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SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
ANIBAL CANALES, JR. v. BOBBY LUMPKIN,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 20–7065. Decided June 30, 2022
The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, dissenting from the denial of certi-
orari.
A jury sentenced Anibal Canales, Jr., to death without
hearing any meaningful evidence about why life in prison
might be punishment enough. The mitigating evidence put
on by Canales’ counsel was so thin that the prosecutor re-
marked in closing that it was “ ‘an incredibly sad tribute
that when a man’s life is on the line, about the only good
thing we can say about him is he’s a good artist.’ ” Canales
v. Davis, 966 F. 3d 409, 417 (CA5 2020) (Higginbotham, J.,
dissenting) (Canales II). In reality, whether to sentence
Canales to death was a far more complicated question.
Competent counsel would have told the jury of “a tragic
childhood rife with violence, sexual abuse, poverty, neglect,
and homelessness”; of Canales’ kindness to his mother and
sisters; and “of a man beset by PTSD, a failing heart, and
the dangers of prison life” when he committed the crime for
which he was sentenced to die. Ibid. The jury had no
chance to balance this humanizing evidence against the
State’s case.
A divided panel of the Court of Appeals for the Fifth Cir-
cuit nonetheless held that defense counsel’s deficient per-
formance did not prejudice Canales. In the majority’s view,
the State’s case was so weighty that this mitigating evi-
dence would have made no difference. That was wrong, as
2 CANALES v. LUMPKIN
SOTOMAYOR, J., dissenting
Judge Higginbotham fully explained in his dissent, id., at
417–418, 420–428, and as our precedents make clear, see
Porter v. McCollum, 558 U. S. 30, 41–42 (2009) (per cu-
riam); Rompilla v. Beard, 545 U. S. 374, 390–393 (2005);
Wiggins v. Smith, 539 U. S. 510, 536–537 (2003); Williams
v. Taylor, 529 U. S. 362, 397–398 (2000).
The Constitution guarantees fundamental rights even to
those who commit terrible crimes. Whether to impose the
ultimate punishment of death is a complex judgment that
requires viewing the defendant as a full and unique indi-
vidual. Such careful consideration is impossible when in-
competent defense counsel prevents the jury from hearing
substantial mitigating evidence, leaving nothing to con-
sider but the defendant’s crimes. Here, there is more than
a reasonable probability that the undisclosed mitigating ev-
idence would have led at least one juror to choose life in
prison rather than death. The legal errors of the majority
below, involving life-or-death stakes, are so clear that I
would summarily reverse.
I
A
The evidence uncovered during the federal habeas pro-
ceedings below shows the following. Anibal “Andy”
Canales, Jr., was born in Waukegan, Illinois, on December
1, 1964. Electronic Case Filing in Canales v. Director, Texas
Dept. of Corrections, No. 2:03–cv–00069 (ED Tex., Dec. 1,
2016) (ECF), Doc. 220–1, p. 3. His sister, Elizabeth, was
born just over a year later. Canales’ parents were alcoholics
and his father was violent. After his parents split up,
Canales’ mother married Carlos Espinoza, who spent the
next six years physically and sexually abusing Canales and
Elizabeth. As Elizabeth stated, “ ‘Andy had to strip some-
times to be beaten. . . . I remember seeing Andy lying na-
ked, curled up in a ball, and Carlos hitting him as hard as
he could with the buckle end of the belt. Carlos would beat
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SOTOMAYOR, J., dissenting
Andy until he had welts and bruises all over his body.’ ” Id.,
at 26. When Canales was just six years old, Espinoza sex-
ually assaulted him. Canales twice witnessed his stepfa-
ther rape his little sister and tried to intervene, only to re-
ceive further beatings.
Canales’ mother, meanwhile, was largely absent.
Canales’ cousin, a child herself, babysat in exchange for
beer and cigarettes. Canales began drinking when he was
about 10. His family lived in dire poverty in neighborhoods
where gang membership was common. Canales witnessed
a man get shot to death in the street when he was only six.
Around age eight or nine, Canales was forced to join the
Latin Kings. He had been shot at and stabbed by the time
he was 12.
Canales’ mother eventually left Espinoza and moved to
San Antonio with Elizabeth and Canales’ half-sister, Ga-
briela. Canales, however, was sent to Houston to live with
his father. Later that year, his father relocated to Laredo
and the family made clear to Canales that he could not
come. Completely abandoned by his parents, Canales fell
deeper into crime and substance abuse. He was arrested
for car theft at 13, and by 14 was an alcoholic.
Canales ultimately made his way to San Antonio, where
he alternated between juvenile detention facilities, home-
lessness, and living with his mother in other families’
homes. The family found more stable housing when his
mother moved in with John Ramirez, but Ramirez was just
another in a string of cruel father figures. Ramirez beat
Canales’ mother and Elizabeth when Canales, now in his
late teens, was not around to stop him. In Elizabeth’s
words, “ ‘Andy was too big to beat so I was safe whenever
Andy was around.’ ” Id., at 28. “ ‘He was always brave when
I needed him to be. I will forever be grateful for that. . . .
We love him.’ ” Id., at 16. Gabriela likewise observed that
“ ‘Andy had a kind heart and he loved my mom, me and Eliz-
abeth a lot.’ ” Id., at 37.
4 CANALES v. LUMPKIN
SOTOMAYOR, J., dissenting
In 1983, when he was 18, Canales stole an income tax
check from Ramirez. Ramirez insisted on prosecution. In
Elizabeth’s words, “ ‘Ramirez wanted Andy out of the way
and that is why he pursued Andy’s prosecution for the sto-
len check. He wanted access to my mom and Gabriela and
me. Andy was protective of all of us.’ ” Id., at 31. That
stolen check sent Canales to federal prison. Later that
same year, he was convicted of theft and sexual assault, and
received a 15-year sentence, during which he joined the
Texas Syndicate prison gang.
Canales was paroled in 1990 and started building a new
life. He did not drink excessively or use drugs, and instead
was “ ‘affectionate’ ” with his girlfriend and “ ‘help[ed] out at
home.’ ” Id., at 38. The two discussed getting married. But
two years into Canales’ parole, his mother suffered a brain
aneurysm, losing her motor function and ability to speak.
Canales was devastated. He turned back to drugs and al-
cohol and his relationship ended. By 1993, he had been con-
victed of a second sexual assault, his parole was revoked,
and he returned to prison.
Canales suffered a heart attack in prison and was placed
on blood thinners, which caused him to bruise easily and
bleed for hours if he sustained a cut. He could not defend
himself, and other inmates knew it. When they discovered
that Canales had prior sex offense convictions and had been
a member of the Latin Kings, the Texas Syndicate ordered
him killed. Canales’ cellmate, Bruce Richards, was a leader
in another prison gang, the Texas Mafia. Richards agreed
to admit Canales to the Texas Mafia and made a deal with
the Syndicate for his protection. Canales thus owed Rich-
ards his life.
Shortly thereafter, and on Richards’ instruction, Canales
helped kill an inmate named Gary Dickerson, who was
blackmailing the gang. Richards also instructed Canales to
write a note to another inmate exaggerating Canales’ role
in the murder. As Richards later explained, “ ‘If [Canales]
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SOTOMAYOR, J., dissenting
refused to do what I told him[,] I would have sent him back
to the Texas Syndicate, and he would be killed.’ ” Canales
II, 966 F. 3d, at 418 (Higginbotham, J., dissenting).
B
Canales was convicted of the killing, and the State sought
the death penalty. At the sentencing phase, the State sub-
mitted documentary evidence of Canales’ conviction for
theft and multiple convictions for sexual assault. One of
Canales’ sexual assault victims testified that Canales ap-
proached her in a parking lot, told her he was a police officer
and that she was under arrest, drove her to the woods, and
raped her. Id., at 413, 416. The State entered into evidence
two letters from Canales, one asking the Texas Mafia to
murder an inmate whom Canales believed was cooperating
with the prosecution, and another that more vaguely
threatened cooperators. Canales v. Stephens, 765 F. 3d
551, 560–561 (CA5 2014) (per curiam) (Canales I).
Defense counsel barely responded. By their own admis-
sion, “they did not conduct any mitigation investigation.”
Id., at 569. They put on no evidence that the Texas Syndi-
cate would have killed Canales had he not participated in
the murder. Nor did the jury hear about the unspeakable,
unrelenting cruelties Canales witnessed and suffered at the
hands of those closest to him, or hear Canales’ sisters testify
that he protected them in their darkest hours. Instead, de-
fense counsel called several inmates and officers who testi-
fied that Canales “did not cause trouble, had an aptitude for
art, and received few visits from family, and that he had
tried to stop inmates from fighting.” Canales II, 966 F. 3d,
at 413–414.
The entire sentencing proceeding lasted just a day. The
jury returned a recommendation of death the next morning.
II
After his conviction and sentence became final, Canales
6 CANALES v. LUMPKIN
SOTOMAYOR, J., dissenting
sought state postconviction relief. Canales’ state postcon-
viction attorney failed to argue that Canales’ trial counsel
had provided ineffective assistance at the sentencing phase.
In federal habeas proceedings, Canales (now represented
by competent counsel) argued that his trial counsel had pro-
vided ineffective assistance. The District Court dismissed
that claim as procedurally defaulted. While Canales’ ap-
peal was pending, this Court decided Trevino v. Thaler, 569
U. S. 413 (2013), holding that a federal court may consider
a substantial claim of ineffective assistance of trial counsel,
even if not presented in state court, if the petitioner was
effectively barred from asserting that claim until state post-
conviction proceedings, and the petitioner’s counsel in those
proceedings was also ineffective.
In light of Trevino, the Fifth Circuit found that there was
cause to excuse the procedural default of Canales’ claim
that trial counsel was ineffective during the sentencing
phase. The Fifth Circuit further held that Canales’ trial
counsel had rendered deficient performance during the sen-
tencing phase, that Canales’ claim that this deficient per-
formance prejudiced him had “some merit,” and that state
postconviction counsel had been deficient for failing to raise
this “substantial” trial-ineffectiveness claim. Canales I,
765 F. 3d, at 570–571.1 The Fifth Circuit remanded to allow
Canales a “chance to develop the factual basis” of his trial-
ineffectiveness claim, as well as for the District Court to de-
cide prejudice in the first instance. Ibid.
On remand, Canales’ counsel sought funding to hire mit-
igation experts. Texas did not dispute that the District
Court could consider expert mitigation evidence, but op-
posed the motion on the grounds that no amount of mitigat-
——————
1 The Fifth Circuit found that Canales had not “established cause for
the procedural default of his claim of ineffective assistance of trial coun-
sel during the guilt phase,” as opposed to the sentencing phase, “because
the claim is not substantial.” Canales I, 765 F. 3d, at 568.
Cite as: 597 U. S. ____ (2022) 7
SOTOMAYOR, J., dissenting
ing evidence could overcome the aggravating evidence al-
ready in the record. The District Court granted the motion
for funding, and Canales’ counsel retained three mitigation
experts who reviewed medical, legal, and prison records
and examined Canales. As exhibits to his brief regarding
prejudice, Canales attached three expert reports accompa-
nied by affidavits that revealed, for the first time, the sig-
nificant evidence of mitigation previously recounted. See
supra, at 2–5.
Texas filed its own brief denying that Canales suffered
any prejudice. In doing so, Texas did not argue that the
District Court could not consider the mitigation evidence.
Indeed, Texas recognized that it “would be difficult to refute
Canales’s assertion that the mitigation evidence counsel
failed to present at trial paints a gripping picture of
Canales’s tragic, troubled childhood.” ECF Doc. 228, at 17.
Taking that evidence as a given, Texas nevertheless argued
that the mitigation evidence “must be considered in con-
junction with, and weighed against, the evidence in aggra-
vation,” and that the gripping picture painted by the miti-
gation evidence was outweighed by the aggravating
evidence. Ibid.
The District Court agreed with Texas, characterizing
Canales’ evidence of “gang violence, alcohol, drugs, and
physical and sexual abuse” as “double-edged” because it
could “ ‘be read by the jury to support, rather than detract,
from his future dangerousness claim.’ ” ECF Doc. 237, at 19.
The District Court concluded that the aggravating evidence
“far outweigh[ed]” the mitigating evidence. Id., at 17.
Canales sought a certificate of appealability from the
Fifth Circuit. In opposition, Texas again did not argue that
the District Court erred by considering Canales’ evidence of
mitigation. To the contrary, Texas argued that a district
court “must consider whether, and to what extent, the un-
presented evidence may be double-edged,” and urged the
Fifth Circuit not to “ignore the potential aggravating effect”
8 CANALES v. LUMPKIN
SOTOMAYOR, J., dissenting
of Canales’ new evidence. Respondent-Appellee’s Opposi-
tion to Motion for Certificate of Appealability in Canales v.
Davis, No. 18–70009 (CA5), p. 29. The Fifth Circuit
granted a certificate of appealability.
Texas then argued in its appeal brief on the merits, for
the first time, that the District Court erred by considering
the three expert mitigation reports. The Fifth Circuit did
not decide this argument and recognized that Texas had
previously “failed to object to the new evidence under 28
U. S. C. §2254(e)(2).” Canales II, 966 F. 3d, at 412, n. 1; see
also id., at 419 (Higginbotham, J., dissenting) (“The State
offers no explanation for its election to fully participate in
the district court in the development of evidence”). The
Fifth Circuit instead affirmed on the grounds on which the
District Court relied, namely, that Canales’ “new mitigat-
ing evidence . . . does not outweigh the aggravating evi-
dence” in the record. Id., at 414.
III
A
To establish prejudice, Canales must show a reasonable
probability that the jury would have returned a different
sentence but for his counsel’s ineffectiveness. See Wiggins,
539 U. S., at 536. In judging whether he has done so, the
court must consider “the totality of the available mitigation
evidence” and “reweig[h] it against the evidence in aggra-
vation.” Williams, 529 U. S., at 397–398. Because his
death sentence required a unanimous jury, Tex. Code Crim.
Proc. Ann., Art. 37.071 (Vernon 2000), Canales must
demonstrate only “a reasonable probability that at least one
juror would have struck a different balance” with the bene-
fit of this mitigating evidence, Wiggins, 539 U. S., at 537.
He has done so.
Here, jurors heard essentially nothing from Canales’ trial
counsel that would enable them to gauge accurately his
moral culpability, as Texas law requires. Now, thanks to
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SOTOMAYOR, J., dissenting
the efforts of Canales’ federal habeas counsel (efforts that
trial counsel, or at least state postconviction counsel, should
have undertaken in the first instance), it is clear that the
presentation before the jury was woefully deficient. Put
simply, “there exists too much mitigating evidence that was
not presented” to be ignored now. Porter, 558 U. S., at 44
(internal quotation marks omitted).2
This Court has repeatedly recognized that failing to put
exactly this type of evidence before the jury casts irrepara-
ble doubt on the integrity of its recommendation of death.
See id., at 41 (“Had Porter’s counsel been effective, the
judge and jury would have learned of the ‘kind of troubled
history we have declared relevant to assessing a defend-
ant’s moral culpability,’ ” including a “childhood history of
physical abuse”); Rompilla, 545 U. S., 391–392 (“ ‘Romp-
illa’s parents were both severe alcoholics who drank con-
stantly. . . . He was abused by his father who beat him
when he was young with his hands, fists, leather straps,
——————
2 Contrary to Texas’ belated argument, see Brief in Opposition 16–20,
28 U. S. C. §2254(e)(2) poses no barrier to consideration of Canales’ mit-
igation evidence. This Court recently held in Shinn v. Martinez Ramirez,
596 U. S. ___, ___ (2022) (slip op., at 13), that §2254(e)(2) precludes a
district court from “consider[ing] evidence beyond the state-court record
based on ineffective assistance of state postconviction counsel.” Texas,
however, waived (or at the very least forfeited) any §2254(e)(2) argument
by “fail[ing] to object to the new evidence under 28 U. S. C. §2254(e)(2),
only arguing it was unnecessary, not improper” before the District Court,
as well as before the Fifth Circuit at the certificate-of-appealability stage.
Canales v. Davis, 966 F. 3d 409, 412, n. 1 (2020).
Texas does not argue that §2254(e)(2) is immune to waiver or forfei-
ture, nor could it. This Court has concluded that another provision of the
Antiterrorism and Effective Death Penalty Act, its statute of limitations,
is not jurisdictional and therefore may be waived or forfeited. See Day
v. McDonough, 547 U. S. 198, 205 (2006) (interpreting §2244(d)(1)). Like
that provision, §2254(e)(2) does not “speak in jurisdictional terms or refer
in any way to the jurisdiction of the district courts.” Zipes v. Trans World
Airlines, Inc., 455 U. S. 385, 394 (1982).
10 CANALES v. LUMPKIN
SOTOMAYOR, J., dissenting
belts and sticks. All of the children lived in terror’ ”); Wig-
gins, 539 U. S., at 534–535 (noting the “powerful” mitigat-
ing effect of evidence of “severe privation and abuse in the
first six years of [the defendant’s] life while in the custody
of his alcoholic, absentee mother,” “physical torment, sexual
molestation,” and time “spent homeless”); Williams, 529
U. S., at 398 (“[T]he graphic description of Williams’ child-
hood, filled with abuse and privation, . . . might well have
influenced the jury’s appraisal of his moral culpability”).
To be sure, Canales committed several violent sexual as-
saults and “a cold and calculated gang-related murder, and
he ha[d] a history of threatening and seeking murder.”
Canales II, 966 F. 3d, at 417. It is therefore “possible that
[many jurors] could have heard” all the mitigating evidence
obtained after trial “and still have decided on the death pen-
alty.” Rompilla, 545 U. S., at 393. Many judges reviewing
Canales’ petition may be sure that they would recommend
death, were they sitting on a hypothetical jury that heard
all this evidence.
But “that is not the test.” Ibid. Even if the mitigating
evidence “may not have overcome a finding of future dan-
gerousness,” it “might well have influenced the jury’s ap-
praisal of [Canales’] moral culpability.” Williams, 529
U. S., at 398. Measured against “the totality of the availa-
ble mitigation evidence,” id., at 397, which even the State
characterized as painting a gripping picture of a tragic
childhood, the State’s evidence would have appeared dra-
matically different. “[T]here is a reasonable probability
that at least one juror would have struck a different bal-
ance.” Wiggins, 539 U. S., at 537.
B
The Fifth Circuit reached a contrary conclusion largely
by “fram[ing] the prejudice inquiry as a comparison of the
facts here to the facts” in Wiggins, Williams, Rompilla, and
Porter, and “faulting Canales’s mitigating evidence for not
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SOTOMAYOR, J., dissenting
neatly aligning with the evidence in those cases.” Canales
II, 966 F. 3d, at 423 (Higginbotham, J., dissenting); see also
id., at 415–416, and nn. 2, 5 (majority opinion).
In Andrus v. Texas, 590 U. S. ___ (2020) (per curiam), this
Court warned against exactly that approach, noting “that
we have never before equated what was sufficient in Wig-
gins with what is necessary to establish prejudice.” Id., at
___, n. 6 (slip op., at 18, n. 6). Indeed, in Wiggins itself, the
Court stressed that the defendant had shown more than
enough to establish prejudice. See 539 U. S., at 537–538
(explaining that “the mitigating evidence in [that] case
[was] stronger, and the State’s evidence in support of the
death penalty far weaker, than in Williams,” where the
Court also found prejudice). The same was true in Romp-
illa, where the defendant had “shown beyond any doubt
that counsel’s lapse was prejudicial.” 545 U. S., at 390. It
went “without saying that the undiscovered mitigating evi-
dence . . . might well have influenced the jury’s appraisal of
Rompilla’s culpability.” Id., at 393 (internal quotation
marks and brackets omitted).
Nor do Williams and Porter set a lower bound for estab-
lishing prejudice. Each came to this Court on collateral re-
view of a state court’s decision on the merits, meaning that
the mitigating evidence was so strong that no “fairminded
juris[t] could disagree” that the relevant state courts erred
by finding a lack of prejudice. Harrington v. Richter, 562
U. S. 86, 101 (2011) (internal quotation marks omitted); see
Williams, 529 U. S., at 399; Porter, 558 U. S., at 40–44.
Canales’ claim, by contrast, warrants de novo review. See
966 F. 3d, at 420–421 (Higginbotham, J., dissenting). In
any event, as Judge Higginbotham ably explained, the
omitted evidence in this case is quite comparable to (and in
some ways stronger than) the evidence in those prior cases.
See id., at 424–425.
No two capital defendants will ever be the same. “[T]hat
12 CANALES v. LUMPKIN
SOTOMAYOR, J., dissenting
is precisely why” reviewing courts must “ ‘reweigh’ the evi-
dence” themselves, focusing on the full picture of the indi-
vidual before them, “to avoid the drift of precedent into a
paint-by-numbers guide to prejudice.” Id., at 425.
* * *
Canales’ crimes were brutal, and he deserves just punish-
ment. Under our Constitution, however, no person’s crime
is so terrible that he loses his right to the effective assis-
tance of counsel. That is especially true when he faces exe-
cution. If the right to counsel means anything, it means
that the State should not take someone’s life when incom-
petent counsel failed to offer a meaningful mitigation de-
fense.
The jury did not see the full picture of Anibal Canales
when they sentenced him to die. The jury never heard “the
voluminous mitigating evidence now before this Court,” so
it “could only assume that there was none.” Id., at 427. His
life story was more than the “ ‘sad tribute’ ” that he was a
“ ‘good artist.’ ” See supra, at 1. If the jurors had a richer
understanding of the man before them, there is a more than
reasonable probability that at least one would have found a
lifetime in prison to suffice. Canales has been denied his
right to put that evidence before the jury, first by ineffective
counsel and now by the courts. I would summarily reverse.