HARRINGTON v. RICHTER

OPINION OF THE COURT
HARRINGTON V. RICHTER
562 U. S. ____ (2011)

SUPREME COURT OF THE UNITED STATES
NO. 09-587

KELLY HARRINGTON, WARDEN, PETITIONER v. JOSHUA RICHTER

on writ of certiorari to the united states court of appeals for the ninth circuit

[January 19, 2011]

   Justice Kennedy delivered the opinion of the Court.

   The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources. Those resources are diminished and misspent, however, and confidence in the writ and the law it vindicates undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review. The Court of Appeals, in disagreement with the contrary conclusions of the Supreme Court of the State of California and of a United States District Court, ordered habeas corpus relief granted to set aside the conviction of Joshua Richter, respondent here. This was clear error.

   Under 28 U. S. C. §2254(d), the availability of federal habeas relief is limited with respect to claims previously “adjudicated on the merits” in state-court proceedings. The first inquiry this case presents is whether that pro-vision applies when state-court relief is denied without an accompanying statement of reasons. If it does, the question is whether the Court of Appeals adhered to the statute’s terms, in this case as it relates to ineffective-assistance claims judged by the standard set forth in Strickland v. Washington, 466 U. S. 668 (1984). A second case decided today, Premo v. Moore, post, p. ___, presents similar issues. Here, as in that case, it is necessary to reverse the Court of Appeals for failing to accord required deference to the decision of a state court.

I

   It is necessary to begin by discussing the details of a crime committed more than a decade and a half ago.

A

   Sometime after midnight on December 20, 1994, sheriff’s deputies in Sacramento County, California, arrived at the home of a drug dealer named Joshua Johnson. Hours before, Johnson had been smoking marijuana in the company of Richter and two other men, Christian Branscombe and Patrick Klein. When the deputies arrived, however, they found only Johnson and Klein. Johnson was hysterical and covered in blood. Klein was lying on a couch in Johnson’s living room, unconscious and bleeding. Klein and Johnson each had been shot twice. Johnson recovered; Klein died of his wounds.

   Johnson gave investigators this account: After falling asleep, he awoke to find Richter and Branscombe in his bedroom, at which point Branscombe shot him. Johnson heard more gunfire in the living room and the sound of his assailants leaving. He got up, found Klein bleeding on the living room couch, and called 911. A gun safe, a pistol, and $6,000 cash, all of which had been in the bedroom, were missing.

   Evidence at the scene corroborated Johnson’s account. Investigators found spent shell casings in the bedroom (where Johnson said he had been shot) and in the living room (where Johnson indicated Klein had been shot). In the living room there were two casings, a .32 caliber and a .22 caliber. One of the bullets recovered from Klein’s body was a .32 and the other was a .22. In the bedroom there were two more casings, both .32 caliber. In addition detectives found blood spatter near the living room couch and bloodstains in the bedroom. Pools of blood had collected in the kitchen and the doorway to Johnson’s bedroom. Investigators took only a few blood samples from the crime scene. One was from a blood splash on the wall near the bedroom doorway, but no sample was taken from the doorway blood pool itself.

   Investigators searched Richter’s residence and found Johnson’s gun safe, two boxes of .22-caliber ammunition, and a gun magazine loaded with cartridges of the same brand and type as the boxes. A ballistics expert later concluded the .22-caliber bullet that struck Klein and the .22-caliber shell found in the living room matched the ammunition found in Richter’s home and bore markings consistent with the model of gun for which the magazine was designed.

   Richter and Branscombe were arrested. At first Richter denied involvement. He would later admit taking Johnson’s pistol and disposing of it and of the .32-caliber weapon Branscombe used to shoot Johnson and Klein. Richter’s counsel produced Johnson’s missing pistol, but neither of the guns used to shoot Johnson and Klein was found.

B

   Branscombe and Richter were tried together on charges of murder, attempted murder, burglary, and robbery. Only Richter’s case is presented here.

   The prosecution built its case on Johnson’s testimony and on circumstantial evidence. Its opening statement took note of the shell casings found at the crime scene and the ammunition and gun safe found at Richter’s residence. Defense counsel offered explanations for the circumstantial evidence and derided Johnson as a drug dealer, a paranoid, and a trigger-happy gun fanatic who had drawn a pistol on Branscombe and Richter the last time he had seen them. And there were inconsistencies in Johnson’s story. In his 911 call, for instance, Johnson first said there were four or five men who had broken into his house, not two; and in the call he did not identify Richter and Branscombe among the intruders.

   Blood evidence does not appear to have been part of the prosecution’s planned case prior to trial, and investigators had not analyzed the few blood samples taken from the crime scene. But the opening statement from the defense led the prosecution to alter its approach. Richter’s attorney outlined the theory that Branscombe had fired on Johnson in self-defense and that Klein had been killed not on the living room couch but in the crossfire in the bedroom doorway. Defense counsel stressed deficiencies in the investigation, including the absence of forensic support for the prosecution’s version of events.

   The prosecution took steps to adjust to the counterattack now disclosed. Without advance notice and over the objection of Richter’s attorney, one of the detectives who investigated the shootings testified for the prosecution as an expert in blood pattern evidence. He concluded it was unlikely Klein had been shot outside the living room and then moved to the couch, given the patterns of blood on Klein’s face, as well as other evidence including “high velocity” blood spatter near the couch consistent with the location of a shooting. The prosecution also offered testimony from a serologist. She testified the blood sample taken near the pool by the bedroom door could be Johnson’s but not Klein’s.

   Defense counsel’s cross-examination probed weaknesses in the testimony of these two witnesses. The detective who testified on blood patterns acknowledged that his inferences were imprecise, that it was unlikely Klein had been lying down on the couch when shot, and that he could not say the blood in the living room was from either of Klein’s wounds. Defense counsel elicited from the serologist a concession that she had not tested the bedroom blood sample for cross-contamination. She said that if the year-old sample had degraded, it would be difficult to tell whether blood of Klein’s type was also present in the sample.

   For the defense, Richter’s attorney called seven witnesses. Prominent among these was Richter himself. Richter testified he and Branscombe returned to Johnson’s house just before the shootings in order to deliver something to one of Johnson’s roommates. By Richter’s account, Branscombe entered the house alone while Richter waited in the driveway; but after hearing screams and gunshots, Richter followed inside. There he saw Klein lying not on the couch but in the bedroom doorway, with Johnson on the bed and Branscombe standing in the middle of the room. According to Richter, Branscombe said he shot at Johnson and Klein after they attacked him. Other defense witnesses provided some corroboration for Richter’s story. His former girlfriend, for instance, said she saw the gun safe at Richter’s house shortly before the shootings.

   The jury returned a verdict of guilty on all charges. Richter was sentenced to life without parole. On appeal, his conviction was affirmed. People v. Branscombe, 72 Cal. Rptr. 2d 773 (Cal. App. 1998) (officially depublished). The California Supreme Court denied a petition for review, People v. Branscombe, No. S069751, 1998 Cal. LEXIS 4252 (June 24, 1998), and Richter did not file a petition for certiorari with this Court. His conviction became final.

C

   Richter later petitioned the California Supreme Court for a writ of habeas corpus. He asserted a number of grounds for relief, including ineffective assistance of counsel. As relevant here, he claimed his counsel was deficient for failing to present expert testimony on serology, pathology, and blood spatter patterns, testimony that, he argued, would disclose the source of the blood pool in the bedroom doorway. This, he contended, would bolster his theory that Johnson had moved Klein to the couch.

   He offered affidavits from three types of forensic experts. First, he provided statements from two blood serologists who said there was a possibility Klein’s blood was intermixed with blood of Johnson’s type in the sample taken from near the pool in the bedroom doorway. Second, he provided a statement from a pathologist who said the blood pool was too large to have come from Johnson given the nature of his wounds and his own account of his actions while waiting for the police. Third, he provided a statement from an expert in bloodstain analysis who said the absence of “a large number of satellite droplets” in photographs of the area around the blood in the bedroom doorway was inconsistent with the blood pool coming from Johnson as he stood in the doorway. App. 118. Richter argued this evidence established the possibility that the blood in the bedroom doorway came from Klein, not Johnson. If that were true, he argued, it would confirm his account, not Johnson’s. The California Supreme Court denied Richter’s petition in a one-sentence summary order. See In re Richter, No. S082167 (Mar. 28, 2001), App. to Pet. for Cert. 22a. Richter did not seek certiorari from this Court.

   After the California Supreme Court issued its summary order denying relief, Richter filed a petition for habeas corpus in United States District Court for the Eastern District of California. He reasserted the claims in his state petition. The District Court denied his petition, and a three-judge panel of the Court of Appeals for the Ninth Circuit affirmed. See Richter v. Hickman, 521 F. 3d 1222 (2008). The Court of Appeals granted rehearing en banc and reversed the District Court’s decision. See Richter v. Hickman, 578 F. 3d 944 (2009).

   As a preliminary matter, the Court of Appeals questioned whether 28 U. S. C. §2254(d) was applicable to Richter’s petition, since the California Supreme Court issued only a summary denial when it rejected his Strickland claims; but it determined the California decision was unreasonable in any event and that Richter was entitled to relief. The court held Richter’s trial counsel was deficient for failing to consult experts on blood evidence in determining and pursuing a trial strategy and in preparing to rebut expert evidence the prosecution might—and later did—offer. Four judges dissented from the en banc decision.

   We granted certiorari. 559 U. S. ___ (2010).

II

   The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U. S. C. §2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of §2254(d) states:

   “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

   “(1) 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; or

   “(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

As an initial matter, it is necessary to decide whether §2254(d) applies when a state court’s order is unaccompanied by an opinion explaining the reasons relief has been denied.

   By its terms §2254(d) bars relitigation of any claim “adjudicated on the merits” in state court, subject only to the exceptions in §§2254(d)(1) and (d)(2). There is no text in the statute requiring a statement of reasons. The statute refers only to a “decision,” which resulted from an “adjudication.” As every Court of Appeals to consider the issue has recognized, determining whether a state court’s decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court’s reasoning. See Chadwick v. Janecka, 312 F. 3d 597, 605–606 (CA3 2002); Wright v. Secretary for Dept. of Corrections, 278 F. 3d 1245, 1253–1254 (CA11 2002); Sellan v. Kuhlman, 261 F. 3d 303, 311–312 (CA2 2001); Bell v. Jarvis, 236 F. 3d 149, 158–162 (CA4 2000) (en banc); Harris v. Stovall, 212 F. 3d 940, 943, n. 1 (CA6 2000); Aycox v. Lytle, 196 F. 3d 1174, 1177–1178 (CA10 1999); James v. Bowersox, 187 F. 3d 866, 869 (CA8 1999). And as this Court has observed, a state court need not cite or even be aware of our cases under §2254(d). Early v. Packer, 537 U. S. 3, 8 (2002) (per curiam). Where a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief. This is so whether or not the state court reveals which of the elements in a multipart claim it found insufficient, for §2254(d) applies when a “claim,” not a component of one, has been adjudicated.

   There is no merit to the assertion that compliance with §2254(d) should be excused when state courts issue summary rulings because applying §2254(d) in those cases will encourage state courts to withhold explanations for their decisions. Opinion-writing practices in state courts are influenced by considerations other than avoiding scrutiny by collateral attack in federal court. Cf. In re Robbins, 18 Cal. 4th 770, 778, n. 1, 959 P. 2d 311, 316, n. 1 (1998) (state procedures limiting habeas are “a means of protecting the integrity of our own appeal and habeas corpus process,” rather than a device for “insulating our judgments from federal court review” (emphasis deleted)). At the same time, requiring a statement of reasons could undercut state practices designed to preserve the integrity of the case-law tradition. The issuance of summary dispositions in many collateral attack cases can enable a state judiciary to concentrate its resources on the cases where opinions are most needed. See Brief for California Attorneys for Criminal Justice et al. as Amici Curiae 8 (noting that the California Supreme Court disposes of close to 10,000 cases a year, including more than 3,400 original habeas corpus petitions).

   There is no merit either in Richter’s argument that §2254(d) is inapplicable because the California Supreme Court did not say it was adjudicating his claim “on the merits.” The state court did not say it was denying the claim for any other reason. When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary. Cf. Harris v. Reed, 489 U. S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis).

   The presumption may be overcome when there is reason to think some other explanation for the state court’s decision is more likely. See, e.g., Ylst v. Nunnemaker, 501 U. S. 797, 803 (1991). Richter, however, does not make that showing. He mentions the theoretical possibility that the members of the California Supreme Court may not have agreed on the reasons for denying his petition. It is pure speculation, however, to suppose that happened in this case. And Richter’s assertion that the mere possibility of a lack of agreement prevents any attribution of reasons to the state court’s decision is foreclosed by precedent. See ibid.

   As has been noted before, the California courts or Legislature can alter the State’s practices or elaborate more fully on their import. See Evans v. Chavis, 546 U. S. 189, 197, 199 (2006). But that has not occurred here. This Court now holds and reconfirms that §2254(d) does not require a state court to give reasons before its decision can be deemed to have been “adjudicated on the merits.” Richter has failed to show that the California Supreme Court’s decision did not involve a determination of the merits of his claim. Section 2254(d) applies to his petition.

III

   Federal habeas relief may not be granted for claims subject to §2254(d) unless it is shown that the earlier state court’s decision “was contrary to” federal law then clearly established in the holdings of this Court, §2254(d)(1); Williams v. Taylor, 529 U. S. 362, 412 (2000); or that it “involved an unreasonable application of” such law, §2254(d)(1); or that it “was based on an unreasonable determination of the facts” in light of the record before the state court, §2254(d)(2).

   The Court of Appeals relied on the second of these exceptions to §2254(d)’s relitigation bar, the exception in §2254(d)(1) permitting relitigation where the earlier state decision resulted from an “unreasonable application of” clearly established federal law. In the view of the Court of Appeals, the California Supreme Court’s decision on Richter’s ineffective-assistance claim unreasonably applied the holding in Strickland. The Court of Appeals’ lengthy opinion, however, discloses an improper understanding of §2254(d)’s unreasonableness standard and of its operation in the context of a Strickland claim.

   The pivotal question is whether the state court’s application of the Strickland standard was unreasonable. This is different from asking whether defense counsel’s performance fell below Strickland’s standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of §2254(d)(1), “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams, supra, at 410. A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.

   A state court’s determination that a claim lacks merit precludes federal habeas relief so long as “fairminded jurists could disagree” on the correctness of the state court’s decision. Yarborough v. Alvarado, 541 U. S. 652, 664 (2004). And as this Court has explained, “[E]valuating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Ibid. “[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.” Knowles v. Mirzayance, 556 U. S. ___, ___ (2009) (slip op., at 9–10) (internal quotation marks omitted).

   Here it is not apparent how the Court of Appeals’ analysis would have been any different without AEDPA. The court explicitly conducted a de novo review, 578 F. 3d, at 952; and after finding a Strickland violation, it declared, without further explanation, that the “state court’s decision to the contrary constituted an unreasonable application of Strickland.” 578 F. 3d, at 969. AEDPA demands more. Under §2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, 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. The opinion of the Court of Appeals all but ignored “the only question that matters under §2254(d)(1).” Lockyer v. Andrade, 538 U. S. 63, 71 (2003).

   The Court of Appeals appears to have treated the unreasonableness question as a test of its confidence in the result it would reach under de novo review: Because the Court of Appeals had little doubt that Richter’s Strickland claim had merit, the Court of Appeals concluded the state court must have been unreasonable in rejecting it. This analysis overlooks arguments that would otherwise justify the state court’s result and ignores further limitations of §2254(d), including its requirement that the state court’s decision be evaluated according to the precedents of this Court. See Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 11–12). It bears repeating that even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable. See Lockyer, supra, at 75.

   If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, §2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U. S. 651, 664 (1996) (discussing AEDPA’s “modified res judicata rule” under §2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems,” not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U. S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

   The reasons for this approach are familiar. “Federal habeas review of state convictions frustrates both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” Calderon v. Thompson, 523 U. S. 538, 555–556 (1998) (internal quotation marks omitted). It “disturbs the State’s significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.” Reed, 489 U. S., at 282 (Kennedy, J., dissenting).

   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. Under the exhaustion requirement, a habeas petitioner challenging a state conviction must first attempt to present his claim in state court. 28 U. S. C. §2254(b). If the state court rejects the claim on procedural grounds, the claim is barred in federal court unless one of the exceptions to the doctrine of Wainwright v. Sykes, 433 U. S. 72, 82–84 (1977), applies. And if the state court denies the claim on the merits, the claim is barred in federal court unless one of the exceptions to §2254(d) set out in §§2254(d)(1) and (2) applies. Section 2254(d) thus complements the exhaustion requirement and the doctrine of procedural bar to ensure that state proceedings are the central process, not just a preliminary step for a later federal habeas proceeding, see id., at 90.

   Here, however, the Court of Appeals gave §2254(d) no operation or function in its reasoning. Its analysis illustrates a lack of deference to the state court’s determination and an improper intervention in state criminal processes, contrary to the purpose and mandate of AEDPA and to the now well-settled meaning and function of habeas corpus in the federal system.

IV

   The conclusion of the Court of Appeals that Richter demonstrated an unreasonable application by the state court of the Strickland standard now must be discussed. To have been entitled to relief from the California Supreme Court, Richter had to show both that his counsel provided deficient assistance and that there was prejudice as a result.

   To establish deficient performance, a person challenging a conviction must show that “counsel’s representation fell below an objective standard of reasonableness.” 466 U. S., at 688. A court considering a claim of ineffective assistance must apply a “strong presumption” that counsel’s representation was within the “wide range” of reasonable professional assistance. Id., at 689. The challenger’s burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id., at 687.

   With respect to prejudice, a challenger must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., at 694. It is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id., at 693. Counsel’s errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id., at 687.

   “Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 14). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U. S., at 689–690. Even under de novo review, the standard for judging counsel’s representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is “all too tempting” to “second-guess counsel’s assistance after conviction or adverse sentence.” Id., at 689; see also Bell v. Cone, 535 U. S. 685, 702 (2002); Lockhart v. Fretwell, 506 U. S. 364, 372 (1993). The question is whether an attorney’s representation amounted to incompetence under “prevailing professional norms,” not whether it deviated from best practices or most common custom. Strickland, 466 U. S., at 690.

   Establishing that a state court’s application of Strickland was unreasonable under §2254(d) is all the more difficult. The standards created by Strickland and §2254(d) are both “highly deferential,” id., at 689; Lindh v. Murphy, 521 U. S. 320, 333, n. 7 (1997), and when the two apply in tandem, review is “doubly” so, Knowles, 556 U. S., at ___ (slip op., at 11). The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U. S., at ___ (slip op., at 11). Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under §2254(d). When §2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.

A

   With respect to defense counsel’s performance, the Court of Appeals held that because Richter’s attorney had not consulted forensic blood experts or introduced expert evidence, the California Supreme Court could not reasonably have concluded counsel provided adequate representation. This conclusion was erroneous.

1

   The Court of Appeals first held that Richter’s attorney rendered constitutionally deficient service because he did not consult blood evidence experts in developing the basic strategy for Richter’s defense or offer their testimony as part of the principal case for the defense. Strickland, however, permits counsel to “make a reasonable decision that makes particular investigations unnecessary.” 466 U. S., at 691. It was at least arguable that a reasonable attorney could decide to forgo inquiry into the blood evidence in the circumstances here.

   Criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence, whether pretrial, at trial, or both. There are, however, “countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Id., at 689. Rare are the situations in which the “wide latitude counsel must have in making tactical decisions” will be limited to any one technique or approach. Ibid. It can be assumed that in some cases counsel would be deemed ineffective for failing to consult or rely on experts, but even that formulation is sufficiently general that state courts would have wide latitude in applying it. Here it would be well within the bounds of a reasonable judicial determination for the state court to conclude that defense counsel could follow a strategy that did not require the use of experts regarding the pool in the doorway to Johnson’s bedroom.

   From the perspective of Richter’s defense counsel when he was preparing Richter’s defense, there were any number of hypothetical experts—specialists in psychiatry, psychology, ballistics, fingerprints, tire treads, physiology, or numerous other disciplines and subdisciplines—whose insight might possibly have been useful. An attorney can avoid activities that appear “distractive from more important duties.” Bobby v. Van Hook, 558 U. S. ___, ___ (2009) (per curiam) (slip op., at 8). Counsel was entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies. See Knowles, supra, at ___ (slip op., at 14–15); Rompilla v. Beard, 545 U. S. 374, 383 (2005); Wiggins v. Smith, 539 U. S. 510, 525 (2003); Strickland, 466 U. S., at 699.

   In concluding otherwise the Court of Appeals failed to “reconstruct the circumstances of counsel’s challenged conduct” and “evaluate the conduct from counsel’s perspective at the time.” Id., at 689. In its view Klein’s location was “the single most critical issue in the case” given the differing theories of the prosecution and the defense, and the source of the blood in the doorway was therefore of central concern. 578 F. 3d, at 953–954. But it was far from a necessary conclusion that this was evident at the time of the trial. There were many factual differences between prosecution and defense versions of the events on the night of the shootings. It is only because forensic evidence has emerged concerning the source of the blood pool that the issue could with any plausibility be said to stand apart. Reliance on “the harsh light of hindsight” to cast doubt on a trial that took place now more than 15 years ago is precisely what Strickland and AEDPA seek to prevent. Cone, 535 U. S., at 702; see also Lockhart, 506 U. S., at 372.

   Even if it had been apparent that expert blood testimony could support Richter’s defense, it would be reasonable to conclude that a competent attorney might elect not to use it. The Court of Appeals opinion for the en banc majority rests in large part on a hypothesis that reasonably could have been rejected. The hypothesis is that without jeopardizing Richter’s defense, an expert could have testified that the blood in Johnson’s doorway could not have come from Johnson and could have come from Klein, thus suggesting that Richter’s version of the shooting was correct and Johnson’s a fabrication. This theory overlooks the fact that concentrating on the blood pool carried its own serious risks. If serological analysis or other forensic evidence demonstrated that the blood came from Johnson alone, Richter’s story would be exposed as an invention. An attorney need not pursue an investigation that would be fruitless, much less one that might be harmful to the defense. Strickland, supra, at 691. Here Richter’s attorney had reason to question the truth of his client’s account, given, for instance, Richter’s initial denial of involvement and the subsequent production of Johnson’s missing pistol.

   It would have been altogether reasonable to conclude that this concern justified the course Richter’s counsel pursued. Indeed, the Court of Appeals recognized this risk insofar as it pertained to the suggestion that counsel should have had the blood evidence tested. 578 F. 3d, at 956, n. 9. But the court failed to recognize that making a central issue out of blood evidence would have increased the likelihood of the prosecution’s producing its own evidence on the blood pool’s origins and composition; and once matters proceeded on this course, there was a serious risk that expert evidence could destroy Richter’s case. Even apart from this danger, there was the possibility that expert testimony could shift attention to esoteric matters of forensic science, distract the jury from whether Johnson was telling the truth, or transform the case into a battle of the experts. Accord, Bonin v. Calderon, 59 F. 3d 815, 836 (CA9 1995).

   True, it appears that defense counsel’s opening statement itself inspired the prosecution to introduce expert forensic evidence. But the prosecution’s evidence may well have been weakened by the fact that it was assembled late in the process; and in any event the prosecution’s response shows merely that the defense strategy did not work out as well as counsel had hoped, not that counsel was incompetent.

   To support a defense argument that the prosecution has not proved its case it sometimes is better to try to cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates. All that happened here is that counsel pursued a course that conformed to the first option. If this case presented a de novo review of Strickland, the foregoing might well suffice to reject the claim of inadequate counsel, but that is an unnecessary step. The Court of Appeals must be reversed if there was a reasonable justification for the state court’s decision. In light of the record here there was no basis to rule that the state court’s determination was unreasonable.

   The Court of Appeals erred in dismissing strategic considerations like these as an inaccurate account of counsel’s actual thinking. Although courts may not indulge “post hoc rationalization” for counsel’s decisionmaking that contradicts the available evidence of counsel’s actions, Wiggins, 539 U. S., at 526–527, neither may they insist counsel confirm every aspect of the strategic basis for his or her actions. There is a “strong presumption” that counsel’s attention to certain issues to the exclusion of others reflects trial tactics rather than “sheer neglect.” Yarborough v. Gentry, 540 U. S. 1, 8 (2003) (per curiam). After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind. 466 U. S., at 688.

2

   The Court of Appeals also found that Richter’s attorney was constitutionally deficient because he had not expected the prosecution to offer expert testimony and therefore was unable to offer expert testimony of his own in response.

   The Court of Appeals erred in suggesting counsel had to be prepared for “any contingency,” 578 F. 3d, at 946 (internal quotation marks omitted). Strickland does not guarantee perfect representation, only a “ ‘reasonably competent attorney.’ ” 466 U. S., at 687 (quoting McMann v. Richardson, 397 U. S. 759, 770 (1970)); see also Gentry, supra, at 7. Representation is constitutionally ineffective only if it “so undermined the proper functioning of the adversarial process” that the defendant was denied a fair trial. Strickland, supra, at 686. Just as there is no expectation that competent counsel will be a flawless strategist or tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities.

   Here, Richter’s attorney was mistaken in thinking the prosecution would not present forensic testimony. But the prosecution itself did not expect to make that presenta- tion and had made no preparations for doing so on the eve of trial. For this reason alone, it is at least debatable whether counsel’s error was so fundamental as to call the fairness of the trial into doubt.

   Even if counsel should have foreseen that the prosecution would offer expert evidence, Richter would still need to show it was indisputable that Strickland required his attorney to act upon that knowledge. Attempting to establish this, the Court of Appeals held that defense counsel should have offered expert testimony to rebut the evidence from the prosecution. But Strickland does not enact Newton’s third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense.

   In many instances cross-examination will be sufficient to expose defects in an expert’s presentation. When defense counsel does not have a solid case, the best strategy can be to say that there is too much doubt about the State’s theory for a jury to convict. And while in some instances “even an isolated error” can support an ineffective-assistance claim if it is “sufficiently egregious and prejudicial,” Murray v. Carrier, 477 U. S. 478, 496 (1986), it is difficult to establish ineffective assistance when counsel’s overall performance indicates active and capable advocacy. Here Richter’s attorney represented him with vigor and conducted a skillful cross-examination. As noted, defense counsel elicited concessions from the State’s experts and was able to draw attention to weaknesses in their conclusions stemming from the fact that their analyses were conducted long after investigators had left the crime scene. For all of these reasons, it would have been reasonable to find that Richter had not shown his attorney was deficient under Strickland.

B

   The Court of Appeals further concluded that Richter had established prejudice under Strickland given the expert evidence his attorney could have introduced. It held that the California Supreme Court would have been unreasonable in concluding otherwise. This too was error.

   In assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. See Wong v. Belmontes, 558 U. S. ___, ___ (2009) (per curiam) (slip op., at 13); Strickland, 466 U. S., at 693. Instead, Strickland asks whether it is “reasonably likely” the result would have been different. Id., at 696. This does not require a showing that counsel’s actions “more likely than not altered the outcome,” but the difference between Strickland’s prejudice standard and a more-probable-than-not standard is slight and matters “only in the rarest case.” Id., at 693, 697. The likelihood of a different result must be substantial, not just conceivable. Id., at 693.

   It would not have been unreasonable for the California Supreme Court to conclude Richter’s evidence of prejudice fell short of this standard. His expert serology evidence established nothing more than a theoretical possibility that, in addition to blood of Johnson’s type, Klein’s blood may also have been present in a blood sample taken near the bedroom doorway pool. At trial, defense counsel extracted a concession along these lines from the prosecution’s expert. The pathology expert’s claim about the size of the blood pool could be taken to suggest only that the wounded and hysterical Johnson erred in his assessment of time or that he bled more profusely than estimated. And the analysis of the purported blood pattern expert indicated no more than that Johnson was not standing up when the blood pool formed.

   It was also reasonable to find Richter had not established prejudice given that he offered no evidence directly challenging other conclusions reached by the prosecution’s experts. For example, there was no dispute that the blood sample taken near the doorway pool matched Johnson’s blood type. The California Supreme Court reasonably could have concluded that testimony about patterns that form when blood drips to the floor or about the rate at which Johnson was bleeding did not undermine the results of chemical tests indicating blood type. Nor did Richter provide any direct refutation of the State’s expert testimony describing how blood spatter near the couch suggested a shooting in the living room and how the blood patterns on Klein’s face were inconsistent with Richter’s theory that Klein had been killed in the bedroom doorway and moved to the couch.

   There was, furthermore, sufficient conventional circumstantial evidence pointing to Richter’s guilt. It included the gun safe and ammunition found at his home; his flight from the crime scene; his disposal of the .32-caliber gun and of Johnson’s pistol; his shifting story concerning his involvement; the disappearance prior to the arrival of the law enforcement officers of the .22-caliber weapon that killed Klein; the improbability of Branscombe’s not being wounded in the shootout that resulted in a combined four bullet wounds to Johnson and Klein; and the difficulties the intoxicated and twice-shot Johnson would have had in carrying the body of a dying man from bedroom doorway to living room couch, not to mention the lack of any obvious reason for him to do so. There was ample basis for the California Supreme Court to think any real possibility of Richter’s being acquitted was eclipsed by the remaining evidence pointing to guilt.

*  *  *

   The California Supreme Court’s decision on the merits of Richter’s Strickland claim required more deference than it received. Richter was not entitled to the relief ordered by the Court of Appeals. The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

   Justice Kagan took no part in the consideration or decision of this case.

562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-587

KELLY HARRINGTON, WARDEN, PETITIONER v. JOSHUA RICHTER

on writ of certiorari to the united states court of appeals for the ninth circuit

[January 19, 2011]

   Justice Ginsburg, concurring in the judgment.

   In failing even to consult blood experts in preparation for the murder trial, Richter’s counsel, I agree with the Court of Appeals, “was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U. S. 668, 687 (1984). The strong force of the prosecution’s case, however, was not significantly reduced by the affidavits offered in support of Richter’s habeas petition. I would therefore not rank counsel’s lapse “so serious as to deprive [Richter] of a fair trial, a trial whose result is reliable.” Ibid. For that reason, I concur in the Court’s judgment.

Print this transcript Transcript: 

ORAL ARGUMENT OF HARRY J. COLOMBO ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument first this morning in Case No. 09-587, Harrington v. Richter.

Mr. Colombo.

Mr. Colombo: Mr. Chief Justice, and may it please the Court:

The California Supreme Court's denial of Respondent's ineffective counsel claim was entitled to the deferential review for reasonableness prescribed by 28 U.S.C. section 2254(d).

By its plain terms, nothing in 2254(d) requires a State court to render a reasoned or explained decision, nor is there anything in section 2254(d) that would treat Strickland claims differently from any other Federal constitutional claim.

Here, the Ninth Circuit failed to give the State court decision the proper deference -- indeed, double deference -- it was owed.

Rather than applying this Court 's proper -- excuse me -- clearly established Strickland standard, the court of appeals employed its own eccentric rule that essentially requires counsel to always consult with and present expert testimony in every case in which the prosecution--

Justice Ruth Bader Ginsburg: How do -- how do we know that the -- the California Court even reached that question?

Because there was -- wasn't there a motion to deny review as -- as -- wasn't there a time law question raised?

Mr. Colombo: --There was a procedural bar that was argued in the informal opposition in the petition for writ of habeas corpus that had been requested by the California Supreme Court.

It did not invoke that bar as a basis for denying relief.

Under well-established--

Justice Anthony Kennedy: Of course it said -- it just said denied on -- on the merits.

And it's still not clear to me.

How did this -- pardon me.

It just said "denied"?

Mr. Colombo: --Yes.

Justice Anthony Kennedy: It's still not clear to me how to distinguish that, between denied, deny -- do we say when there's a one-line order, as in this case, where it says simply "denied", that it is presumptively on the merits?

I mean, how -- how do we interpret that?

Mr. Colombo: Yes.

In fact, that is a well-settled and long-established practice, local practice, that is well-understood by not only the litigants, but the State and Federal courts of the Ninth Circuit, dating back to the Ninth Circuit's 1974 decision in Harris v. Superior Court.

Justice Anthony Kennedy: Then it is presumptively on the merits?

Mr. Colombo: Yes.

Justice Anthony Kennedy: Then don't -- I mean, is that the way it's stated?

Don't let me use my formulation.

What's -- what's the State's formulation?

Mr. Colombo: The State's formulation is that the silent or so-called summary denial is on the merits, unless the State court indicates otherwise in--

Justice Antonin Scalia: Now, that can't be a Ninth Circuit rule.

I mean, that has to depend upon each -- each of the States in the Ninth Circuit, no?

I mean, some State could -- could have a different ruling, I assume.

You're -- you're telling us, however, that California has that rule?

Mr. Colombo: --Yes.

And that rule, again, has been--

Justice Ruth Bader Ginsburg: But did--

Justice Anthony Kennedy: But if I am on the California court and I have two choices -- one is to say denied, no explanation, this case; the other is to say denied on the merits -- if I have those two options, then why are they both on the merits?

Mr. Colombo: --Again, because it has certainly been well-understood for at least 3-and-a-half decades that when the California Supreme Court renders a so-called silent denial, that it is on the merits unless the court ordered--

Justice Anthony Kennedy: And what is the leading California authority on that proposition?

Mr. Colombo: --That would be In re Robbins, in which--

Justice Anthony Kennedy: That's the Robbins case.

Okay.

Mr. Colombo: --which is discussed in our brief, as well as in the reply brief.

Justice Anthony Kennedy: All right.

Thank you.

Justice Sonia Sotomayor: Counsel, I don't know that you answered Justice Kennedy's question.

Mr. Colombo: I'm sorry?

Justice Sonia Sotomayor: I don't know you answered his question.

His question was: If you can deny or deny on the merits, what is the difference between the two?

Mr. Colombo: There really is no substantive--

Justice Sonia Sotomayor: And there's two choices, so they have to have different meanings in some way.

Mr. Colombo: --I would submit that there is no substantive distinction between an order that simply reflects denied versus one that reflects denied on the merits.

Justice Sonia Sotomayor: They showed us the docket for that day--

Mr. Colombo: Yes.

Justice Sonia Sotomayor: --of the denial here, and there were different ones.

If it's the same court taking action, why would they choose one over the other for particular cases?

Mr. Colombo: Well, I would submit that there could be any number of reasons, and not the least of which this Court addressed itself in Carey v. Saffold, just a couple of terms ago.

As the Court recognized, that sometimes the State court may choose to include the phrase "on the merits" to give a reviewing court an alternative basis for understanding why relief was denied, or to let, for example, a pro se Petitioner, who are typically the ones that present petitions for writs of habeas corpus in the California Supreme Court, know that their case wasn't denied because of some mere procedural technicality, but because the claim itself was substantively meritless.

Justice Sonia Sotomayor: Well, that's what -- that's feeding into your adversary's argument, that when the court does a summary denial, you don't know whether it's procedural or merits.

That's his argument.

You're adopting his argument.

Mr. Colombo: No.

No.

Our argument is that it's a long-settled, established question and local practice that when the California Supreme Court renders a -- a silent denial, simply says

"petition for writ of habeas corpus denied. "

it is understood by the court's litigants, has been well-established over 3-and-a-half decades: That is a merits decision--

Justice Ruth Bader Ginsburg: --Well, what would the California Supreme Court do if they all agreed that this application should be denied, but two of them think it's for a procedural bar -- timeliness -- and then others think it has no merit, and they say just "denied", but there is no majority for either one?

Mr. Colombo: --In -- in that instance, then the claim would be presumed -- assuming that the court's order simply reflects "petition denied", again, it is well understood that that would be a denial on the merits--

Justice Ruth Bader Ginsburg: Even though, in fact, it wasn't?

Mr. Colombo: --Well, we can't know that.

In fact, it would be purely speculative to suggest that that's what the courts have done--

Justice Ruth Bader Ginsburg: So there is that possibility -- even though there is that possibility, we should assume it was on the merits.

What about -- I mean, you said this was 3 decades, but we are told that the California Supreme Court has this pattern of saying merits when it's on the merits, giving a citation, if it's a procedural bar to the -- a procedural fault, and when it says simply "denied", that's most likely that they couldn't all agree on the reason.

Mr. Colombo: --Well, I would respectfully disagree with that suggestion, that because it simply says "denied" without including the phrase "on the merits" that it's not a merits determination.

Justice Ruth Bader Ginsburg: But that's what they would say if, in fact, they were divided, right?

Mr. Colombo: I'm sorry.

What?

Justice Ruth Bader Ginsburg: If, in fact, the court was divided.

All agree that the petition should be denied, but there is no majority for any particular reason, merits or procedure.

They -- they would say "petition denied", right?

Mr. Colombo: Yes, if it's -- if it's a straight silent denial and the -- the court doesn't invoke either a procedural bar to deny relief or forego the procedural bar and find the claims are substantive meritless in any event.

What I submit that the silent denial simply means is that the court didn't agree that there was a basis for invoking a procedural bar.

The claims were meritless and it simply orders the petition denied, which is, again, well-understood.

It's a well-established practice in the State and Federal courts in California that those silent denials are merit determinations, which are entitled, then, as to deference under the statute.

Even the Ninth Circuit, in the en banc decision in this case, recognized that the California Supreme Court's silent denial was a merits determination which it then had to review.

Justice Antonin Scalia: Do -- does the court sometimes deny explicitly on procedural grounds?

Mr. Colombo: Yes.

And when the court does that, it will reflect such in its orders.

That's discussed in footnote 34 in the Robbins case, which we discuss in our brief in this court.

The court says when it's going to invoke as a basis for denying relief on a Federal claim, it will indicate that in its order, if it's relying on a separate State procedural default.

For example, if it's a successive petition of the claimant's previously raised on direct appeal or--

Justice Antonin Scalia: So you are saying that if it's on both grounds, if they agreed with both the procedural and the merits ground, they may well just -- just deny without any explanation?

But if they deny only on the procedural ground, they will -- they will say it?

Mr. Colombo: --Yes.

Justice Antonin Scalia: All right.

Justice Samuel Alito: If you looked back at a sample of the cases in which they have simply said "denied", would we find cases in which no procedural bar was raised by the State?

Mr. Colombo: I don't know the answer to that question, because I haven't researched to find out whether or not in any of those cases, like in this case, the California Supreme Court directed the Attorney General to file an informal opposition or some other pleading that would have addressed that question.

Without knowing whether or not there was briefing on this -- those particular cases, and there is no suggestion in Respondent's brief that that was done, I couldn't -- I couldn't guess on that.

Justice Stephen G. Breyer: Was there a procedural issue in this case before the California Supreme Court?

Mr. Colombo: Yes.

Justice Stephen G. Breyer: What was that?

Mr. Colombo: A timeliness bar, among others.

Justice Sonia Sotomayor: What was the basis of that?

Mr. Colombo: That the claim of ineffective assistance could and should have been discovered at an earlier time than when it was presented to the California Supreme Court under California's timeliness rule, which would require that counsel present the claim of, in this case, ineffective assistance upon learning of the factual basis to support such a claim.

Justice Sonia Sotomayor: So it took 14 months for this petition to be filed to the State court.

Do you have cases that show whether those 14 months are presumptively unreasonable under California law?

Mr. Colombo: Yes.

And that's basically the Clark case that's also discussed in our--

Justice Sonia Sotomayor: So there is great validity, you think, to your timeliness, so this timeliness claim.

And despite that, you believe the silent denial was an adjudication on the merits.

Mr. Colombo: --Yes, because I would submit that when the State argued that the claim was procedurally barred by reason of untimeliness and the State court did not invoke that as a bar to relief, it necessarily concluded that the claims were unmeritorious, because they otherwise could have been barred by a procedural bar, but they--

Justice Antonin Scalia: I thought you just told me that if they -- if they agreed both on the procedural ground and the merits ground, they could issue just -- just a denial without explanation.

Mr. Colombo: --That's--

Justice Antonin Scalia: Now you are telling me that -- the opposite.

Mr. Colombo: --If I said that, then I misspoke.

Perhaps I misunderstood the Court's question.

What I'm suggesting is if the Court invokes as a basis for denying a Federal claim a State procedural bar, it will reflect that in its order.

Justice Antonin Scalia: It will always be in the order.

Mr. Colombo: Yes.

Justice Stephen G. Breyer: But in this case, they didn't reject it on a procedural ground.

It was a reasonable ground that they applied consistently.

Then the Ninth Circuit or the Federal courts couldn't consider the claim at all; is that right?

Mr. Colombo: That's correct, assuming that the Federal courts agreed that the--

Justice Stephen G. Breyer: If in fact the -- they are right, if in fact the State was correct that this was procedurally barred, they should have raised it earlier.

They didn't.

And if that was correct and reasonable and proper under both Federal and State law, then it shouldn't be in this subject at all; is that right or not?

Mr. Colombo: --Yes.

That's correct.

Justice Stephen G. Breyer: So normally, to decide a matter on a substantive -- to have a presumption that they are reciting it substantively rather than procedurally will help a defendant, though not in this case.

Mr. Colombo: That's correct.

Justice Samuel Alito: But you didn't raise -- you haven't argued that it's procedurally barred.

Mr. Colombo: Not in the Federal court, no.

Justice Samuel Alito: So you may have waived that.

On the other hand, your opponent is, like -- I gather, until they got here, never argued that it was based on anything other than the merits.

So they might have waived that.

Mr. Colombo: Yes.

I would submit that--

Justice Samuel Alito: So everything might be waived here.

Mr. Colombo: --Well, I'm not sure that -- we never invoked the procedural bar in the Federal court insofar as the presentation of these particular claims.

Chief Justice John G. Roberts: One thing that's not waived is the second question of the first, which is the merits of the Strickland claim.

Mr. Colombo: Yes.

Chief Justice John G. Roberts: Maybe this would be a good point for you to switch to that.

Mr. Colombo: I would be pleased to discuss that with the Court.

We have argued in our brief, and I think it's crystal clear: First of all, the Ninth Circuit's grossly overbroad explication of a so-called Strickland standard that would require counsel in every case in which the prosecution presents--

Justice Sonia Sotomayor: Did they say that?

Mr. Colombo: --I'm sorry?

Justice Sonia Sotomayor: Did they explicitly say in every single case you have to consult an expert?

Mr. Colombo: No.

They didn't say that.

Justice Sonia Sotomayor: Or did they say the circumstances of this case, given the nature of the issues, that consultation would have been effective?

Mr. Colombo: That is -- that certainly is one reading of the Ninth Circuit's opinion.

I submit that the more correct reading, so to speak, would be if the Court looks at the language that the Ninth Circuit uses in the -- in discussing this standard, they essentially say that since counsel should have reasonably expected the prosecution was going to present this forensic evidence, he should have not only investigated it, he should have consulted with experts.

He should have presented them.

And--

Justice Sonia Sotomayor: We could take issue with the timing of that consultation, but let's assume that it turns out afterwards that if he had consulted an expert, that that expert would have told him that one of those blood spots absolutely had to be Klein's near the bedroom.

You would have no quarrel with saying it would have been ineffective for that counsel to have failed to confer with an expert, wouldn't you?

Mr. Colombo: --No, I would disagree with that.

Justice Sonia Sotomayor: You would say, even if the expert were to -- an expert would have given that kind of exculpatory information, that that would not have been ineffective?

Mr. Colombo: Let me start by saying this: First of all, we can't know and no one can ever know that Klein's, or Johnson's blood, for that matter, was in this blood pool that the Ninth Circuit--

Justice Sonia Sotomayor: I'm not talking -- I gave you a hypothetical different from the facts of this case.

I take the Ninth Circuit to be saying, if you are in an area, and you are a lawyer, where you have no expertise and your case depends on a technical issue, it behooves you to at least talk to an expert to find out if you are on the right track.

And if you fail to and you get something that's completely exculpatory, you are ineffective.

So I posed the hypothetical: If an expert would have looked at all of these test results and said, that has to be Klein's blood there, it can't be Johnson's for this reason, you are positing that even under that circumstance there would not have been ineffectiveness for the failure to consult with an expert?

Is that what you are telling us?

Mr. Colombo: --Yes.

And the reason why I say that is because it's important to remember that -- the critical forensic evidence in this case, that the jury--

Justice Sonia Sotomayor: You keep wanting to return to this case, and I respect why you want to, but I am positing a hypothetical that underlies, I think, the Ninth Circuit's point.

Mr. Colombo: --In response to your--

Justice Sonia Sotomayor: It may well be in this case that the consultation would have resulted in no prejudice.

That's different from whether it was effective to ignore a consultation.

Those are two different questions.

Mr. Colombo: --I suppose accepting the Court's hypothetical as stated, that counsel was aware of and failed to consult with an expert knowing that that testimony would be presented, could be deemed deficient performance.

Justice Antonin Scalia: Why -- do you think it makes a difference whether the expert would have helped or not?

I mean, counsel has to make that decision of whether to call an expert ex ante, not ex post.

I mean, you -- we shouldn't evaluate his decision on the basis of whether, even if it's a 1,000-to-1 long shot, it turns out that that testimony would have been very successful.

Don't we have to examine it ex ante before he knows what the result will be?

Mr. Colombo: Yes, and I think it's important to look at -- as this Court has described in the Strickland case itself, we have to view from counsel's perspective at that time.

What did he know?

What could he have reasonably expected the prosecution's evidence to be?

How is he going to meet that evidence?

What tactical or strategic choices--

Justice Antonin Scalia: Justice Sotomayor's hypothetical would include the situation where he doesn't know that the prosecution is going to introduce any expert testimony.

He knows that there is blood there.

He should -- he should get his own expert, whether or not the prosecution uses one.

Right?

I mean, can it never be ineffective assistance not to call an expert where -- so long as the prosecution doesn't have one on the other side?

Mr. Colombo: --No, I would submit that it certainly could be deficient performance if counsel fails to investigate readily available evidence that could lead to exculpatory evidence in support of his client's defense.

That's the hypothetical, I believe, that Her Honor asked a moment ago.

Justice Antonin Scalia: Well, could?

Really?

Is that your test?

It could, there is some remote possibility?

Mr. Colombo: Again, I think it would be -- it's going to be fact-specific depending upon the kind of case.

It may well be in a given case that forensic testimony would not be controverted, would not be disputed.

It wouldn't be relevant, necessarily, to the defense.

Let's say, for example, that there was no dispute, that the person who committed the offense left DNA evidence at the crime scene and it's clear that the DNA evidence suggests that the perpetrator was the defendant.

Then the court -- then the defense attorney isn't going to profit by consulting an expert to dispute an indisputable issue.

Justice Anthony Kennedy: But isn't it the reality that sometimes the defense doesn't want to have an expert, because the expert may turn up findings that are adverse for him and it's better for the defense counsel to leave things murky and argue to the jury that the State didn't produce the evidence, either?

That's a perfectly legitimate strategy, isn't it?

Mr. Colombo: It is.

And I think that in many instances that would -- that would inform a defense attorney's strategic choices as to how to present the defense in a given case.

Justice Ruth Bader Ginsburg: Mr. Colombo, you -- you say in any event, leaving aside the question of whether there was ineffective assistance of counsel, even assuming there was, there was -- there would be no prejudice in this case?

Mr. Colombo: That's correct.

Yes.

Justice Ruth Bader Ginsburg: And could you just summarize why you say there would be no prejudice?

Mr. Colombo: Well, first of all, I think it's important to recognize that the expert declarations that were proffered by Respondent in support of his habeas petition really don't challenge the testimony that was presented in the State trial by the State's experts, specifically the question of whether or not the murder victim could have been moved from, supposedly, the area outside the bedroom door onto the couch.

The testimony at trial suggested that that distance was somewhere between about 20 and 25 feet.

There was no evidence at the crime scene that suggested the victim had moved from the point where he was shot with a fatal gunshot wound.

Justice Ruth Bader Ginsburg: What about the -- the pool of blood?

There was one expert affidavit that said something about that Johnson, standing up, could not have produced that amount of blood.

Mr. Colombo: I think the actual expert declaration suggested that the prosecution's theory, as the expert described it, could be eliminated, because Johnson could not have bled into the blood pool sufficient to have formed it by merely standing and waiting for the police to arrive.

I think it's important to realize the distinction between the prosecutor's theory which he propounded in his closing argument versus the evidence that the jury actually heard at trial from the State's own blood spatter expert that suggested in order for -- for Klein to have been moved from the point where the blood pool had formed onto the couch where his body was discovered by the police, there would have been some trail or some indicia, some evidence that would have suggested that he had to have been moved from that point.

And the more important question, I suppose, would be, as the dissenting opinion pointed out in this case: Why would the victim have been moved if he had been shot at that location?

Why would he have been moved onto the couch?

It certainly makes no sense for another victim, who's already shot, who is intoxicated, who is wounded and moving around in the house, why would he have wanted to move the victim of the gunshot wound to the head from point A to point B?

It just doesn't make any sense.

And there has never been anything in any of Respondent's experts' declarations that suggests a rational explanation for how or why that could have happened.

In that case--

Justice Ruth Bader Ginsburg: On the -- on the no prejudice issue, are you relying just on what happened -- what was found at the scene of the crime?

I mean, you said it's implausible that Klein would have been moved with no trail of blood at all, so you say, therefore, no prejudice.

Any -- anything else that goes into your no prejudice argument?

Mr. Colombo: --Yes.

I think for all of the reasons that are discussed in the dissenting opinion pages 193A to 194A of the petition for writ of certiorari -- excuse me, of the appendix.

As the dissenting opinion points out, it certainly was -- there's no evidence in the various experts' declarations that suggests, first of all, why the jury would have believed Respondent's trial testimony that after having essentially partied with the two victims for several hours the night before, they suddenly leave, go back to their place of employment, come back two hours later to return property and a firearm to another occupant of the house that they had no reason to believe was actually there; then they are suddenly surprised by these two victims; that there -- there is a spontaneous gunfight that ensues involving a firearm that's never found, that's never attributed to either of the two victims in the house, that could have only been attributable to the Respondent himself?

So the jury had all of that evidence to consider, and balance that against these -- as I, again, described them -- inconclusive and speculative expert opinions that are proffered in support of Respondent's habeas petition.

The jury could not have been persuaded to find the defendant not guilty, even had that evidence been introduced.

So necessarily, Petitioner could -- Respondent could not have been prejudiced by the failure to introduce that evidence, assuming that that evidence was, in fact, available and could have been presented in this case at the time of Respondent's trial.

Justice Samuel Alito: Was there additional physical evidence found not at the scene?

Mr. Colombo: Yes.

In fact, the other thing that really tied the Respondent into this crime was that there was an expended casing at the crime scene that matched perfectly with a loaded firearm magazine with the exact same kind of bullets and a box full of the same exact bullets in the Respondent's house when the officer served a search warrant, along with the stolen gun safe and some evidence that there was marijuana there, which the victim -- the surviving victim was admitted to be a marijuana dealer.

Justice Samuel Alito: Could I ask you a question about California procedure?

Is what happened here unusual?

Is there -- doesn't -- does the prosecution have an obligation to provide notice before trial of its intention to call expert witnesses?

Mr. Colombo: Yes.

Under California discovery rules, the prosecution would have to disclose to the defense any evidence it intends to introduce, either by way of lay testimony or expert testimony, before the trial commences.

Justice Samuel Alito: And if the defendant requests that, what is the defendant's reciprocal obligation, if any?

Mr. Colombo: The defendant would have to disclose any witnesses that he or she intends to introduce at trial, including expert testimony and any reports supporting such expert.

Unless the Court has any further questions, I would like to reserve my remaining time.

Chief Justice John G. Roberts: Thank you, Mr. Colombo.

Mr. Colombo: Thank you.

Chief Justice John G. Roberts: Mr. Gardner.

ORAL ARGUMENT OF CLIFFORD GARDNER ON BEHALF OF THE RESPONDENT

Mr. Gardner: Mr. Chief Justice, and may it please the Court:

The Court has invited briefing in the additional question presented on the application of AEDPA in this case, and in light of the Court's many questions this morning, I want to address that.

But I did want to clear up one piece of information that seems to be confusing in the record, and if I can start with that.

This was in response, I think, to a question you asked, Justice Ginsburg, regarding the -- the prejudice prong of the Strickland claim.

And the question was: Why is it -- why is it not -- why is it harmless?

And counsel suggested that there was an absence of blood between the blood pool and the couch.

Detective Bell testified to that.

And I just want to clear up, because I know this -- this bit was confusing in the briefs, too: That is not what Detective Bell testified to.

If you look at pages 181 and 195 in the reporter's transcript in Exhibit R 5, you will see that Detective Bell says,

"Yes, there were drops leading away from the couch; yes, there were drops leading away from the blood pool. "

And in fact, Exhibit R5 is a picture of the couch, and you can indeed see--

Justice Ruth Bader Ginsburg: I thought that the point was that there was no trail from the bed.

I mean, the theory was that Klein was removed from the bed to the couch.

And I thought that the point that the -- that counsel for the State emphasized was, does the -- if someone were moved from the bed, taken to the living room couch, you would have expected to see a trail of blood from the bed.

And there wasn't that.

Mr. Gardner: --Indeed.

But the State's theory, the defense theory, was that the body had been moved from the blood pool -- not the bed, the blood pool -- to the couch.

And the State's response, in its briefing and today in oral argument, was that there was no blood trail between the blood pool and the couch.

And indeed, that's not what Detective Bell testified to.

He said there were drops outside the blood pool, drops outside the couch, and when asked if there was blood in the carpeting in between, he said he did not remember how much blood there was in between--

Chief Justice John G. Roberts: So -- so the idea is that Johnson drags Klein.

This is your theory, right?

Because you are not suggesting he could have lifted Klein and walked him over, are you?

Mr. Gardner: --Yes, I think he could have lifted him, Your Honor.

Chief Justice John G. Roberts: Really?

Did you have an expert testify to that?

Mr. Gardner: No.

Chief Justice John G. Roberts: Did you get expert testimony about that or an expert report about that?

Mr. Gardner: No.

There was no -- there was no expert testimony about the ability of someone to -- to lift a weight.

Chief Justice John G. Roberts: But you think you can assume he could lift the weight.

How much did Klein weigh?

Mr. Gardner: I think he weighed between 150 and 160 pounds.

Chief Justice John G. Roberts: And Johnson?

Mr. Gardner: I think about the same, Your Honor.

Chief Justice John G. Roberts: Okay.

And you say that he could have dragged him from the pool to the couch because there were drops along the way.

Mr. Gardner: I'm saying that -- that the testimony, and the suggestion that there was no trail of blood between the blood pool and the couch, is not consistent with what Detective Bell testified to.

Justice Sonia Sotomayor: Mr.--

Justice Samuel Alito: And what is your theory about why he -- why Johnson would have a motive to go through this exertion?

He's -- he is wounded, and let's say there really was a gun -- a gun fight, and Klein fell someplace else.

Johnson wants to make it seem like Klein was -- that there wasn't any gun fight.

Why -- why is it so valuable to him to move Klein's body from the location where you think he fell to the couch?

Mr. Gardner: Well, if he -- if he falls in the bedroom doorway, Your Honor, and he falls in a crossfire, then Johnson is in some ways culpable.

Now, we don't know what the extent of his culpability is, but if he's involved in firing the first shot he is culpable.

Putting Klein on the couch and having the State's theory that Klein is shot in cold blood on the couch eliminates his culpability, or eliminates the risk of it.

Justice Samuel Alito: But he could have -- if he's going to make up a story, he could have made up a story that Klein jumped up and he was shot without having engaged in any firing himself and he fell wherever he fell.

Putting him on the couch doesn't seem to -- unless I am missing something and you should explain it -- doesn't seem to aid this purportedly false story very much.

And if you weigh whatever benefit there is from that against the exertion of moving this guy, it doesn't seem to make a whole lot of sense.

But maybe there's something there that's not apparent.

Mr. Gardner: Well, I can only say that if Klein is caught in a crossfire, then Johnson is culpable.

And let's remember, he has drugs in the house.

He has scales.

He has all sorts of drug paraphernalia--

Justice Antonin Scalia: Why wouldn't he wipe up the blood?

I mean, what good is it to simply put him on the couch when you leave a pool of blood showing that that's where he was shot?

Mr. Gardner: --I don't doubt that in retrospect he could have come up with a better plan, Your Honor.

[Laughter]

But I do think it's important to realize that this plan, at least on its face initially, in terms of adrenaline response, is going to get him out of a crossfire scenario.

Justice Antonin Scalia: What -- what other--

Justice Sonia Sotomayor: --Counsel, there is a lot of talk about the importance of this pool of blood, but as I read Detective Bell's testimony, he never posited or talks about how that pool was formed.

Only your expert knows that.

What Bell does talk about, however, is that there's a high-velocity blood splatter in front of the couch and that the pooling of blood on Klein's face shows that he was shot there.

Your experts do nothing to refute that testimony, which was really the basis of Bell's testimony.

He had nothing to say about the pool of blood.

He talked about why Klein was shot where he was shot.

And there is no expert testimony to refute that.

So how do you get past there being a reasonable probability of a different verdict when there is nothing to refute the critical testimony at issue, that Klein was shot where he was shot because there's high-velocity blood splatter in front of him and because the pooling on his face shows that?

Mr. Gardner: Let's take both the high-velocity blood splattering and the pooling, Your Honor, but let me start with the predicate.

And you are right, Detective Bell did not testify at all about the formation of the blood pool, and that's why this case is not about anticipating the State's expert about the blood pool, but about getting your own for your own case.

Turning to the specifics of your question, the high-velocity blood splatter.

It actually wasn't in front of the couch, Your Honor.

It was to the side and below the arm.

And let's remember Detective Bell's testimony about how the homicide occurred, because the State's theory was not that Pat Klein was shot while he was lying on the couch, but that he was sitting on the couch.

And so what is most interesting about the high-velocity blood splatter, since he was shot in the head, is that there is none on the wall immediately behind the couch.

This was a matter of some confusion in the briefs as well, but I think it's going to clear it up.

There is no high-velocity blood splatter behind on the pristine white wall.

So the question is: If he is shot while sitting up, the high-velocity blood splatter that Bell testifies to travels, oh, about 4 feet over the couch, and then 2 drops sink down.

Now, in terms of the jury evaluating that testimony, it's important to note that Detective Bell gave a description of what high-velocity blood splatter is, and he said it's a fan-like pattern of atomized blood.

And when you look at these 2 drops, these 2 drops alone that travel 4 feet and then drop straight down to fall on a plastic bag, you see, as defense counsel pointed out in his closing argument, that they are the same size as blood drops found in the kitchen on Exhibits R18 through R22.

And Detective Bell's entire theory for why these were high-velocity is their size.

There was never any dispute that there was no shooting in the kitchen.

Chief Justice John G. Roberts: Counsel, what other expert evidence should Richter's counsel should have pursued before deciding upon this course of action in this case?

Put aside the blood splatter expert.

What other experts did he need to consult.

Mr. Gardner: Putting aside the blood splatter issue -- and these were raised in the lower court but not addressed -- he promised ballistics testimony as well, which he didn't produce.

Chief Justice John G. Roberts: Okay.

We have got a blood splatter expert, a ballistics expert.

Go on.

I thought in the habeas proceeding, you said he should have consulted a serologist and a pathologist.

Okay, that's four.

Why wouldn't he want to talk to an expert on the effects of alcohol and drugs on people's different perceptions of the events?

Mr. Gardner: Well, I think the chief reason is that that wasn't part of his theory, if you look.

And really, the guide to this, Your Honor, is defense counsel's own theory, because defense counsel stands up in opening statement and he promises the jury a theory.

And the theory isn't, you are going to hear 2 stories and you are going to have to assess credibility.

His theory, as he explained to the jury, was: The physical evidence will show you Pat Klein was not shot on the couch.

Justice Samuel Alito: Well, he had not received any notice from the State that they were going to call any experts, so why wasn't it reasonable for him to assume they are not going to call any experts?

They are not going to be able to pull experts out of their pocket in the midst of the trial and the judge isn't going to allow them to do that without providing a -- without granting a recess.

What seems to have happened here seems pretty unusual.

Mr. Gardner: Well, if this case were about anticipating the State's decision to call an expert, I would agree, but it's not.

And the reason it's not is because we have an insight as to what defense counsel's theory of the case was before the State ever started its case, Your Honor.

Chief Justice John G. Roberts: I thought the Ninth Circuit said that part of the ineffective assistance was failing to consult an expert in planning his defense and in preparing his defense, not simply responding to the State's expert in the middle of trial.

Mr. Gardner: I agree, Your Honor.

If I said something that sounded like I didn't, I misspoke.

My point is that that's exactly the theory.

Once defense counsel decides on his defense -- in this case, I think he picked the right defense.

He told the jury the physical evidence would prove Pat Klein wasn't on the couch, and he could have done that.

But despite promising the jury that the physical evidence would prove this, he never consulted with someone.

And one--

Justice Sonia Sotomayor: Could you explain the blood pooling in the face for me?

You talk about the high-velocity.

Mr. Gardner: --Yes, I did.

I didn't get back to that.

Thank you, Your Honor.

The testimony was, of course, about the blood pattern flow on the face.

And when you read Detective Bell's testimony carefully, that testimony has nothing to do with where Pat Klein is shot.

It has to do with the angle of his face after he's shot.

So if he's shot on the bedroom -- in the bedroom doorway and falls and that's the angle, the blood flow would be the same.

So it really -- the blood flow pattern really has little to do with where he was shot, but just the angle of his face.

And getting back to the blood splatter itself, the blood pool itself, what's interesting in this case now is that even after all these years, the State has never disputed the fact that the absence of satellite drops means the State's theory is false.

Gunner Johnson could not have deposited that blood, because there was no satellite drops, which means it has to come from another source.

The only other source is Pat Klein.

Chief Justice John G. Roberts: Do I understand you -- I just want to step back to your prior answer.

You think what counsel did here would have been effective assistance but for exactly what he said in the opening statement?

Mr. Gardner: If -- I'm sorry.

If the question is, but for the opening statement, would we still have this argument, yes, although it would be much more difficult to establish what his theory was.

The opening statement doesn't change the Strickland analysis.

It simply gives us an insight, an easier path of knowing what counsel's theory was.

Much like the case of Wiggins v. Smith, where the Court looked at defense counsel's opening statement in the penalty case repeatedly to see what was his theory and what didn't he do.

And when there was a suggestion made in Wiggins v. Smith that, in fact, counsel's theory was something else, the Court said no, look at his opening statement.

We know what his theory was.

So it doesn't change the standard, but it gives us a very keen insight into what he was thinking and when he was thinking it.

Justice Ruth Bader Ginsburg: Mr. Gardner, what about the argument that all this is beside the point because the argument for prejudice is so weak, given all the other evidence that Mr. Colombo referred to?

Mr. Gardner: Well, it will come as no surprise to know that I disagree with that argument, Your Honor, and for a couple of reasons.

The cases really came down to: Gunner Johnson v. Petitioner Richter, who is the jury going to believe?

Even on the record that counsel has described, the jury deliberated 14 hours.

And remember, that record included a surviving eyewitness, and if you believe the surviving eyewitness, the case is over.

The jury deliberated over 14 hours, asking for reinstruction twice and a rereading of testimony three times.

And I think there is good reason for that.

Justice Anthony Kennedy: Well, of course, Johnson had given so many inconsistent statements at the outset that he was a weak prosecution witness.

It seems to me the defense could have pinned a great deal of hope on that.

Mr. Gardner: Well, I think -- actually, I agree with the predicate of the question, Your Honor, and that is: Johnson had given a number of stories.

He had given four or five different stories.

And after all, he knew both Klein and Richter.

When he first spoke to the 9-1-1 people, they said, What happened?

He said, 5 people came in and shot me.

Then he said 4, then he said 3, and when they said "Who", he said, "I don't know".

So clearly Gunner Johnson was a compromised witness, Your Honor.

But the fact that the State has a compromised witness is not the reason not to research the physical evidence and enhance your client's credibility.

It's more of a reason to do it.

Justice Ruth Bader Ginsburg: What do you do with the ammunition back at Richter's home, that the -- the gun safe is found there and the unlikely story about them going -- having the zeal to clean up their workplace and then coming back.

Mr. Gardner: Well, let me take them one at a time, Your Honor.

And in a sense, the ammo and the gun safe the answer is -- is very similar.

All parties agreed in this case that several weeks before the incident, Gunner Johnson had stored all his belongings at my client's house.

And, so, the only dispute was had the -- the gun safe included.

And this is one of the unusual features, is that the State's theory requires us to believe that this happened so he could rob a gun safe that had been at his house for weeks.

The question was had -- had the material, the gun safe and the ammo, who's was it and had it been taken back to Gunner's house.

The ammo is found in a place with two other things.

It's found with a scale used for measuring drugs, and it's found with shotgun ammunition.

Now, the record shows that Gunner Johnson had a shotgun, and Gunner Johnson was a drug dealer.

So the defense theory, of course, is that this ammo wasn't my client's.

It was Gunner Johnson's and hadn't been moved back.

Similarly, as to the safe, there was conflicting testimony as to whether the safe had ever been moved back.

So, that really is the explanation.

And that, I think, is why the jury had such pause about this case when it heard the case.

Chief Justice John G. Roberts: You mean the case against Gunner you've just described, would it have been enough, and wouldn't that have justified counsel's decision to focus on credibility rather than expert physical evidence?

Mr. Gardner: I think not.

And -- and -- and we know this again for two reasons.

And let me start by saying, the fact is that when counsel was asked, that wasn't the reason he gave.

It's not as if he -- he came to the depo and said this is my tactical reason, and so, we can then say, okay, that's a reasonable tactical decision.

That wasn't the decision -- reason he gave.

When asked did you decide not to present or why didn't you present this blood spatter testimony, he said, I simply didn't know this was out there.

And after all, let's keep in mind this was only his second trial -- his second murder trial.

He didn't know it was out there.

So, he didn't make that tactical decision.

And that's the first reason.

The second reason, I think, is that in -- in almost every case that has ever addressed this, and I have cited most of them, has come to the same conclusion.

When there is a credibility determination, when a defense -- any defense attorney lawyer worth his salt knows that there is a credibility determination to be made, the jury is going to believe either this story or my client's story, it at least behooves you to investigate to see if the physical evidence can support your position.

You can always make--

Chief Justice John G. Roberts: Did -- did the counsel have to investigate the other aspects?

I mean, we are talking -- we are focusing on the scene where the shooting took place.

Did he have to consider experts with respect to the bypass, where they threw the guns, Victor's apartment, the vehicle that was used?

One thing counsel said is he thought about hiring a tire expert because of the vehicle.

He has to look at the possibility of expert testimony affecting every aspect of the various scenes that were pertinent in this claim?

Mr. Gardner: --I don't believe so.

And -- and the reason, again, comes back to the same focus this Court had in Wiggins, another failure to investigate case.

What we know is that counsel suggested to the -- told the jury in opening statement, this is about the physical evidence.

The physical evidence will show this.

When counsel -- when it's clear that that's counsel's position in a case, it's simply application of the Strickland test.

It's unreasonable for counsel not to at least have investigated the physical evidence that he told the jury would show that Klein wasn't on the couch.

Chief Justice John G. Roberts: What does -- what happens -- I know you have an answer that that's not this case, but what -- what happens if the defendant tells his lawyer, look, I did it, I'm guilty?

And the lawyer decides that the best thing to do is try to pin it on a guy whose nickname is Gunner?

[Laughter]

Does -- does -- what else is the lawyer supposed to do?

He thinks no matter what -- what physical evidence is found, it's got to cut against his client because his client did it.

Mr. Gardner: Well, in a situation where -- where counsel's investigation will not be exposed to the prosecutor, and -- and there was questions before about how California procedure works and indeed once you decide to name -- to call a witness, you name him and he becomes, you know, exposed to cross-examination and for investigation.

But at least in terms of your private investigation of a case, the ABA standards are fairly clear that even an admission of guilt doesn't affect your ability or your obligation to defend him.

Justice Anthony Kennedy: But if -- if the expert says that the pool of blood all belonged to -- I guess it's Johnson, I certainly think ethically that you could not argue otherwise to the jury?

Mr. Gardner: I think ethically you couldn't argue otherwise to the jury.

Justice Anthony Kennedy: All right.

So, that's a reason why defense counsel, in this case the Chief Justice puts in many cases, prefers not to have experts, just so they can punch holes in the State's case.

That's a -- that's a legitimate -- and this counsel was very -- an adept cross examiner.

There is no doubt about that.

Mr. Gardner: I -- I don't disagree, except that again we come back to the -- the notion from Wiggins, which is you can't defend a tactical judgment that wasn't made.

And, in fact, when counsel was asked, is this the reason you did this, he said no.

I didn't call a blood splatter expert because I didn't know it was out there.

I--

Justice Antonin Scalia: --Can I come back to your response to the Chief Justice's about counsel that knows that his client is guilty, and you say the ABA standards say that even when that's the case, you have an obligation to get an expert witness to confirm that the client is--

Mr. Gardner: --I'm sorry, I thought -- I thought the hypothetical was that counsel's client said he was guilty, not that counsel thought he was guilty.

Justice Antonin Scalia: --Right.

Mr. Gardner: The ABA standards say that the duty to investigate, the broad duty to investigate of defense counsel exists, irrespective of the client's statements to its lawyer.

Justice Antonin Scalia: We've never adopted the ABA standards, have we?

Mr. Gardner: In that regard, no, you haven't.

Justice Antonin Scalia: That standard seems to me quite silly.

[Laughter]

Mr. Gardner: I -- I -- you know, I can understand that, Your Honor, but from practical experience, I will tell you the fact that a client admits to something doesn't mean he did it or she did it.

That's the real world consequence that we face as defense lawyers.

Often our clients tell us things and you can't always believe them, whether they say they are innocent or whether they say they are guilty.

Justice Antonin Scalia: Well, I'm sure they often say they are innocent when they are guilty.

I'm -- I'm -- I'm astounded that they often say they are guilty when they are innocent.

Mr. Gardner: Well, you know, I would suggestion the false confession literature has come out, and there is plenty of it to show that, in fact, that's not an infrequent occurrence.

Justice Antonin Scalia: To -- to the police, perhaps, yes, but to his own counsel?

I -- I'm -- I'm not aware of any literature to that effect.

Mr. Gardner: In which case I will come back to the answer that the Chief Justice suggested a few moments ago, that that's not my case.

It seems like a safe haven at this point.

[Laughter]

Chief Justice John G. Roberts: Counsel, your case -- your case does have an AEDPA issue.

Perhaps you want to turn--

Mr. Gardner: It does.

Chief Justice John G. Roberts: --to that now.

Mr. Gardner: I was trying to use that as a segue into that, Your Honor.

Thank you.

Chief Justice John G. Roberts: It worked.

Mr. Gardner: It worked.

That rarely happens, Your Honor.

And let me turn then to the AEDPA issues in this case, because on March 28, 2001, this California Supreme Court denied the petition for writ of habeas corpus in my client's case with an order that said the petition for habeas corpus is denied.

That same day in five other cases, noncapital cases, the California Supreme Court denied the writ saying, the petition for habeas corpus is denied on the merits.

And the State's position here today and in the briefing is that the Federal court should simply ignore that difference.

And I don't believe that's the case for several reasons.

Justice Ruth Bader Ginsburg: What is your answer to the -- to -- to the representation that In re Robbins settled that when the California Supreme Court says just denied, it's on the merits?

Mr. Gardner: Well, actually I agree and disagree.

In re Robbins does settle the matter from a State law perspective, but not as the Attorney General has suggested.

In re Robbins says a few things.

First it says that when we deny a case on the merits, we add the phrase "on the merits".

Then it says that when we find a procedural default, we cite for that default so that everyone knows.

And then it says -- and this was in response, I think, to a question I think you asked, Justice Scalia, they say a third thing, they say sometimes we will find both that it is meritless and it's defaulted.

And we will say both.

We will cite a default and we will say it's not on the merits as well, trusting that the Federal courts will give deference--

Justice Stephen G. Breyer: But what they cite it for, actually, they make a slightly different argument in their brief.

They say going back to 1974, there are at least three cases in the Ninth Circuit that have said when the California Supreme Court says nothing, just denied, we take that as a decision to reach the Federal issue and deny it on the merits.

Now, not in your case, but in most cases that will benefit a defendant, because it will avoid the question of whether there's an adequate and independent State ground of a procedural nature.

So, what they are saying is that that's the Ninth Circuit's statement in three cases, and the California Supreme Court over a course of 30 years has never said to the contrary, which it had plenty of opportunity to do and in other instances where the Ninth Circuit was wrong, it did do it.

So, that, I think, is a fairly strong argument.

Now, you're going to -- the only reason that you are not out of court on your own interpretation is because you will say that the State waived the procedural issue.

And then they will come back and say, so did you.

So, what -- what is your response to all of that?

Mr. Gardner: --Well, there's a whole bunch there, so let me see if I can -- if I can tease it out.

It is true that the Ninth Circuit has had this process, this procedure for a long time, and of course a development of pre-AEDPA world when the fact that whether something was on the merits or not didn't really matter, the only question was, was it defaulted, and if it was defaulted it might bar Federal review.

Whether it was on the merits was really irrelevant because before 2254(d) that really didn't matter.

So that's where, and I agree with the State that's where those cases come from.

I don't believe, however, that the waiver argument is really implicated here, Your Honor.

Justice Stephen G. Breyer: For example, in Hunter v. Aispuro they quote it as saying the following, the California Supreme Court's denial of a State habeas petition

"without comment or citation constitutes a decision on the merits of the Federal claims. "

And then they have three other cases roughly to the same effect.

Now what you are saying is that this Court should hold to the contrary, and by the way, in doing that, we will bar many Federal habeas petitioners from the Federal courts, because what it will mean is that there is an adequate and independent State ground in case after case, which perhaps is an irrelevant feature, but nonetheless, the silence of the California Supreme Court is significant, I think, when faced with those pretty clear interpretations of what their silence means by the Ninth Circuit.

Mr. Gardner: Yes.

And actually if the Ninth Circuit were the only voice in the fray, Your Honor, I think the argument would be stronger, but the Ninth Circuit's voice isn't the only voice in the fray and that brings me to Ylst.

In Ylst, of course, in Ylst v. Nunnemaker is a case which is part and parcel of this history from the Ninth Circuit of saying silent denial is on the merits.

In Ylst v. Nunnemaker that's exactly what the Ninth Circuit said and it came to this Court and the State actually argued that it wasn't on the merits.

And indeed this Court held that you cannot tell from a silent denial whether it's on the merits or not.

That's the first response, Your Honor, is that there are additional voices other than the Ninth Circuit.

The second is that well after Hunter v. Aispuro comes the Robbins footnote and in the Robbins footnote, and in the Robbins footnote--

Justice Sonia Sotomayor: I'm having a very hard time with your reliance on that footnote because the very last paragraph of that footnote says when Respondent's asserts, and I'm shortening the introductory line, a State procedural bar and when nevertheless our order disposing of a habeas corpus decision does not impose the proposed bar or bars as to that claim, that signifies that we considered Respondent's assertion and have determined that the claim or subclaim is not barred on the procedural ground.

So the footnote itself says unless we invoke the procedural bar we are not applying it.

Mr. Gardner: --I think that's right, Your Honor, but that's not the only thing the footnote says.

The footnote says when we deny on the merits we say on the merits.

When we cite a procedural bar we mean a bar, and if the State has raised a bar, as they did here and we don't rely on it, that means we haven't relied on a procedural bar.

Justice Sonia Sotomayor: Right.

Mr. Gardner: When you put those together what it means is there was no majority for a decision on the merits, otherwise they would have said on the merits.

There was no majority for a decision of procedural default, otherwise they had would have said default, and that's what a silent denial means and that is exactly what this Court said in Ylst.

You cannot tell because there are seven judges, there are different claims, there are different possibilities, that is why a silent denial is there in State court.

It's precisely--

Justice Antonin Scalia: Excuse me.

There is no majority for either ground and yet you find in favor of the State?

How can that be?

Mr. Gardner: --You say either ground.

There are multiple grounds for procedural default, Your Honor, under State law.

There are many possible procedural defaults.

Justice Antonin Scalia: Yes, but you are positing that the only time they do not say either procedurally barred or on the merits is when they don't have a majority for either one?

Mr. Gardner: That's correct.

Justice Antonin Scalia: How can they render a decision in favor of the State, then, if there is no majority for either disposition?

Mr. Gardner: The question is why deliberate to a majority when they sit around a conference of seven judges.

Let's say two judges believe there is a procedural default of untimeliness.

Two judges think it's timely, but think it should have been raised below.

Two judges think it's both timely and it didn't need to be raised below, but it hasn't been pled with sufficient specificity and one judge thinks it is improper on the merits.

There is seven judges, they all believe it should be denied, but there is no majority for any position.

There is no reason for the California Supreme Court and this is addressed more in the amicus brief by the California Academy Of Appellate Lawyers, there is no reason for the California Supreme Court at that point to spend a day, two days debating it when all seven judges agree there is a reason--

Justice Samuel Alito: But under your example then, isn't there a majority for the proposition that there is a procedural default, but disagreement as to the particular procedural default?

Mr. Gardner: --That could be.

Justice Samuel Alito: Just a binary choice between procedural default and merits, isn't there -- and everybody agrees it should be denied and there is going to be a majority for one or the other, right?

Mr. Gardner: That is true and I have been unclear and I apologize for that.

It is not a binary choice between default and merits, it's a choice between which default and merits and there are many defaults under State law.

When the court denies timeliness grounds it will cite Clark.

When the Court finds that it has been pled with insufficient specificity it will cite Swain.

Justice Samuel Alito: Is there more than one possible procedural problem here, I thought it was just timeliness?

Mr. Gardner: Well, timeliness was the only one raised by the State, but to be sure, like this Court, the California Supreme Court has never been bound in terms of its procedural default findings by what has been raised and--

Justice Sonia Sotomayor: What others could apply in this case?

Mr. Gardner: --Well, at the risk of not wanting to argue against my client, I could give you some that could apply that haven't been suggested and, therefore, are most certainly are waived.

But the California law often requires that you file your habeas petition in a lower court first.

Reviewing courts often deny petitions for failure to file in a lower court first.

There is a requirement that says you must plead with sufficient specificity.

That's often relied on by reviewing courts.

There is a requirement that says you must attach all readily available documents.

That's another--

Justice Ruth Bader Ginsburg: With this confusion, your version, your colleagues version, the district court denied relief, did you ask the district court, please certify this question of what a silent denial means, certify it to California Supreme Court so we will have once and for all an answer of what a silent denial means?

Mr. Gardner: --The answer is no, I didn't request certification.

When we were in district court and when we were in the Ninth Circuit both sides accepted the existing framework the Ninth Circuit had established that applies to a silent denial, but only through the lens of independent review.

The Court's added question has put both of those at issue.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Colombo, you have four minutes remaining.

REBUTTAL ARGUMENT OF HARRY J. COLOMBO ON BEHALF OF THE PETITIONER

Mr. Colombo: Thank you.

I think it's important to remember this is an AEDPA case.

It has always been an AEDPA case.

We've never asserted this case was not an AEDPA case.

The Court has had a very spirited discussion this morning essentially conducting a de novo Strickland review of the claims that are presented in the district court in this case.

It's important to remember we have to view as this Court described in Woodford v. Visciotti, a Strickland claim through the lens of the applicants burden to demonstrate that the State court's resolution of the Strickland claim on the fact of his case was objectively unreasonable.

Whether this Court were to choose to find that the California Supreme Court's determination if it were reviewed de novo was improper is different from determining whether or not the State court could have reasonably conclude on the factual record presented to it, but the applicant's claim failed to show a basis for relief.

Justice Stephen G. Breyer: Is it fair to say that this in this case, that every party in the lower courts assumed this was going to be a merits-related issue and that some deference was due, and that nobody ever said anything about it being a procedural issue where there would be a procedural bar of some kind that was either waived or not waived?

Mr. Colombo: That's correct.

Justice Stephen G. Breyer: The first time anybody mentioned this procedural issue was when?

Mr. Colombo: When Respondent's counsel filed his brief in opposition in this Court.

Justice Stephen G. Breyer: That was on the merits brief in opposition?

Mr. Colombo: That's correct.

Justice Stephen G. Breyer: There was nothing before that?

Mr. Colombo: Yes.

Justice Sonia Sotomayor: It wasn't part of the cert, the question, we added the question.

Mr. Colombo: Well, I would submit that if there was a dispute about the applicability of the deference to the California Supreme Court, it should have been raised much earlier than when we got to this Court.

Justice Sonia Sotomayor: No, no.

I'm saying they didn't raise it to start with, we added the question.

Mr. Colombo: Yes, that's true.

Justice Sonia Sotomayor: So it wasn't as if they were trying to get around their own waiver?

Mr. Colombo: No, I wouldn't suggest that Respondent's counsel was avoiding that.

I am suggesting that if this was a legitimately disputed question it could have been addressed much earlier.

Justice Antonin Scalia: Excuse me, you lost me.

I thought you said that they raised it in the brief in opposition to the petition for cert?

Mr. Colombo: No, it was not raised in the opposition to cert. It was not presented until the merits brief--

Justice Antonin Scalia: Until the merits briefing?

Mr. Colombo: --Yes.

Now I wanted, if I may, just touch a couple of points real quickly.

Now on page 23 in footnote, I believe it's 6 of our reply brief, there is a discussion about what the detective's testimony was in regard to this blood spatter near the couch where the murder victim's body was found.

I think it's important to remember Respondent's counsel talked about whether or not this spatter would have consistent with having been shot on the couch if there were blood spatter behind the armrest.

What the detective testified to and what is described in our brief is the detective said because this was not a through and through exit wound -- that is, the bullet lodged in the victim's head -- that the spatter would have been what he described as back spatter, meaning the blood would have flown out from the victim's head outward, and that was consistent with what the evidence was at the crime scene that the detective observed when he was there after the murder was committed.

Chief Justice John G. Roberts: What about the drops between the blood pool and the couch?

Mr. Colombo: The detective described those as essentially insignificant; they didn't reflect anything other than someone was moving around in the house, which was consistent with what the crime scene investigators had discovered when they first responded to the 911 call from the -- Mr. Johnson to the police.

Justice Stephen G. Breyer: Is there any reason not to do this?

I am just thinking from our point of view -- I mean, I think it is probably correct what you say; nobody mentioned a word about this procedural issue until the brief in opposition on the merits, not the cert brief; and the reason they did was perfectly legitimate.

We'd asked the question.

Well, if we were wrong to do that, and if we took the opinion as being a question of reasonable deference, et cetera, and went into it, is there anything -- any reason not to put in that opinion somewhere, given Ylst and given the Ninth Circuit, it would be helpful if the California Supreme Court for future reference explained what their practice does in fact mean, whether it's procedural or whether it's on the merits.

Mr. Colombo: I would submit that that would be helpful but unnecessary.

Justice Stephen G. Breyer: All right.

Chief Justice John G. Roberts: Thank you, counsel, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Kennedy: The Court today decides two cases in which the Court of Appeals for Ninth Circuit granted federal habeas corpus relief to persons convicted under state law.

In both cases, we find the Court of Appeals committed error.

The first of this is Harrington versus Richter, Number 09-587.

The respondent was Richter, claims he received ineffective assistance of counsel at trial because his attorney did not consult experts in preparation for the trial or call experts to the stand during the trial.

The experts that Richter now says counsel should have consulted where experts in blood evidence.

In order to reach the legal issues, the opinion recites the details of the crime at some length, just a brief account is necessary here.

The crime occurred among four persons and they all knew each other.

The prosecution maintained that -- that there were two victims and two assailants and one of the assailants was -- was Richter.

The prosecution said Richter and the accomplice returned to the house where the four men had all been present earlier in the evening and Richter and his accomplice shot the other two.One survived, the other died.

Richter wanted the jury to believe that one of the victims had fired at his companion and that the companion had fired back in self-defense and that the deceased was killed in the crossfire.

And to support his version of the events, Richter suggested that after he and his friend left the scene of the shootings, the victim who survived moved the other victim's body to another room.

And according to Richter, this was the theory that the defense counsel should have supported, by consulting and offering testimony from experts, blood experts in serology and blood spatter patterns and -- and pathology.

Now, the jury did not hear any defense experts on blood nor did Richter's counsel consult blood experts in preparation for the trial.

The jury did not accept the self-defense theory.

They convicted Richter of first degree murder, he receives a life sentence.

A three-judge panel of the Court of Appeals, in agreement with the state courts and the Federal District Court, denied relief on the ineffective assistance of counsel claim.

Sitting en banc, however, the Court of Appeals ordered the habeas relief be granted and we now reverse.

The controlling case on effective assistance of counsel, which contains the standards that we apply here today after reaching the procedural points, is Strickland versus Washington.

But in considering whether to order federal habeas corpus relief to vacate a state conviction, after the state courts have denied relief, federal courts are constrained by the limitation in a federal statute and that statute is the Antiterrorism and Effective Death Penalty Act, commonly known as AEDPA and the relevant provision is 28 U.S.C. Section 2254(d).

That statute limits federal habeas relief for any claim presented in the federal habeas petition that was adjudicated on the merits in state court.

In rejecting Richter's ineffective assistance of counsel claim, the State Court, the Supreme Court of California, issued a one line order.

And the first question addressed in the opinion is whether the California Supreme Court order was an adjudication on the merits of Richter's ineffective assistance of counsel claim and we hope that it was.

The text of the statute requires only a state court adjudication on the merits, that's the statutory phrase, it had to be an adjudication on the merits but it doesn't require an -- an opinion.

On the basic issues in the case, the Court of Appeals failed to accord the deference required by AEDPA and by Strickland.

As a condition for obtaining habeas corpus from a federal court, AEDPA requires a state prisoner to show that the State's ruling on the claim being presented in federal court was so lacking in justification, that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.

Now, this standard was meant to be difficult to meet.

Section 2254 stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings.

And it preserves the authority to issue the writ in cases where there is no possibility, fair-minded jurors -- jurist could disagree with the state court's decision as conflicting with this Court's precedence.

But it goes no further.

And the reason for this approach -- the reasons for this approach are familiar.

A federal habeas review frustrates State eff -- efforts to punish offenders and it undermines State efforts to honor constitutional rights and disturbs society's interest in repose.

Federal habeas corpus intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.

So, the question in this case is not whether counsels' action satisfies Strickland's standards.

Section 2254(d) applies so the question is whether there is any reasonable argument that counsel satisfy that standards.

If the Court of Appeals gave Section 2254 no operation or function in its reasoning, its analysis -- illustrates a lack of deference to the state court's determination.

This was contrary to the purpose and mandate of AEDPA and to the now well-settled meaning and function of habeas corpus in the federal system.

Even apart from the limitations imposed by AEDPA, the Court of Appeals misapplied Strickland.

Relief is warranted under Strickland only if an attorney made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.

The question Strickland asked is whether an attorney's performance amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.

And there is a strong presumption that counsel's representation was within the range of reasonable professional assistance.

Here, counsel could decide not to consult with blood experts for a number of reasons.

There are many differences between the prosecution and defense version of the shootings.

Reliance on the harsh light of hindsight to second-guess trial proceedings is precisely what Strickland and AEDPA forbid.Even if it had been apparent that blood evidence could've supported the defense, a reasonable attorney could choose not to use it.

To support a defense argument, the prosecution has not proved its case.

It is sometimes better for the defense to try to cast pervasive suspicion of doubt rather than to try to prove a certainty that exonerates.

The Court of Appeals also erred in finding that Richter suffered prejudice as a result of the failure to pursue forensic evidence.

The evidence Richter says his counsel was required to introduce, could be reconciled with the considerable evidence that re -- remained that pointed to his guilt.

There was ample basis for the California Supreme Court to think any possibility of Richter being acquitted was eclipsed by the other evidence.

The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.

And judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources.

But those resources are diminished and misspent and confidence in the writ and the law it vindicates or undermined, if there is judicial disregard for the sound and established principles that informs it proper issuance.

And that judicial regard is inherent and in the Appeals' Court judgment in this case.

The judgment of the Court of Appeals is reversed.

The case is remanded for further proceedings consistent with the Court's opinion.Justice Ginsburg has filed an opinion concurring in the judgment.

Justice Kagan took no part in the consideration or decision of the case.