McWilliams v. Dunn

(Slip Opinion) OCTOBER TERM, 2016 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

MCWILLIAMS v. DUNN, COMMISSIONER, ALABAMA
DEPARTMENT OF CORRECTIONS, ET AL.

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

No. 16–5294. Argued April 24, 2017—Decided June 19, 2017
Ake v. Oklahoma, 470 U. S. 68, 83, clearly established that when an
indigent “defendant demonstrates . . . that his sanity at the time of
the offense is to be a significant fact at trial, the State must” provide
the defendant with “access to a competent psychiatrist who will con-
duct an appropriate examination and assist in evaluation, prepara-
tion, and presentation of the defense.”
One month after Ake was decided, Alabama charged petitioner
McWilliams with rape and murder. Finding him indigent, the trial
court appointed counsel, who requested a psychiatric evaluation of
McWilliams. The court granted the motion and the State convened a
commission, which concluded that McWilliams was competent to
stand trial and had not been suffering from mental illness at the time
of the alleged offense. A jury convicted McWilliams of capital murder
and recommended a death sentence. Later, while the parties awaited
McWilliams’ judicial sentencing hearing, McWilliams’ counsel asked
for neurological and neuropsychological testing of McWilliams. The
court agreed and McWilliams was examined by Dr. Goff. Dr. Goff
filed a report two days before the judicial sentencing hearing. He
concluded that McWilliams was likely exaggerating his symptoms,
but nonetheless appeared to have some genuine neuropsychological
problems. Just before the hearing, counsel also received updated rec-
ords from the commission’s evaluation and previously subpoenaed
mental health records from the Alabama Department of Corrections.
At the hearing, defense counsel requested a continuance in order to
evaluate all the new material, and asked for the assistance of some-
one with expertise in psychological matters to review the findings.
The trial court denied defense counsel’s requests. At the conclusion
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Syllabus

of the hearing, the court sentenced McWilliams to death.
On appeal, McWilliams argued that the trial court denied him the
right to meaningful expert assistance guarantee by Ake. The Ala-
bama Court of Criminal Appeals affirmed McWilliams’ conviction and
sentence, holding that Dr. Goff’s examination satisfied Ake’s re-
quirements. The State Supreme Court affirmed, and McWilliams
failed to obtain state postconviction relief. On federal habeas review,
a Magistrate Judge also found that the Goff examination satisfied
Ake and, therefore, that the State Court of Criminal Appeals’ decision
was not contrary to, or an unreasonable application of, clearly estab-
lished federal law. See 28 U. S. C. §2254(d)(1). Adopting the Magis-
trate Judge’s report and recommendation, the District Court denied
relief. The Eleventh Circuit affirmed.
Held:
1. Ake clearly established that when certain threshold criteria are
met, the state must provide a defendant with access to a mental
health expert who is sufficiently available to the defense and inde-
pendent from the prosecution to effectively “conduct an appropriate
examination and assist in evaluation, preparation, and presentation
of the defense.” 470 U. S., at 83. The Alabama courts’ determination
that McWilliams received all the assistance to which Ake entitled
him was contrary to, or an unreasonable application of, clearly estab-
lished federal law. Pp. 11–16.
(a) Three preliminary issues require resolution. First, the condi-
tions that trigger Ake’s application are present. McWilliams is and
was an “indigent defendant,” 470 U. S., at 70, and his “mental condi-
tion” was both “relevant to . . . the punishment he might suffer,” id.,
at 80, and “seriously in question,” id., at 70. Second, this Court re-
jects Alabama’s claim the State was relieved of its Ake obligations be-
cause McWilliams received brief assistance from a volunteer psy-
chologist at the University of Alabama. Even if the episodic help of
an outside volunteer could satisfy Ake, the State does not refer to any
specific record facts that indicate that the volunteer psychologist was
available to the defense at the judicial sentencing proceeding. Third,
contrary to Alabama’s suggestion, the record indicates that
McWilliams did not get all the mental health assistance that he re-
quested. Rather, he asked for additional help at the judicial sentenc-
ing hearing, but was rebuffed. Pp. 11–13.
(b) This Court does not have to decide whether Ake requires a State
to provide an indigent defendant with a qualified mental health ex-
pert retained specifically for the defense team. That is because Ala-
bama did not meet even Ake’s most basic requirements in this case.
Ake requires more than just an examination. It requires that the
State provide the defense with “access to a competent psychiatrist
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Syllabus

who will conduct an appropriate [1] examination and assist in [2]
evaluation, [3] preparation, and [4] presentation of the defense.” 470
U. S., at 83. Even assuming that Alabama met the examination re-
quirement, it did not meet any of the other three. No expert helped
the defense evaluate the Goff report or McWilliams’ extensive medi-
cal records and translate these data into a legal strategy. No expert
helped the defense prepare and present arguments that might, e.g.,
have explained that McWilliams’ purported malingering was not nec-
essarily inconsistent with mental illness. No expert helped the de-
fense prepare direct or cross-examination of any witnesses, or testi-
fied at the judicial sentencing hearing. Since Alabama’s provision of
mental health assistance fell so dramatically short of Ake’s require-
ments, the Alabama courts’ decision affirming McWilliams’ sentence
was “contrary to, or involved an unreasonable application of, clearly
established Federal law.” 28 U. S. C. §2254(d)(1). Pp. 13–16.
2. The Eleventh Circuit should determine on remand whether the
Alabama courts’ error had the “substantial and injurious effect or in-
fluence” required to warrant a grant of habeas relief, Davis v. Ayala,
576 U. S. ___, ___, specifically considering whether access to the type
of meaningful assistance in evaluating, preparing, and presenting the
defense that Ake requires could have made a difference. P. 16.
634 Fed. Appx. 698, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dis-
senting opinion, in which ROBERTS, C. J., and THOMAS and GORSUCH,
JJ., joined.
 Cite as: 582 U. S. ____ (2017) 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. 16–5294
_________________

JAMES E. MCWILLIAMS, PETITIONER v. JEFFERSON
S. DUNN, COMMISSIONER, ALABAMA DEPARTMENT
OF CORRECTIONS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 19, 2017]

JUSTICE BREYER delivered the opinion of the Court.
Thirty-one years ago, petitioner James Edmond
McWilliams, Jr., was convicted of capital murder by an
Alabama jury and sentenced to death. McWilliams chal-
lenged his sentence on appeal, arguing that the State had
failed to provide him with the expert mental health assis-
tance the Constitution requires, but the Alabama courts
refused to grant relief. We now consider, in this habeas
corpus case, whether the Alabama courts’ refusal was
“contrary to, or involved an unreasonable application of,
clearly established Federal law.” 28 U. S. C. §2254(d)(1).
We hold that it was. Our decision in Ake v. Oklahoma,
470 U. S. 68 (1985), clearly established that, when certain
threshold criteria are met, the State must provide an
indigent defendant with access to a mental health expert
who is sufficiently available to the defense and independ-
ent from the prosecution to effectively “assist in evalua-
tion, preparation, and presentation of the defense.” Id., at
83. Petitioner in this case did not receive that assistance.
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Opinion of the Court

I
McWilliams and the State of Alabama agree that Ake
(which this Court decided in February 1985) sets forth the
applicable constitutional standards. Before turning to the
circumstances of McWilliams’ case, we describe what the
Court held in Ake. We put in italics language that we find
particularly pertinent here.
The Court began by stating that the “issue in this case
is whether the Constitution requires that an indigent
defendant have access to the psychiatric examination and
assistance necessary to prepare an effective defense based
on his mental condition, when his sanity at the time of the
offense is seriously in question.” Id., at 70 (emphasis
added). The Court said it would consider that issue within
the framework of earlier cases granting “an indigent de-
fendant . . . a fair opportunity to present his defense” and
“to participate meaningfully in a judicial proceeding in
which his liberty is at stake.” Id., at 76. “Meaningful
access to justice,” the Court added, “has been the con-
sistent theme of these cases.” Id., at 77.
The Court then wrote that “when the State has made
the defendant’s mental condition relevant to his criminal
culpability and to the punishment he might suffer, the
assistance of a psychiatrist may well be crucial to the
defendant’s ability to marshal his defense.” Id., at 80. A
psychiatrist may, among other things, “gather facts,”
“analyze the information gathered and from it draw
plausible conclusions,” and “know the probative questions
to ask of the opposing party’s psychiatrists and how to
interpret their answers.” Ibid. These and related
considerations
“lea[d] inexorably to the conclusion that, without the
assistance of a psychiatrist to conduct a professional
examination on issues relevant to the defense, to help
determine whether the insanity defense is viable, to
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Opinion of the Court

present testimony, and to assist in preparing the cross-
examination of a State’s psychiatric witnesses, the risk
of an inaccurate resolution of sanity issues is extremely
high. With such assistance, the defendant is fairly
able to present at least enough information to the jury,
in a meaningful manner, as to permit it to make a
sensible determination.” Id., at 82 (emphasis added).
The Court concluded: “We therefore hold that when a
defendant demonstrates to the trial judge that his sanity
at the time of the offense is to be a significant factor at
trial, the State must, at a minimum, assure the defendant
access to a competent psychiatrist who will conduct an
appropriate examination and assist in evaluation, prepa-
ration, and presentation of the defense. . . . Our concern is
that the indigent defendant have access to a competent
psychiatrist for the[se] purpose[s].” Id., at 83 (emphasis
added).
Ake thus clearly establishes that when its threshold
criteria are met, a State must provide a mental health
professional capable of performing a certain role: “con-
duct[ing] an appropriate examination and assist[ing] in
evaluation, preparation, and presentation of the defense.”
Ibid. Unless a defendant is “assure[d]” the assistance of
someone who can effectively perform these functions, he
has not received the “minimum” to which Ake entitles him.
Ibid.
II

A

One month after this Court decided Ake, the State of
Alabama charged McWilliams with rape and murder. The
trial court found McWilliams indigent and provided him
with counsel. It also granted counsel’s pretrial motion for
a psychiatric evaluation of McWilliams’ sanity, including
aspects of his mental condition relevant to “mitigating
circumstances to be considered in a capital case in the
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Opinion of the Court

sentencing stage.” T. 1526. (“T.” refers to the certified
trial record; “P. C. T.” refers to the certified court report-
er’s state postconviction proceedings transcript.) The
court ordered the State to convene a “Lunacy Commis-
sion,” which would examine McWilliams and file a report
with the court. See id., at 1528–1529.
Subsequently a three-member Lunacy Commission
examined McWilliams at a state hospital, the Taylor
Hardin Secure Medical Facility. The three members, all
psychiatrists, concluded that McWilliams was competent
to stand trial and that he had not been suffering from
mental illness at the time of the alleged offense. Id., at
1544–1546. One of them, Dr. Kamal Nagi, wrote that “Mr.
McWilliams is grossly exaggerating his psychological
symptoms to mimic mental illness.” Id., at 1546. Dr. Nagi
noted that McWilliams’ performance on one of the tests
“suggested that [McWilliams] had exaggerated his en-
dorsement of symptoms of illness and the profile was
considered a ‘fake bad.’ ” Ibid.
McWilliams’ trial took place in late August 1986. On
August 26 the jury convicted him of capital murder. The
prosecution sought the death penalty, which under then-
applicable Alabama law required both a jury recommenda-
tion (with at least 10 affirmative votes) and a later deter-
mination by the judge. See Ala. Code §13A–5–46(f )
(1986). The jury-related portion of the sentencing proceed-
ing took place the next day. The prosecution reintroduced
evidence from the guilt phase and called a police officer to
testify that McWilliams had a prior conviction. T. 1297,
1299–1303. The defense called McWilliams and his
mother. Both testified that McWilliams, when a child, had
suffered multiple serious head injuries. Id., at 1303–1318,
1320–1335. McWilliams also described his history of
psychiatric and psychological evaluations, reading from
the prearrest report of one psychologist, who concluded
that McWilliams had a “blatantly psychotic thought disor-
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Opinion of the Court

der” and needed inpatient treatment. Id., at 1329–1332.
When the prosecutor, cross-examining McWilliams,
asked about the neurological effects of his head injuries,
McWilliams replied, “I am not a psychiatrist.” Id., at
1328. Similarly, when the prosecutor asked McWilliams’
mother whether her son was “crazy,” she answered, “I am
no expert: I don’t know whether my son is crazy or not.
All I know, that my son do need help.” Id., at 1317.
The prosecution then called two of the mental health
professionals who had signed the Lunacy Commission’s
report, Dr. Kamal Nagi and Dr. Norman Poythress. Dr.
Nagi testified that he had found no evidence of psychosis,
but did not appear to be aware of McWilliams’ history of
head trauma. See id., at 1351–1352. Dr. Poythress testi-
fied that one of the tests that McWilliams took was “clini-
cally invalid” because the test’s “validity scales” indicated
that McWilliams had exaggerated or faked his symptoms.
Id., at 1361–1363.
Although McWilliams’ counsel had subpoenaed further
mental health records from Holman State Prison, where
McWilliams was being held, the jury did not have the
opportunity to consider them, for, though subpoenaed on
August 13, the records had not arrived by August 27, the
day of the jury hearing.
After the hearing, the jury recommended the death
penalty by a vote of 10 to 2, the minimum required by
Alabama law. The court scheduled its judicial sentencing
hearing for October 9, about six weeks later.
B
Five weeks before that hearing, the trial court ordered
the Alabama Department of Corrections to respond to
McWilliams’s subpoena for mental health records. Id., at
1619. The court also granted McWilliams’ motion for
neurological and neuropsychological exams. Id., at 1615–
1617. That motion (apparently filed at the suggestion of a
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Opinion of the Court

University of Alabama psychologist who had “volun-
teer[ed]” to help counsel “in her spare time,” P. C. T. 251–
252) asked the court to “issue an order requiring the State
of Alabama to do complete neurological and neuropsycho-
logical testing on the Defendant in order to have the test
results available for his sentencing hearing.” T. 1615.
Consequently, Dr. John Goff, a neuropsychologist em-
ployed by the State’s Department of Mental Health, exam-
ined McWilliams. On October 7, two days before the
judicial sentencing hearing, Dr. Goff filed his report. The
report concluded that McWilliams presented “some diag-
nostic dilemmas.” Id., at 1635. On the one hand, he was
“obviously attempting to appear emotionally disturbed”
and “exaggerating his neuropsychological problems.” Ibid.
But on the other hand, it was “quite apparent that he
ha[d] some genuine neuropsychological problems.” Ibid.
Tests revealed “cortical dysfunction attributable to right
cerebral hemisphere dysfunction,” shown by “left hand
weakness, poor motor coordination of the left hand, sensory
deficits including suppressions of the left hand and very
poor visual search skills.” Id., at 1636. These deficiencies
were “suggestive of a right hemisphere lesion” and “com-
patible with the injuries [McWilliams] sa[id] he sustained
as a child.” Id., at 1635. The report added that
McWilliams’ “obvious neuropsychological deficit” could be
related to his “low frustration tolerance and impulsivity,”
and suggested a diagnosis of “organic personality syn-
drome.” Ibid.
The day before the sentencing hearing defense counsel
also received updated records from Taylor Hardin hospi-
tal, and on the morning of the hearing he received the
records (subpoenaed in mid-August) from Holman Prison.
The prison records indicated that McWilliams was taking
an assortment of psychotropic medications including
Desyrel, Librium, and an antipsychotic, Mellaril. See App.
190a–193a.
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Opinion of the Court

C
The judicial sentencing hearing began on the morning of
October 9. Defense counsel told the trial court that the
eleventh-hour arrival of the Goff report and the mental
health records left him “unable to present any evidence
today.” Id., at 194a. He said he needed more time to go
over the new information. Furthermore, since he was “not
a psychologist or a psychiatrist,” he needed “to have some-
one else review these findings” and offer “a second opinion
as to the severity of the organic problems discovered.” Id.,
at 192a–196a.
The trial judge responded, “All right. Well, let’s pro-
ceed.” Id., at 197a. The prosecution then presented its
case. Once it had finished, defense counsel moved for a
continuance in order “to allow us to go through the mate-
rial that has been provided to us in the last 2 days.” Id.,
at 204a. The judge offered to give defense counsel until 2
p.m. that afternoon. He also stated that “[a]t that time,
The Court will entertain any motion that you may have
with some other person to review” the new material. Id.,
at 205a. Defense counsel protested that “there is no way
that I can go through this material,” but the judge imme-
diately added, “Well, I will give you the opportunity. . . . If
you do not want to try, then you may not.” Id., at 206a.
The court then adjourned until 2 p.m.
During the recess, defense counsel moved to withdraw.
He said that “the abritrary [sic] position taken by this
Court regarding the Defendant’s right to present mitigat-
ing circumstances is unconscionable resulting in this
proceeding being a mockery.” T. 1644. He added that
“further participation would be tantamount to exceptance
[sic] of the Court’s ruling.” Ibid. The trial court denied
the motion to withdraw.
When the proceedings resumed, defense counsel re-
newed his motion for a continuance, explaining,
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Opinion of the Court

“It is the position of the Defense that we have received
these records at such a late date, such a late time that
it has put us in a position as laymen, with regard to
psychological matters, that we cannot adequately
make a determination as what to present to The
Court with regards to the particular deficiencies that
the Defendant has. We believe that he has the type of
diagnosed illness that we pointed out earlier for The
Court and have mentioned for The Court. But we
cannot determine ourselves from the records that we
have received and the lack of receiving the test and
the lack of our own expertise, whether or not such a
condition exists; whether the reports and tests that
have been run by Taylor Hardin, and the Lunacy
Commission, and at Holman are tests that should be
challenged in some type of way or the results should
be challenged, we really need an opportunity to have
the right type of experts in this field, take a look at all
of those records and tell us what is happening with
him. And that is why we renew the Motion for a Con-
tinuance.” App. 207a.
The trial court denied the motion.
The prosecutor then offered his closing statement, in
which he argued that there were “no mitigating circum-
stances.” Id., at 209a. Defense counsel replied that he
“would be pleased to respond to [the prosecutor’s] remarks
that there are no mitigating circumstances in this case if I
were able to have time to produce . . . any mitigating
circumstances.” Id., at 210a. But, he said, since neither
he nor his co-counsel were “doctors,” neither was “really
capable of going through those records on our own.” Ibid.
The court had thus “foreclosed by structuring this hearing
as it has, the Defendant from presenting any evidence of
mitigation in psychological—psychiatric terms.” Id., at
211a.
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Opinion of the Court

The trial judge then said that he had reviewed the
records himself and found evidence that McWilliams
was faking and manipulative. Ibid. Defense counsel
attempted to contest that point, which led to the following
exchange:
“MR. SOGOL: I told Your Honor that my looking at
those records was not of any value to me; that I needed
to have somebody look at those records who under-
stood them, who could interpret them for me. Did I
not tell Your Honor that?
THE COURT: As I said, on the record earlier, Mr.
Sogol, and I don’t want to argue or belabor this, but I
would have given you the opportunity to make a mo-
tion to present someone to evaluate that.
MR. SOGOL: Your Honor gave me no time in which
to do that. Your Honor told me to be here at 2 o’clock
this afternoon. Would Your Honor have wanted me
to file a Motion for Extraordinary Expenses to get
someone?
THE COURT: I want you to approach with your cli-
ent, please.” Id., at 211a–212a.
The court then sentenced McWilliams to death.
The court later issued a written sentencing order. It
found three aggravating circumstances and no mitigating
circumstances. It found that McWilliams “was not and is
not psychotic,” and that “the preponderance of the evi-
dence from these tests and reports show [McWilliams] to
be feigning, faking, and manipulative.” Id., at 188a. The
court wrote that even if McWilliams’ mental health issues
“did rise to the level of a mitigating circumstance, the
aggravating circumstances would far outweigh this as a
mitigating circumstance.” Ibid.
D
McWilliams appealed, arguing that the trial court had
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Opinion of the Court

denied him the right to meaningful expert assistance
guaranteed by Ake. The Alabama Court of Criminal Ap-
peals rejected his argument. It wrote that Ake’s require-
ments “are met when the State provides the [defendant]
with a competent psychiatrist.” McWilliams v. State, 640
So. 2d 982, 991 (1991). And Alabama, by “allowing Dr.
Goff to examine” McWilliams, had satisfied those re-
quirements. Ibid. The court added that “[t]here is no
indication in the record that [McWilliams] could not have
called Dr. Goff as a witness to explain his findings or that
he even tried to contact the psychiatrist to discuss his
findings,” ibid.; that “the trial court indicated that it
would have considered a motion to present an expert to
evaluate this report” had one been made, ibid.; and that
there was “no prejudice by the trial court’s denial of
[McWilliams’] motion for continuance,” id., at 993. The
appeals court therefore affirmed McWilliams’ conviction
and sentence. The Alabama Supreme Court, in turn,
affirmed the appeals court (without addressing the Ake
issue). Ex parte McWilliams, 640 So. 2d 1015 (1993).
After McWilliams failed to obtain postconviction relief
from the state courts, he sought a federal writ of habeas
corpus. See 28 U. S. C. §2254.
E
In federal habeas court McWilliams argued before a
Magistrate Judge that he had not received the expert
assistance that Ake required. The Magistrate Judge
recommended against issuing the writ. He wrote that
McWilliams had “received the assistance required by Ake”
because Dr. Goff “completed the testing” that McWilliams
requested. App. 88a. Hence, the decision of the Alabama
Court of Criminal Appeals was not contrary to, or an
unreasonable application of, clearly established federal
law. See 28 U. S. C. §2254(d)(1). The District Court
adopted the Magistrate Judge’s report and recommenda-
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Opinion of the Court

tion and denied relief. A divided panel of the Eleventh
Circuit Court of Appeals affirmed. See McWilliams v.
Commissioner, Ala. Dept. of Corrections, 634 Fed. Appx.
698 (2015) ( per curiam); id., at 711 (Jordan, J., concur-
ring); id., at 712 (Wilson, J., dissenting). McWilliams filed
a petition for certiorari. We granted the petition.
III

A

The question before us is whether the Alabama Court of
Criminal Appeals’ determination that McWilliams got all
the assistance to which Ake entitled him was “contrary to,
or involved an unreasonable application of, clearly estab-
lished Federal law.” 28 U. S. C. §2254(d)(1). Before turn-
ing to the heart of that question, we resolve three prelimi-
nary issues.
First, no one denies that the conditions that trigger
application of Ake are present. McWilliams is and was an
“indigent defendant,” 470 U. S., at 70. See supra, at 3.
His “mental condition” was “relevant to . . . the punish-
ment he might suffer,” 470 U. S., at 80. See supra, at 4–5.
And, that “mental condition,” i.e., his “sanity at the time of
the offense,” was “seriously in question,” 470 U. S., at 70.
See supra, at 4–5. Consequently, the Constitution, as
interpreted in Ake, required the State to provide
McWilliams with “access to a competent psychiatrist who
will conduct an appropriate examination and assist in
evaluation, preparation, and presentation of the defense.”
470 U. S., at 83.
Second, we reject Alabama’s claim that the State was
exempted from its obligations because McWilliams already
had the assistance of Dr. Rosenszweig, the psychologist at
the University of Alabama who “volunteer[ed]” to help
defense counsel “in her spare time” and suggested the
defense ask for further testing, P. C. T. 251–252. Even if
the episodic assistance of an outside volunteer could re-
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Opinion of the Court

lieve the State of its constitutional duty to ensure an
indigent defendant access to meaningful expert assistance,
no lower court has held or suggested that Dr. Rosenszweig
was available to help, or might have helped, McWilliams
at the judicial sentencing proceeding, the proceeding here
at issue. Alabama does not refer to any specific record
facts that indicate that she was available to the defense at
this time.
Third, Alabama argues that Ake’s requirements are
irrelevant because McWilliams “never asked for more
expert assistance” than he got, “even though the trial
court gave him the opportunity to do so.” Brief for Re-
spondent 50–51. The record does not support this conten-
tion. When defense counsel requested a continuance at
the sentencing hearing, he repeatedly told the court that
he needed “to have someone else review” the Goff report
and medical records. App. 193a. See, e.g., id., at 196a
(“[I]t is just incumbent upon me to have a second opinion
as to the severity of the organic problems discovered”); id.,
at 207a (“[W]e really need an opportunity to have the right
type of experts in this field, take a look at all of these
records and tell us what is happening with him”); id., at
211a (“I told Your Honor that my looking at these records
was not of any value to me; that I needed to have some-
body look at those records who understood them, who
could interpret them for me”). Counsel also explicitly
asked the trial court what else he was supposed to ask for
to obtain an expert: “Would Your Honor have wanted me
to file a Motion for Extraordinary Expenses to get some-
one?” Id., at 212a. We have reproduced a lengthier ac-
count of the exchanges, supra, at 7–9. They make clear
that counsel wanted additional expert assistance to review
the report and records—that was the point of asking for a
continuance. In response, the court told counsel to ap-
proach the bench and sentenced McWilliams to death.
Thus the record, in our view, indicates that McWilliams
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Opinion of the Court

did request additional help from mental health experts.
B
We turn to the main question before us: whether the
Alabama Court of Criminal Appeals’ determination that
McWilliams got all the assistance that Ake requires was
“contrary to, or involved an unreasonable application of,
clearly established Federal law.” 28 U. S. C. §2254(d)(1).
McWilliams would have us answer “yes” on the ground
that Ake clearly established that a State must provide an
indigent defendant with a qualified mental health expert
retained specifically for the defense team, not a neutral
expert available to both parties. He points to language in
Ake that seems to foresee that consequence. See, e.g., 470
U. S., at 81 (“By organizing a defendant’s mental history,
examination results and behavior, and other information,
interpreting it in light of their expertise, and then laying
out their investigative and analytic process to the jury, the
psychiatrists for each party enable the jury to make its
most accurate determination of the truth on the issue
before them” (emphasis added)).
We need not, and do not, decide, however, whether this
particular McWilliams claim is correct. As discussed
above, Ake clearly established that a defendant must
receive the assistance of a mental health expert who is
sufficiently available to the defense and independent from
the prosecution to effectively “assist in evaluation, prepa-
ration, and presentation of the defense.” Id., at 83. As a
practical matter, the simplest way for a State to meet this
standard may be to provide a qualified expert retained
specifically for the defense team. This appears to be the
approach that the overwhelming majority of jurisdictions
have adopted. See Brief for National Association of Crim-
inal Defense Lawyers et al. as Amici Curiae 8–35 (describ-
ing practice in capital-active jurisdictions); Tr. of Oral Arg.
40 (respondent conceding that “this issue really has been
14 MCWILLIAMS v. DUNN

Opinion of the Court

mooted over the last 30-some-odd years because of statu-
tory changes”). It is not necessary, however, for us to
decide whether the Constitution requires States to satisfy
Ake’s demands in this way. That is because Alabama here
did not meet even Ake’s most basic requirements.
The dissent calls our unwillingness to resolve the broader
question whether Ake clearly established a right to an ex-
pert independent from the prosecution a “most unseemly
maneuver.” Post, at 1–2 (opinion of ALITO, J.). We do
not agree. We recognize that we granted petitioner’s first
question presented—which addressed whether Ake clearly
established a right to an independent expert—and not his
second, which raised more case-specific concerns. See Pet.
for Cert. i. Yet that does not bind us to issue a sweeping
ruling when a narrow one will do. As we explain below,
our determination that Ake clearly established that a
defendant must receive the assistance of a mental health
expert who is sufficiently available to the defense and
independent from the prosecution to effectively “assist in
evaluation, preparation, and presentation of the defense,”
470 U. S., at 83, is sufficient to resolve the case. We
therefore need not decide whether Ake clearly established
more. (Nor do we agree with the dissent that our ap-
proach is “acutely unfair to Alabama” by not “giv[ing] the
State a fair chance to respond.” Post, at 12. In fact, the
State devoted an entire section of its merits brief to ex-
plaining why it thought that “[n]o matter how the Court
resolves the [independent expert] question, the court of
appeals correctly denied the habeas petition.” Brief for
Respondent 50. See also id., at 14, 52 (referring to the
lower courts’ case-specific determinations that McWilliams
got all the assistance Ake requires).)
The Alabama appeals court held that “the requirements
of Ake v. Oklahoma . . . are met when the State provides
the [defendant] with a competent psychiatrist. The State
met this requirement in allowing Dr. Goff to examine
 Cite as: 582 U. S. ____ (2017) 15

Opinion of the Court

[McWilliams].” McWilliams, 640 So. 2d, at 991. This was
plainly incorrect. Ake does not require just an examina-
tion. Rather, it requires the State to provide the defense
with “access to a competent psychiatrist who will conduct
an appropriate [1] examination and assist in [2] evalua-
tion, [3] preparation, and [4] presentation of the defense.”
Ake, supra, at 83 (emphasis added).
We are willing to assume that Alabama met the exami-
nation portion of this requirement by providing for Dr.
Goff ’s examination of McWilliams. See supra, at 6. But
what about the other three parts? Neither Dr. Goff nor
any other expert helped the defense evaluate Goff ’s report
or McWilliams’ extensive medical records and translate
these data into a legal strategy. Neither Dr. Goff nor any
other expert helped the defense prepare and present ar-
guments that might, for example, have explained that
McWilliams’ purported malingering was not necessarily
inconsistent with mental illness (as an expert later testi-
fied in postconviction proceedings, see P. C. T. 936–943).
Neither Dr. Goff nor any other expert helped the defense
prepare direct or cross-examination of any witnesses, or
testified at the judicial sentencing hearing himself.
The dissent emphasizes that Dr. Goff was never ordered
to do any of these things by the trial court. See post, at 13,
n. 5. But that is precisely the point. The relevant court
order did not ask Dr. Goff or anyone else to provide the
defense with help in evaluating, preparing, and presenting
its case. It only required “the Department of Corrections”
to “complete neurological and neuropsychological testing
on the Defendant . . . and send all test materials, results
and evaluations to the Clerk of the Court.” T. 1612. Nor
did the short time frame allow for more expert assistance.
(Indeed, given that timeframe, we do not see how Dr. Goff
or any other expert could have satisfied the latter three
portions of Ake’s requirements even had he been instructed
to do so.) Then, when McWilliams asked for the addi-
16 MCWILLIAMS v. DUNN

Opinion of the Court

tional assistance to which he was constitutionally entitled
at the sentencing hearing, the judge rebuffed his requests.
See supra, at 7–9.
Since Alabama’s provision of mental health assistance
fell so dramatically short of what Ake requires, we must
conclude that the Alabama court decision affirming
McWilliams’s conviction and sentence was “contrary to, or
involved an unreasonable application of, clearly estab-
lished Federal law.” 28 U. S. C. §2254(d)(1).
IV
The Eleventh Circuit held in the alternative that, even
if the Alabama courts clearly erred in their application of
federal law, their “error” nonetheless did not have the
“substantial and injurious effect or influence” required to
warrant a grant of habeas relief, Davis v. Ayala, 576 U. S.
___, ___ (2015) (slip op., at 10) (internal quotation marks
omitted). See 634 Fed. Appx., at 707. In reaching this
conclusion, however, the Eleventh Circuit only considered
whether “[a] few additional days to review Dr. Goff ’s
findings” would have made a difference. Ibid. It did not
specifically consider whether access to the type of mean-
ingful assistance in evaluating, preparing, and presenting
the defense that Ake requires would have mattered. There
is reason to think that it could have. For example, the
trial judge relied heavily on his belief that McWilliams
was malingering. See App. 188a, 211a. If McWilliams
had the assistance of an expert to explain that
“[m]alingering is not inconsistent with serious mental
illness,” Brief for American Psychiatric Association et al.
as Amici Curiae 20, he might have been able to alter the
judge’s perception of the case.
Since “we are a court of review, not of first view,” Cutter
v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), we do not
now resolve this question. Rather we leave it to the lower
courts to decide in the first instance.
 Cite as: 582 U. S. ____ (2017) 17

Opinion of the Court

The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
 Cite as: 582 U. S. ____ (2017) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 16–5294
_________________

JAMES E. MCWILLIAMS, PETITIONER v. JEFFERSON
S. DUNN, COMMISSIONER, ALABAMA DEPARTMENT
OF CORRECTIONS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 19, 2017]

JUSTICE ALITO, with whom THE CHIEF JUSTICE, JUSTICE
THOMAS, and JUSTICE GORSUCH join, dissenting.
We granted review in this case to decide a straightfor-
ward legal question on which the lower courts are divided:
whether our decision in Ake v. Oklahoma, 470 U. S. 68
(1985), clearly established that an indigent defendant
whose mental health will be a significant factor at trial is
entitled to the assistance of a psychiatric expert who is a
member of the defense team instead of a neutral expert
who is available to assist both the prosecution and the
defense.1
The answer to that question is plain: Ake did not clearly
establish that a defendant is entitled to an expert who is a
member of the defense team. Indeed, “Ake appears to
have been written so as to be deliberately ambiguous on
this point, thus leaving the issue open for future consider-
ation.” W. LaFave, Criminal Law §8.2(d), p. 449 (5th ed.
2010) (LaFave). Accordingly, the proper disposition of this
case is to affirm the judgment below.
——————
1 The question was worded as follows: “When this Court held in Ake

that an indigent defendant is entitled to meaningful expert assistance
for the ‘evaluation, preparation, and presentation of the defense,’
did it clearly establish that the expert should be independent of the
prosecution?”
2 MCWILLIAMS v. DUNN

ALITO, J., dissenting

The Court avoids that outcome by means of a most
unseemly maneuver. The Court declines to decide the
question on which we granted review and thus leaves in
place conflicting lower court decisions regarding the mean-
ing of a 32-year-old precedent.2 That is bad enough. But
to make matters worse, the Court achieves this unfortu-
nate result by deciding a separate question on which we
expressly declined review. And the Court decides that fact-
bound question without giving Alabama a fair opportunity
to brief the issue.
I
Under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), federal habeas relief cannot be
awarded on a claim that a state court decided on the
merits unless the state court’s decision “was contrary to,
or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States.” 28 U. S. C. §2254(d)(1). That
standard, by design, is “difficult to meet.” White v.
Woodall, 572 U. S. ___, ___ (2014) (slip op., at 3) (internal
quotation marks omitted). It requires habeas petitioners
to “show that the state court’s ruling on the claim . . . was
so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
——————
2 Defending its approach, the Court says that it had no need to decide

the “sweeping” question on which review was granted “when a narrow
one will do.” Ante, at 14. Narrow holdings have their place, but here:
(1) We denied review of the narrow question; (2) the question decided is
not just narrow, it is the sort of factbound question as to which review
is disfavored, see this Court’s Rule 10; (3) the narrow question is not
fairly included in the question presented, see this Court’s Rule 14(a); (4)
deciding the case on this narrow ground leaves in place the conflict in
the lower courts that supported the grant of certiorari; and (5) the
parties were not given notice of this possible disposition, and the Court
was thus deprived of the benefit of full briefing and argument on the
issue.
 Cite as: 582 U. S. ____ (2017) 3

ALITO, J., dissenting

possibility for fairminded disagreement.” Harrington v.
Richter, 562 U. S. 86, 103 (2011). Put another way,
“[w]hen reviewing state criminal convictions on collateral
review, federal judges are required to afford state courts
due respect by overturning their decisions only when there
could be no reasonable dispute that they were wrong.”
Woods v. Donald, 575 U. S. ___, ___ (2015) ( per curiam)
(slip op., at 4–5).
In Ake, we held that a defendant must be provided
“access to a competent psychiatrist” in two circumstances:
first, “when [the] defendant demonstrates to the trial
judge that his sanity at the time of the offense is to be a
significant factor at trial,” and, second, at the sentencing
phase of a capital trial, “when the State presents psychiat-
ric evidence of the defendant’s future dangerousness.” 470
U. S., at 83.
The question that we agreed to review concerns the type
of expert that must be provided. Did Ake clearly establish
that a defendant in the two situations just noted must be
provided with the services of an expert who functions
solely as a dedicated member of the defense team as op-
posed to a neutral expert who examines the defendant,
reports his or her conclusions to the court and the parties,
and is available to assist and testify for both sides? Did
Ake speak with such clarity that it ruled out “any possibil-
ity for fairminded disagreement”? Harrington, supra, at
103. The answer is “no.” Ake provides no clear guidance
one way or the other.
A
It is certainly true that there is language in Ake that
points toward the position that a defense-team psychia-
trist should be provided. Explaining the need for the
appointment of a psychiatric expert, Ake noted that a
psychiatrist can “assist in preparing the cross-examination
of a State’s psychiatric witnesses” and would “know the
4 MCWILLIAMS v. DUNN

ALITO, J., dissenting

probative questions to ask of the opposing party’s psychia-
trists and how to interpret their answers.” 470 U. S., at
82, 80. And when Ake discussed expert assistance during
capital sentencing, the Court said that it is important for a
defendant to “offer a well-informed expert’s opposing view”
in the form of “responsive psychiatric testimony.” Id., at
84. Ake also explained that factfinding is improved when
evidence is offered by “psychiatrists for each party.” Id.,
at 81. While it is possible for a neutral expert to provide
these services, in our adversary system they are customar-
ily performed by an expert working exclusively for one of
the parties.
Other language in Ake, however, points at least as
strongly in the opposite direction. Ake was clear that an
indigent defendant does not have a constitutional right to
“choose a psychiatrist of his personal liking or . . . receive
funds to hire his own.” Id., at 83. Instead, the Court held
only that a defendant is entitled to have “access” to “one
competent psychiatrist” chosen by the trial judge. Id., at
83, 79.
These limitations are at odds with the defense-expert
model, which McWilliams characterizes as “the norm in
our adversarial system.” Reply Brief 3. As McWilliams
explains, “other litigants of means” screen experts to find
one whose tentative views are favorable, and they often
hire both consulting and testifying experts. Id., at 2–3.
But the Ake Court was clear that it was not holding “that
a State must purchase for the indigent defendant all the
assistance that his wealthier counterpart might buy.” 470
U. S., at 77. On the contrary, Ake expressly stated that a
State need only provide for a single psychiatric expert to
be selected by the trial judge. Thus, Ake does not give the
defense the right to interview potential experts, to seek
out an expert who offers a favorable preliminary diagno-
sis, or to hire more than one expert. And if the court-
appointed expert reaches a conclusion unfavorable to the
 Cite as: 582 U. S. ____ (2017) 5

ALITO, J., dissenting

defendant on the issue of sanity or future dangerousness,
Ake requires the defense team to live with the expert’s
unfavorable conclusions. As McWilliams concedes, when
the only expert available to indigent defendants is one
selected by the trial court, these defendants “face a risk
that their expert will ultimately be unwilling or unable
to offer testimony that will advance their cause.” Reply
Brief 3.
Ake also acknowledged that one of our prior cases, United
States ex rel. Smith v. Baldi, 344 U. S. 561 (1953),
“support[ed] the proposition” that due process is satisfied
if a defendant merely has access to a psychiatrist “not
beholden to the prosecution.” 470 U. S., at 85. While Ake
also declared that Baldi did not limit the Court “in consid-
ering whether fundamental fairness today requires a
different result,” 470 U. S., at 85, Ake did not explicitly
overrule Baldi, and ultimately its treatment of that case
was “most ambiguous,” LaFave §8.2, at 450, n. 124.
It is also significant that the Ake Court had no need to
decide whether due process requires the appointment of a
defense-team expert as opposed to a neutral expert be-
cause Ake was denied the assistance of any psychiatrist—
neutral or otherwise—for purposes of assessing his sanity
at the time of the offense or his mental state as it related
to capital sentencing. 470 U. S., at 71–73 (state experts
who examined Ake and testified he was dangerous evalu-
ated him only in connection with his competency to stand
trial). As Ake’s counsel explained at argument, the Court
could rule in his client’s favor without accepting his cli-
ent’s “primary submission” that due process requires the
appointment of a defense-team expert. Tr. of Oral Arg. in
No. 83–5424 p. 21 (arguing that Ake’s rights were violated
even under Baldi).
In short, Ake is ambiguous, perhaps “deliberately” so.
LaFave §8.2(d), at 449; see ibid. (“[C]omments supporting
a move in either direction appear throughout the majority
6 MCWILLIAMS v. DUNN

ALITO, J., dissenting

opinion in the case”). If the Justices who joined Justice
Marshall’s opinion for the Court had agreed that a
defense-team expert must be appointed, it would have been
a simple matter for the Court to say so expressly. Justice
Marshall demonstrated this a few years later when he
dissented from the denial of certiorari in a case that pre-
sented the very issue that the Court now dodges. Granviel
v. Texas, 495 U. S. 963 (1990). There, Justice Marshall
stated unambiguously that “Ake mandates the provision of
a psychiatrist who will be part of the defense team and
serve the defendant’s interests in the context of our adver-
sarial system.” Ibid. If all the Justices who joined the
opinion of the Court in Ake had shared this view, there is
no obvious reason for the absence of the sort of clear
statement that Justice Marshall would later provide when
he wrote only for himself. The opinion in Ake has all the
hallmarks of a compromise.
The Court’s actions in the aftermath of Ake lend support
to this conclusion. The Court repeatedly denied certiorari
in cases that would have permitted it to resolve this ques-
tion or others left open by Ake. See, e.g., Norris v. Starr,
513 U. S. 995 (1994); Vickers v. Arizona, 497 U. S. 1033
(1990); Brown v. Dodd, 484 U. S. 874 (1987); Johnson v.
Oklahoma, 484 U. S. 878 (1987); Granviel, supra, at 963.
And in many of these cases (Vickers, Dodd, Johnson, and
Granviel), Justice Marshall dissented. The most reason-
able conclusion to draw from the Court’s silence is that the
exact type of expert required by Ake has remained “an
open question in our jurisprudence.” Carey v. Musladin,
549 U. S. 70, 76 (2006).
B
When the lower courts have “diverged widely” in as-
sessing whether our precedents dictate a legal rule, that is
a sign that the rule is not clearly established, ibid., and
that is the situation here. At the time the Alabama court
 Cite as: 582 U. S. ____ (2017) 7

ALITO, J., dissenting

addressed McWilliams’s Ake claim on the merits, some
courts had held that Ake requires the appointment of a
defense-team expert. See, e.g., Smith v. McCormick, 914
F. 2d 1153, 1156–1160 (CA9 1990); United States v. Sloan,
776 F. 2d 926, 929 (CA10 1985). But others disagreed.
The Fifth Circuit had held that a defense-team expert is
not required. Granviel v. Lynaugh, 881 F. 2d 185, 191–
192 (1989), cert. denied, 495 U. S. 963 (1990). And the
Oklahoma courts in Ake itself also interpreted our holding
this way. Ake v. State, 778 P. 2d 460, 465 (Okla. Crim.
App. 1989) (“[D]ue process does not entitle [Ake] to a state-
funded psychiatric expert to support his claim; rather,
due process requires that he have access to a compe-
tent and impartial psychiatrist”). So had at least seven
other state high courts. Willie v. State, 585 So. 2d 660,
671 (Miss. 1991); State v. Hix, 38 Ohio St. 3d 129, 131–
132, 527 N. E. 2d 784, 787 (1988); Dunn v. State, 291 Ark.
131, 132–134, 722 S. W. 2d 595, 595–596 (1987); State v.
Indvik, 382 N. W. 2d 623, 625–626 (N. D. 1986); Palmer v.
State, 486 N. E. 2d 477, 481–482 (Ind. 1985); State v.
Smith, 217 Mont. 453, 457–460, 705 P. 2d 1110, 1113–
1114 (1985); State v. Hoopii, 68 Haw. 246, 248–251, 710 P.
2d 1193, 1195–1196 (1985).
Other courts struggled to reach agreement on the ques-
tion. Two Eleventh Circuit panels held that a neutral
expert suffices, see Magwood v. Smith, 791 F. 2d 1438,
1443 (1986) (Ake satisfied where neutral, court-appointed
experts examined the defendant and testified); Clisby v.
Jones, 907 F. 2d 1047, 1050 (1990) (per curiam) (“The
state provided a duly qualified psychiatrist not beholden
to the prosecution and, therefore, met its obligation under
Ake”), reh’g en banc, 960 F. 2d 925, 928–934 (1992) (reject-
ing Ake claim on other grounds). But another Eleventh
Circuit panel disagreed. Cowley v. Stricklin, 929 F. 2d
640, 644 (1991) (holding that due process requires more
than a neutral expert). A Sixth Circuit panel held that
8 MCWILLIAMS v. DUNN

ALITO, J., dissenting

Ake does not require appointment of a defense-team ex-
pert. Kordenbrock v. Scroggy, 889 F. 2d 69, 75 (1989).
And when the Sixth Circuit reviewed that decision en
banc, its holding was fractured, but 7 of the 13 judges
expressed the view that Ake requires only a neutral, court-
appointed expert.3 919 F. 2d 1091, 1110, 1117–1120,
1131–1132 (1990).
Ake’s ambiguity has been noted time and again by com-
mentators. See, e.g., LaFave §8.2(d), at 449 (Ake appears
to be “deliberately ambiguous”); Mosteller, The Sixth
Amendment Right to Fairness: The Touchstone of Effec-
tiveness and Pragmatism, 45 Tex. Tech. L. Rev. 1, 16
(2012) (Ake held that “the defense had the right of access
to an expert, but the Court did not conclude that access
had to be a defense expert”); Greeley, The Plight of Indi-
gent Defendants in a Computer-Based Age: Maintaining
the Adversarial System by Granting Defendants Access to
Computer Experts, 16 Va. J. L. & Tech. 400, 426 (2011)
(“[T]he Supreme Court should affirmatively state whether
a defendant is entitled to a neutral expert working for the
defense and the government, or an expert advocating for
the defense”); Groendyke, Ake v. Oklahoma: Proposals for
Making the Right a Reality, 10 N. Y. U. J. Legis. & Pub.
——————
3 The Sixth Circuit’s experience, standing alone, is a telling reflection

of Ake’s ambiguity. Years after Kordenbrock, a Sixth Circuit panel held
that Ake requires a defense expert. Powell v. Collins, 332 F. 3d 376,
392 (2003). A later panel disagreed. Smith v. Mitchell, 348 F. 3d 177,
207–208, and n. 10 (2003). A different panel concluded three years
later that the Circuit had “extend[ed] Ake” to require a defense expert.
Carter v. Mitchell, 443 F. 3d 517, 526 (2003). A later panel insisted
that “Ake does not entitle [defendants] to . . . an [independent psychiat-
ric] expert,” but to “a ‘friend of the court’ appointment.” Wogenstahl v.
Mitchell, 668 F. 3d 307, 340 (2012). The Sixth Circuit ultimately
concluded that Ake did not itself clearly compel an answer to this
question for AEDPA purposes. Miller v. Colson, 694 F. 3d 691, 698
(2012) (“[O]ur own internal conflict about the scope of Ake evidences the
reasonableness of the state court decision”).
 Cite as: 582 U. S. ____ (2017) 9

ALITO, J., dissenting

Pol’y 367, 383 (2007) (“The intentions of the Ake Court
regarding the role of the expert are not obvious from the
opinion”); Giannelli, Ake v. Oklahoma: The Right to Ex-
pert Assistance in a Post-Daubert, Post-DNA World, 89
Cornell L. Rev. 1305, 1399 (2004) (“It is uncertain from
Ake whether the appointment of a neutral expert (who
reports to the court) is sufficient or whether a ‘partisan’
defense expert is required”); Bailey, Ake v. Oklahoma and
an Indigent Defendant’s ‘Right’ to an Expert Witness: A
Promise Denied or Imagined? 10 Wm. & Mary Bill Rts. J.
401, 403 (2002) (“[C]ourts have struggled with whether an
indigent is entitled to his own independent advocate or a
neutral expert provided by the state,” and the Supreme
Court “has . . . failed to confront this ambiguity”); Sulli-
van, Psychiatric Defenses in Arkansas Criminal Trials, 48
Ark. L. Rev. 439, 492 (1995) (“The issue left unresolved in
Ake” is whether the defendant has “merely the right to an
evaluation by a neutral mental health expert”); Giannelli
et al., The Constitutional Right to Defense Experts, 16
Pub. Def. Rptr. 3 (Summer 1993) (“Ake fails to specify
clearly the role of the expert—whether the appointment of
a neutral expert, who reports to the court, satisfies due
process, or whether a partisan defense expert is re-
quired”); Note, The Constitutional Right to Psychiatric
Assistance: Cause for Reexamination of Ake, 30 Am. Crim.
L. Rev. 1329, 1356 (1993) (calling this the “preeminent
ambiguity” in the opinion); Harris, Ake Revisited: Expert
Psychiatric Witnesses Remain Beyond Reach for the Indi-
gent, 68 N. C. L. Rev. 763, 768, n. 44 (1990) (“The Court
gave mixed signals concerning the psychiatrist’s role with
regard to a criminal defendant, resulting in lower court
disagreement on the proper interpretation of Ake on this
point”); Comment, A Question of Competence: The Indi-
gent Criminal Defendant’s Right to Adequate and Compe-
tent Psychiatric Assistance After Ake v. Oklahoma, 14 Vt.
L. Rev. 121, 127 (1989) (Ake “left unanswered many ques-
10 MCWILLIAMS v. DUNN

ALITO, J., dissenting

tions,” including “whether the defendant is entitled to
‘neutral’ or ‘partisan’ assistance”); Dubia, The Defense
Right to Psychiatric Assistance in Light of Ake v. Oklahoma,
1987 Army Lawyer 15, 19–20 (Ake “did not define clearly
the role of the state-supplied psychiatrist,” and “[a] strong
case can be made that Ake requires only access to an
independent psychiatric examination”); Note, Due Process
and Psychiatric Assistance: Ake v. Oklahoma, 21 Tulsa
L. J. 121, 143 (1985) (“The Court is unclear as to the exact
nature and scope of the substantive right it has created”);
Sallet, Book Review, After Hinckley: The Insanity De-
fense Reexamined, 94 Yale L. J. 1545, 1551, n. 18 (1985)
(predicting that “whether the Constitution requires
one psychiatrist or rather one defense-oriented psy-
chiatrist” would “likely be the next constitutional issue
adjudicated”).
In this case, the Alabama courts held that Ake is satis-
fied by the appointment of a neutral expert, and it is
impossible to say that “there could be no reasonable dis-
pute that they were wrong.” Donald, 575 U. S., at ___ (slip
op., 5).
II
McWilliams’s petition for certiorari asked us to decide
two questions. Pet. for Cert. i. The first was the legal
question discussed above; the second raised an issue that
is tied to the specific facts of McWilliams’s case: whether
the neutral expert appointed in this case failed to provide
the assistance that Ake requires because he “distributed
his report to all parties just two days before sentencing
and was unable to review voluminous medical and psycho-
logical records.” Pet. for Cert. i. Our Rules and practice
disfavor questions of this nature, see this Court’s Rule 10,
and we denied review. Heeding our decision, the parties
briefed the first question but scarcely mentioned anything
related to the second.
 Cite as: 582 U. S. ____ (2017) 11

ALITO, J., dissenting

The Court, however, feels no similar obligation to abide
by the Rules. The Court refuses to decide the legal ques-
tion on which we granted review and instead decides the
question on which review was denied. The Court holds
that “Alabama here did not meet even Ake’s most basic
requirements.” Ante, at 14. In support of this conclusion,
the Court states that neither Dr. Goff (the expert appointed
by the trial judge) nor any other expert provided assis-
tance in understanding and evaluating medical reports
and records, preparing a legal strategy, presenting evi-
dence, or preparing to cross-examine witnesses. Ibid. The
Court does not question Dr. Goff ’s qualifications or his
objectivity. Instead, the crux of the Court’s complaint is
that Dr. Goff merely submitted his report and did not
provide further assistance to the defense. Ibid. But as far
as the record shows, Dr. Goff was never asked and never
refused to provide assistance to McWilliams. He did not
provide the assistance that the Court finds essential be-
cause his report was not given to the parties until two
days before sentencing, and arrangements were not made
for him to provide the assistance during that brief inter-
lude. Thus, the question that the Court decides is precisely
the question on which we denied review: namely, whether
Dr. Goff ’s assistance was deficient because he “distributed
his report to all parties just two days before sentencing
and was unable to review voluminous medical and psycho-
logical records.” Pet. for Cert. i
Our Rules instruct litigants that we will consider only
the questions on which review was granted and “subsidi-
ary question fairly included therein.” This Court’s Rule
14.1(a); Yee v. Escondido, 503 U. S. 519, 535 (1992) (The
Court will consider an “unpresented question” only in “the
most exceptional cases” (internal quotation marks omit-
ted)); see also this Court’s Rule 24.1(a) (parties may not
change the substance of the question presented once
granted). And we have not hesitated to enforce these
12 MCWILLIAMS v. DUNN

ALITO, J., dissenting

Rules when petitioners who “persuaded us to grant certio-
rari” on one question instead “chose to rely on a different
argument in their merits briefing.” Visa, Inc. v. Osborn,
580 U. S. ___ (2016) (internal quotation marks omitted)
(dismissing cases as improvidently granted on this
ground).
These Rules exist for good reasons. Among other things,
they give the parties notice of the question to be decided
and ensure that we receive adversarial briefing, see Yee,
supra, at 536, which in turns helps the Court reach sound
decisions. But in this case, the Court feels free to dis-
regard our Rules and long-established practice. If
McWilliams, after inducing us to grant certiorari on the
first question presented, had decided to ignore that ques-
tion and instead brief a fact-specific alternative theory, we
would have dismissed the case as improvidently granted.
We do not tolerate this sort of bait-and-switch tactic from
litigants, and we should not engage in it ourselves.
The Court’s approach is acutely unfair to Alabama. The
State surely believed that it did not need to brief the
second question presented in McWilliams’s petition. The
State vigorously opposed review of that question, calling it
“an invitation to conduct factbound error correction,” Brief
in Opposition 13, and we denied review. It will come as a
nasty surprise to Alabama that the Court has ruled
against it on the very question we declined to review—and
without giving the State a fair chance to respond.4
——————
4 The Court is incorrect in suggesting that Alabama “devoted an en-

tire section of its merits brief” to the question that the Court decides.
Ante, at 14. In the section to which the Court refers, Alabama argued
that even if McWilliams was entitled to relief under Ake to a partisan
expert, no relief was warranted because he “had a consulting expert
that did not report to the State,” i.e. “a psychologist employed at the
University of Alabama,” and because the trial court ordered every form
of testing that the defense requested. Brief for Respondents 50–52.
Exactly six sentences of the State’s briefing in this section, id., at 52,
touch on the services provided by Dr. Goff and the trial court’s denial of
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ALITO, J., dissenting

It is worth remembering that today’s ruling requires the
Court to conclude that the state court’s treatment of
McWilliams’s Ake claim “was so lacking in justification
that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded
disagreement.” Harrington, 562 U. S., at 103. This
“standard is difficult to meet,” id., at 102, and Alabama
would surely have appreciated the opportunity to contest
whether McWilliams has met it. Denying Alabama that
chance does not show “[a] proper respect for AEDPA’s high
bar for habeas relief,” which counsels restraint in “disturb-
ing the State’s significant interest in repose for concluded
litigation, denying society the right to punish some admit-
ted offenders, and intruding on state sovereignty to a
degree matched by few exercises of federal authority.”
Virginia v. LeBlanc, ante, at 5 ( per curiam) (alterations
and internal quotation marks omitted).
It is debatable whether the Court has even answered
question two correctly (and, of course, meaningful briefing
by the parties would have allowed the Court to answer the
question with more confidence).5 But the fundamental
——————
a continuance. The State’s inclusion of this fleeting discussion cannot
justify a decision based on a question on which relief was denied.
5 The Court never even recites the applicable standard: whether the

Alabama courts erred beyond fairminded disagreement in rejecting
McWilliams’s claim under Ake v. Oklahoma, 470 U. S. 68 (1985).
Harrington v. Richter, 562 U. S. 86, 103 (2011). This bar is difficult for
a habeas petitioner to hurdle, and it is far from clear that McWilliams
has done so. The Court says that Dr. Goff did not play the role Ake
requires of an expert because he only examined McWilliams and
reported his findings to the trial court. Ante, at 15. But that is exactly
what the trial court (at McWilliams’s request) ordered him to do. Cert.
Trial Record 1615, 1616. The Court briskly concludes that Dr. Goff did
not assist the defense in understanding his report prior to the hearing
or testify for McWilliams at the judicial sentencing hearing. Ante, at
14–15. But the Alabama Court of Criminal Appeals found “no indica-
tion in the record that [McWilliams] could not have called Dr. Goff as a
witness to explain his findings or that he even tried to contact the
14 MCWILLIAMS v. DUNN

ALITO, J., dissenting

point is that the Court should not have addressed this
question at all.
III
Having completed an arduous detour around the ques-
tion that we agreed to decide, the majority encounters an
inconvenient roadblock: The Court of Appeals has already
determined that any error of the sort the majority identi-
fies today was harmless. So the majority relies on the
thinnest of reasons to require the Eleventh Circuit to redo
its analysis. That conclusion is unwarranted, and nothing
in the majority opinion prevents the Court of Appeals from
reaching the same result on remand.
The majority claims that the Court of Appeals did not
“specifically consider whether access to the type of mean-
ingful assistance in evaluating, preparing, and presenting
the defense that Ake requires would have mattered.”
Ante, at 15. But the Court of Appeals concluded that, even
if Dr. Goff ’s performance did not satisfy Ake, the error did
not have a substantial and injurious effect on the outcome
of the sentencing proceeding. McWilliams v. Commissioner,
Ala. Dept. of Corrections, 634 Fed. Appx. 698, 706–707
(CA11 2015) (per curiam). Thus, the Court of Appeals
specifically addressed the very question that the majority
instructs it to consider on remand.
If the majority disagrees with the Court of Appeals’
decision on that question, it should explain its reasons, but
the majority is unwilling to tackle that matter and instead
recites that “we are a court of review, not first view.”
Ante, at 16 (internal quotation marks omitted). The
Court’s invocation of this oft-used formulation is utterly
——————
psychiatrist to discuss his findings.” McWilliams v. State, 640 So. 2d
982, 991 (1991). And the Eleventh Circuit saw no reason why
McWilliams’s defense team could not have been in contact with Dr. Goff
while he was preparing the report. McWilliams v. Commissioner, Ala.
Dept. of Corrections, 634 Fed. Appx. 698, 706–707 (2015) ( per curiam).
 Cite as: 582 U. S. ____ (2017) 15

ALITO, J., dissenting

inapt because the Eleventh Circuit has already reviewed
the question of harmless error. Moreover, unlike the
question that the majority does decide, the harmless-error
issue was at least briefed in a meaningful way by the
parties. Brief for Petitioner 41–46; Brief for Respondents
52–56; Reply Brief 14–16.
Had the Court confronted the harmless-error issue, it
would have found it difficult to reject the Court of Appeals’
conclusion that any Ake error here was harmless. In 1984,
McWilliams “raped, robbed, and murdered Patricia Val-
lery Reynolds.” McWilliams v. State, 640 So. 2d 982, 986
(Ala. Crim. App. 1991) (internal quotation marks omitted).
Reynolds was a clerk at a convenience store in Tuscaloosa,
Alabama. Ibid. McWilliams robbed the store, brutally
raped Reynolds in a back room, then left her on the floor
to die after shooting her six times execution style with a
.38 caliber pistol. Ibid. After McWilliams was apprehended,
he bragged to other jail inmates about what he had done.
Id., at 987. The jury needed less than an hour of delibera-
tion to find him guilty, and it recommended the death
penalty by a 10-to-2 vote the following day. Id., at 986.
Agreeing with the jury’s nonbinding recommendation,
the trial court imposed the death penalty based on three
aggravating circumstances. McWilliams had prior violent
felony convictions for first-degree robbery and first-degree
rape. App. 182a–183a. He murdered Reynolds in the
course of committing a robbery and rape. Id., at 183a.
And his crime “was especially heinous, atrocious, or cruel”:
He executed the only potential eyewitness to his robbery,
and his conduct during and after the crime showed an
“obvious lack of regard or compassion for the life and
human dignity of the victim.” Id., at 184a. Balanced
against these three aggravators was McWilliams’s claim
that he was psychotic and suffered from organic brain
dysfunction—the mitigating evidence that Dr. Goff ’s
report supposedly would have supported. But the sentenc-
16 MCWILLIAMS v. DUNN

ALITO, J., dissenting

ing court concluded that this evidence “did not rise to the
level of a mitigating circumstance,” in part because of the
extensive evidence that McWilliams was feigning symp-
toms. Id., at 188a. And in any event, the sentencing court
found that “the aggravating circumstances would far
outweigh this as a mitigating circumstance.” Ibid. (em-
phasis added).
The majority hints that the sentencing court’s weighing
might have been different if McWilliams had been afforded
more time to work with Dr. Goff to prepare a mitigation
presentation and to introduce Dr. Goff ’s testimony at the
sentencing hearing. But there is little basis for this belief.
The defense would have faced potential rebuttal testimony
from three doctors who evaluated McWilliams and firmly
concluded that McWilliams’s mental state did not reduce
his responsibility for his actions. Certified Trial Record
1545 (Dr. Yumul) (McWilliams “was responsible and free
of mental illness at the time of the alleged offense”); id., at
1546 (Dr. Nagi) (McWilliams “was not suffering from a
mental illness” at the time of the crime and “[t]here see[m]
to be no mitigating circumstances involved in [his] case”);
ibid. (Dr. Bryant) (finding no “evidence of psychiatric
symptoms of other illness that would provide a basis for
mitigating factors at the time of the alleged crime”). One
of these psychiatrists also concluded that McWilliams was
“grossly exaggerating his psychological symptoms to mimic
mental illness” and that he “obviously” did so “to evade
criminal prosecution.” Ibid. (Dr. Nagi). Even Dr. Goff
found it “quite obvious” that McWilliams’s “symptoms of
psychiatric disturbance [were] quite exaggerated and,
perhaps, feigned.” Id., at 1635. In light of all this, the
defense would have faced an uphill battle in convincing
the sentencing judge that, despite McWilliams’s consistent
malingering, his mental health was so impaired that it
constituted a mitigating circumstance and that it out-
weighed the three aggravators the State proved. If the
 Cite as: 582 U. S. ____ (2017) 17

ALITO, J., dissenting

sentencing judge had thought that there was a possibility
that hearing from Dr. Goff would change his evaluation of
aggravating and mitigating factors, he could have granted
a continuance and called for Dr. Goff to appear. But he
did not do so.
The majority also ignores the fact that McWilliams has
already had the chance to show that the outcome of the
sentencing proceeding would have been different if he had
been given more expert assistance. In state postconviction
proceedings, McWilliams argued that he was denied effec-
tive assistance of counsel because his lawyers did not
obtain an expert who would have fully probed his mental
state for purposes of mitigation. McWilliams called an
expert, Dr. Woods, who offered the opinion that
McWilliams suffered from bipolar disorder at the time of
the crime and testified that McWilliams’s exaggeration of
symptoms was not inconsistent with psychiatric problems.
But Dr. Woods also acknowledged that McWilliams
“tr[ied] to malinger for purposes of making himself look
worse than he is,” agreed that this malingering could have
been done for the purpose of avoiding the death penalty,
and declined to say that McWilliams’s disorder explains
why he raped and murdered Reynolds. Postconviction Tr.
1002–1005, 1022–1023. Dr. Woods even endorsed Dr.
Goff ’s conclusion that McWilliams “exaggerated certain
aspects of his impairment.” Id., at 955 (“I think Dr. Goff
did an excellent job of attempting to separate out what
were in fact exaggerations and what was real impair-
ment”). The State introduced a psychologist of its own
(Dr. Kirkland) who strenuously disagreed with Dr.
Woods’s diagnosis and concluded that nothing “indicate[s]
that Mr. McWilliams was mentally impaired on the night
of the offense.” Id., at 1088. At the end of a lengthy hear-
ing in which both experts addressed the malingering issue
(see, e.g., id., at 935–943, 955, 964–966, 1076–1077), the
state postconviction court found that “McWilliams’s claims
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ALITO, J., dissenting

based upon the testimony of Dr. Woods are without merit.”
Id., at 1810. It credited the “consensus opinion” reached
by the three neutral state psychiatrists, who observed and
evaluated McWilliams for over a month before his trial and
concluded that he “did not suffer from a mental illness.”
Id., at 1812. It expressly found that “both the credibility
of Dr. Woods and the reliability of his findings are ques-
tionable.” Id., at 1814. And even if Dr. Woods’s diagnosis
was accurate, the court stated, it “[would] not find that a
failure to present” evidence of this sort “made a difference
in the outcome.” Id., 1815.6 The Alabama Court of Crimi-
nal Appeals affirmed, McWilliams v. State, 897 So. 2d 437
(2004), and the Alabama Supreme Court denied review. I
see no ground for disturbing the Eleventh Circuit’s deci-
sion on harmless error.7
——————
6 Dr. Goff was notably absent from the postconviction proceeding.

McWilliams’s failure to call him as a witness there creates a “void in
the record” that prevents McWilliams from carrying his burden of
showing “how additional time with Dr. Goff (and his report) would have
benefited the defense.” 634 Fed. Appx., at 712 (Jordan, J., concurring).
It also suggests that, to McWilliams’s postconviction counsel, Dr. Goff ’s
diagnosis and the opportunity to present it to the sentencer was not as
important as McWilliams suggests.
7 McWilliams’s entitlement to relief under Ake is questionable for an

additional reason. Ake held that the right to a psychiatric expert at
capital sentencing comes into play “when the State presents psychiatric
evidence of the defendant’s future dangerousness.” 470 U. S., at 83–84,
86. Here, the State did not introduce such evidence because future
dangerousness was not an aggravator under Alabama law. See App.
182a–184a. As lower courts have noted, we have never held that a
capital defendant is entitled to the assistance of a psychiatric expert at
sentencing where future dangerousness is not in issue and the State
does not introduce psychiatric evidence to prove it. See, e.g., Revilla v.
Gibson, 283 F. 3d 1203, 1220–1221 (CA10 2002) (“Ake held only that an
indigent capital defendant must, upon request, be provided an expert
for the penalty phase when the State presents psychiatric evidence of
the defendant’s future dangerousness” (internal quotation marks
omitted)); Ramdass v. Angelone, 187 F. 3d 396, 409 (CA4 1999) (“Ake
provides a right to assistance of a mental health expert only if . . . , in
 Cite as: 582 U. S. ____ (2017) 19

ALITO, J., dissenting

* * *
The Court’s decision represents an inexcusable depar-
ture from sound practice. I would affirm the judgment
below, and I therefore respectfully dissent.

——————
arguing future dangerousness in the sentencing phase, the prosecution
used expert psychiatric testimony”); Goodwin v. Johnson, 132 F. 3d
162, 189 (CA5 1997), as amended Jan. 15, 1998 (“Ake only creates an
entitlement to the assistance of a psychiatrist during sentencing when
the state offers psychiatric evidence of the defendant’s future danger-
ousness” (emphasis deleted)).