Schriro v. Landrigan

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

SCHRIRO, DIRECTOR, ARIZONA DEPARTMENT OF

CORRECTIONS v. LANDRIGAN AKA HILL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

No. 05–1575. Argued January 9, 2007—Decided May 14, 2007
Respondent Landrigan refused to allow his counsel to present the tes
timony of his ex-wife and birth mother as mitigating evidence at his
sentencing hearing for a felony-murder conviction. He also inter
rupted as counsel tried to proffer other evidence, and he told the Ari
zona trial judge he did not wish to present any mitigating evidence
and to “bring on” the death penalty. The court sentenced him to
death, and the sentence was affirmed. The state postconviction court
rejected Landrigan’s claim that his counsel was ineffective for failing
to conduct further investigation into mitigating circumstances, find
ing that he had instructed counsel at sentencing not to present any
mitigating evidence at all. Landrigan then filed a federal habeas pe
tition under 28 U. S. C. §2254. Exercising its discretion, the District
Court refused to grant him an evidentiary hearing because he could
not make out even a colorable ineffective-assistance-of-counsel claim.
The en banc Ninth Circuit reversed, holding that Landrigan’s coun
sel’s performance fell below the standard required by Strickland v.
Washington, 466 U. S. 668.
Held: The District Court did not abuse its discretion in refusing to
grant Landrigan an evidentiary hearing. Pp. 6–15.
(a) The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) has not changed the basic rule that the decision to grant an
evidentiary hearing is left to the district court’s sound discretion, but
it has changed the standards for granting federal habeas relief by
prohibiting such relief unless a state court’s adjudication “resulted in
a decision that was contrary to, or involved an unreasonable applica
tion of, clearly established Federal law, as determined by [this
Court],” §2254(d)(1), or “was based on an unreasonable determination
2 SCHRIRO v. LANDRIGAN

Syllabus

of the facts in light of the evidence presented in the State court pro
ceeding,” §2254(d)(2). Because §2254’s deferential standards control
whether to grant habeas relief, a federal court must take into account
those standards in deciding whether an evidentiary hearing is appro
priate. In deciding whether to grant an evidentiary hearing, a fed
eral court must consider whether the hearing could enable an appli
cant to prove the petition’s factual allegations, which, if true, would
entitle the applicant to federal habeas relief. It follows that if the re
cord refutes the applicant’s factual allegations or otherwise precludes
habeas relief, a district court is not required to hold an evidentiary
hearing. Pp. 6–8.
(b) Contrary to the Ninth Circuit’s reasoning, the District Court
was well within its discretion to determine that, even with the bene
fit of an evidentiary hearing, Landrigan could not develop a factual
record entitling him to federal habeas relief. Pp. 8–13.
(1) The Ninth Circuit concluded that the Arizona state courts’
findings that Landrigan had instructed his counsel not to offer any
mitigating evidence took Landrigan’s sentencing colloquy out of con
text, amounting to an unreasonable determination of the facts. How
ever, the colloquy’s language plainly indicates that Landrigan told
his counsel not to present any mitigating evidence, and the record
conclusively dispels the Circuit’s conclusion that Landrigan’s state
ments referred to only his ex-wife’s and birth mother’s testimony. On
that record, the state court’s determination that Landrigan refused to
allow the presentation of any mitigating evidence was a reasonable
determination of the facts. Thus, it was not an abuse of discretion for
the District Court to conclude that Landrigan could not overcome
§2254(d)(2)’s bar to granting federal habeas relief. That court was
entitled to conclude that regardless of what information counsel
might have uncovered in his investigation, Landrigan would have in
terrupted and refused to allow him to present it. Thus, it could con
clude that because of his established recalcitrance, Landrigan could
not demonstrate prejudice under Strickland even if granted an evi
dentiary hearing. Pp. 8–10.
(2) The Ninth Circuit also erred in finding two alternative rea
sons for its holding. It concluded that the Arizona courts’ determina
tion that Landrigan’s claims were frivolous and meritless was an un
reasonable application of this Court’s precedent, based on the belief,
derived from Wiggins v. Smith, 539 U. S. 510, that his last minute
decision to block testimony could not excuse his counsel’s failure to do
an adequate investigation before sentencing. However, this Court
has never addressed a situation in which a client interferes with
counsel’s efforts to present mitigating evidence to a sentencing court.
Thus, it was not objectively unreasonable for the Arizona postconvic
 Cite as: 550 U. S. ____ (2007) 3

Syllabus

tion court to conclude that a defendant who refused to allow any
mitigating evidence to be presented could not establish Strickland
prejudice based on his counsel’s failure to investigate further possible
mitigating evidence. The Ninth Circuit also found that the record
does not indicate that Landrigan’s decision was informed and know
ing, or that he understood its consequences. This Court has never
held that an “informed and knowing” requirement exists with respect
to the decision to not introduce mitigating evidence. But even assum
ing such a requirement exists in this case, Landrigan cannot benefit
from it. First, because he never developed his claim properly before
the Arizona courts, §2254(e)(2) barred the District Court from grant
ing an evidentiary hearing on that basis. Second, his counsel told the
sentencing court in Landrigan’s presence that he had carefully ex
plained to Landrigan the importance of mitigating evidence in death
penalty cases and his duty as counsel to disclose mitigating factors
for consideration. In light of Landrigan’s demonstrated propensity
for interjecting himself into the proceedings, it is doubtful that he
would have sat idly by while counsel lied about such discussions.
Third, it is apparent from Landrigan’s statement to the sentencing
court to bring on the death penalty that he clearly understood the
consequences of telling the judge that there were no relevant mitigat
ing circumstances. Pp. 11–13.
(c) The Ninth Circuit also erred in rejecting the District Court’s
finding that the poor quality of Landrigan’s alleged mitigating evi
dence prevented him from making a colorable prejudice claim. Be
cause most of the evidence that Landrigan now wishes to offer would
have been offered by this birth mother and ex-wife had he allowed
them to testify, and because the sentencing court had much of the
evidence before it by way of counsel’s proffer, the District Court could
reasonably conclude that any additional evidence would have made
no difference in the sentencing. Pp. 13–14.
(d) Even assuming the truth of all the facts Landrigan sought to
prove at an evidentiary hearing, he still could not be granted federal
habeas relief because the state courts’ factual determination that he
would not have allowed counsel to present any mitigating evidence at
sentencing is not an unreasonable determination of the facts under
§2254(d)(2) and the mitigating evidence he seeks to introduce would
not have changed the result. Pp. 14–15.
441 F. 3d 638, reversed and remanded.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. STEVENS, J., filed a
dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ.,
joined.
 Cite as: 550 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–1575
_________________

DORA B. SCHRIRO, DIRECTOR, ARIZONA DEPART-

MENT OF CORRECTIONS, PETITIONER v.

JEFFREY TIMOTHY LANDRIGAN, AKA

BILLY PATRICK WAYNE HILL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[May 14, 2007]

JUSTICE THOMAS delivered the opinion of the Court.
In cases where an applicant for federal habeas relief is
not barred from obtaining an evidentiary hearing by 28
U. S. C. §2254(e)(2), the decision to grant such a hearing
rests in the discretion of the district court. Here, the
District Court determined that respondent could not make
out a colorable claim of ineffective assistance of counsel
and therefore was not entitled to an evidentiary hearing.
It did so after reviewing the state-court record and ex
panding the record to include additional evidence offered
by the respondent. The Court of Appeals held that the
District Court abused its discretion in refusing to grant
the hearing. We hold that it did not.
I
Respondent Jeffrey Landrigan was convicted in Okla
homa of second-degree murder in 1982. In 1986, while in
custody for that murder, Landrigan repeatedly stabbed
another inmate and was subsequently convicted of assault
and battery with a deadly weapon. Three years later,
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Opinion of the Court

Landrigan escaped from prison and murdered Chester
Dean Dyer in Arizona.
An Arizona jury found Landrigan guilty of theft, second-
degree burglary, and felony murder for having caused the
victim’s death in the course of a burglary. At sentencing,
Landrigan’s counsel attempted to present the testimony of
Landrigan’s ex-wife and birth mother as mitigating evi
dence. But at Landrigan’s request, both women refused to
testify. When the trial judge asked why the witnesses
refused, Landrigan’s counsel responded that “it’s at my
client’s wishes.” App. to Pet. for Cert. D–3. Counsel ex
plained that he had “advised [Landrigan] very strongly
that I think it’s very much against his interests to take
that particular position.” Ibid. The court then questioned
Landrigan:
“THE COURT: Mr. Landrigan, have you instructed

your lawyer that you do not wish for him to bring any

mitigating circumstances to my attention?

“THE DEFENDANT: Yeah.

“THE COURT: Do you know what that means?

“THE DEFENDANT: Yeah.

“THE COURT: Mr. Landrigan, are there mitigating

circumstances I should be aware of?

“THE DEFENDANT: Not as far as I’m concerned.”

Id., at D–3, D–4.

Still not satisfied, the trial judge directly asked the
witnesses to testify. Both refused. The judge then asked
counsel to make a proffer of the witnesses’ testimony.
Counsel attempted to explain that the witnesses would
testify that Landrigan’s birth mother used drugs and
alcohol (including while she was pregnant with Landri
gan), that Landrigan abused drugs and alcohol, and that
Landrigan had been a good father.
But Landrigan would have none of it. When counsel
tried to explain that Landrigan had worked in a legitimate
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Opinion of the Court

job to provide for his family, Landrigan interrupted and
stated “[i]f I wanted this to be heard, I’d have my wife say
it.” Id., at D–6. Landrigan then explained that he was not
only working but also “doing robberies supporting my
family.” Id., at D–7. When counsel characterized Landri
gan’s first murder as having elements of self-defense,
Landrigan interrupted and clarified: “He didn’t grab me. I
stabbed him.” Id., at D–9. Responding to counsel’s state
ment implying that the prison stabbing involved self-
defense because the assaulted inmate knew Landrigan’s
first murder victim, Landrigan interrupted to clarify that
the inmate was not acquainted with his first victim, but
just “a guy I got in an argument with. I stabbed him 14
times. It was lucky he lived.” Ibid.
At the conclusion of the sentencing hearing, the judge
asked Landrigan if he had anything to say. Landrigan
made a brief statement that concluded, “I think if you
want to give me the death penalty, just bring it right on.
I’m ready for it.” Id., at D–16.
The trial judge found two statutory aggravating circum
stances: that Landrigan murdered Dyer in expectation of
pecuniary gain and that Landrigan was previously con
victed of two felonies involving the use or threat of vio
lence on another person. Id., at D–23. In addition, the
judge found two nonstatutory mitigating circumstances:
that Landrigan’s family loved him and an absence of
premeditation. Ibid. Finally, the trial judge stated that
she considered Landrigan “a person who has no scruples
and no regard for human life and human beings.” Ibid.
Based on these findings, the court sentenced Landrigan to
death. On direct appeal, the Arizona Supreme Court
unanimously affirmed Landrigan’s sentence and convic
tion. In addressing an ineffective-assistance-of-counsel
claim not relevant here, the court noted that Landrigan
had stated his “desire not to have mitigating evidence
presented in his behalf.” State v. Landrigan, 176 Ariz. 1,
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Opinion of the Court

8, 859 P. 2d 111, 118 (1993).
On January 31, 1995, Landrigan filed a petition for
state postconviction relief and alleged his counsel’s
“fail[ure] to explore additional grounds for arguing mitiga
tion evidence.” App. to Pet. for Cert. F–3 (internal quota
tion marks omitted). Specifically, Landrigan maintained
that his counsel should have investigated the “biological
component” of his violent behavior by interviewing his
biological father and other relatives. Id., at E–2. In addi
tion, Landrigan stated that his biological father could
confirm that his biological mother used drugs and alcohol
while pregnant with Landrigan. Ibid.
The Arizona postconviction court, presided over by the
same judge who tried and sentenced Landrigan, rejected
Landrigan’s claim. The court found that “[Landrigan]
instructed his attorney not to present any evidence at the
sentencing hearing, [so] it is difficult to comprehend how
[Landrigan] can claim counsel should have presented
other evidence at sentencing.” Id., at F–4. Noting Lan
drigan’s contention that he “ ‘would have cooperated’ ” had
other mitigating evidence been presented, the court con
cluded that Landrigan’s “statements at sentencing belie
his new-found sense of cooperation.” Ibid. Describing
Landrigan’s claim as “frivolous,” id., at F–5, the court
declined to hold an evidentiary hearing and dismissed
Landrigan’s petition. The Arizona Supreme Court denied
Landrigan’s petition for review on June 19, 1996.
Landrigan then filed a federal habeas application under
§2254. The District Court determined, after “expand[ing]
the record to include . . . evidence of [Landrigan’s] troubled
background, his history of drug and alcohol abuse, and his
family’s history of criminal behavior,” id., at C–22, that
Landrigan could not demonstrate that he was prejudiced
by any error his counsel may have made. Because Landri
gan could not make out even a “colorable” ineffective-
assistance-of-counsel claim, id., at C–46, the District
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Opinion of the Court

Court refused to grant him an evidentiary hearing.
On appeal, a unanimous panel of the Court of Appeals
for the Ninth Circuit affirmed, but the full court granted
rehearing en banc, Landrigan v. Stewart, 397 F. 3d 1235
(2005), and reversed. The en banc Court of Appeals held
that Landrigan was entitled to an evidentiary hearing
because he raised a “colorable claim” that his counsel’s
performance fell below the standard required by Strick
land v. Washington, 466 U. S. 668 (1984). 441 F. 3d 638,
650 (CA9 2006). With respect to counsel’s performance,
the Ninth Circuit found that he “did little to prepare for
the sentencing aspect of the case,” id., at 643, and that
investigation would have revealed a wealth of mitigating
evidence, including the family’s history of drug and alcohol
abuse and propensity for violence.
Turning to prejudice, the court held the Arizona post-
conviction court’s determination that Landrigan refused to
permit his counsel to present any mitigating evidence was
“an ‘unreasonable determination of the facts.’ ” Id., at 647
(quoting 28 U. S. C. §2254(d)(2)). The Court of Appeals
found that when Landrigan stated that he did not want
his counsel to present any mitigating evidence, he was
clearly referring only to the evidence his attorney was
about to introduce—that of his ex-wife and birth mother.
441 F. 3d, at 646. The court further held that, even if
Landrigan intended to forgo the presentation of all mitiga
tion evidence, such a “last-minute decision cannot excuse
his counsel’s failure to conduct an adequate investigation
prior to the sentencing.” Id., at 647. In conclusion, the
court found “a reasonable probability that, if Landrigan’s
allegations are true, the sentencing judge would have
reached a different conclusion.” Id., at 650. The court
therefore remanded the case for an evidentiary hearing.
We granted certiorari and now reverse.
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Opinion of the Court

II
Prior to the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 110 Stat. 1214, the decision to grant
an evidentiary hearing was generally left to the sound
discretion of district courts. Brown v. Allen, 344 U. S. 443,
463–464 (1953); see also Townsend v. Sain, 372 U. S. 293,
313 (1963). That basic rule has not changed. See 28
U. S. C. §2254, Rule 8(a) (“[T]he judge must review the
answer [and] any transcripts and records of state-court
proceedings . . . to determine whether an evidentiary
hearing is warranted”).
AEDPA, however, changed the standards for granting
federal habeas relief.1 Under AEDPA, Congress prohib
ited federal courts from granting habeas relief unless a
state court’s adjudication of a claim “resulted in a decision
that was contrary to, or involved an unreasonable applica
tion of, clearly established Federal law, as determined by
the Supreme Court of the United States,” §2254(d)(1), or
the relevant state-court decision “was based on an unrea
sonable determination of the facts in light of the evidence
presented in the State court proceeding.” §2254(d)(2).
The question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but
whether that determination was unreasonable—a sub
stantially higher threshold. See Williams v. Taylor, 529
U. S. 362, 410 (2000). AEDPA also requires federal ha
beas courts to presume the correctness of state courts’
factual findings unless applicants rebut this presumption
with “clear and convincing evidence.” §2254(e)(1).
In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could
——————
1 Althoughnot at issue here, AEDPA generally prohibits federal ha
beas courts from granting evidentiary hearings when applicants have
failed to develop the factual bases for their claims in state courts. 28
U. S. C. §2254(e)(2).
 Cite as: 550 U. S. ____ (2007) 7

Opinion of the Court

enable an applicant to prove the petition’s factual allega
tions, which, if true, would entitle the applicant to federal
habeas relief. See, e.g., Mayes v. Gibson, 210 F. 3d 1284,
1287 (CA10 2000). Because the deferential standards
prescribed by §2254 control whether to grant habeas
relief, a federal court must take into account those stan
dards in deciding whether an evidentiary hearing is ap
propriate. See id., at 1287–1288 (“Whether [an appli
cant’s] allegations, if proven, would entitle him to habeas
relief is a question governed by [AEDPA]”).2
It follows that if the record refutes the applicant’s fac
tual allegations or otherwise precludes habeas relief, a
district court is not required to hold an evidentiary hear
ing. The Ninth Circuit has recognized this point in other
cases, holding that “an evidentiary hearing is not required
on issues that can be resolved by reference to the state
court record.” Totten v. Merkle, 137 F. 3d 1172, 1176
(1998) (emphasis deleted) (affirming the denial of an
evidentiary hearing where the applicant’s factual allega
tions “fl[ew] in the face of logic in light of . . . [the appli
cant’s] deliberate acts which are easily discernible from
the record”). This approach is not unique to the Ninth
Circuit. See Anderson v. Attorney General of Kan., 425
F. 3d 853, 858–859 (CA10 2005) (holding that no eviden
tiary hearing is required if the applicant’s allegations are
contravened by the existing record); cf. Clark v. Johnson,
202 F. 3d 760, 767 (CA5 2000) (holding that no hearing is
required when the applicant has failed to present clear
and convincing evidence to rebut a state court’s factual
findings); Campbell v. Vaughn, 209 F. 3d 280, 290 (CA3
2000) (same).
This principle accords with AEDPA’s acknowledged
——————
2 Indeed, the Court of Appeals below, recognizing this point, applied

§2254(d)(2) to reject certain of the Arizona court’s factual findings that
established a hearing would be futile.
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Opinion of the Court

purpose of “reduc[ing] delays in the execution of state and
federal criminal sentences.” Woodford v. Garceau, 538
U. S. 202, 206 (2003) (citing Williams v. Taylor, supra, at
386 (opinion of STEVENS, J.) (“Congress wished to curb
delays, to prevent ‘retrials’ on federal habeas, and to give
effect to state convictions to the extent possible under
law”)). If district courts were required to allow federal
habeas applicants to develop even the most insubstantial
factual allegations in evidentiary hearings, district courts
would be forced to reopen factual disputes that were con
clusively resolved in the state courts. With these stan
dards in mind, we turn to the facts of this case.
III
For several reasons, the Court of Appeals believed that
Landrigan might be entitled to federal habeas relief and
that the District Court, therefore, abused its discretion by
denying Landrigan an evidentiary hearing. To the con
trary, the District Court was well within its discretion to
determine that, even with the benefit of an evidentiary
hearing, Landrigan could not develop a factual record that
would entitle him to habeas relief.
A
The Court of Appeals first addressed the State’s conten
tion that Landrigan instructed his counsel not to offer any
mitigating evidence. If Landrigan issued such an instruc
tion, counsel’s failure to investigate further could not have
been prejudicial under Strickland. The Court of Appeals
rejected the findings of “the Arizona Supreme Court (on
direct appeal) and the Arizona Superior Court (on habeas
review)” that Landrigan instructed his counsel not to
introduce any mitigating evidence. 441 F. 3d, at 646.
According to the Ninth Circuit, those findings took Lan
drigan’s colloquy with the sentencing court out of context
in a manner that “amounts to an ‘unreasonable determi
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Opinion of the Court

nation of the facts.’ ” Id., at 647 (quoting 28 U. S. C.
§2254(d)(2)).
Upon review of record material and the transcripts from
the state courts, we disagree. As a threshold matter, the
language of the colloquy plainly indicates that Landrigan
informed his counsel not to present any mitigating evi
dence. When the Arizona trial judge asked Landrigan if
he had instructed his lawyer not to present mitigating
evidence, Landrigan responded affirmatively. Likewise,
when asked if there was any relevant mitigating evidence,
Landrigan answered, “Not as far as I’m concerned.” App.
to Pet. for Cert. D–4. These statements establish that the
Arizona postconviction court’s determination of the facts
was reasonable. And it is worth noting, again, that the
judge presiding on postconviction review was ideally situ
ated to make this assessment because she is the same
judge that sentenced Landrigan and discussed these is
sues with him.
Notwithstanding the plainness of these statements, the
Court of Appeals concluded that they referred to only the
specific testimony that counsel planned to offer—that of
Landrigan’s ex-wife and birth mother. The Court of Ap
peals further concluded that Landrigan, due to counsel’s
failure to investigate, could not have known about the
mitigating evidence he now wants to explore. The record
conclusively dispels that interpretation. First, Landri
gan’s birth mother would have offered testimony that
overlaps with the evidence Landrigan now wants to pre
sent. For example, Landrigan wants to present evidence
from his biological father that would “confirm [his biologi
cal mother’s] alcohol and drug use during her pregnancy.”
Id., at E–2. But the record shows that counsel planned to
call Landrigan’s birth mother to testify about her “drug
us[e] during her pregnancy,” id., at D–10, and the possible
effects of such drug use. Second, Landrigan interrupted
repeatedly when counsel tried to proffer anything that
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Opinion of the Court

could have been considered mitigating. He even refused to
allow his attorney to proffer that he had worked a regular
job at one point. Id., at D–6, D–7. This behavior confirms
what is plain from the transcript of the colloquy: that
Landrigan would have undermined the presentation of
any mitigating evidence that his attorney might have
uncovered.
On the record before us, the Arizona court’s determina
tion that Landrigan refused to allow the presentation of
any mitigating evidence was a reasonable determination
of the facts. In this regard, we agree with the initial Court
of Appeals panel that reviewed this case:
“In the constellation of refusals to have mitigating evi
dence presented . . . this case is surely a bright star.
No other case could illuminate the state of the client’s
mind and the nature of counsel’s dilemma quite as
brightly as this one. No flashes of insight could be
more fulgurous than those which this record sup
plies.” Landrigan v. Stewart, 272 F. 3d 1221, 1226
(CA9 2001).
Because the Arizona postconviction court reasonably
determined that Landrigan “instructed his attorney not to
bring any mitigation to the attention of the [sentencing]
court,” App. to Pet. for Cert. F–4, it was not an abuse of
discretion for the District Court to conclude that Landri
gan could not overcome §2254(d)(2)’s bar to granting fed
eral habeas relief. The District Court was entitled to
conclude that regardless of what information counsel
might have uncovered in his investigation, Landrigan
would have interrupted and refused to allow his counsel to
present any such evidence. Accordingly, the District Court
could conclude that because of his established recalci
trance, Landrigan could not demonstrate prejudice under
Strickland even if granted an evidentiary hearing.
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Opinion of the Court

B
The Court of Appeals offered two alternative reasons for
holding that Landrigan’s inability to make a showing of
prejudice under Strickland did not bar any potential
habeas relief and, thus, an evidentiary hearing.
1
The Court of Appeals held that, even if Landrigan did
not want any mitigating evidence presented, the Arizona
courts’ determination that Landrigan’s claims were “ ‘frivo
lous’ and ‘meritless’ was an unreasonable application of
United States Supreme Court precedent.” 441 F. 3d, at
647 (citing 28 U. S. C. §2254(d)(1)). This holding was
founded on the belief, derived from Wiggins v. Smith, 539
U. S. 510 (2003), that “Landrigan’s apparently last-minute
decision cannot excuse his counsel’s failure to conduct an
adequate investigation prior to the sentencing.” 441 F. 3d,
at 647.
Neither Wiggins nor Strickland addresses a situation in
which a client interferes with counsel’s efforts to present
mitigating evidence to a sentencing court. Wiggins, supra,
at 523 (“[W]e focus on whether the investigation support
ing counsel’s decision not to introduce mitigating evidence
of Wiggins’ background was itself reasonable” (emphasis
added and deleted)). Indeed, we have never addressed a
situation like this. In Rompilla v. Beard, 545 U. S. 374,
381 (2005), on which the Court of Appeals also relied, the
defendant refused to assist in the development of a mitiga
tion case, but did not inform the court that he did not
want mitigating evidence presented. In short, at the time
of the Arizona postconviction court’s decision, it was not
objectively unreasonable for that court to conclude that a
defendant who refused to allow the presentation of any
mitigating evidence could not establish Strickland preju
dice based on his counsel’s failure to investigate further
possible mitigating evidence.
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Opinion of the Court

2

The Court of Appeals also stated that the record does
not indicate that Landrigan’s decision not to present
mitigating evidence was “informed and knowing,” 441
F. 3d, at 647, and that “[t]he trial court’s dialogue with
Landrigan tells us little about his understanding of the
consequences of his decision.” Ibid. We have never im
posed an “informed and knowing” requirement upon a
defendant’s decision not to introduce evidence. Cf., e.g.,
Iowa v. Tovar, 541 U. S. 77, 88 (2004) (explaining that
waiver of the right to counsel must be knowing and intel
ligent). Even assuming, however, that an “informed and
knowing” requirement exists in this case, Landrigan
cannot benefit from it, for three reasons.
First, Landrigan never presented this claim to the Ari
zona courts.3 Rather, he argued that he would have com
plied had other evidence been offered. Thus, Landrigan
failed to develop this claim properly before the Arizona
courts, and §2254(e)(2) therefore barred the District Court
from granting an evidentiary hearing on that basis.
Second, in Landrigan’s presence, his counsel told the
sentencing court that he had carefully explained to Lan
drigan the importance of mitigating evidence, “especially
concerning the fact that the State is seeking the death
penalty.” App. to Pet. for Cert. D–3. Counsel also told the
court that he had explained to Landrigan that as counsel,
he had a duty to disclose “any and all mitigating factors
. . . to th[e] [c]ourt for consideration regarding the sentenc
ing.” Ibid. In light of Landrigan’s demonstrated propen
sity for interjecting himself into the proceedings, it is
——————
3 Landrigan made this argument for the first time in a motion for

rehearing from the denial of his postconviction petition. Under Arizona
law, a defendant cannot raise new claims in a motion for rehearing.
State v. Byers, 126 Ariz. 139, 142, 613 P. 2d 299, 302 (App. 1980),
overruled on other grounds, State v. Pope, 130 Ariz. 253, 635 P. 2d 846
(1981) (en banc).
 Cite as: 550 U. S. ____ (2007) 13

Opinion of the Court

doubtful that Landrigan would have sat idly by while his
counsel lied about having previously discussed these
issues with him. And as Landrigan’s counsel conceded at
oral argument before this Court, we have never required a
specific colloquy to ensure that a defendant knowingly and
intelligently refused to present mitigating evidence. Tr. of
Oral Arg. 26.
Third, the Court of Appeals overlooked Landrigan’s final
statement to the sentencing court: “I think if you want to
give me the death penalty, just bring it right on. I’m ready
for it.” App. to Pet. for Cert. D–16. It is apparent from
this statement that Landrigan clearly understood the
consequences of telling the judge that, “as far as [he was]
concerned,” there were no mitigating circumstances of
which she should be aware. Id., at D–4.
IV
Finally, the Court of Appeals erred in rejecting the
District Court’s finding that the poor quality of Landri
gan’s alleged mitigating evidence prevented him from
making “a colorable claim” of prejudice. App. to Pet. for
Cert. C–46. As summarized by the Court of Appeals,
Landrigan wanted to introduce as mitigation evidence:
“[that] he was exposed to alcohol and drugs in utero,
which may have resulted in cognitive and behavioral
deficiencies consistent with fetal alcohol syndrome.
He was abandoned by his birth mother and suffered
abandonment and attachment issues, as well as other
behavioral problems throughout his childhood.
His adoptive mother was also an alcoholic, and Lan
drigan’s own alcohol and substance abuse began at an
early age. Based on his biological family’s history of
violence, Landrigan claims he may also have been ge
netically predisposed to violence.” 441 F. 3d, at 649.
As explained above, all but the last sentence refer to
14 SCHRIRO v. LANDRIGAN

Opinion of the Court

information that Landrigan’s birth mother and ex-wife
could have offered if Landrigan had allowed them to tes
tify. Indeed, the state postconviction court had much of
this evidence before it by way of counsel’s proffer. App. to
Pet. for Cert. D–21. The District Court could reasonably
conclude that any additional evidence would have made no
difference in the sentencing.
In sum, the District Court did not abuse its discretion in
finding that Landrigan could not establish prejudice based
on his counsel’s failure to present the evidence he now
wishes to offer. Landrigan’s mitigation evidence was
weak, and the postconviction court was well acquainted
with Landrigan’s exceedingly violent past and had seen
first hand his belligerent behavior. Again, it is difficult
to improve upon the initial Court of Appeals panel’s
conclusion:
“The prospect was chilling; before he was 30 years of
age, Landrigan had murdered one man, repeatedly
stabbed another one, escaped from prison, and within
two months murdered still another man. As the Ari
zona Supreme Court so aptly put it when dealing with
one of Landrigan’s other claims, ‘[i]n his comments [to
the sentencing judge], defendant not only failed to
show remorse or offer mitigating evidence, but he
flaunted his menacing behavior.’ On this record, as
suring the court that genetics made him the way he is
could not have been very helpful. There was no
prejudice.” 272 F. 3d, at 1229 (citations and footnote
omitted).
V
The Court of Appeals erred in holding that the District
Court abused its discretion in declining to grant Landri
gan an evidentiary hearing. Even assuming the truth of
all the facts Landrigan sought to prove at the evidentiary
hearing, he still could not be granted federal habeas relief
 Cite as: 550 U. S. ____ (2007) 15

Opinion of the Court

because the state courts’ factual determination that Lan
drigan would not have allowed counsel to present any
mitigating evidence at sentencing is not an unreasonable
determination of the facts under §2254(d)(2) and the
mitigating evidence he seeks to introduce would not have
changed the result. In such circumstances, a District
Court has discretion to deny an evidentiary hearing. The
judgment of the Court of Appeals for the Ninth Circuit is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
 Cite as: 550 U. S. ____ (2007) 1

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–1575
_________________

DORA B. SCHRIRO, DIRECTOR, ARIZONA DEPART-

MENT OF CORRECTIONS, PETITIONER v.

JEFFREY TIMOTHY LANDRIGAN, AKA

BILLY PATRICK WAYNE HILL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[May 14, 2007]

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE
GINSBURG, and JUSTICE BREYER join, dissenting.
Significant mitigating evidence—evidence that may well
have explained respondent’s criminal conduct and unruly
behavior at his capital sentencing hearing—was unknown
at the time of sentencing. Only years later did respondent
learn that he suffers from a serious psychological condi
tion that sheds important light on his earlier actions. The
reason why this and other mitigating evidence was un
available is that respondent’s counsel failed to conduct a
constitutionally adequate investigation. See Wiggins v.
Smith, 539 U. S. 510 (2003). In spite of this, the Court
holds that respondent is not entitled to an evidentiary
hearing to explore the prejudicial impact of his counsel’s
inadequate representation. It reasons that respondent
“would have” waived his right to introduce any mitigating
evidence that counsel might have uncovered, ante, at 10,
13, and that such evidence “would have” made no differ
ence in the sentencing anyway, ante, at 14. Without the
benefit of an evidentiary hearing, this is pure guesswork.
The Court’s decision rests on a parsimonious appraisal
of a capital defendant’s constitutional right to have the
sentencing decision reflect meaningful consideration of all
2 SCHRIRO v. LANDRIGAN

STEVENS, J., dissenting

relevant mitigating evidence, see, e.g., Abdul-Kabir v.
Quarterman, 550 U. S. ___ (2007); Skipper v. South Caro
lina, 476 U. S. 1 (1986); Lockett v. Ohio, 438 U. S. 586
(1978), a begrudging appreciation of the need for a know
ing and intelligent waiver of constitutionally protected
trial rights, see, e.g., Schneckloth v. Bustamonte, 412 U. S.
218 (1973); Johnson v. Zerbst, 304 U. S. 458 (1938), and a
cramped reading of the record. Unlike this Court, the en
banc Court of Appeals properly accounted for these impor
tant constitutional and factual considerations. Its narrow
holding that the District Court abused its discretion in
denying respondent an evidentiary hearing should be
affirmed. See Townsend v. Sain, 372 U. S. 293, 312, 318
(1963); see also 28 U. S. C. §2254 Rule 8(a) (2000 ed.,
Supp. IV).
I
No one, not even the Court, seriously contends that
counsel’s investigation of possible mitigating evidence was
constitutionally sufficient. See Wiggins, 539 U. S., at 521;
Strickland v. Washington, 466 U. S. 668, 688 (1984).
Indeed, both the majority and dissenting judges on the en
banc Court of Appeals agreed that “counsel’s limited in
vestigation of Landrigan’s background fell below the stan
dards of professional representation prevailing” at the
time of his sentencing hearing. 441 F. 3d 638, 650 (CA9
2006) (Bea, J., dissenting); see id., at 643–645 (“On the
record before us, it appears that Landrigan’s counsel did
little to prepare for the sentencing aspect of the case. . . . A
comparison of the results of the minimal investigation by
[counsel] with the amount of available mitigating evidence
Landrigan claims was available leaves us with grave
doubts whether Landrigan received effective assistance of
counsel during his penalty phase proceeding”). The list of
evidence that counsel failed to investigate is long. For
instance, counsel did not complete a psychological evalua
 Cite as: 550 U. S. ____ (2007) 3

STEVENS, J., dissenting

tion of respondent, which we now know would have uncov
ered a serious organic brain disorder. He failed to consult
an expert to explore the effects of respondent’s birth
mother’s drinking and drug use during pregnancy. And he
never developed a history of respondent’s troubled child
hood with his adoptive family—a childhood marked by
physical and emotional abuse, neglect by his adoptive
parents, his own serious substance abuse problems (in
cluding an overdose in his eighth or ninth grade class
room), a stunted education, and recurrent placement in
substance abuse rehabilitation facilities, a psychiatric
ward, and police custody. See Declaration by Shannon
Sumpter, App. 180–192. Counsel’s failure to develop this
background evidence was so glaring that even the sentenc
ing judge noted that she had “received very little informa
tion concerning the defendant’s difficult family history.”
App. to Pet. for Cert. D–21.1 At the time of sentencing,
counsel was only prepared to put on the testimony by
respondent’s ex-wife and birth mother. By any measure,
and especially for a capital case, this meager investigation
“fell below an objective standard of reasonableness.”
Strickland, 466 U. S., at 688.
Given this deficient performance, the only issue is
whether counsel’s inadequate investigation prejudiced the
outcome of sentencing. The bulk of the Court’s opinion
argues that the District Court reasonably found that
respondent waived his right to present any and all miti
——————
1 Even more troubling is that prior to sentencing, counsel had clues

for where to find this important mitigating evidence. As the Court of
Appeals noted, respondent has alleged that his birth mother sent a
letter to counsel explaining that “(1) Landrigan began drinking at an
early age because his adoptive mother was an alcoholic and would walk
around nude in front of him, (2) Landrigan’s father was on death row in
Arkansas and the ‘blood link to Darrel [and] I are what has messed up
his whole life,’ and (3) ‘Jeff needs help mentally like his father did.’ ”
441 F. 3d 638, 644 (CA9 2006) (en banc). Counsel failed to follow up on
any of these leads.
4 SCHRIRO v. LANDRIGAN

STEVENS, J., dissenting

gating evidence. See ante, at 8–13. As I shall explain, this
argument finds no support in the Constitution or the
record of this case.
II
It is well established that a citizen’s waiver of a consti
tutional right must be knowing, intelligent, and voluntary.
As far back as Johnson v. Zerbst, we held that courts must
“ ‘indulge every reasonable presumption against waiver’ of
fundamental constitutional rights.’ ” 304 U. S., at 464.
Since then, “[w]e have been unyielding in our insistence
that a defendant’s waiver of his trial rights cannot be
given effect unless it is ‘knowing’ and ‘intelligent.’ ” Illi
nois v. Rodriguez, 497 U. S. 177, 183 (1990) (citing Zerbst,
304 U. S. 458).
Twenty-five years after Zerbst, our decision in Schneck
loth v. Bustamonte added crucial content to our jurispru
dence on the knowing and intelligent waiver of constitu
tional rights. That case considered whether Zerbst’s
requirement applied to a citizen’s consent to a search or
seizure. In determining that it did not, our decision
turned on the “vast difference between those rights that
protect a fair criminal trial and the rights guaranteed
under the Fourth Amendment.” 412 U. S., at 241. We
explained:
“The requirement of a ‘knowing’ and ‘intelligent’
waiver was articulated in a case involving the validity
of a defendant’s decision to forgo a right constitution
ally guaranteed to protect a fair trial and the reliabil
ity of the truth-determining process. . . . Almost with
out exception, the requirement of a knowing and
intelligent waiver has been applied only to those
rights which the Constitution guarantees to a crimi
nal defendant in order to preserve a fair trial.” Id., at
236–237.
 Cite as: 550 U. S. ____ (2007) 5

STEVENS, J., dissenting

We then ran through the extensive list of trial rights to
which the knowing-and-intelligent-waiver requirement had
already been applied.2 We further noted that the Zerbst
requirement had been applied to the “waiver of trial rights
in trial-type situations,”3 and to guilty pleas, which we
said must be “carefully scrutinized to determine whether
the accused knew and understood all the rights to which
he would be entitled at trial.”4 412 U. S., at 238. If our
emphasis on trial rights was not already clear, we went on
to state:
“A strict standard of waiver has been applied to those
rights guaranteed to a criminal defendant to insure
that he will be accorded the greatest possible oppor
tunity to utilize every facet of the constitutional model
of a fair criminal trial. Any trial conducted in deroga
tion of that model leaves open the possibility that the
trial reached an unfair result precisely because all the
protections specified in the Constitution were not pro
vided. . . . The Constitution requires that every effort
be made to see to it that a defendant in a criminal
case has not unknowingly relinquished the basic pro
tections that the Framers thought indispensable to a
fair trial.” Id., at 241–242.
——————
2 See, e.g., Brookhart v. Janis, 384 U. S. 1 (1966) (right to confronta
tion); Adams v. United States ex rel. McCann, 317 U. S. 269 (1942)
(right to jury trial); Barker v. Wingo, 407 U. S. 514 (1972) (the right to a
speedy trial); Green v. United States, 355 U. S. 184 (1957) (right to be
free from double jeopardy).
3 See, e.g., Smith v. United States, 337 U. S. 137 (1949) (waiver of the

privilege against compulsory self-incrimination before an administra
tive agency); Emspak v. United States, 349 U. S. 190 (1955) (waiver of
the privilege against compulsory self-incrimination before a congres
sional committee); In re Gault, 387 U. S. 1 (1967) (waiver of counsel in a
juvenile proceeding).
4 See, e.g., McCarthy v. United States, 394 U. S. 459 (1969); Boykin v.

Alabama, 395 U. S. 238 (1969); Von Moltke v. Gillies, 332 U. S. 708
(1948); Uveges v. Pennsylvania, 335 U. S. 437 (1948).
6 SCHRIRO v. LANDRIGAN

STEVENS, J., dissenting

Given this unmistakable focus on trial rights, it makes
little difference that we have not specifically “imposed an
‘informed and knowing’ requirement upon a defendant’s
decision not to introduce evidence.” Ante, at 12. A capital
defendant’s right to present mitigating evidence is firmly
established5 and can only be exercised at a sentencing
trial. For a capital defendant, the right to have the sen
tencing authority give full consideration to mitigating
evidence that might support a sentence other than death
is of paramount importance—in some cases just as impor
tant as the right to representation by counsel protected in
Zerbst or any of the trial rights discussed in Schneckloth.
Our longstanding precedent—from Zerbst to Schneckloth
to the only waiver case that the majority cites, Iowa v.
Tovar, 541 U. S. 77 (2004)6—requires that any waiver of
the right to adduce such evidence be knowing, intelligent,
and voluntary. As such, the state postconviction court’s
conclusion that respondent completely waived his right to
present mitigating evidence involved an unreasonable
application of clearly established federal law as deter
mined by this Court. See 28 U. S. C. §2254(d)(1).
Respondent’s statements at the sentencing hearing do
not qualify as an informed waiver under our precedents.
To understand why, it is important to remember the con
text in which the waiver issue arose. In all of his postcon
viction proceedings, respondent has never brought a free
standing claim that he failed to knowingly or intelligently
waive his right to present mitigating evidence. See Keeney
——————
5 See,
e.g., Abdul-Kabir v. Quarterman, 550 U. S. ___ (2007); Brewer
v. Quarterman, 550 U. S. ___ (2007); Skipper v. South Carolina, 476
U. S. 1 (1986); Lockett v. Ohio, 438 U. S. 586 (1978).
6 See Tovar, 541 U. S., at 81 (“Waiver of the right to counsel, as of

constitutional rights in the criminal process generally, must be a ‘know
ing, intelligent ac[t] done with sufficient awareness of the relevant
circumstances’ ” (quoting Brady v. United States, 397 U. S. 742, 748
(1970); emphasis added)).
 Cite as: 550 U. S. ____ (2007) 7

STEVENS, J., dissenting

v. Tamayo-Reyes, 504 U. S. 1 (1992) (considering a claim
that a defendant’s guilty plea was not knowing and intel
ligent). That is because respondent believes he never
waived his right to present all available mitigating evi
dence. See Brief for Respondent 20 (“Landrigan has al
leged that . . . he intended at most to forgo his right to put
on his ex-wife and birth mother as witnesses”); Part III,
infra. Respondent’s only claim is that his counsel was
ineffective for failing to investigate and present mitigating
evidence.
In light of this posture, the Court’s conclusion that
respondent cannot make a knowing-and-intelligent-waiver
argument because he failed to present it in the Arizona
courts is nothing short of baffling. See ante, at 12. Re
spondent never intended for waiver to become an issue
because he never thought it was an issue. Waiver only
became a concern when he was forced to answer: (1) the
State’s argument that he could not establish prejudice
under Strickland because he waived the right to present
all mitigating evidence; and (2) the state postconviction
court’s conclusion that “[s]ince the defendant instructed
his attorney not to bring any mitigation to the attention of
the court, he cannot now claim counsel was ineffective
because he did not ‘explore additional grounds for arguing
mitigation evidence.’ ” App. to Pet. for Cert. F–4. It is
instructive that both the State and the postconviction
court considered the waiver issue within the context of the
prejudice prong of respondent’s ineffective-assistance-of
counsel claim. Even now, respondent’s only “claim” within
the meaning of 28 U. S. C. §2254(e)(2) is that his counsel
was ineffective for not adequately investigating and pre
senting mitigating evidence. An argument—particularly
one made in the alternative and in response to another
party—is fundamentally different from a claim. Cf. Yee v.
8 SCHRIRO v. LANDRIGAN

STEVENS, J., dissenting

Escondido, 503 U. S. 519, 534 (1992).7
Turning back to that claim, respondent’s purported
waiver can only be appreciated in light of his counsel’s
deficient performance. To take just one example, respon
dent’s counsel asked a psychologist, Dr. Mickey McMahon,
to conduct an initial interview with respondent. But Dr.
McMahon has submitted an affidavit stating that his
experience was “quite different from the working relation
ship [he] had with counsel on other death penalty cases in
which the psychological study went through a series of
steps.” Declaration by Mickey McMahon, App. 247. In
this case, Dr. McMahon was “not authorized to conduct
the next step in psychological testing that would have told
[him] if . . . there were any cognitive or neuropsychological
deficits not observed during just an interview.” Id., at 246.
Even though Dr. McMahon told respondent’s counsel that
“much more work was needed to provide an appropriate
psychological study for a death penalty case,” ibid., coun

——————
7 The Court also misapplies §2254(e)(2) by failing to account for our

holding that “[u]nder the opening clause of §2254(e)(2), a failure to
develop the factual basis of a claim is not established unless there is
lack of diligence, or some greater fault, attributable to the prisoner or
the prisoner’s counsel.” Williams v. Taylor, 529 U. S. 420, 432 (2000)
(emphasis added). “Diligence . . . depends upon whether the prisoner
made a reasonable attempt, in light of the information available at the
time, to investigate and pursue claims in state court.” Id., at 435. At
the time petitioner filed his state postconviction petition, he was under
the impression that he had not waived his right to present all mitigat
ing evidence. Once the state postconviction court informed him other
wise, he immediately raised this argument in a motion for rehearing.
See ante, at 12, n. 3. The consequence of today’s decision is that prison
ers will be forced to file separate claims in anticipation of every possible
argument that might be made in response to their genuine claims.
That is no way to advance “[the Antiterrrorism and Effective Death
Penalty Act of 1996’s] acknowledged purpose of reduc[ing] delays in the
execution of state and federal criminal sentences.” Ante, at 7–8 (inter
nal quotation marks omitted).
 Cite as: 550 U. S. ____ (2007) 9

STEVENS, J., dissenting

sel refused to let him investigate any further.8
A more thorough investigation would have revealed that
respondent suffers from an organic brain disorder. See
Abdul-Kabir, 550 U. S., at ___ (slip op., at 27) (recognizing
that “possible neurological damage” is relevant mitigating
evidence). Years after Dr. McMahon’s aborted examination,
another psychologist, Dr. Thomas C. Thompson, conducted a
complete analysis of respondent. Based on extensive inter
views with respondent and several of his family members, a
review of his family history, and multiple clinical tests, Dr.
Thompson diagnosed respondent with Antisocial Personal
ity Disorder. See Declaration by Thomas C. Thompson,
App. 149. Dr. Thompson filed an affidavit in the District
Court describing his diagnosis:
“[Respondent’s] actions did not constitute a lifestyle
choice in the sense of an individual operating with a
large degree of freedom, as we have come to define
free will. The inherited, prenatal, and early develop
mental factors severely impaired Mr. Landrigan’s
ability to function in a society that expects individuals
to operate in an organized and adaptive manner, tak
ing into account the actions and consequences of their
behaviors and their impact on society and its individ
ual members. Based on evaluation and investigation
along with other relevant data, this type of responsi
ble functioning is simply beyond Mr. Landrigan and,
as far back as one can go, there is no indication that
he ever had these capacities.” Id., at 160.

——————
8 An investigator named George LaBash had a similar experience

with respondent’s counsel. Although counsel had hired LaBash to look
into respondent’s case, LaBash stated in an affidavit that counsel “did
not ask me to do much.” Declaration by George LaBash, App. 242. In
fact, LaBash spent only 13 hours working on the case, never conducted
a mitigation investigation, and described his experience working with
respondent’s counsel as “quite frustrating.” Id., at 242–243.
10 SCHRIRO v. LANDRIGAN

STEVENS, J., dissenting

On the day of the sentencing hearing, the only mitigat
ing evidence that respondent’s counsel had investigated
was the testimony of respondent’s birth mother and ex-
wife. None of this neuropsychological information was
available to respondent at the time of his purported
waiver. Yet the Court conspicuously avoids any mention
of respondent’s organic brain disorder. It instead provides
an incomplete list of other mitigating evidence that re
spondent would have presented and incorrectly assumes
that respondent’s birth mother and ex-wife would have
covered it all. See ante, at 9, 13. Unless I missed the
portion of the record indicating that respondent’s ex-wife
and birth mother were trained psychologists, neither could
have offered expert testimony about respondent’s organic
brain disorder.
It is of course true that respondent was aware of many
of the individual pieces of mitigating evidence that con
tributed to Dr. Thompson’s subsequent diagnosis. He
knew that his birth mother abandoned him at the age of
six months, see App. 147; that his biological family had an
extensive criminal history, see id., at 146–147; that his
adoptive mother had “affective disturbances and chronic
alcoholism,” id., at 148; that she routinely drank vodka
until she passed out, see id., at 184; that she would fre
quently strike him, once even “hit[ting him] with a frying
pan hard enough to leave a dent,” id., at 183, 185; that his
childhood was difficult and he exhibited abandonment and
attachment problems at an early age, see id., at 148; that
he had a bad temper and often threw violent tantrums as
a child, see id., at 182; and that he “began getting into
trouble and using alcohol and drugs at an early age and,
by adolescence, he had begun a series of placements in
juvenile detention facilities, a psychiatric ward, and twice
in drug abuse rehabilitation programs,” id., at 148. Per
haps respondent also knew that his biological mother
abused alcohol and amphetamines during her pregnancy,
 Cite as: 550 U. S. ____ (2007) 11

STEVENS, J., dissenting

and that in utero exposure to drugs and alcohol has dele
terious effects on the child. See id., at 155–156.
But even if respondent knew all these things, we cannot
assume that he could understand their consequences the
way an expert psychologist could. Without years of ad
vanced education and a battery of complicated testing,
respondent could not know that these experiences resulted
in a serious organic brain disorder or what effect such a
disorder might have on his behavior. And precisely be
cause his counsel failed to conduct a proper investigation,
he did not know that this important evidence was avail
able to him when he purportedly waived the right to pre
sent mitigating evidence. It is hard to see how respon
dent’s claim of Strickland prejudice can be prejudiced by
counsel’s Strickland error. See Hill v. Lockhart, 474 U. S.
52, 58–59 (1985).
Without ever acknowledging that respondent lacked this
information, the Court clings to counsel’s discussion with
respondent about “the importance of mitigating evidence.”
Ante, at 12. The majority also places great weight on the
fact that counsel explained to respondent that, as counsel,
he had a “duty to disclose ‘any and all mitigating factors
. . . to th[e] [c]ourt for consideration regarding the sentenc
ing.’ ” Ibid. Leaving aside the fact that counsel’s deficient
performance did not demonstrate an understanding of the
“importance of mitigating evidence”—let alone knowledge
of “ ‘any and all’ ” such evidence—counsel’s abstract expla
nation cannot satisfy the demands of Zerbst and Schneck
loth. Unless respondent knew of the most significant
mitigation evidence available to him, he could not have
made a knowing and intelligent waiver of his constitu
tional rights. See Battenfield v. Gibson, 236 F. 3d 1215,
1229–1233 (CA10 2001) (holding a defendant’s waiver
invalid where there was “no indication [counsel] explained
. . . what specific mitigation evidence was available”);
Coleman v. Mitchell, 268 F. 3d 417, 447–448 (CA6 2001);
12 SCHRIRO v. LANDRIGAN

STEVENS, J., dissenting

see generally Tovar, 541 U. S., at 88.
III
Even if the putative waiver had been fully informed, the
Arizona postconviction court’s determination that respon
dent “instructed his attorney not to bring any mitigation
to the attention of the [sentencing] court” is plainly con
tradicted by the record. App. to Pet. for Cert. F–4. The
Court nevertheless defers to this finding, concluding that
it was not an “unreasonable determination of the facts”
under 28 U. S. C. §2254(d)(2). “[I]n the context of federal
habeas,” however, “deference does not imply abandonment
or abdication of judicial review.” Miller-El v. Cockrell, 537
U. S. 322, 340 (2003). A careful examination of the “record
material and the transcripts from the state courts,” ante,
at 9, does not indicate that respondent intended to make a
waiver that went beyond the testimony of his birth mother
and ex-wife.
The Court reads the following exchange as definitive
proof that respondent “informed his counsel not to present
any mitigating evidence,” ibid.:
“THE COURT: Mr. Landrigan, have you instructed

your lawyer that you do not wish for him to bring any

mitigating circumstances to my attention?

“THE DEFENDANT: Yeah.

“THE COURT: Do you know what that means?

“THE DEFENDANT: Yeah.

“THE COURT: Mr. Landrigan, are there mitigating

circumstances I should be aware of?

“THE DEFENDANT: Not as far as I’m concerned.”

App. to Pet. for Cert. D–3 to D–4.

The Court also infers from respondent’s disruptive behav
ior at the sentencing hearing that he “would have under
mined the presentation of any mitigating evidence that his
attorney might have uncovered.” Ante, at 10. But this
 Cite as: 550 U. S. ____ (2007) 13

STEVENS, J., dissenting

record material does not conclusively establish that re
spondent would have waived his right to present other
mitigating evidence if his counsel had made it available to
him.
The brief exchange between respondent and the trial
court must be considered in the context of the entire sen
tencing proceeding. The above-quoted dialogue came
immediately after a lengthy colloquy between the trial
court and respondent’s counsel:
“MR. FARRELL: Your Honor, at this time . . . I have
two witnesses that I wished to testify before this
Court, one I had brought in from out of state and is
my client’s ex-wife, Ms. Sandy Landrigan. The sec
ond witness is my client’s natural mother, Virginia
Gipson. I believe both of those people had some im
portant evidence that I believed the Court should
take into mitigation concerning my client. However,
Mr. Landrigan has made it clear to me . . . that he
does not wish anyone from his family to testify on his
behalf today.
“I have talked with Sandra Landrigan, his ex-wife. I
have talked a number of times with her and confirmed
what I thought was important evidence that she
should present for the Court. And I have also talked
with Ms. Gipson, and her evidence I think is very im
portant and should have been brought to this Court’s
attention. Both of them, after talking with Jeff today,
have agreed with their, in one case son and the other
ex-husband, they will not testify in his behalf.
“THE COURT: Why not?
“MR. FARRELL: Basically it’s at my client’s wishes,
Your Honor. I told him that in order to effectively
represent him, especially concerning the fact that the
State is seeking the death penalty, any and all miti
gating factors, I was under a duty to disclose those
14 SCHRIRO v. LANDRIGAN

STEVENS, J., dissenting

factors to this Court for consideration regarding the
sentencing. He is adamant he does not want any tes
timony from his family, specifically these two people
that I have here, his mother, under subpoena, and as
well as having flown in his ex-wife.” App. to Pet. for
Cert. D–2 to D–3 (emphasis added).
Respondent’s answers to the trial judge’s questions must
be read in light of this discussion. When the judge imme
diately turned from counsel to respondent and asked
about “any mitigating circumstances,” the entire proceed
ing to that point had been about the possible testimony of
his birth mother or ex-wife. Counsel had only informed
the court that respondent did not want any testimony
“from his family.” Id., at D–3. Neither counsel nor re
spondent said anything about other mitigating evidence.
A fair reading of the full sentencing transcript makes clear
that respondent’s answers referred only to the testimony
of his ex-wife and birth mother.9
What is more, respondent’s answers were necessarily
infected by his counsel’s failure to investigate. Respon
dent does not dispute that he instructed his counsel not to
present his family’s testimony. Brief for Respondent 47
(“Landrigan contends that his intent was not to effect a
broad waiver but, instead, merely to waive presentation of

——————
9 The Court disregards another important contextual clue—that re

spondent’s counsel requested three 30-day continuances to investigate
and prepare a mitigation case, and that respondent consented on the
record to each one. App. 10, 12–13, 15. If respondent had instructed
his counsel not to develop any mitigating evidence, his consent would
be difficult to explain. Similarly, there is clear evidence that respon
dent cooperated with counsel’s minimal investigation. He allowed
counsel to interview his birth mother and ex-wife, he assisted in coun
sel’s gathering of his medical records, and he freely met with Dr.
McMahon. See App. to Pet. for Cert. D–2 to D–3; App. 12; id., at 129.
These are not the actions of a man who wanted to present no mitigating
evidence.
 Cite as: 550 U. S. ____ (2007) 15

STEVENS, J., dissenting

testimony from his mother and his ex-wife”). But his
limited waiver cannot change the fact that he was un
aware that the words “any mitigating circumstances”
could include his organic brain disorder, the medical con
sequences of his mother’s drinking and drug use during
pregnancy, and his abusive upbringing with his adoptive
family.10 In respondent’s mind, the words “any mitigating
circumstances” just meant the incomplete evidence that
counsel offered to present. As the en banc Court of Ap
peals explained, “[h]ad his lawyer conducted an investiga
tion and uncovered other types of mitigating evidence,
Landrigan might well have been able to direct the court to
other mitigating circumstances.” 441 F. 3d, at 646. It is
therefore error to read respondent’s simple “Yeah” and
“Not as far as I’m concerned” as waiving anything other
than the little he knew was available to him.
Accordingly, the state postconviction court’s finding that
petitioner waived his right to present any mitigating
evidence was an unreasonable determination of the facts
under §2254(d)(2). While the Court is correct that the
postconviction judge was the same judge who sentenced
respondent, we must remember that her postconviction
opinion was written in 1995—five years after the sentenc
ing proceeding. Although the judge’s memory deserves
some deference, her opinion reflects many of the same
——————
10 Contrary to the Court’s contention, see ante, at 9, 14, respondent’s

birth mother could not have testified about his difficult childhood with
his adoptive family. In fact, respondent sought a state postconviction
evidentiary hearing so that his adoptive sister could present such
evidence. See Petition for Post-Conviction Relief, App. 88 (“Petitioner’s
sister, Shannon Sumpter, would also have verified that their mother,
Mrs. Landrigan, was an alcoholic and that that disease caused signifi
cant problems within the family which impacted adversely on Peti
tioner as he was growing up. . . . She would, moreover, have provided
additional information concerning familial problems which preceded
the time of sentencing and which may have offered at least a partial
explanation of Petitioner’s conduct at sentencing”).
16 SCHRIRO v. LANDRIGAN

STEVENS, J., dissenting

flaws as does the Court’s opinion. Instead of reexamining
the entire trial transcript, she only quoted the same two-
question exchange with respondent. App. to Pet. for Cert.
F–4. And unlike this Court’s repeated reference to re
spondent’s behavior at sentencing, she did not mention it
at all. Her analysis consists of an incomplete review of the
transcript and an unsupported summary conclusion that
respondent told his attorney not to present any mitigating
evidence.
While I believe that neither the Constitution nor the
record supports the Court’s waiver holding, respondent is
at least entitled to an evidentiary hearing on this question
as well as his broader claim of ineffective assistance of
counsel. Respondent insists that he never instructed his
counsel not to investigate other mitigating evidence. Even
the State concedes that there has been no finding on this
issue. See, e.g., Brief for Respondent 37 (“ ‘[Judge Kozin
ski]: There’s no [state court] finding at all even by infer
ence as to investigation? There’s . . . no finding that . . .
the trial court made that goes to Landrigan’s attitude
about allowing his lawyer to investigate? . . . [Counsel for
State]: I would agree’ ” (quoting Ninth Circuit Oral Argu
ment Audio 43:55–44:30)). He has long maintained that
he would have permitted the presentation of mitigating
evidence if only counsel was prepared to introduce evi
dence other than testimony from his birth mother and ex-
wife. See, e.g., App. to Pet. for Cert. E–2. Respondent
planned to call his counsel at an evidentiary hearing to
testify about these very assertions. See App. 126. Be
cause counsel is in the best position to clarify whether
respondent gave any blanket instructions not to investi
gate or present mitigating evidence, the Court is wrong to
decide this case before any evidence regarding respon
dent’s instructions can be developed.
 Cite as: 550 U. S. ____ (2007) 17

STEVENS, J., dissenting

IV
Almost as an afterthought, the Court holds in the alter
native that “the District Court did not abuse its discretion
in finding that Landrigan could not establish prejudice
based on his counsel’s failure to present the evidence he
now wishes to offer.” Ante, at 14. It of course does this on
a cold and incomplete factual record. Describing respon
dent’s mitigation case as “weak,” and emphasizing his
“exceedingly violent past” and “belligerent behavior” at
sentencing, the Court concludes that there is no way that
respondent can establish prejudice with the evidence he
seeks to introduce. Ibid. This reasoning is flawed in
several respects.
First, as has been discussed above but bears repeating,
the Court thoroughly misrepresents respondent’s mitigat
ing evidence. It is all too easy to view respondent’s mitiga
tion case as “weak” when you assume away his most pow
erful evidence. The Court ignores respondent’s organic
brain disorder, which would have explained not only his
criminal history but also the repeated outbursts at sen
tencing.11 It mistakenly assumes that respondent’s birth
mother and ex-wife could have testified about the medical
consequences of fetal alcohol syndrome. And it inaccu
rately states that these women could have described his
turbulent childhood with his adoptive family. We have
repeatedly said that evidence of this kind can influence a
sentencer’s decision as to whether death is the proper
punishment. See, e.g., Wiggins, 539 U. S., at 535
(“[E]vidence about the defendant’s background and char
——————
11 See Declaration by Thomas C. Thompson, App. 149 (stating that

tests revealed that respondent has “deficits with cognitive processing,
poor adaptability, incomplete understanding of his surroundings and
his effect on others, and very limited impulse control” (emphasis
added)); id., at 150 (noting that individuals with antisocial personality
disorder typically act “irresponsibl[y] across areas of their daily lives
with decisions characterized by impulsivity” (emphasis added)).
18 SCHRIRO v. LANDRIGAN

STEVENS, J., dissenting

acter is relevant because of the belief, long held by this
society, that defendants who commit criminal acts that are
attributable to a disadvantaged background [or to emo
tional and mental problems] may be less culpable than
defendants who have no such excuse” (internal quotation
marks omitted)); Eddings v. Oklahoma, 455 U. S. 104, 115
(1982) (“[T]here can be no doubt that evidence of a turbu
lent family history, of beatings by a harsh father, and of
severe emotional disturbance is particularly relevant”).
The evidence here might well have convinced a sentencer
that a death sentence was not appropriate.
Second, the aggravating circumstances relied on by the
sentencing judge are not as strong as the Court makes
them out to be.12 To be sure, respondent had already
committed two violent offenses. But so had Terry Wil
liams, and this Court still concluded that he suffered
prejudice when his attorney failed to investigate and
present mitigating evidence. See Williams v. Taylor, 529
U. S. 362, 368 (2000) (noting that Williams confessed to
“two separate violent assaults on elderly victims,” includ
ing one that left an elderly woman in a “ ‘vegetative
state’ ”); id., at 398 (“[T]he graphic description of Williams’
childhood, filled with abuse and privation, or the reality
that he was ‘borderline mentally retarded,’ might well
have influenced the jury’s appraisal of his moral culpabil
ity.”). The only other aggravating factor was that Landri
gan committed his crime for pecuniary gain13—but there
——————
12 In fact, while the Court’s terse prejudice analysis relies heavily on a

colorful quote from the original Ninth Circuit panel, see ante, at 14, it
declines to mention that one judge on that panel switched her vote and
joined the en banc majority after further consideration of respondent’s
mitigating evidence.
13 Notwithstanding the Court’s repeated assertions, the sentencing

judge did not consider respondent’s courtroom behavior as an aggravat
ing factor. Compare ante, at 14, with App. to Pet. for Cert. D–17 to D–18.
In fact, the sentencing judge noted that until the day of sentencing,
respondent had “acted appropriately in the courtroom” and his conduct
 Cite as: 550 U. S. ____ (2007) 19

STEVENS, J., dissenting

are serious doubts about that. As the en banc Court of
Appeals explained, “[t]here was limited evidence regarding
the pecuniary gain aggravator. The judge noted that the
victim’s apartment had been ransacked as if the perpetra
tor were looking for something, and that this demon
strated an expectation of pecuniary gain, even though
Landrigan did not actually steal anything of value.” 441
F. 3d, at 649 (emphasis added). Thus, while we should not
ignore respondent’s violent past, it is certainly possible—
even likely—that evidence of his neurological disorder,
fetal alcohol syndrome, and abusive upbringing would
have influenced the sentencing judge’s assessment of his
moral blameworthiness and altered the outcome of his
sentencing. As such, respondent has plainly alleged facts
that, if substantiated at an evidentiary hearing, would
entitle him to relief. See Townsend, 372 U. S., at 312.
V
In the end, the Court’s decision can only be explained by
its increasingly familiar effort to guard the floodgates of
litigation. Immediately before turning to the facts of this
case, it states that “[i]f district courts were required to
allow federal habeas applicants to develop even the most
insubstantial factual allegations in evidentiary hearings,
district courts would be forced to reopen factual disputes
that were conclusively resolved in the state courts.” Ante,
at 8. However, habeas cases requiring evidentiary hear
——————
had been “good.” Id., at D–22. Even more important, she understood
his behavior that day to be a mere “release . . . of his frustration,”
ibid.—not as an aggravating factor and certainly not as an indication of
his intent to waive his right to present mitigating evidence. At most,
the sentencing judge treated respondent’s behavior on the day of
sentencing as a reason not to credit his earlier “good” behavior as a
mitigating circumstance. In any event, a defendant’s poor behavior at
trial is not listed as an aggravating factor under Arizona’s capital
sentencing statute. See Ariz. Rev. Stat. Ann. §13–703(F) (West Supp.
2006).
20 SCHRIRO v. LANDRIGAN

STEVENS, J., dissenting

ings have been “few in number,” and “there is no clear
evidence that this particular classification of habeas pro
ceedings has burdened the dockets of the federal courts.”
Keeney, 504 U. S., at 24 (KENNEDY, J., dissenting). Even
prior to the passage of the Antiterriorism and Effective
Death Act of 1996, district courts held evidentiary hear
ings in only 1.17% of all federal habeas cases. See Report
to the Federal Courts Study Committee of the Subcommit
tee on the Role of the Federal Courts and their Relation to
the States (Mar. 12, 1990) (Richard A. Posner, Chair), in 1
Federal Courts Study Committee, Working Papers and
Subcommittee Reports 468–515 (July 1, 1990). This figure
makes it abundantly clear that doing justice does not
always cause the heavens to fall. The Court would there
fore do well to heed JUSTICE KENNEDY’s just reminder
that “[w]e ought not take steps which diminish the likeli
hood that [federal] courts will base their legal decision on
an accurate assessment of the facts.” Keeney, 504 U. S., at
24 (dissenting opinion).
It may well be true that respondent would have com
pletely waived his right to present mitigating evidence if
that evidence had been adequately investigated at the
time of sentencing. It may also be true that respondent’s
mitigating evidence could not outweigh his violent past.
What is certainly true, however, is that an evidentiary
hearing would provide answers to these questions. I
emphatically agree with the majority of judges on the en
banc Court of Appeals that it was an abuse of discretion to
refuse to conduct such a hearing in this capital case.
Accordingly, I respectfully dissent.