(Slip Opinion) OCTOBER TERM, 2004 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
ROMPILLA v. BEARD, SECRETARY, PENNSYLVANIA
DEPARTMENT OF CORRECTIONS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 04–5462. Argued January 18, 2005—Decided June 20, 2005
Petitioner Rompilla was convicted of murder and other crimes. During
the penalty phase, the jury found the aggravating factors that the
murder was committed during a felony, that it was committed by tor-
ture, and that Rompilla had a significant history of felony convictions
indicating the use or threat of violence. In mitigation, five members
of Rompilla’s family beseeched the jury for mercy. He was sentenced
to death, and the Pennsylvania Supreme Court affirmed. His new
lawyers filed for state postconviction relief, claiming ineffective assis-
tance by his trial counsel in failing to present significant mitigating
evidence about Rompilla’s childhood, mental capacity and health, and
alcoholism. The state courts found that trial counsel had sufficiently
investigated the mitigation possibilities. Rompilla then raised inade-
quate representation in a federal habeas petition. The District Court
found that the State Supreme Court had unreasonably applied
Strickland v. Washington, 466 U. S. 668, concluding that trial coun-
sel had not investigated obvious signs that Rompilla had a troubled
childhood and suffered from mental illness and alcoholism, unjusti-
fiably relying instead on Rompilla’s own description of an unexcep-
tional background. In reversing, the Third Circuit found nothing un-
reasonable in the state court’s application of Strickland, given
defense counsel’s efforts to uncover mitigation evidence from Rom-
pilla, certain family members, and three mental health experts. The
court distinguished Wiggins v. Smith, 539 U. S. 510—in which coun-
sel had failed to investigate adequately to the point of ignoring the
leads their limited enquiry yielded—noting that, although trial coun-
sel did not unearth useful information in Rompilla’s school, medical,
police, and prison records, their investigation had gone far enough to
2 ROMPILLA v. BEARD
Syllabus
give them reason to think that further efforts would not be a wise use
of their limited resources.
Held: Even when a capital defendant and his family members have
suggested that no mitigating evidence is available, his lawyer is
bound to make reasonable efforts to obtain and review material that
counsel knows the prosecution will probably rely on as evidence of
aggravation at the trial’s sentencing phase. Pp. 4–18.
(a) Rompilla’s entitlement to federal habeas relief turns on showing
that the state court’s resolution of his ineffective-assistance claim
under Strickland “resulted in a decision that was contrary to, or in-
volved an unreasonable application of, clearly established Federal
law, as determined by” this Court, 28 U. S. C. §2254(d)(1). The state
court’s result must be not only incorrect but also objectively unrea-
sonable. Wiggins, supra, at 520–521. In judging the defense’s inves-
tigation in preparing for a capital trial’s sentencing phase, hindsight
is discounted by pegging adequacy to “counsel’s perspective at the
time” investigative decisions were made and by giving deference to
counsel’s judgments. Strickland, supra, at 689, 691. Pp. 4–5.
(b) Here, the lawyers were deficient in failing to examine the court
file on Rompilla’s prior rape and assault conviction. They knew that
the Commonwealth intended to seek the death penalty by proving
that Rompilla had a significant history of felony convictions indicat-
ing the use or threat of violence, that it would attempt to establish
this history by proving the prior conviction, and that it would empha-
size his violent character by introducing a transcript of the rape vic-
tim’s trial testimony. Although the prior conviction file was a public
record, readily available at the courthouse where Rompilla was to be
tried, counsel looked at no part of it until warned by the prosecution
a second time, and even then did not examine the entire file. With
every effort to view the facts as a defense lawyer would have at the
time, it is difficult to see how counsel could have failed to realize that
not examining the file would seriously compromise their opportunity
to respond to an aggravation case. Their duty to make all reasonable
efforts to learn what they could about the offense the prosecution was
going to use certainly included obtaining the Commonwealth’s own
readily available file to learn what it knew about the crime, to dis-
cover any mitigating evidence it would downplay, and to anticipate
the details it would emphasize. The obligation to examine the file
was particularly pressing here because the violent prior offense was
similar to the crime charged and because Rompilla’s sentencing
strategy stressed residual doubt. This obligation is not just common
sense, but is also described in the American Bar Association Stan-
dards for Criminal Justice, which are “ ‘guides to determining what is
reasonable,’ ” Wiggins, supra, at 524. The state court’s conclusion
Cite as: 545 U. S. ____ (2005) 3
Syllabus
that defense counsel’s efforts to find mitigating evidence by other
means were enough to free them from further enquiry fails to answer
the considerations set out here, to the point of being objectively un-
reasonable. No reasonable lawyer would forgo examination of the file
thinking he could do as well by asking the defendant or family rela-
tions what they recalled. Nor would a reasonable lawyer compare
possible searches for school reports, juvenile records, and evidence of
drinking habits to the opportunity to take a look at a file disclosing
what the prosecutor knows and plans to read from in his case. Pp. 5–
14.
(c) Because the state courts found counsel’s representation ade-
quate, they never reached the prejudice element of a Strickland
claim, whether “there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result . . . would have been different,”
466 U. S., at 694. A de novo examination of this element shows that
counsel’s lapse was prejudicial. Had they looked at the prior convic-
tion file, they would have found a range of mitigation leads that no
other source had opened up. The imprisonment records contained in
that file pictured Rompilla’s childhood and mental health very differ-
ently from anything they had seen or heard. The accumulated en-
tries—e.g., that Rompilla had a series of incarcerations, often related
to alcohol; and test results that would have pointed the defense’s
mental health experts to schizophrenia and other disorders—would
have destroyed the benign conception of Rompilla’s upbringing and
mental capacity counsel had formed from talking to five family mem-
bers and from the mental health experts’ reports. Further effort
would presumably have unearthed much of the material postconvic-
tion counsel found. Alerted to the school, medical, and prison records
that trial counsel never saw, postconviction counsel found red flags
pointing up a need for further testing, which revealed organic brain
damage and childhood problems probably related to fetal alcohol syn-
drome. These findings in turn would probably have prompted a look
at easily available school and juvenile records, which showed addi-
tional problems, including evidence of a highly abusive home life.
The evidence adds up to a mitigation case bearing no relation to the
few naked pleas for mercy actually put before the jury. The undis-
covered “mitigating evidence, taken as a whole, ‘might well have in-
fluenced the jury’s appraisal’ of [Rompilla’s] culpability,” Wiggins,
supra, at 538, and the likelihood of a different result had the evidence
gone in is “sufficient to undermine confidence in the outcome” actu-
ally reached at sentencing, Strickland, supra, at 694. Pp. 14–18.
355 F. 3d 233, reversed.
SOUTER, J., delivered the opinion of the Court, in which STEVENS,
4 ROMPILLA v. BEARD
Syllabus
O’CONNOR, GINSBURG, and BREYER, JJ., joined. O’CONNOR, J., filed a
concurring opinion. KENNEDY, J., filed a dissenting opinion, in which
REHNQUIST, C. J., and SCALIA and THOMAS, JJ., joined.
Cite as: 545 U. S. ____ (2005) 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. 04–5462
_________________
RONALD ROMPILLA, PETITIONER v. JEFFREY A.
BEARD, SECRETARY, PENNSYLVANIA
DEPARTMENT OF CORRECTIONS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 20, 2005]
JUSTICE SOUTER delivered the opinion of the Court.
This case calls for specific application of the standard of
reasonable competence required on the part of defense
counsel by the Sixth Amendment. We hold that even
when a capital defendant’s family members and the de-
fendant himself have suggested that no mitigating evi-
dence is available, his lawyer is bound to make reasonable
efforts to obtain and review material that counsel knows
the prosecution will probably rely on as evidence of aggra-
vation at the sentencing phase of trial.
I
On the morning of January 14, 1988, James Scanlon
was discovered dead in a bar he ran in Allentown, Penn-
sylvania, his body having been stabbed repeatedly and set
on fire. Rompilla was indicted for the murder and related
offenses, and the Commonwealth gave notice of intent to
ask for the death penalty. Two public defenders were
assigned to the case.
The jury at the guilt phase of trial found Rompilla guilty
on all counts, and during the ensuing penalty phase, the
2 ROMPILLA v. BEARD
Opinion of the Court
prosecutor sought to prove three aggravating factors to
justify a death sentence: that the murder was committed
in the course of another felony; that the murder was com-
mitted by torture; and that Rompilla had a significant
history of felony convictions indicating the use or threat of
violence. See 42 Pa. Cons. Stat. §§9711(d)(6), (8), (9)
(2002). The Commonwealth presented evidence on all
three aggravators, and the jury found all proven. Rom-
pilla’s evidence in mitigation consisted of relatively brief
testimony: five of his family members argued in effect for
residual doubt, and beseeched the jury for mercy, saying
that they believed Rompilla was innocent and a good man.
Rompilla’s 14-year-old son testified that he loved his
father and would visit him in prison. The jury acknowl-
edged this evidence to the point of finding, as two factors
in mitigation, that Rompilla’s son had testified on his
behalf and that rehabilitation was possible. But the jurors
assigned the greater weight to the aggravating factors,
and sentenced Rompilla to death. The Supreme Court of
Pennsylvania affirmed both conviction and sentence.
Commonwealth v. Rompilla, 539 Pa. 499, 653 A. 2d 626
(1995).
In December 1995, with new lawyers, Rompilla filed
claims under the Pennsylvania Post Conviction Relief Act,
42 Pa. Cons. Stat. §9541 et seq. (2004), including ineffec-
tive assistance by trial counsel in failing to present signifi-
cant mitigating evidence about Rompilla’s childhood,
mental capacity and health, and alcoholism. The postcon-
viction court found that trial counsel had done enough to
investigate the possibilities of a mitigation case, and the
Supreme Court of Pennsylvania affirmed the denial of
relief. Commonwealth v. Rompilla, 554 Pa. 378, 721 A. 2d
786 (1998).
Rompilla then petitioned for a writ of habeas corpus
under 28 U. S. C. §2254 in Federal District Court, raising
claims that included inadequate representation. The
Cite as: 545 U. S. ____ (2005) 3
Opinion of the Court
District Court found that the State Supreme Court had
unreasonably applied Strickland v. Washington, 466 U. S.
668 (1984), as to the penalty phase of the trial, and
granted relief for ineffective assistance of counsel. The
court found that in preparing the mitigation case the de-
fense lawyers had failed to investigate “pretty obvious
signs” that Rompilla had a troubled childhood and suf-
fered from mental illness and alcoholism, and instead had
relied unjustifiably on Rompilla’s own description of an
unexceptional background. Rompilla v. Horn, No.
CIV.A.99–737 (ED Pa., July 11, 2000), App. 1307–1308.
A divided Third Circuit panel reversed. Rompilla v.
Horn, 355 F. 3d 233 (2004). The majority found nothing
unreasonable in the state court’s application of Strickland,
given defense counsel’s efforts to uncover mitigation mate-
rial, which included interviewing Rompilla and certain
family members, as well as consultation with three mental
health experts. Although the majority noted that the
lawyers did not unearth the “useful information” to be
found in Rompilla’s “school, medical, police, and prison
records,” it thought the lawyers were justified in failing to
hunt through these records when their other efforts gave
no reason to believe the search would yield anything
helpful. 355 F. 3d, at 252. The panel thus distinguished
Rompilla’s case from Wiggins v. Smith, 539 U. S. 510
(2003). Whereas Wiggins’s counsel failed to investigate
adequately, to the point even of ignoring the leads their
limited enquiry yielded, the Court of Appeals saw the Rom-
pilla investigation as going far enough to leave counsel with
reason for thinking further efforts would not be a wise use of
the limited resources they had. But Judge Sloviter’s dissent
stressed that trial counsel’s failure to obtain relevant re-
cords on Rompilla’s background was owing to the lawyers’
unreasonable reliance on family members and medical
experts to tell them what records might be useful. The
Third Circuit denied rehearing en banc by a vote of 6 to 5.
4 ROMPILLA v. BEARD
Opinion of the Court
Rompilla v. Horn, 359 F. 3d 310 (2004).
We granted certiorari, 542 U. S. —- (2004), and now
reverse.1
II
Under 28 U. S. C. §2254, Rompilla’s entitlement to
federal habeas relief turns on showing that the state
court’s resolution of his claim of ineffective assistance of
counsel under Strickland v. Washington, supra, “resulted
in a decision that was contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,”
§2254(d)(1). An “unreasonable application” occurs when a
state court “ ‘identifies the correct governing legal princi-
ple from this Court’s decisions but unreasonably applies
that principle to the facts’ of petitioner’s case.” Wiggins v.
Smith, supra, at 520 (quoting Williams v. Taylor, 529
U. S. 362, 413 (2000) (opinion of O’CONNOR, J.)). That is,
“the state court’s decision must have been [not only] incor-
rect or erroneous [but] objectively unreasonable.” Wiggins
v. Smith, supra, at 520–521 (quoting Williams v. Taylor,
supra, at 409 (internal quotation marks omitted)).
Ineffective assistance under Strickland is deficient
performance by counsel resulting in prejudice, 466 U. S.,
at 687, with performance being measured against an
“objective standard of reasonableness,” id., at 688, “under
prevailing professional norms.” Ibid.; Wiggins v. Smith,
supra, at 521. This case, like some others recently, looks
to norms of adequate investigation in preparing for the
sentencing phase of a capital trial, when defense counsel’s
job is to counter the State’s evidence of aggravated culpa-
bility with evidence in mitigation. In judging the defense’s
——————
1 Becausewe reverse on ineffective-assistance grounds, we have no
occasion to consider Rompilla’s other claim, under Simmons v. South
Carolina, 512 U. S. 154 (1994). It is enough to say that any retrial of
Rompilla’s sentence will be governed by the Simmons line of cases.
Cite as: 545 U. S. ____ (2005) 5
Opinion of the Court
investigation, as in applying Strickland generally, hind-
sight is discounted by pegging adequacy to “counsel’s
perspective at the time” investigative decisions are made,
466 U. S., at 689, and by giving a “heavy measure of defer-
ence to counsel’s judgments,” id., at 691.
A
A standard of reasonableness applied as if one stood in
counsel’s shoes spawns few hard-edged rules, and the
merits of a number of counsel’s choices in this case are
subject to fair debate. This is not a case in which defense
counsel simply ignored their obligation to find mitigating
evidence, and their workload as busy public defenders did
not keep them from making a number of efforts, including
interviews with Rompilla and some members of his family,
and examinations of reports by three mental health ex-
perts who gave opinions at the guilt phase. None of the
sources proved particularly helpful.
Rompilla’s own contributions to any mitigation case
were minimal. Counsel found him uninterested in help-
ing, as on their visit to his prison to go over a proposed
mitigation strategy, when Rompilla told them he was
“bored being here listening” and returned to his cell. App.
668. To questions about childhood and schooling, his
answers indicated they had been normal, ibid., save for
quitting school in the ninth grade, id., at 677. There were
times when Rompilla was even actively obstructive by
sending counsel off on false leads. Id., at 663–664.
The lawyers also spoke with five members of Rompilla’s
family (his former wife, two brothers, a sister-in-law, and
his son), id., at 494, and counsel testified that they devel-
oped a good relationship with the family in the course of
their representation. Id., at 669, 729. The state postcon-
viction court found that counsel spoke to the relatives in a
“detailed manner,” attempting to unearth mitigating
information, id., at 264, although the weight of this find-
6 ROMPILLA v. BEARD
Opinion of the Court
ing is qualified by the lawyers’ concession that “the over-
whelming response from the family was that they didn’t
really feel as though they knew him all that well since he
had spent the majority of his adult years and some of his
childhood years in custody,” id., at 495; see also id., at 669.
Defense counsel also said that because the family was
“coming from the position that [Rompilla] was innocent . . .
they weren’t looking for reasons for why he might have
done this.” Id., at 494.
The third and final source tapped for mitigating mate-
rial was the cadre of three mental health witnesses who
were asked to look into Rompilla’s mental state as of the
time of the offense and his competency to stand trial. Id.,
at 473–474, 476, but their reports revealed “nothing use-
ful” to Rompilla’s case, id., at 1358, and the lawyers con-
sequently did not go to any other historical source that
might have cast light on Rompilla’s mental condition.
When new counsel entered the case to raise Rompilla’s
postconviction claims, however, they identified a number
of likely avenues the trial lawyers could fruitfully have
followed in building a mitigation case. School records are
one example, which trial counsel never examined in spite
of the professed unfamiliarity of the several family mem-
bers with Rompilla’s childhood, and despite counsel’s
knowledge that Rompilla left school after the ninth grade.
Id., at 677. Others examples are records of Rompilla’s
juvenile and adult incarcerations, which counsel did not
consult, although they were aware of their client’s crimi-
nal record. And while counsel knew from police reports
provided in pretrial discovery that Rompilla had been
drinking heavily at the time of his offense, Lodging to App.
111–120 (hereinafter Lodging), and although one of the
mental health experts reported that Rompilla’s troubles
with alcohol merited further investigation, App. 723–724,
counsel did not look for evidence of a history of dependence
on alcohol that might have extenuating significance.
Cite as: 545 U. S. ____ (2005) 7
Opinion of the Court
Before us, trial counsel and the Commonwealth respond
to these unexplored possibilities by emphasizing this
Court’s recognition that the duty to investigate does not
force defense lawyers to scour the globe on the off-chance
something will turn up; reasonably diligent counsel may
draw a line when they have good reason to think further
investigation would be a waste. See Wiggins v. Smith, 539
U. S., at 525 (further investigation excusable where coun-
sel has evidence suggesting it would be fruitless); Strick-
land v. Washington, supra, at 699 (counsel could “rea-
sonably surmise . . . that character and psychological
evidence would be of little help”); Burger v. Kemp, 483
U. S. 776, 794 (1987) (limited investigation reasonable
because all witnesses brought to counsel’s attention pro-
vided predominantly harmful information). The Com-
monwealth argues that the information trial counsel
gathered from Rompilla and the other sources gave them
sound reason to think it would have been pointless to
spend time and money on the additional investigation
espoused by postconviction counsel, and we can say that
there is room for debate about trial counsel’s obligation to
follow at least some of those potential lines of enquiry.
There is no need to say more, however, for a further point
is clear and dispositive: the lawyers were deficient
in failing to examine the court file on Rompilla’s prior
conviction.
B
There is an obvious reason that the failure to examine
Rompilla’s prior conviction file fell below the level of rea-
sonable performance. Counsel knew that the Common-
wealth intended to seek the death penalty by proving
Rompilla had a significant history of felony convictions
indicating the use or threat of violence, an aggravator
under state law. Counsel further knew that the Com-
monwealth would attempt to establish this history by
8 ROMPILLA v. BEARD
Opinion of the Court
proving Rompilla’s prior conviction for rape and assault,
and would emphasize his violent character by introducing
a transcript of the rape victim’s testimony given in that
earlier trial. App. 665–666. There is no question that
defense counsel were on notice, since they acknowledge
that a “plea letter,” written by one of them four days prior
to trial, mentioned the prosecutor’s plans. Ibid. It is also
undisputed that the prior conviction file was a public
document, readily available for the asking at the very
courthouse where Rompilla was to be tried.
It is clear, however, that defense counsel did not look at
any part of that file, including the transcript, until warned
by the prosecution a second time. In a colloquy the day
before the evidentiary sentencing phase began, the prose-
cutor again said he would present the transcript of the
victim’s testimony to establish the prior conviction.
“[DEFENSE]: I would also like to review whatever
he’s going to read from.
“[PROSECUTOR]: Well, I told you that I was going
to do this a long time ago. You certainly had the op-
portunity to review the Transcript.
. . . . .
“[DEFENSE]: Well, I would like a copy of this.
“[PROSECUTOR]: I don’t think that’s my duty to
provide you with a copy. That’s a public record, and
you could have gotten that Transcript at any time
prior to this Trial. I made one copy for myself, and I’d
like to have it now.
“[DEFENSE]: Well, Judge, then I’m going to need
to get a copy of it. I’m going to need to get a copy of
it.”2 Id., at 32, 36.
——————
2A similar exchange took place at the same hearing about the in-
dictment in the record of Rompilla’s prior conviction.
“[DEFENSE]: Well, I think we need to look at the Indictment then.
If he’s charged with committing the Burglary-
Cite as: 545 U. S. ____ (2005) 9
Opinion of the Court
At the postconviction evidentiary hearing, Rompilla’s
lawyer confirmed that she had not seen the transcript
before the hearing in which this exchange took place, id.,
at 506–507, and crucially, even after obtaining the tran-
script of the victim’s testimony on the eve of the sentenc-
ing hearing, counsel apparently examined none of the
other material in the file.3
With every effort to view the facts as a defense lawyer
would have done at the time, it is difficult to see how
counsel could have failed to realize that without examin-
ing the readily available file they were seriously compro-
mising their opportunity to respond to a case for aggrava-
tion. The prosecution was going to use the dramatic facts
of a similar prior offense, and Rompilla’s counsel had a
duty to make all reasonable efforts to learn what they
could about the offense. Reasonable efforts certainly
——————
. . . . .
“[PROSECUTOR] I had a copy, and I forgot to bring it up with me.
“[COURT]: All right.
“[DEFENSE]: Can we see it, Judge?
“[COURT]: Sure, he’s going to get it.
“[PROSECUTOR]: It’s a public record . . . you could have gone over
[sic] lunch and looked at it just like I did.” App. 28.
3 Defense counsel also stated at the postconviction hearing that she
believed at some point she had looked at some files regarding that prior
conviction and that she was familiar with the particulars of the case. But
she could not recall what the files were or how she obtained them. Id., at
507–508. In addition, counsel apparently obtained Rompilla’s rap sheet,
which showed that he had prior convictions, including the one for rape.
Id., at 664. At oral argument, the United States, arguing as an amicus in
support of Pennsylvania, maintained that counsel had fulfilled their
obligations to investigate the prior conviction by obtaining the rap
sheet. Tr. of Oral Arg. 44–45. But this cannot be so. The rap sheet
would reveal only the charges and dispositions, being no reasonable
substitute for the prior conviction file. The dissent nonetheless con-
cludes on this evidence that counsel knew all they needed to know
about the prior conviction. Post, at 6 (opinion of KENNEDY, J.). Given
counsel’s limited investigation into the prior conviction, the dissent’s
parsing of the record seems generous to a fault.
10 ROMPILLA v. BEARD
Opinion of the Court
included obtaining the Commonwealth’s own readily
available file on the prior conviction to learn what the
Commonwealth knew about the crime, to discover any
mitigating evidence the Commonwealth would downplay
and to anticipate the details of the aggravating evidence
the Commonwealth would emphasize.4 Without making
reasonable efforts to review the file, defense counsel could
have had no hope of knowing whether the prosecution was
quoting selectively from the transcript, or whether there
were circumstances extenuating the behavior described by
the victim. The obligation to get the file was particularly
pressing here owing to the similarity of the violent prior
offense to the crime charged and Rompilla’s sentencing
strategy stressing residual doubt. Without making efforts
to learn the details and rebut the relevance of the earlier
crime, a convincing argument for residual doubt was
certainly beyond any hope.5
——————
4 The ease with which counsel could examine the entire file makes
application of this standard correspondingly easy. Suffice it to say that
when the State has warehouses of records available in a particular
case, review of counsel’s performance will call for greater subtlety.
5 This requirement answers the dissent’s and the United States’s con-
tention that defense counsel provided effective assistance with regard to
the prior conviction file because it argued that it would be prejudicial to
allow the introduction of the transcript. Post, at 10; Brief for United
States as Amicus Curiae 29. Counsel’s obligation to rebut aggravating
evidence extended beyond arguing it ought to be kept out. As noted
above, supra, this page, counsel had no way of knowing the context of
the transcript and the details of the prior conviction without looking at
the file as a whole. Counsel could not effectively rebut the aggravation
case or build their own case in mitigation.
Nor is there any merit to the United States’s contention that further
enquiry into the prior conviction file would have been fruitless because
the sole reason the transcript was being introduced was to establish the
aggravator that Rompilla had committed prior violent felonies. Brief
for United States as Amicus Curiae 30. The Government maintains
that because the transcript would incontrovertibly establish the fact
that Rompilla had committed a violent felony, the defense could not
have expected to rebut that aggravator through further investigation of
Cite as: 545 U. S. ____ (2005) 11
Opinion of the Court
The notion that defense counsel must obtain informa-
tion that the State has and will use against the defendant
is not simply a matter of common sense. As the District
Court points out, the American Bar Association Standards
for Criminal Justice in circulation at the time of Rom-
pilla’s trial describes the obligation in terms no one could
misunderstand in the circumstances of a case like this
one:
“It is the duty of the lawyer to conduct a prompt in-
vestigation of the circumstances of the case and to ex-
plore all avenues leading to facts relevant to the mer-
its of the case and the penalty in the event of
conviction. The investigation should always include
efforts to secure information in the possession of the
prosecution and law enforcement authorities. The
duty to investigate exists regardless of the accused’s
admissions or statements to the lawyer of facts consti-
tuting guilt or the accused’s stated desire to plead
guilty.” 1 ABA Standards for Criminal Justice 4–4.1
(2d ed. 1982 Supp.).6
——————
the file. That analysis ignores the fact that the sentencing jury was
required to weigh aggravating factors against mitigating factors. We
may reasonably assume that the jury could give more relative weight to
a prior violent felony aggravator where defense counsel missed an
opportunity to argue that circumstances of the prior conviction were
less damning than the prosecution’s characterization of the conviction
would suggest.
6 The new version of the Standards now reads that any “investigation
should include efforts to secure information in the possession of the
prosecution and law enforcement authorities” whereas the version in
effect at the time of Rompilla’s trial provided that the “investigation”
should always include such efforts. ABA Standards for Criminal
Justice, Prosecution Function and Defense Function 4–4.1, (3d ed.
1993). We see no material difference between these two phrasings, and
in any case cannot think of any situation in which defense counsel
should not make some effort to learn the information in the possession
of the prosecution and law enforcement authorities.
12 ROMPILLA v. BEARD
Opinion of the Court
“[W]e long have referred [to these ABA Standards] as
‘guides to determining what is reasonable.’ ” Wiggins v.
Smith, 539 U. S., at 524 (quoting Strickland v. Washing-
ton, 466 U. S., at 688), and the Commonwealth has come
up with no reason to think the quoted standard imperti-
nent here.7
——————
7 In 1989, shortly after Rompilla’s trial, the ABA promulgated a set of
guidelines specifically devoted to setting forth the obligations of defense
counsel in death penalty cases. ABA Guidelines for the Appointment
and Performance of Counsel in Death Penalty Cases (1989) (hereinafter
ABA Guidelines or Guideline). Those Guidelines applied the clear
requirements for investigation set forth in the earlier Standards to
death penalty cases and imposed a similarly forceful directive: “Counsel
should make efforts to secure information in the possession of the
prosecution or law enforcement authorities, including police reports.”
Guideline 11.4.1.D.4. When the United States argues that Rompilla’s
defense counsel complied with these Guidelines, it focuses its attentions
on a different Guideline, 11.4.1.D.2. Brief for United States as Amicus
Curiae 20–21. Guideline 11.4.1.D.2 concerns practices for working with
the defendant and potential witnesses, and the United States contends
that it imposes no requirement to obtain any one particular type of
record or information. Ibid. But this argument ignores the subsequent
Guideline quoted above, which is in fact reprinted in the appendix to
the United States’s brief, that requires counsel to “ ‘make efforts to
secure information in the possession of the prosecution or law enforce-
ment authorities.’ ” App. to id., at 4a.
Later, and current, ABA Guidelines relating to death penalty defense
are even more explicit:
“Counsel must . . . investigate prior convictions . . . that could be used
as aggravating circumstances or otherwise come into evidence. If a
prior conviction is legally flawed, counsel should seek to have it set
aside. Counsel may also find extenuating circumstances that can be
offered to lessen the weight of a conviction.” ABA Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty
Cases §10.7, comment. (rev. ed. 2003), reprinted in 31 Hofstra L. Rev.
913, 1027 (2003) (footnotes omitted).
Our decision in Wiggins made precisely the same point in citing the
earlier 1989 ABA Guidelines. 539 U. S., at 524 (“The ABA Guidelines
provide that investigations into mitigating evidence ‘should comprise
efforts to discover all reasonably available mitigating evidence and
evidence to rebut any aggravating evidence that may be introduced by the
Cite as: 545 U. S. ____ (2005) 13
Opinion of the Court
At argument the most that Pennsylvania (and the
United States as amicus) could say was that defense
counsel’s efforts to find mitigating evidence by other
means excused them from looking at the prior conviction
file. Tr. of Oral Arg. 37–39, 45–46. And that, of course, is
the position taken by the state postconviction courts.
Without specifically discussing the prior case file, they too
found that defense counsel’s efforts were enough to free
them from any obligation to enquire further. Common-
wealth v. Rompilla, No. 682/1988 (Pa. Ct. Common Pleas,
Aug. 23, 1996), App. 263–264, 272–273.
We think this conclusion of the state court fails to an-
swer the considerations we have set out, to the point of
being an objectively unreasonable conclusion. It flouts
prudence to deny that a defense lawyer should try to look
at a file he knows the prosecution will cull for aggravating
evidence, let alone when the file is sitting in the trial
courthouse, open for the asking. No reasonable lawyer
would forgo examination of the file thinking he could do as
well by asking the defendant or family relations whether
they recalled anything helpful or damaging in the prior
victim’s testimony. Nor would a reasonable lawyer com-
pare possible searches for school reports, juvenile records,
and evidence of drinking habits to the opportunity to take
a look at a file disclosing what the prosecutor knows and
even plans to read from in his case. Questioning a few
more family members and searching for old records can
promise less than looking for a needle in a haystack, when
a lawyer truly has reason to doubt there is any needle
there. E.g., Strickland, 466 U. S., at 699. But looking at a
file the prosecution says it will use is a sure bet: whatever
may be in that file is going to tell defense counsel some-
——————
prosecutor’ ” (quoting 1989 ABA Guideline 11.4.1.C (emphasis in origi-
nal))). For reasons given in the text, no such further investigation was
needed to point to the reasonable duty to look in the file in question here.
14 ROMPILLA v. BEARD
Opinion of the Court
thing about what the prosecution can produce.
The dissent thinks this analysis creates a “rigid, per se”
rule that requires defense counsel to do a complete review
of the file on any prior conviction introduced, post, at 9
(opinion of KENNEDY, J.), but that is a mistake. Counsel
fell short here because they failed to make reasonable
efforts to review the prior conviction file, despite knowing
that the prosecution intended to introduce Rompilla’s prior
conviction not merely by entering a notice of conviction
into evidence but by quoting damaging testimony of the
rape victim in that case. The unreasonableness of at-
tempting no more than they did was heightened by the
easy availability of the file at the trial courthouse, and the
great risk that testimony about a similar violent crime
would hamstring counsel’s chosen defense of residual
doubt. It is owing to these circumstances that the state
courts were objectively unreasonable in concluding that
counsel could reasonably decline to make any effort to
review the file. Other situations, where a defense lawyer
is not charged with knowledge that the prosecutor intends
to use a prior conviction in this way, might well warrant a
different assessment.
C
Since counsel’s failure to look at the file fell below the
line of reasonable practice, there is a further question
about prejudice, that is, whether “there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.”
466 U. S., at 694. Because the state courts found the
representation adequate, they never reached the issue of
prejudice, App. 265, 272–273, and so we examine this
element of the Strickland claim de novo, Wiggins v. Smith,
supra, at 534, and agree with the dissent in the Court of
Appeals. We think Rompilla has shown beyond any doubt
that counsel’s lapse was prejudicial; Pennsylvania, indeed,
Cite as: 545 U. S. ____ (2005) 15
Opinion of the Court
does not even contest the claim of prejudice.
If the defense lawyers had looked in the file on Rom-
pilla’s prior conviction, it is uncontested they would have
found a range of mitigation leads that no other source had
opened up. In the same file with the transcript of the
prior trial were the records of Rompilla’s imprisonment on
the earlier conviction, App. 508, 571, 631, which defense
counsel testified she had never seen, id., at 508. The
prison files pictured Rompilla’s childhood and mental
health very differently from anything defense counsel had
seen or heard. An evaluation by a corrections counselor
states that Rompilla was “reared in the slum environment
of Allentown, Pa. vicinity. He early came to the attention
of juvenile authorities, quit school at 16, [and] started a
series of incarcerations in and out Penna. often of assaul-
tive nature and commonly related to over-indulgence in
alcoholic beverages.” Lodging 40. The same file discloses
test results that the defense’s mental health experts would
have viewed as pointing to schizophrenia and other disor-
ders, and test scores showing a third grade level of cogni-
tion after nine years of schooling. Id., at 32–35.8
——————
8 The dissent would ignore the opportunity to find this evidence on
the ground that its discovery (and the consequent analysis of prejudice)
“rests on serendipity,” post, at 10. But once counsel had an obligation
to examine the file, counsel had to make reasonable efforts to learn its
contents; and once having done so, they could not reasonably have
ignored mitigation evidence or red flags simply because they were
unexpected. The dissent, however, assumes that counsel could rea-
sonably decline even to read what was in the file, see post, at 12 (if
counsel had reviewed the case file for mitigating evidence, “[t]here
would have been no reason for counsel to read, or even to skim, this
obscure document”). While that could well have been true if counsel
had been faced with a large amount of possible evidence, see n.4, supra,
there is no indication that examining the case file in question here
would have required significant labor. Indeed, Pennsylvania has
conspicuously failed to contest Rompilla’s claim that because the
information was located in the prior conviction file, reasonable efforts
would have led counsel to this information.
16 ROMPILLA v. BEARD
Opinion of the Court
The accumulated entries would have destroyed the
benign conception of Rompilla’s upbringing and mental
capacity defense counsel had formed from talking with
Rompilla himself and some of his family members, and
from the reports of the mental health experts. With this
information, counsel would have become skeptical of the
impression given by the five family members and would
unquestionably have gone further to build a mitigation
case. Further effort would presumably have unearthed
much of the material postconviction counsel found, includ-
ing testimony from several members of Rompilla’s family,
whom trial counsel did not interview. Judge Sloviter
summarized this evidence:
“Rompilla’s parents were both severe alcoholics who
drank constantly. His mother drank during her preg-
nancy with Rompilla, and he and his brothers eventu-
ally developed serious drinking problems. His father,
who had a vicious temper, frequently beat Rompilla’s
mother, leaving her bruised and black-eyed, and
bragged about his cheating on her. His parents
fought violently, and on at least one occasion his
mother stabbed his father. He was abused by his fa-
ther who beat him when he was young with his hands,
fists, leather straps, belts and sticks. All of the chil-
dren lived in terror. There were no expressions of pa-
rental love, affection or approval. Instead, he was
subjected to yelling and verbal abuse. His father
locked Rompilla and his brother Richard in a small
wire mesh dog pen that was filthy and excrement
filled. He had an isolated background, and was not al-
lowed to visit other children or to speak to anyone on
the phone. They had no indoor plumbing in the
house, he slept in the attic with no heat, and the chil-
dren were not given clothes and attended school in
rags.” 355 F. 3d, at 279 (citations omitted) (dissenting
Cite as: 545 U. S. ____ (2005) 17
Opinion of the Court
opinion).
The jury never heard any of this and neither did the
mental health experts who examined Rompilla before
trial. While they found “nothing helpful to [Rompilla’s]
case,” Rompilla, 544 Pa., at 385, 721 A. 2d, at 790, their
postconviction counterparts, alerted by information from
school, medical, and prison records that trial counsel never
saw, found plenty of “ ‘red flags’ ” pointing up a need to test
further. 355 F. 3d, at 279 (Sloviter, J., dissenting). When
they tested, they found that Rompilla “suffers from organic
brain damage, an extreme mental disturbance significantly
impairing several of his cognitive functions.” Ibid. They also
said that “Rompilla’s problems relate back to his childhood,
and were likely caused by fetal alcohol syndrome [and that]
Rompilla’s capacity to appreciate the criminality of his
conduct or to conform his conduct to the law was substan-
tially impaired at the time of the offense.” Id., at 280
(Sloviter, J., dissenting).
These findings in turn would probably have prompted a
look at school and juvenile records, all of them easy to get,
showing, for example, that when Rompilla was 16 his
mother “was missing from home frequently for a period of
one or several weeks at a time.” Lodging 44. The same
report noted that his mother “has been reported . . . fre-
quently under the influence of alcoholic beverages, with
the result that the children have always been poorly kept
and on the filthy side which was also the condition of the
home at all times.” Ibid. School records showed Rom-
pilla’s IQ was in the mentally retarded range. Id., at 11,
13, 15.
This evidence adds up to a mitigation case that bears no
relation to the few naked pleas for mercy actually put
before the jury, and although we suppose it is possible that
a jury could have heard it all and still have decided on the
death penalty, that is not the test. It goes without saying
18 ROMPILLA v. BEARD
Opinion of the Court
that the undiscovered “mitigating evidence, taken as a
whole, ‘might well have influenced the jury’s appraisal’ of
[Rompilla’s] culpability,” Wiggins, 539 U. S., at 538 (quot-
ing Williams v. Taylor, 529 U. S., at 398), and the likeli-
hood of a different result if the evidence had gone in is
“sufficient to undermine confidence in the outcome” actu-
ally reached at sentencing, Strickland, 466 U. S., at 694.
The judgment of the Third Circuit is reversed, and
Pennsylvania must either retry the case on penalty or
stipulate to a life sentence.
It is so ordered.
Cite as: 545 U. S. ____ (2005) 1
O’CONNOR, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 04–5462
_________________
RONALD ROMPILLA, PETITIONER v. JEFFREY A.
BEARD, SECRETARY, PENNSYLVANIA
DEPARTMENT OF CORRECTIONS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 20, 2005]
JUSTICE O’CONNOR, concurring.
I write separately to put to rest one concern. The dis-
sent worries that the Court’s opinion “imposes on defense
counsel a rigid requirement to review all documents in
what it calls the ‘case file’ of any prior conviction that the
prosecution might rely on at trial.” Post, at 1 (opinion of
KENNEDY, J.). But the Court’s opinion imposes no such
rule. See ante, at 14. Rather, today’s decision simply
applies our longstanding case-by-case approach to deter-
mining whether an attorney’s performance was unconsti-
tutionally deficient under Strickland v. Washington, 466
U. S. 668 (1984). Trial counsel’s performance in Rompilla’s
case falls short under that standard, because the attor-
neys’ behavior was not “reasonable considering all the
circumstances.” Id., at 688. In particular, there were
three circumstances which made the attorneys’ failure to
examine Rompilla’s prior conviction file unreasonable.
First, Rompilla’s attorneys knew that their client’s prior
conviction would be at the very heart of the prosecution’s
case. The prior conviction went not to a collateral matter,
but rather to one of the aggravating circumstances making
Rompilla eligible for the death penalty. The prosecutors
intended not merely to mention the fact of prior convic-
tion, but to read testimony about the details of the crime.
2 ROMPILLA v. BEARD
O’CONNOR, J., concurring
That crime, besides being quite violent in its own right,
was very similar to the murder for which Rompilla was on
trial, and Rompilla had committed the murder at issue a
mere three months after his release from prison on the
earlier conviction. In other words, the prosecutor clearly
planned to use details of the prior crime as powerful evi-
dence that Rompilla was a dangerous man for whom the
death penalty would be both appropriate punishment and
a necessary means of incapacitation. Cf. App. 165–166
(prosecutor’s penalty-phase argument). This was evidence
the defense should have been prepared to meet: A reason-
able defense lawyer would have attached a high impor-
tance to obtaining the record of the prior trial, in order to
anticipate and find ways of deflecting the prosecutor’s
aggravation argument.
Second, the prosecutor’s planned use of the prior convic-
tion threatened to eviscerate one of the defense’s primary
mitigation arguments. Rompilla was convicted on the
basis of strong circumstantial evidence. His lawyers
structured the entire mitigation argument around the
hope of convincing the jury that residual doubt about
Rompilla’s guilt made it inappropriate to impose the death
penalty. In announcing an intention to introduce testi-
mony about Rompilla’s similar prior offense, the prosecu-
tor put Rompilla’s attorneys on notice that the prospective
defense on mitigation likely would be ineffective and
counterproductive. The similarities between the two
crimes, combined with the timing and the already strong
circumstantial evidence, raised a strong likelihood that
the jury would reject Rompilla’s residual doubt argument.
Rompilla’s attorneys’ reliance on this transparently weak
argument risked damaging their credibility. Such a sce-
nario called for further investigation, to determine
whether circumstances of the prior case gave any hope of
saving the residual doubt argument, or whether the best
strategy instead would be to jettison that argument so as
Cite as: 545 U. S. ____ (2005) 3
O’CONNOR, J., concurring
to focus on other, more promising issues. Cf. Yarborough
v. Gentry, 540 U. S. 1, 7 (2003) (per curiam); Bell v. Cone,
535 U. S. 685, 700 (2002) (noting that sound tactical judg-
ment may sometimes call for omitting certain defense evi-
dence or arguments).
Third, the attorneys’ decision not to obtain Rompilla’s
prior conviction file was not the result of an informed
tactical decision about how the lawyers’ time would best
be spent. Although Rompilla’s attorneys had ample warn-
ing that the details of Rompilla’s prior conviction would be
critical to their case, their failure to obtain that file would
not necessarily have been deficient if it had resulted from
the lawyers’ careful exercise of judgment about how best
to marshal their time and serve their client. But Rom-
pilla’s attorneys did not ignore the prior case file in order
to spend their time on other crucial leads. They did not
determine that the file was so inaccessible or so large that
examining it would necessarily divert them from other
trial-preparation tasks they thought more promising.
They did not learn at the 11th hour about the prosecu-
tion’s intent to use the prior conviction, when it was too
late for them to change plans. Rather, their failure to
obtain the crucial file “was the result of inattention, not
reasoned strategic judgment.” Wiggins v. Smith, 539 U. S.
510, 534 (2003). As a result, their conduct fell below con-
stitutionally required standards. See id., at 533
(“ ‘[S]trategic choices made after less than complete inves-
tigation are reasonable’ only to the extent that ‘reasonable
professional judgments support the limitations on investi-
gation’ ” (quoting Strickland, 466 U. S., at 690–691)).
In the particular circumstances of this case, the attor-
neys’ failure to obtain and review the case file from their
client’s prior conviction did not meet standards of “reason-
able professional judgmen[t].” Id., at 691. Because the
Court’s opinion is consistent with the “ ‘case-by-case exami-
nation of the evidence’ ” called for under our cases, Williams
v. Taylor, 529 U. S. 362, 391 (2000), I join the opinion.
Cite as: 545 U. S. ____ (2005) 1
KENNEDY, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 04–5462
_________________
RONALD ROMPILLA, PETITIONER v. JEFFREY A.
BEARD, SECRETARY, PENNSYLVANIA
DEPARTMENT OF CORRECTIONS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 20, 2005]
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE,
JUSTICE SCALIA, and JUSTICE THOMAS join, dissenting.
Today the Court brands two committed criminal defense
attorneys as ineffective—“outside the wide range of pro-
fessionally competent counsel,” Strickland v. Washington,
466 U. S. 668, 690 (1984)—because they did not look in an
old case file and stumble upon something they had not set
out to find. By implication the Court also labels incompe-
tent the work done by the three mental health profession-
als who examined Ronald Rompilla. To reach this result,
the majority imposes on defense counsel a rigid require-
ment to review all documents in what it calls the “case
file” of any prior conviction that the prosecution might rely
on at trial. The Court’s holding, a mistake under any
standard of review, is all the more troubling because this
case arises under the Antiterrorism and Effective Death
Penalty Act of 1996. In order to grant Rompilla habeas
relief the Court must say, and indeed does say, that the
Pennsylvania Supreme Court was objectively unreason-
able in failing to anticipate today’s new case file rule.
In my respectful submission it is this Court, not the
state court, which is unreasonable. The majority’s holding
has no place in our Sixth Amendment jurisprudence and,
2 ROMPILLA v. BEARD
KENNEDY, J., dissenting
if followed, often will result in less effective counsel by
diverting limited defense resources from other important
tasks in order to satisfy the Court’s new per se rule. Fi-
nally, even if the Court could justify its distortion of
Strickland, Rompilla still would not be entitled to relief.
The Court is able to conclude otherwise only by ignoring
the established principle that it is the defendant, not the
State, who has the burden of demonstrating that he was
prejudiced by any deficiency in his attorneys’ performance.
These are the reasons for my dissent.
I
Under any standard of review the investigation per-
formed by Rompilla’s counsel in preparation for sentencing
was not only adequate but also conscientious.
Rompilla’s attorneys recognized from the outset that
building an effective mitigation case was crucial to helping
their client avoid the death penalty. App. 516, 576. Rom-
pilla stood accused of a brutal crime. In January 1988,
James Scanlon was murdered while he was closing the
Cozy Corner Cafe, a bar he owned in Allentown, Pennsyl-
vania. Scanlon’s body was discovered later the next morn-
ing, lying in a pool of blood. Scanlon had been stabbed
multiple times, including 16 wounds around the neck and
head. Scanlon also had been beaten with a blunt object,
and his face had been gashed, possibly with shards from
broken liquor and beer bottles found at the scene of the
crime. After Scanlon was stabbed to death his body had
been set on fire.
Substantial evidence linked Rompilla to the crime. See
generally Commonwealth v. Rompilla, 539 Pa. 499, 505–
506, 653 A. 2d 626, 629–630 (1995). He was at the Cozy
Corner Cafe near closing time on the night of the murder
and was observed going to the bathroom approximately 10
times during a 1-hour period. A window in that bathroom,
the police later determined, was the probable point of
Cite as: 545 U. S. ____ (2005) 3
KENNEDY, J., dissenting
entry used by Scanlon’s assailant. A pair of Rompilla’s
sneakers seized by the police matched a bloody footprint
found near the victim’s body, and blood on the sneakers
matched the victim’s blood type. Rompilla’s fingerprint
was found on one of the two knives used to commit the
murder. Sometime after leaving the bar on the night of
the murder, Rompilla checked into a nearby motel under a
false name. Although he told the police he left the bar
with only two dollars, Rompilla had paid cash for the room
and flashed a large amount of money to the desk clerks.
The victim’s wallet was discovered in the bushes just
outside of Rompilla’s motel room. When the police ques-
tioned Rompilla about the murder, his version of events
was inconsistent with the testimony of other witnesses.
Rompilla was represented at trial by Fredrick Charles,
the chief public defender for Lehigh County at the time,
and Maria Dantos, an assistant public defender. Charles
and Dantos were assisted by John Whispell, an investiga-
tor in the public defender’s office. Rompilla’s defense team
sought to develop mitigating evidence from various
sources. First, they questioned Rompilla extensively
about his upbringing and background. App. 668–669. To
make these conversations more productive they provided
Rompilla with a list of the mitigating circumstances rec-
ognized by Pennsylvania law. Id., at 657. Cf. Strickland,
466 U. S., at 691 (“[W]hen a defendant has given counsel
reason to believe that pursuing certain investigations would
be fruitless or even harmful, counsel’s failure to pursue
those investigations may not later be challenged as unrea-
sonable”). Second, Charles and Dantos arranged for Rom-
pilla to be examined by three experienced mental health
professionals, experts described by Charles as “the best
forensic psychiatrist around here, [another] tremendous
psychiatrist and a fabulous forensic psychologist.” App.
672. Finally, Rompilla’s attorneys questioned his family
extensively in search of any information that might help
4 ROMPILLA v. BEARD
KENNEDY, J., dissenting
spare Rompilla the death penalty. Id., at 493–494, 557–
558, 669–670, 729–730. Dantos, in particular, developed a
“very close” relationship with Rompilla’s family, which
was a “constant source of information.” Id., at 557, 729.
Indeed, after trial Rompilla’s wife sent Dantos a letter
expressing her gratitude. Id., at 733. The letter referred
to Charles and Dantos as “superb human beings” who
“fought and felt everything [Rompilla’s] family did.” Ibid.
The Court acknowledges the steps taken by Rompilla’s
attorneys in preparation for sentencing but finds fault
nonetheless. “[T]he lawyers were deficient,” the Court
says, “in failing to examine the court file on Rompilla’s
prior conviction.” Ante, at 7.
The prior conviction the Court refers to is Rompilla’s
1974 conviction for rape, burglary, and theft. See Com-
monwealth v. Rompilla, 250 Pa. Super. 139, 378 A. 2d 865
(1977). Before the sentencing phase of the capital case,
the Commonwealth informed Rompilla’s attorneys that it
intended to use these prior crimes to prove one of the
statutory aggravating circumstances—namely, that Rom-
pilla had a “significant history of felony convictions involv-
ing the use or threat of violence to the person.” 42 Pa.
Cons. Stat. §9711(d)(9) (2002). Rompilla’s attorneys were
on notice of the Commonwealth’s plans, and from this the
Court concludes that effective assistance of counsel re-
quired a review of the prior conviction case file.
A per se rule requiring counsel in every case to review
the records of prior convictions used by the State as ag-
gravation evidence is a radical departure from Strickland
and its progeny. We have warned in the past against the
creation of “specific guidelines” or “checklist[s] for judicial
evaluation of attorney performance.” 466 U. S., at 688.
See also Wiggins v. Smith, 539 U. S. 510, 521 (2003); Roe v.
Flores-Ortega, 528 U. S. 470, 477 (2000). “No particular set
of detailed rules for counsel’s conduct can satisfactorily take
account of the variety of circumstances faced by defense
Cite as: 545 U. S. ____ (2005) 5
KENNEDY, J., dissenting
counsel or the range of legitimate decisions regarding how
best to represent a criminal defendant. Any such set of
rules would interfere with the constitutionally protected
independence of counsel and restrict the wide latitude
counsel must have in making tactical decisions. Indeed,
the existence of detailed guidelines for representation
could distract from the overriding mission of vigorous
advocacy of the defendant’s cause.” Strickland, 466 U. S.,
at 688–689 (citations omitted). For this reason, while we
have referred to the ABA Standards for Criminal Justice
as a useful point of reference, we have been careful to say
these standards “are only guides” and do not establish the
constitutional baseline for effective assistance of counsel.
Ibid. The majority, by parsing the guidelines as if they
were binding statutory text, ignores this admonition.
The majority’s analysis contains barely a mention of
Strickland and makes little effort to square today’s hold-
ing with our traditional reluctance to impose rigid re-
quirements on defense counsel. While the Court disclaims
any intention to create a bright-line rule, ante, at 14; see
also ante, at 1 (O’CONNOR, J., concurring), this affords
little comfort. The Court’s opinion makes clear it has
imposed on counsel a broad obligation to review prior
conviction case files where those priors are used in aggra-
vation—and to review every document in those files if not
every single page of every document, regardless of the
prosecution’s proposed use for the prior conviction. Infra,
at 8, 12–13. One member of the majority tries to limit the
Court’s new rule by arguing that counsel’s decision here
was “not the result of an informed tactical decision,” ante,
at 3 (O’CONNOR, J., concurring), but the record gives no
support for this notion. The Court also protests that the
exceptional weight Rompilla’s attorneys at sentencing
placed on residual doubt required them to review the prior
conviction file, ante, at 14; ante, at 2–3 (O’CONNOR, J.,
concurring). In fact, residual doubt was not central to
6 ROMPILLA v. BEARD
KENNEDY, J., dissenting
Rompilla’s mitigation case. Rompilla’s family members
did testify at sentencing that they thought he was inno-
cent, but Dantos tried to draw attention away from this
point and instead use the family’s testimony to humanize
Rompilla and ask for mercy. App. 123–149.
The majority also disregards the sound strategic calcu-
lation supporting the decisions made by Rompilla’s attor-
neys. Charles and Dantos were “aware of [Rompilla’s]
priors” and “aware of the circumstances” surrounding
these convictions. Id., at 507. At the postconviction hear-
ing, Dantos also indicated that she had reviewed docu-
ments relating to the prior conviction. Ibid. Based on this
information, as well as their numerous conversations with
Rompilla and his family, Charles and Dantos reasonably
could conclude that reviewing the full prior conviction case
file was not the best allocation of resources.
The majority concludes otherwise only by ignoring
Strickland’s command that “[j]udicial scrutiny of counsel’s
performance must be highly deferential.” 466 U. S., at
689. According to the Court, the Constitution required
nothing less than a full review of the prior conviction case
file by Rompilla’s attorneys. Even with the benefit of
hindsight the Court struggles to explain how the file
would have proved helpful, offering only the vague specu-
lation that Rompilla’s attorneys might have discovered
“circumstances that extenuated the behavior described by
the [rape] victim.” Ante, at 10. What the Court means by
“circumstances” is a mystery. If the Court is referring to
details on Rompilla’s mental fitness or upbringing, surely
Rompilla’s attorneys were more likely to discover such
information through the sources they consulted: Rompilla;
his family; and the three mental health experts that exam-
ined him.
Perhaps the circumstances to which the majority refers
are the details of Rompilla’s 1974 crimes. Charles and
Dantos, however, had enough information about the prior
Cite as: 545 U. S. ____ (2005) 7
KENNEDY, J., dissenting
convictions to determine that reviewing the case file was
not the most effective use of their time. Rompilla had
been convicted of breaking into the residence of Josephine
Macrenna, who lived in an apartment above the bar she
owned. App. 56–89. After Macrenna gave him the bar’s
receipts for the night, Rompilla demanded that she dis-
robe. When she initially resisted, Rompilla slashed her
left breast with a knife. Rompilla then held Macrenna at
knifepoint while he raped her for over an hour. Charles
and Dantos were aware of these circumstances of the prior
conviction and the brutality of the crime. Id., at 507. It
did not take a review of the case file to know that quib-
bling with the Commonwealth’s version of events was a
dubious trial strategy. At sentencing Dantos fought vigor-
ously to prevent the Commonwealth from introducing the
details of the 1974 crimes, id., at 16–40, but once the
transcript was admitted there was nothing that could be
done. Rompilla was unlikely to endear himself to the jury
by arguing that his prior conviction for burglary, theft,
and rape really was not as bad as the Commonwealth was
making it out to be. Recognizing this, Rompilla’s attor-
neys instead devoted their limited time and resources to
developing a mitigation case. That those efforts turned
up little useful evidence does not make the ex ante strate-
gic calculation of Rompilla’s attorneys constitutionally
deficient.
One of the primary reasons this Court has rejected a
checklist approach to effective assistance of counsel is that
each new requirement risks distracting attorneys from the
real objective of providing vigorous advocacy as dictated by
the facts and circumstances in the particular case. The
Court’s rigid requirement that counsel always review the
case files of convictions the prosecution seeks to use at
trial will be just such a distraction. Capital defendants
often have a history of crime. For example, as of 2003, 64
percent of inmates on death row had prior felony convic-
8 ROMPILLA v. BEARD
KENNEDY, J., dissenting
tions. U. S. Dept. of Justice, Bureau of Justice Statistics,
T. Bonczar & T. Snell, Capital Punishment, 2003, p. 8
(Nov. 2004), available at http://www.ojp.usdoj.gov/bjs/pub/
pdf/cp03.pdf (as visited June 16, 2005, and available in
Clerk of Court’s case file). If the prosecution relies on
these convictions as aggravators, the Court has now obli-
gated defense attorneys to review the boxes of documents
that come with them.
In imposing this new rule, the Court states that counsel
in this case could review the “entire file” with “ease.”
Ante, 10, n. 4. There is simply no support in the record for
this assumption. Case files often comprise numerous
boxes. The file may contain, among other things, witness
statements, forensic evidence, arrest reports, grand jury
transcripts, testimony and exhibits relating to any pretrial
suppression hearings, trial transcripts, trial exhibits, post-
trial motions and presentence reports. Full review of even
a single prior conviction case file could be time consuming,
and many of the documents in a file are duplicative or
irrelevant. The Court, recognizing the flaw in its analysis,
suggests that cases involving “warehouses of records” “will
call for greater subtlety.” Ibid. Yet for all we know, this is
such a case. As to the time component, the Court tells us
nothing as to the number of hours counsel had available to
prepare for sentencing or why the decisions they made in
allocating their time were so flawed as to constitute defi-
cient performance under Strickland.
Today’s decision will not increase the resources commit-
ted to capital defense. (At the time of Rompilla’s trial, the
Lehigh County Public Defender’s Office had two investiga-
tors for 2,000 cases. App. 662.) If defense attorneys duti-
fully comply with the Court’s new rule, they will have to
divert resources from other tasks. The net effect of today’s
holding in many cases—instances where trial counsel
reasonably can conclude that reviewing old case files is not
an effective use of time—will be to diminish the quality of
Cite as: 545 U. S. ____ (2005) 9
KENNEDY, J., dissenting
representation. We have “consistently declined to impose
mechanical rules on counsel—even when those rules might
lead to better representation,” Roe v. Flores-Ortega, 528
U. S., at 481; I see no occasion to depart from this approach
in order to impose a requirement that might well lead to
worse representation.
It is quite possible defense attorneys, recognizing the
absurdity of a one-size-fits-all approach to effective advo-
cacy, will simply ignore the Court’s new requirement and
continue to exercise their best judgment about how to
allocate time and resources in preparation for trial. While
this decision would be understandable—and might even be
required by state ethical rules, cf. Pa. Rules of Profes-
sional Conduct, Preamble, and Rule 1.1 (2005)—it leaves
open the possibility that a defendant will seek to over-
turn his conviction based on something in a prior convic-
tion case file that went unreviewed. This elevation of
needle-in-a-haystack claims to the status of constitu-
tional violations will benefit undeserving defendants and
saddle States with the considerable costs of retrial and/or
resentencing.
Today’s decision is wrong under any standard, but the
Court’s error is compounded by the fact that this case
arises on federal habeas. The Pennsylvania Supreme
Court adjudicated Rompilla’s ineffective-assistance-of-
counsel claim on the merits, and this means 28 U. S. C.
§2254(d)’s deferential standard of review applies. Rom-
pilla must show that the Pennsylvania Supreme Court
decision was not just “incorrect or erroneous,” but “objec-
tively unreasonable.” Lockyer v. Andrade, 538 U. S. 63, 75
(2003) (citing Williams v. Taylor, 529 U. S. 362, 410, 412
(2000)). He cannot do so.
The Court pays lipservice to the Williams standard, but
it proceeds to adopt a rigid, per se obligation that binds
counsel in every case and finds little support in our prece-
dents. Indeed, Strickland, the case the Court purports to
10 ROMPILLA v. BEARD
KENNEDY, J., dissenting
apply, is directly to the contrary: “Most important, in
adjudicating a claim of actual ineffectiveness of counsel, a
court should keep in mind that the principles we have
stated do not establish mechanical rules.” 466 U. S., at
696. The Pennsylvania Supreme Court gave careful con-
sideration to Rompilla’s Sixth Amendment claim and
concluded that “counsel reasonably relied upon their
discussions with [Rompilla] and upon their experts to
determine the records needed to evaluate his mental
health and other potential mitigating circumstances.”
Commonwealth v. Rompilla, 554 Pa. 378, 385–386, 721
A. 2d 786, 790 (1998). This decision was far from unrea-
sonable. The Pennsylvania courts can hardly be faulted
for failing to anticipate today’s abrupt departure from
Strickland.
We have reminded federal courts often of the need to
show the requisite level of deference to state-court judg-
ments under 28 U. S. C. §2254(d). Holland v. Jackson, 542
U. S. ___ (2004) (per curiam); Middleton v. McNeil, 541
U. S. 433 (2004) (per curiam); Yarborough v. Gentry, 540
U. S. 1 (2003) (per curiam); Mitchell v. Esparza, 540 U. S.
12 (2003) (per curiam); Early v. Packer, 537 U. S. 3 (2002)
(per curiam); Woodford v. Visciotti, 537 U. S. 19 (2002) (per
curiam). By ignoring our own admonition today, the Court
adopts a do-as-we-say, not-as-we-do approach to federal
habeas review.
II
Even accepting the Court’s misguided analysis of the
adequacy of representation by Rompilla’s trial counsel,
Rompilla is still not entitled to habeas relief. Strickland
assigns the defendant the burden of demonstrating preju-
dice, 466 U. S., at 692. Rompilla cannot satisfy this stan-
dard, and only through a remarkable leap can the Court
conclude otherwise.
The Court’s theory of prejudice rests on serendipity.
Cite as: 545 U. S. ____ (2005) 11
KENNEDY, J., dissenting
Nothing in the old case file diminishes the aggravating
nature of the prior conviction. The only way Rompilla’s
attorneys could have minimized the aggravating force of
the earlier rape conviction was through Dantos’ forceful,
but ultimately unsuccessful, fight to exclude the transcript
at sentencing. The Court, recognizing this problem, in-
stead finds prejudice through chance. If Rompilla’s attor-
neys had reviewed the case file of his prior rape and bur-
glary conviction, the Court says, they would have
stumbled across “a range of mitigation leads.” Ante, at 15.
The range of leads to which the Court refers is in fact a
handful of notations within a single 10-page document.
The document, an “Initial Transfer Petition,” appears to
have been prepared by the Pennsylvania Department of
Corrections after Rompilla’s conviction to facilitate his
initial assignment to one of the Commonwealth’s maxi-
mum-security prisons. Lodging 31–40.
Rompilla cannot demonstrate prejudice because nothing
in the record indicates that Rompilla’s trial attorneys
would have discovered the transfer petition, or the clues
contained in it, if they had reviewed the old file. The
majority faults Rompilla’s attorneys for failing to “learn
what the Commonwealth knew about the crime,” “discover
any mitigating evidence the Commonwealth would down-
play,” and “anticipate the details of the aggravating evi-
dence the Commonwealth would emphasize.” Ante, at 10.
Yet if Rompilla’s attorneys had reviewed the case file with
these purposes in mind, they almost surely would have
attributed no significance to the transfer petition following
only a cursory review. The petition, after all, was pre-
pared by the Bureau of Correction after Rompilla’s convic-
tion for the purpose of determining Rompilla’s initial
prison assignment. It contained no details regarding the
circumstances of the conviction. Reviewing the prior
conviction file for information to counter the Common-
wealth, counsel would have looked first at the transcript of
12 ROMPILLA v. BEARD
KENNEDY, J., dissenting
the trial testimony, and perhaps then to probative exhibits
or forensic evidence. There would have been no reason for
counsel to read, or even to skim, this obscure document.
The Court claims that the transfer petition would have
been discovered because it was in the “same file” with the
transcript, ante, at 15, but this characterization is mis-
leading and the conclusion the Court draws from it is
accordingly fallacious. The record indicates only that the
transfer petition was a part of the same case file, but
Rompilla provides no indication of the size of the file,
which for all we know originally comprised several boxes
of documents. App. 508, 571, 631. By the time of Rom-
pilla’s state postconviction hearing, moreover, the transfer
petition was not stored in any “file” at all—it had been
transferred to microfilm. Id., at 461. The Court implies in
a footnote that prejudice can be presumed because “Penn-
sylvania conspicuously failed to contest Rompilla’s” inevi-
table-discovery argument. Ante, at 15, n. 8. The Com-
monwealth’s strategy is unsurprising given that
discussion of the prior conviction case file takes up only
one paragraph of Rompilla’s argument, Brief for Petitioner
35–36, but it is also irrelevant. It is well established that
Rompilla, not the Commonwealth, has the burden of es-
tablishing prejudice. Strickland, supra, at 694.
The majority thus finds itself in a bind. If counsel’s
alleged deficiency lies in the failure to review the file for
the purposes the majority has identified, then there is no
prejudice: for there is no reasonable probability that re-
view of the file for those purposes would have led counsel
to accord the transfer petition enough attention to discover
the leads the majority cites. Prejudice could only be dem-
onstrated if the deficiency in counsel’s performance were
to be described not as the failure to perform a purposive
review of the file, but instead as the failure to accord
intense scrutiny to every single page of every single docu-
ment in that file, regardless of the purpose motivating the
Cite as: 545 U. S. ____ (2005) 13
KENNEDY, J., dissenting
review. At times, the Court hints that its new obligation
on counsel sweeps this broadly. See ante, at 10, n. 4 (“The
ease with which counsel could examine the entire file
. . .”); ante, at 10–11, n. 5 (“[C]ounsel had no way of know-
ing the context of the transcript and the details of the
prior conviction without looking at the file as a whole”).
Surely, however, the Court would not require defense
counsel to look at every document, no matter how tangen-
tial, included in the prior conviction file on the off chance
that some notation therein might provide a lead, which in
turn might result in the discovery of useful information.
The Constitution does not mandate that defense attorneys
perform busy work. This rigid requirement would divert
counsel’s limited time and energy away from more impor-
tant tasks. In this way, it would ultimately disserve the
rationale underlying the Court’s new rule, which is to
ensure that defense counsel counter the State’s aggrava-
tion case effectively.
If the Court does intend to impose on counsel a constitu-
tional obligation to review every page of every document
included in the case file of a prior conviction, then today’s
holding is even more misguided than I imagined.
* * *
Strickland anticipated the temptation “to second-guess
counsel’s assistance after conviction or adverse sentence”
and cautioned that “[a] fair assessment of attorney per-
formance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the cir-
cumstances of counsel’s challenged conduct, and to evalu-
ate the conduct from counsel’s perspective at the time.”
466 U. S., at 689. Today, the Court succumbs to the very
temptation that Strickland warned against. In the proc-
ess, the majority imposes on defense attorneys a rigid
requirement that finds no support in our cases or common
sense.
I would affirm the judgment of the Court of Appeals.