throbber

`
`1
`
`Cite as: 583 U. S. ____ (2017)
`
`SOTOMAYOR, J., dissenting
`SUPREME COURT OF THE UNITED STATES
`MATTHEW REEVES v. ALABAMA
`ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
`CRIMINAL APPEALS OF ALABAMA
`No. 16–9282. Decided November 13, 2017
` The petition for a writ of certiorari is denied.
` JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
`and JUSTICE KAGAN join, dissenting from the denial of
`certiorari.
` Petitioner Matthew Reeves was convicted by an Ala-
`bama jury of capital murder and sentenced to death. He
`sought postconviction relief in state court based on, as
`relevant here, several claims of ineffective assistance of
`trial and appellate counsel.1 Among those claims, Reeves
`argued that his trial counsel was ineffective for failing to
`hire an expert to evaluate him for intellectual disability,
`despite having sought and obtained funding and an ap-
`pointment order from the state trial court to hire a specific
`neuropsychologist. His postconviction counsel subse-
`quently hired that same neuropsychologist, who concluded
`that Reeves was, in fact, intellectually disabled. Reeves
`contended that this and other evidence could have been
`used during the penalty phase of his trial to establish
`mitigation.
` The Alabama Circuit Court held an evidentiary hearing
`on Reeves’ postconviction petition, at which Reeves pre-
`——————
`1 Reeves also argued in his postconviction petition that he was consti-
`tutionally ineligible for the death penalty pursuant to Atkins v. Vir-
`ginia, 536 U. S. 304 (2002). The Alabama Court of Criminal Appeals
`rejected that claim, and Reeves does not challenge that decision in his
`petition for writ of certiorari. Instead, he maintains that regardless of
`whether he is ineligible for execution under Atkins, he has the right to
`effective assistance in presenting evidence of his intellectual disability
`as mitigation during the penalty phase of his trial. Pet. for Cert. 10,
`n. 2.
`
`

`

`2
`
`
`REEVES v. ALABAMA
`
`SOTOMAYOR, J., dissenting
`sented substantial evidence regarding his intellectual
`disability and his counsel’s performance. He did not,
`however, call his trial or appellate counsel to testify. The
`court denied the petition, and the Alabama Court of Crim-
`inal Appeals affirmed. In doing so, the Court of Criminal
`Appeals explained that a petitioner seeking postconviction
`relief on the basis of ineffective assistance of counsel must
`question his counsel about his reasoning and actions.
`Without considering the extensive record evidence before
`it regarding Reeves’ counsel’s performance or giving any
`explanation as to why that evidence did not prove that his
`counsel’s actions were unreasonable, the Court of Criminal
`Appeals held that Reeves’ failure to call his attorneys to
`testify was fatal to his claims of ineffective assistance of
`counsel. The Alabama Supreme Court denied review.
` There can be no dispute that the imposition of a categor-
`ical rule that counsel must testify in order for a petitioner
`to succeed on a
`federal constitutional
`ineffective-
`assistance-of-counsel claim contravenes our decisions
`requiring an objective inquiry into the adequacy and
`reasonableness of counsel’s performance based on the full
`record before the court. Even Alabama does not defend
`such a rule. Instead, the dispute here is whether the
`Alabama Court of Criminal Appeals in fact imposed such a
`rule in this case. I believe it plainly did so. For that
`reason, I respectfully dissent from the denial of certiorari.
`I
` At his capital trial, Reeves was initially appointed two
`attorneys, Blanchard McLeod, Jr., and Marvin Wiggins, to
`represent him. Before trial, McLeod and Wiggins filed a
`motion requesting that the court appoint Dr. John R. Goff,
`a clinical neuropsychologist, as an expert “to evaluate,
`test, and interview” Reeves and require the State to pro-
`vide them with the necessary funds to hire Dr. Goff. 1
`Record in No. 98–77 (Ala. Crim. App.), pp. 64–65 (Direct
`
`

`

`
`
`3
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`Cite as: 583 U. S. ____ (2017)
`
`SOTOMAYOR, J., dissenting
`Appeal Record). The trial court denied the motion, id., at
`67, and McLeod and Wiggins requested rehearing. In the
`rehearing request, the attorneys explained that they
`“possesse[d] hundreds of pages of psychological, psycho-
`metric and behavioral analysis material” and “[t]hat a
`clinical neuropsychologist or a person of like standing and
`expertise [was] the only avenue open to the defense to
`compile
`[and] correlate this
`information,
`interview
`[Reeves,] and present this information in an orderly and
`informative fashion to the jury during the mitigation
`phase of the trial.” Id., at 68–69.
` During a hearing on the request, McLeod represented
`that hiring Dr. Goff was critical to the attorneys’ prepara-
`tion for the mitigation phase of Reeves’ trial. He urged the
`importance of retaining Dr. Goff right away, as Dr. Goff
`would require time to review the existing records, inter-
`view people familiar with Reeves, and meet with Reeves
`several times prior to testifying. 3 Direct Appeal Record,
`Tr. in No. CC–97–31 (C. C. Dallas Cty., Ala.), pp. 9–10. As
`support for that point, McLeod recounted that, in a recent
`capital case in which another trial court had granted an
`“identical” motion to appoint Dr. Goff, the counsel there
`had filed “at a very late date” such that Dr. Goff “did not
`have the time to adequately prepare” for that defendant’s
`hearing, and the death penalty was imposed. Id., at 10.
`The trial court reconsidered and granted the funding and
`appointment requests. 1 id., at 75.
` Shortly thereafter, McLeod withdrew as counsel and
`was replaced by Thomas Goggans. Wiggins, however,
`remained as counsel on the case, and he and Goggans
`represented Reeves at trial.
` Despite having received funding and an appointment
`order from the court, Reeves’ trial counsel never contacted
`Dr. Goff, nor did they hire any other expert to evaluate
`Reeves for intellectual disability, notwithstanding the
`“hundreds of pages” of materials they possessed. 13 Rec-
`
`

`

`4
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`REEVES v. ALABAMA
`
`SOTOMAYOR, J., dissenting
`ord in No. CC–97–31.60 (Rule 32 Record), pp. 66–67; 4 id.,
`at 697; 5 id., at 862.
` After the guilt phase of the trial concluded, the jury
`convicted Reeves of capital murder. During the penalty
`phase, Reeves’ trial counsel called three mitigation wit-
`nesses. First, they called Detective Pat Grindle, the officer
`in charge of investigating the murder, who gave a physical
`description of Reeves’ childhood home based on his search
`of the house during the investigation. 8 Direct Appeal
`Record, Tr. 1118–1122; ___ So. 3d ___, 2016 WL 3247447,
`*3 (Ala. Crim. App., June 10, 2016). Next, petitioner’s
`mother testified about Reeves’ childhood, including that he
`had repeated two grades, was put in “special classes,”
`received mental health services starting in second or third
`grade, and was expelled in eighth grade. 8 Direct Appeal
`Record, Tr. 1127. She also testified that, when he was
`young, Reeves had “little blackout spells” and would report
`“seeing things,” and that he was shot in the head a few
`months before the murder for which he was convicted. Id.,
`at 1127, 1131, 1137, 1120–1150. Finally, Reeves’ counsel
`called Dr. Kathleen Ronan, a court-appointed clinical
`psychologist, with whom counsel met and spoke for the first
`time shortly before she took the witness stand. 4 Rule 32
`Record 609. Dr. Ronan had evaluated Reeves for the
`purposes of assessing his competency to stand trial and
`his mental state at the time of the offense, but had not
`conducted a penalty-phase evaluation or evaluated Reeves
`for intellectual disability. Ibid. Dr. Ronan testified that
`she had given Reeves only the verbal part of an intelli-
`gence test, noting that this was the “portion [of the test
`that] taps into the issues that were being asked by the
`Court,” and had concluded based on that partial assess-
`ment that he was at “the borderline of mental retarda-
`tion.” 8 Direct Appeal Record, Tr. 1165.
` The jury deliberated for less than an hour. 8 Direct
`Appeal Record 1227. By a vote of 10 to 2, they recom-
`
`

`

`
`
`5
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`Cite as: 583 U. S. ____ (2017)
`
`SOTOMAYOR, J., dissenting
`mended that Reeves be sentenced to death.2 2 id., at 233.
`The trial judge then considered the aggravating and miti-
`gating circumstances and found two mitigating factors:
`Reeves’ age and lack of significant prior criminal history.
`Id., at 236. He expressly refused to find that Reeves’
`“capacity . . . to appreciate the criminality of his conduct or
`to conform his conduct to the requirements of law was
`substantially impaired.” Ala. Code §13A–5–51(6) (2015); 2
`Direct Appeal Record 237. The trial judge found that the
`aggravating circumstances outweighed the two mitigating
`ones and sentenced Reeves to death. Id., at 239.
` After his conviction and sentence were affirmed on
`direct appeal, during which Goggans continued to repre-
`sent him, Reeves, with the assistance of new counsel,
`sought postconviction relief in state court pursuant to
`Rule 32 of the Alabama Rules of Criminal Procedure. He
`alleged, inter alia, ineffective assistance of both his trial
`and appellate counsel. Among his claims were that his
`trial counsel were ineffective for failing to hire Dr. Goff or
`another neuropsychologist to evaluate him for intellectual
`disability, failing to present expert testimony of intellectu-
`al disability during the penalty phase to establish a miti-
`gating circumstance, and failing to conduct an adequate
`mitigation investigation.
` The Alabama Circuit Court held a 2-day hearing on
`Reeves’ Rule 32 petition. Reeves did not call McLeod,
`Wiggins, or Goggans to testify.3 He did, however, call Dr.
`Goff, who had evaluated Reeves for purposes of his post-
`——————
`2 Had only one more juror voted against imposing the death penalty,
`the jury could not have recommended death. Ala. Code §13A–5–46(f )
`(2015).
`3 Reeves implies in his petition for writ of certiorari that one reason
`he did not call Wiggins to testify was that Wiggins had become a state-
`court judge by the time the Rule 32 proceedings had started and thus
`would have had to testify before one of his judicial colleagues about
`whether his prior professional conduct had been deficient.
`
`

`

`6
`
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`REEVES v. ALABAMA
`
`SOTOMAYOR, J., dissenting
`conviction petition. Dr. Goff testified based on his review
`of Reeves’ childhood and adolescent records and the re-
`sults of a battery of tests designed to assess IQ, neuropsy-
`chological functioning, cognitive abilities, and adaptive
`functioning. He concluded that Reeves had significantly
`subaverage intellectual functioning and significant deficits
`in multiple areas of adaptive functioning, both of which
`manifested before Reeves was 18 years old, and that
`Reeves therefore was intellectually disabled. 2016 WL
`3247447, *11–*12. Dr. Goff further testified that, had
`Reeves’ trial counsel asked him to evaluate Reeves years
`earlier for purposes of testifying at trial, he would have
`performed similar evaluations and reached the same
`conclusion. 13 Rule 32 Record 21–22, 66–68; 4 id., at 704.
` Reeves also introduced testimony from Dr. Ronan about
`the limitations of her earlier evaluation. She stated in an
`affidavit that even though she had been asked “only to
`evaluate [Reeves] for the purposes of Competence to Stand
`Trial and Mental State at the Time of Offense, i.e., for the
`trial phase of the case,” and “was not requested to com-
`plete a sentencing phase evaluation” or “extensive clinical
`evaluation regarding mental retardation,” Reeves’ counsel
`nonetheless “called [her] to testify at the sentencing
`phase.” Id., at 609. Dr. Ronan explained that “[t]he eval-
`uation for [c]apital sentencing would contain different
`components than those for the trial phase evaluations, and
`would be more extensive in terms of testing and back-
`ground investigation.” Id., at 610. She confirmed that
`Reeves’ counsel would have known about these differ-
`ences, because she “informed [them] as to the limitations
`of any testimony during [c]apital sentencing, in that the
`original evaluation was not performed for that purpose.”
`Id., at 609.
` In addition, Reeves presented a report and testimony
`from Dr. Karen Salekin, a forensic and developmental
`psychologist who conducted a mitigation evaluation. 13
`
`

`

`
`
`7
`
`Cite as: 583 U. S. ____ (2017)
`
`SOTOMAYOR, J., dissenting
`id., at 111, 118, 125. Dr. Salekin testified about her as-
`sessment of the risk factors in Reeves’ life and stated that,
`based on her review of the evidence presented at trial, Dr.
`Ronan and Reeves’ mother had failed to identify several of
`those factors and had inadequately addressed the impact
`of others during their testimony at the sentencing hearing.
`Id., at 130–190. Among those factors were the harmful
`influence of Reeves’ brother and Reeves’ exposure to do-
`mestic violence, guns, and substance abuse as a child. Id.,
`at 140, 144–150.
` The State presented one rebuttal witness, Dr. Glen
`David King, a clinical and forensic psychologist who testi-
`fied that, based on his testing and the information availa-
`ble to him, Reeves “was in the borderline range of intellec-
`tual ability, but was not intellectually disabled.” 2016 WL
`3247447, *18. On cross-examination, Dr. King acknowl-
`edged that Reeves had achieved a score of 68 on an IQ test
`Dr. King administered, and on that basis, suffered from
`significant subaverage intellectual functioning. Ibid. Dr.
`King also testified on cross-examination that his testing
`revealed that Reeves’ adaptive functioning skills in three
`categories—domestic activity, prevocational/vocational
`activity, and self-direction—were in the 25th percentile of
`developmentally disabled individuals. Id., at *17–*18; 14
`Rule 32 Record 265–268, 273–280; 2 id., at 385.
` Following the Rule 32 hearing, the Circuit Court held
`that Reeves failed to prove his ineffective-assistance
`claims. The Alabama Court of Criminal Appeals affirmed
`on the basis that Reeves did not present testimony of his
`former counsel. The court stressed that “ ‘to overcome the
`strong presumption of effectiveness, a Rule 32 petitioner
`must, at his evidentiary hearing, question trial counsel
`regarding his or her actions and reasoning.’ ” 2016 WL
`3247447, *29 (quoting Stallworth v. State, 171 So. 3d 53,
`92 (Ala. Crim. App. 2013); emphasis in original). “The
`burden was on Reeves to prove by a preponderance of the
`
`

`

`8
`
`
`REEVES v. ALABAMA
`
`SOTOMAYOR, J., dissenting
`evidence that his counsel’s challenged decisions were not
`the result of reasonable strategy,” the court explained.
`2016 WL 3247447, *31. “[B]ecause Reeves failed to call
`his counsel to testify, the record is silent as to the reasons
`trial counsel” made various decisions, including the choice
`“not to hire Dr. Goff or another neuropsychologist to eval-
`uate Reeves for intellectual disability” and the choice “not
`to present testimony from such an expert during the pen-
`alty phase of the trial . . . in order to establish a mitigating
`circumstance.” Ibid. The court therefore concluded, with-
`out any consideration of the ample evidence before it of
`Reeves’ counsel’s actions and reasoning, that the presump-
`tion of effectiveness had not been disturbed and rejected
`Reeves’ ineffective-assistance claims. Id., at *32. The
`Alabama Supreme Court denied review.
` Reeves petitioned for a writ of certiorari. He contended
`that the state appellate court’s position that a defendant
`must present his counsel’s testimony to establish that his
`counsel’s performance was deficient is unreasonable under
`and at odds with Strickland v. Washington, 466 U. S. 668
`(1984). I agree. Because I further agree that the proceed-
`ing below was tainted by this constitutional error, I would
`grant the petition and summarily reverse.
`II
`A
` Strickland established the legal principles governing
`ineffective-assistance-of-counsel claims. Namely, a de-
`fendant must show both deficient performance and preju-
`dice. Id., at 687. It is the first prong of the Strickland test
`that is at issue here. In assessing deficiency, a court
`presumes that counsel “rendered adequate assistance and
`made all significant decisions in the exercise of reasonable
`professional judgment.” Id., at 690. The burden to rebut
`that strong presumption rests with the defendant, id., at
`687, who must present evidence of what his counsel did or
`
`

`

`
`
`9
`
`Cite as: 583 U. S. ____ (2017)
`
`SOTOMAYOR, J., dissenting
`did not do, see Burt v. Titlow, 571 U. S. ___, ___ (2013).
` This Court has never, however, required that a defend-
`ant present evidence of his counsel’s actions or reasoning
`in the form of testimony from counsel, nor has it ever
`rejected an ineffective-assistance claim solely because the
`record did not include such testimony. Rather, Strickland
`and its progeny establish that when a court is presented
`with an ineffective-assistance-of-counsel claim, it should
`look to the full record presented by the defendant to de-
`termine whether the defendant satisfied his burden to
`prove deficient performance. The absence of counsel’s
`testimony may make it more difficult for a defendant to
`meet his burden, but that fact alone does not absolve a
`court of its duty to look at the whole record and evaluate
`the reasonableness of counsel’s professional assistance in
`light of that evidence.
` That Strickland does not require testimony from counsel
`to succeed on an ineffective-assistance claim is clear from
`past decisions in which this Court has found deficient
`performance despite such testimony, based on review of
`the full record. For example, in Wiggins v. Smith, 539
`U. S. 510 (2003), the Court considered the decision of two
`attorneys “to limit the scope of their investigation into
`potential mitigating evidence.” Id., at 521. Counsel justi-
`fied their limited investigation as reflecting a tactical
`judgment to pursue an alternative strategy, ibid., but the
`Court did not simply accept that explanation at face value.
`Instead, it “conduct[ed] an objective review of their per-
`formance.” Id., at 523. In reviewing “[t]he record as a
`whole,” id., at 531, the Court considered, among other
`evidence, that the State had made funds available for the
`retention of a forensic social worker to prepare a social
`history report, yet counsel had decided not to commission
`such a report, id., at 516–517, 524. Based on the record,
`the Court concluded that the attorneys’ conduct was un-
`reasonable, “not reasoned strategic judgment” as they had
`
`

`

`10
`
`
`REEVES v. ALABAMA
`
`SOTOMAYOR, J., dissenting
`testified. Id., at 526.
` In Porter v. McCollum, 558 U. S. 30 (2009) (per curiam),
`the Court again addressed a claim of an attorney’s alleged
`failure to investigate and present mitigating evidence.
`Counsel there also testified at the postconviction hearing
`about his preparation for the penalty phase, but the Court
`still looked at the full record to assess whether the de-
`fendant had nevertheless demonstrated deficient perfor-
`mance. For instance, the Court pointed to court-ordered
`competency evaluations in the record that discussed the
`defendant’s academic history, military service, and
`wounds sustained during combat, and observed, based on
`that evidence, that counsel had “ignored pertinent ave-
`nues for investigation of which he should have been
`aware.” Id., at 40. Again, here, trial counsel’s testimony
`about his reasoning did not defeat the ineffective-
`assistance-of-counsel claim, given the Court’s considera-
`tion of the evidence in the record as a whole.
` As Porter and Wiggins illustrate, trial counsel’s testi-
`mony is not sufficient to find adequate performance when the
`full record rebuts the reasonableness of the proffered
`justification. It cannot be, then, that such testimony is
`necessary in every case. Where counsel does not testify
`but the defendant offers other record evidence, a court can
`simply presume that counsel would have justified his
`actions as tactical decisions and then consider whether the
`record rebuts the reasonableness of that justification.
` Not only is the imposition of a per se rule requiring
`testimonial evidence from counsel inconsistent with our
`precedent, it is also at odds with the Court’s observation in
`Massaro v. United States, 538 U. S. 500 (2003), that inef-
`fective-assistance claims need not always be brought on
`collateral review because “[t]here may be cases in which
`trial counsel’s ineffectiveness is so apparent from the
`record that appellate counsel will consider it advisable to
`raise the issue on direct appeal” or an appellate court will
`
`

`

`
`
`11
`
`Cite as: 583 U. S. ____ (2017)
`
`SOTOMAYOR, J., dissenting
`address the deficiencies sua sponte. Id., at 508. As a
`challenge on direct appeal is made without any further
`factual development, Massaro necessarily recognized that
`an ineffective-assistance-of-counsel claim can be proved
`even absent counsel’s testimony.
` Lastly, that courts have a duty to look to the whole
`record when considering whether a defendant has met his
`burden makes good practical sense. There are many
`reasons why counsel may be unable or unwilling to testify
`about his reasoning, including death, illness, or memory
`loss. Such circumstances should not in and of themselves
`defeat an ineffective-assistance claim.
`B
` Alabama rightly does not attempt to defend the Court of
`Criminal Appeals’ rule on its merits. Instead, the State
`asserts that Reeves misreads the decision below. The
`Court of Criminal Appeals, it maintains, did not hold that
`trial counsel’s testimony is required to prove an ineffec-
`tive-assistance claim. Brief in Opposition 14. Rather, in
`the State’s view, the court “made the sound decision that
`Reeves failed to prove his ineffective assistance of counsel
`claims” because he “failed to present any evidence, includ-
`ing the testimony of trial counsel, to prove that his attor-
`ney’s strategic decisions were unreasonable.” Id., at 16.
`That position, however, is belied by the record before the
`court and the decision’s express language and analysis.
`Reeves presented ample evidence in support of his claim
`that his counsel’s performance was deficient, but the court
`never considered or explained why, in light of that evi-
`dence, his counsel’s strategic decisions were reasonable. It
`rested its decision solely on the fact that Reeves had not
`called his counsel to testify at the postconviction hearing.
` In the course of explaining the requirement that a de-
`fendant must overcome the strong presumption that coun-
`sel acted reasonably with “evidence to the contrary,” 2016
`
`

`

`12
`
`
`REEVES v. ALABAMA
`
`SOTOMAYOR, J., dissenting
`WL 3247447, *28 (emphasis in original), the decision
`below plainly stated, with emphasis, that “ ‘to overcome
`the strong presumption of effectiveness, a Rule 32 peti-
`tioner must, at his evidentiary hearing, question trial
`counsel regarding his or her actions and reasoning,’ ” id.,
`at *29 (quoting Stallworth, 171 So. 3d, at 92). That pro-
`nouncement was followed by citations to other Alabama
`Court of Criminal Appeals cases with explanatory paren-
`theticals noting that those decisions had held “that a
`petitioner failed to meet his burden of overcoming the
`presumption that counsel were effective because the peti-
`tioner failed to question . . . counsel regarding their rea-
`soning.” 2016 WL 3247447, *29 (citing Broadnax v. State,
`130 So. 3d 1232, 155–156 (2013); Whitson v. State, 109 So.
`3d 665, 676 (2012); Brooks v. State, 929 So. 2d 491, 497
`(2005); McGahee v. State, 885 So. 2d 191, 221–222 (2003)).
` This was not mere stock language. The appellate court
`unquestionably applied this requirement to Reeves’
`claims. At the outset of its analysis, it announced that
`“Reeves’s failure to call his attorneys to testify is fatal to
`his claims of ineffective assistance of counsel.” 2016 WL
`3247447, *30. As described above, the court explained
`that “because Reeves failed to call his counsel to testify,
`the record [was] silent” as to his counsel’s reasons and
`actions, and the presumption of effective assistance there-
`fore could not be rebutted. Id., at *31, *32. In total, the
`court emphasized that Reeves did not call his counsel to
`testify at five different points in the opinion. Id., at *4,
`*28, *30, *31, *32.
` Unlike the whole-record analysis undertaken in Wiggins
`and Porter, the Alabama Court of Criminal Appeals never
`considered whether the other, non-counsel-testimony
`evidence before it could rebut the presumption of reasona-
`ble professional assistance. Its failure to do so is baffling
`given that there was ample such evidence in the record
`below, all of which Reeves pointed the court to in his brief.
`
`

`

`
`
`13
`
`Cite as: 583 U. S. ____ (2017)
`
`SOTOMAYOR, J., dissenting
`See Brief for Appellant in No. CR–13–1504, pp. 58–82.
` For instance, the Court of Criminal Appeals had before
`it trial counsel’s two motions for the appointment and
`funding of Dr. Goff, in which they explained why his assis-
`tance and testimony would be critical to the case;
`the representations made by Reeves’ counsel during the
`pretrial hearing on the rehearing motion; and the trial
`court’s order granting the request. From those motions
`and representations, the court knew that trial counsel had
`in their possession voluminous materials bearing on
`Reeves’ intellectual impairments. The court further knew
`from the record and Dr. Goff’s testimony at the Rule 32
`hearing that, despite the appointment order and funding,
`Reeves’ counsel never contacted him and never obtained
`any other intellectual disability evaluation in preparation
`for trial.
` The court also knew from Dr. Ronan’s affidavit that the
`first time Reeves’ counsel spoke with her was shortly
`before she took the stand and that she had not conducted
`a penalty-stage evaluation, evaluated Reeves for intellec-
`tual disability, or administered a complete IQ test. More-
`over, it knew that a capital sentencing evaluation would
`have involved different components and been more exten-
`sive, and that Reeves’ attorneys were informed as to such
`differences.
` The court, too, knew that Dr. Salekin had presented
`significant mitigation evidence at the Rule 32 hearing that
`was not set forth in any testimony during the sentencing-
`phase hearing.
` The Alabama Court of Criminal Appeals was not free to
`ignore this evidence simply because Reeves did not call his
`counsel to testify at the postconviction hearing. On this
`point, Strickland could not be more clear:
`“[A] court deciding an actual ineffectiveness claim
`must judge the reasonableness of counsel’s challenged
`
`

`

`14
`
`
`REEVES v. ALABAMA
`
`SOTOMAYOR, J., dissenting
`conduct on the facts of the particular case, viewed as
`of the time of counsel’s conduct. A convicted defend-
`ant making a claim of ineffective assistance must
`identify the acts or omissions of counsel that are al-
`leged not to have been the result of reasonable profes-
`sional judgment. The court must then determine
`whether, in light of all the circumstances, the identi-
`fied acts or omissions were outside the wide range of
`professionally competent assistance.” 466 U. S., at 690.
` Reeves identified the omissions of his counsel that he
`alleged were constitutionally deficient. He presented
`evidence of what his counsel knew, which included several
`red flags indicating intellectual disability; what his coun-
`sel believed to be necessary for his defense, which included
`funding for an expert to evaluate him for intellectual
`disability; what his counsel did, which included repeatedly
`asking for and securing such funding; and what his coun-
`sel did not do, which included failing to then use that
`funding to hire such an expert and failing to present evi-
`dence of intellectual disability as mitigation. In so doing,
`Reeves upheld his end of the evidentiary bargain. The
`Alabama Court of Criminal Appeals, on the other hand,
`did not. It never explained, in light of the substantial
`record before it, why the choices Reeves’ counsel made
`were reasonable.
` Strickland and its progeny demand more. In light of the
`constitutional error below, I would grant the petition for
`writ of certiorari, reverse, and remand so that the Court of
`Criminal Appeals could explain why, given the full factual
`record, Reeves’ counsel’s choices constituted reasonable
`performance. Instead, the Court has cleared the way for
`Reeves’ execution. That is a result with which I cannot
`agree.
` I respectfully dissent from the denial of certiorari.
`
`

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