on Rompilla and Terry Williams on the ground that we reviewed the prejudice question de novo in those cases. See ante, at 1410-1411. I do not read Terry Williams to review the prejudice question de novo.
In many cases, a state court presented with additional mitigation evidence will reasonably conclude that there is no "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S., at 694, 104 S.Ct. 2052. This is not such a case. Admittedly, Pinholster unjustifiably stabbed and killed two people, and his history of violent outbursts and burglaries surely did not endear him to the jury. But the homicides did not appear premeditated. And the State's aggravation case was no stronger than in Rompilla and Terry Williams. See 545 U.S., at 378, 383, 125 S.Ct. 2456 (the defendant committed murder by torture and had a significant history of violent felonies, including a rape); 529 U.S., at 418, 120 S.Ct. 1495 (REHNQUIST, C.J., concurring in part and dissenting in part) (the defendant had a lifetime of crime, and after the murder he "savagely beat an elderly woman," set a home on fire, and stabbed a man (internal quotation marks omitted)). Even on the trial record, it took the jury two days to decide on a penalty. The contrast between the "not persuasive" mitigation case put on by Pinholster's counsel, 54 Tr. 7514, and the substantial mitigation evidence at their fingertips was stark. Given these considerations, it is not a foregone conclusion, as the majority deems it, that a juror familiar with his troubled background and psychiatric issues would have reached the same conclusion regarding Pinholster's culpability. Fairminded jurists could not doubt that, on the record before the California Supreme Court, "there [was] a reasonable probability that at least one juror would have struck a different balance." Wiggins, 539 U.S., at 537, 123 S.Ct. 2527.
The state-court record on its own was more than adequate to support the Court of Appeals' conclusion that the California Supreme Court could not reasonably have rejected Pinholster's Strickland claim. The additional evidence presented in the federal evidentiary hearing only confirms that conclusion.
At the hearing, Pinholster offered many of the same documents that were before the state habeas court. He also offered his trial attorneys' billing records, which were before the state habeas court as part of the trial record. Of the seven lay witnesses who testified at the hearing, six had previously executed declarations in support of Pinholster's state-court petition. (The seventh, Pinholster's uncle, provided testimony cumulative of other testimony.)
Two experts testified on Pinholster's behalf; neither had presented declarations to the state habeas court. The first was Dr.
Pinholster's second expert was Dr. Sophia Vinogradov, associate professor of psychiatry at the University of California, San Francisco. Dr. Vinogradov's testimony was based on essentially the same facts as Dr. Woods' and Dr. Stalberg's state-court declarations. She highlighted Pinholster's childhood head traumas, history of epilepsy, abusive and neglected upbringing, history of substance abuse, and bizarre behavior on the night of the homicides. She opined that his aggressive behavior resulted from childhood head traumas:
She also opined that, right before the homicides, Pinholster was in an "apparently hallucinatory state [that] was likely the result of his intoxication with multiple substances." Id., at ER-707.
The State presented two experts: Dr. Stalberg, the psychiatrist who had examined Pinholster in the middle of trial,
Much of the evidence presented at the federal hearing was duplicative of the evidence submitted to the California Supreme Court. The additional evidence presented at the hearing only confirmed that the California Supreme Court could not reasonably have rejected Pinholster's claim.
For example, the probation report presented by the State confirmed that counsel had in their possession information that would have led any reasonable attorney "to investigate further." Wiggins, 539 U.S., at 527, 123 S.Ct. 2527. Counsel nevertheless took no action to investigate these leads.
Pinholster's experts opined that his childhood head traumas likely resulted in brain injury and conferred a risk of epilepsy. Although the State presented testimony that Pinholster had antisocial personality disorder, it was not clear error for the District Court to conclude that jurors could have credited Pinholster's experts. Even the State's own expert, Dr. Stalberg, testified to the "voluminous" mitigation evidence in Pinholster's case. Record ER-926.
In sum, the evidence confirmed what was already apparent from the state-court record: Pinholster's counsel failed to conduct an adequate mitigation investigation, and there was a reasonable probability that at least one juror confronted with the "voluminous" mitigating evidence counsel should have discovered would have voted to spare Pinholster's life. Ibid. Accordingly, whether on the basis of the state- or federal-court record, the courts below correctly concluded that Pinholster had shown that the California Supreme Court's decision reflected an unreasonable application of Strickland.
I cannot agree with either aspect of the Court's ruling. I fear the consequences of the Court's novel interpretation of § 2254(d)(1) for diligent state habeas petitioners with compelling evidence supporting their claims who were unable, through no fault of their own, to present that evidence to the state court that adjudicated their claims. And the Court's conclusion that the California Supreme Court reasonably denied Pinholster's ineffective-assistance-of-counsel claim overlooks counsel's failure to investigate obvious avenues of mitigation and the contrast between the woefully inadequate mitigation case they presented and the evidence they should and would have discovered. I respectfully dissent.
We need not resolve this dispute because, even accepting Pinholster's position, he is not entitled to federal habeas relief. Pinholster has failed to show that the California Supreme Court unreasonably applied clearly established federal law on the record before that court, infra, at 1403-1406, 1408-1410, which brings our analysis to an end. Even if the evidence adduced in the District Court additionally supports his claim, as Pinholster contends, we are precluded from considering it. See n. 20, infra.
The specific contents of the state-court record depend on which of the two state habeas proceedings is at issue. One amicus curiae suggests that both are at issue that is, Pinholster must prove that both California Supreme Court proceedings involved an unreasonable application of law under § 2254(d)(1). See Brief for Criminal Justice Legal Foundation 26. By contrast, the most favorable approach for Pinholster would be review of only the second state habeas proceeding, the record of which includes all of the evidence that Pinholster ever submitted in state habeas. We have not previously ruled on how to proceed in these circumstances, and we need not do so here. Even taking the approach most favorable to Pinholster, and reviewing only whether the California Supreme Court was objectively unreasonable in the second state habeas proceeding, we find that Pinholster has failed to satisfy § 2254(d)(1).
I assume that the majority does not intend to suggest that review is limited to the state-court record when a petitioner's inability to develop the facts supporting his claim was the fault of the state court itself. See generally Tr. of Oral Arg. in Bell v. Kelly, O.T.2008, No. 07-1223.
The majority does not decide which of the two state-court decisions should be reviewed. See ante, at 1402, n. 11. One amicus argues that Pinholster must prove that both state-court decisions involved an unreasonable application of law. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 26. This argument is based on amicus' understanding that the California Supreme Court rejected the second petition as successive and, alternatively, on the merits. The State has not argued, however, that the second ruling rests on a procedural ground. See ante, at 1397, n. 2. When a state court denies two petitions on the merits and the difference between the petitions is that the second petition contains additional evidence supporting the petitioner's claim, I see no reason why the petitioner must independently show that the first decision was unreasonable.
Brashear did testify that Pinholster's stepfather tried to "discipline" him and that he was "at times" "abusive or near abusive." 52 Tr. 7392-7393. She suggested, however, that Pinholster deserved the "discipline" he received. See, e.g., id., at 7392 ("Scott was always—he had a mind of his own"). It is unlikely the jury understood Brashear to be suggesting that her husband routinely beat Pinholster. The prosecutor did not come away with this understanding. See 53 id., at 7442.
In any event, Pinholster satisfied § 2254(e)(2) in this case. He made "a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court." Michael Williams, 529 U.S., at 435, [102 S.Ct. 1479]. His experts relied on the very same facts and evidence. I cannot read § 2254(e)(2) to impose a strict requirement that petitioners must use the same experts they presented to the state court. This rule would result in numerous practical problems, for example in the case of the unanticipated death of an expert.
