`
`1
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` Cite as: 584 U. S. ____ (2018)
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` SOTOMAYOR, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
`
` CARLOS TREVINO v. LORIE DAVIS, DIRECTOR,
`TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
`CORRECTIONAL INSTITUTIONS DIVISION
`
`
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
`
`
`No. 17–6883. Decided June 4, 2018
`
`The petition for a writ of certiorari is denied.
` JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
`
`joins, dissenting from the denial of certiorari.
`
`The first time this Court considered petitioner Carlos
`
`
`Trevino’s case, it held pursuant to Martinez v. Ryan, 566
`U. S. 1 (2012), that a “‘procedural default will not bar a
`federal habeas court from hearing a substantial claim of
`ineffective assistance at trial if, in the initial-review col-
`lateral proceeding, there was no counsel or counsel . . . was
`ineffective,’” and if, as in Texas, the “state procedural
`framework . . . makes it highly unlikely in a typical case
`
`that a defendant will have a meaningful opportunity to
`raise a claim of ineffective assistance of trial counsel on
`direct appeal.” Trevino v. Thaler, 569 U. S. 413, 429
`(2013) (quoting Martinez, 566 U. S., at 17). Having em-
`phasized that the right to adequate assistance of trial
`
`counsel is “critically important,” 569 U. S., at 428, the
`
`Court remanded Trevino’s case with the expectation that,
`if Trevino could establish that his underlying ineffective-
`assistance-of-trial-counsel claim was substantial and that
`his initial-review counsel was ineffective, courts would
`afford him meaningful review of the underlying claim.
`
`
`Unfortunately, that is not what happened. When the
`Court of Appeals for the Fifth Circuit ultimately consid-
`ered whether Trevino was prejudiced by his trial counsel’s
`
`failure to investigate and present evidence of his fetal
`
`
`
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`

`2
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`
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` TREVINO v. DAVIS
`
` SOTOMAYOR, J., dissenting
`
`
`alcohol spectrum disorder (FASD), the panel majority did
`
`not properly “reweigh the evidence in aggravation against
`the totality of available mitigating evidence.” Wiggins v.
`
`Smith, 539 U. S. 510, 534 (2003). Rather, the majority
`dismissed the new FASD evidence because it purportedly
`created a “significant double-edged problem” in that it had
`both mitigating and aggravating aspects, and stopped its
`
`analysis short without reweighing the totality of all the
`evidence. 861 F. 3d 545, 551 (2017). That truncated
`
`approach is in direct contravention of this Court’s prece-
`dent, which has long recognized that a court cannot simply
`conclude that new evidence in aggravation cancels out new
`evidence in mitigation; the true impact of new evidence,
`both aggravating and mitigating, can only be understood
`by asking how the jury would have considered that evi-
`
`dence in light of what it already knew.
`Although this Court is not usually in the business of
`
`
`error correction, this case warrants our intervention and
`summary disposition. I respectfully dissent from the
`
`Court’s refusal to correct the Fifth Circuit’s flagrant error.
`
`I
`
`A
`
`Under Strickland v. Washington, 466 U. S. 668 (1984),
`
`to establish that trial counsel’s “deficient performance
`
`prejudiced the defense,” a “defendant must show that
`there is a reasonable probability that, but for counsel’s
`unprofessional errors, the result of the proceeding would
`
`have been different.” Id., at 687, 694. For purposes of a
`mitigation-investigation claim like this one, a court must
`
`“consider the totality of the available mitigation evi-
`dence—both that adduced at trial, and the evidence ad-
`duced in the habeas proceeding—and reweigh it against
`the evidence in aggravation.” Sears v. Upton, 561 U. S.
`945, 955–956 (2010) (per curiam) (internal quotation
`
`marks and alteration omitted); Wiggins, 539 U. S., at 534.
`
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`

`

`
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`3
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`Cite as: 584 U. S. ____ (2018)
`
` SOTOMAYOR, J., dissenting
`
`
`Where, as here, new evidence presented during postcon-
`
`viction proceedings includes both mitigating and aggravat-
`ing factors, a court still must consider all of the mitigating
`evidence alongside all of the aggravating evidence. The
`
`new evidence must not be evaluated in isolation. More-
`over, the court must step into the shoes of the jury, and
`review the evidence as the jury would have in the first
`instance. See Williams v. Taylor, 529 U. S. 362, 398
`
`(2000); Rompilla v. Beard, 545 U. S. 374, 393 (2005).
`
`In Texas, a jury at the penalty phase of a capital trial
`
`
`first considers whether there is a probability that the
`defendant will be a future threat to society, Tex. Code
`
`Crim. Proc. Ann., Art. 37.071, §(2)(b)(1) (Vernon Cum.
`Supp. 2017), and whether the defendant caused, intended
`to cause, or anticipated a death, §2(b)(2). Only if the state
`has proved those two issues beyond a reasonable doubt
`will the jury then consider the effect of mitigating evi-
`dence on the sentence. §§2(c), (g).1 If even one juror de-
`cides that, “taking into consideration all of the evidence,
`including the circumstances of the offense, the defendant’s
`character and background, and the personal moral culpa-
`bility of the defendant, there is a sufficient mitigating
`circumstance or circumstances to warrant that a sentence
`
`of life imprisonment without parole rather than a death
`sentence be imposed,” the court must impose a life sen-
`tence. §§2(e)(1), (f )(2), (g).
`
`B
`With that framework in mind, consider the facts of this
`
`
`case.2 During the penalty-phase proceedings, the State
`
`——————
`1If at least one juror decides either of those two issues in the nega-
`tive, the court must impose a life sentence regardless of the effect of
`
`mitigating circumstances. See Tex. Code Crim. Proc. Ann., Art. 37.071,
`§2(g).
`
`
`
` 2The procedural history of this case is complex. For present purposes,
`
`
` it is sufficient to note that after this Court’s remand, Trevino filed a
`
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`

`

`4
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`
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`TREVINO v. DAVIS
`
` SOTOMAYOR, J., dissenting
`
`
` presented evidence of Trevino’s juvenile criminal record
`
`and adult convictions. The jury also heard uncontroverted
`testimony that Trevino was a member of a street gang and
`a violent prison gang, and, needless to say, the jurors were
`
`aware that they had just convicted Trevino of capital
`murder.
`With respect to mitigation, Trevino’s counsel presented
`
`just one witness, Trevino’s aunt, who testified that
`“‘(1) she had known [Trevino] all his life, (2) [his] fa-
`ther was largely absent throughout [his] life, (3) [his]
`mother “has alcohol problems right now,” (4) [his]
`family was on welfare during his childhood, (5) [Tre-
`vino] was a loner in school, (6) [Trevino] dropped out
`
`of school and went to work for his mother’s boyfriend
`doing roofing work, (7) [Trevino] is the father of one
`
`child and is good with children, often taking care of
`her two daughters, and (8) she knows [he] is incapable
`of committing capital murder.’” 861 F. 3d, at 547.
`
`With only that mitigation before them, the jury deliberated
`for approximately eight hours before it unanimously con-
`
`cluded that the State satisfied its burden of showing that
`Trevino was a continuing threat to society; that he had
`
`caused, intended to cause, or anticipated the death of a
`person; and that the mitigating circumstances were insuf-
`ficient to warrant a life sentence instead of a death sen-
`
`tence. Ibid.
`
`
`In addition to this evidence presented at trial, Trevino
`
`
`
`
`
`——————
`second amended federal habeas petition. The District Court denied
`
`relief. Trevino v. Stephens, 2015 WL 3651534 (WD Tex., June 11,
`2015). The Fifth Circuit granted a certificate of appealability and
`affirmed the District Court’s denial of relief solely on the basis that, on
`
`the merits, Trevino could not establish that he was prejudiced by his
`trial counsel’s failure to introduce additional mitigating evidence. See
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`861 F. 3d 545, 548–551 (2017). Judge Dennis dissented from that
`
`decision. Id., at 551–557.
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`

`

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`
`5
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` Cite as: 584 U. S. ____ (2018)
`
` SOTOMAYOR, J., dissenting
`
`
`offered new mitigating evidence in support of his habeas
`
`petition, including testimony from expert and lay witnesses,
`relating to his fetal alcohol spectrum disorder. Dr. Rebecca
`
`
`H. Dyer, Ph. D., a clinical and forensic psychologist, re-
`ported that Trevino “functions ‘within the low average
`
`range of intellectual functioning,’ and has a ‘history of
`employing poor problem-solving strategies, attentional
`deficits, poor academic functioning, memory difficulties,
`and history of substance abuse.’” Id., at 553 (Dennis, J.,
`dissenting). She further stated:
`“‘[Trevino’s] history of [FASD] clearly had an impact
`on his cognitive development, academic performance,
`
`social functioning, and overall adaptive functioning.
`These factors, along with his significant history of
`physical and emotional abuse, physical and emotional
`neglect, and social deprivation clearly contributed to
`[Trevino’s] ability to make appropriate decisions and
`
`choices about his lifestyle, behaviors and actions, his
`ability to withstand and ignore group influences, and
`his ability to work through and adapt to frustration
`and anger.’” Ibid. (alterations in original).
`
`She concluded that Trevino’s FASD “‘would . . . have
`impacted any of [his] decisions to participate in or refrain
`
`from any activities that resulted in his capital murder
`
`charges,’” ibid. (ellipsis and alterations in original), even if
`the condition “‘would not have significantly interfered
`
`with his ability to know right from wrong, or to appreciate
`
`the nature and quality of his actions at the time of the
`capital offense,’” id., at 549.
`
`
`Dr. Paul Conner, Ph. D., a clinical neurologist, further
`reported that “Trevino demonstrated deficiencies in eight
`cognitive domains, where only three are necessary for a
`diagnosis of FASD.”3 Id., at 549–550. Trevino’s “‘daily
`
`——————
` 3Trevino showed deficits in “academics, especially math; verbal and
`
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`

`6
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`TREVINO v. DAVIS
`
` SOTOMAYOR, J., dissenting
`
`
`functioning skills are essentially at a level that might be
`
`expected from an individual who was diagnosed with an
`
`intellectual disability.’” Id., at 550.
`
`Trevino’s lay witnesses placed his FASD in context.
`
` Linda Mockeridge, a mitigation expert, collected
`Ibid.
`testimony that Trevino’s mother drank between 18 and 24
`cans of beer every day during her pregnancy; Trevino
`weighed only four pounds at birth; he was not potty
`trained until he was six years old and wore diapers at
`night until he was eight years old; he was developmentally
`delayed as compared to his siblings; he repeated several
`grades in elementary school and eventually dropped out of
`
`school in the ninth grade, at which point he read at a
`
`third-grade level. Id., at 554 (Dennis, J., dissenting).
`
`Trevino’s former girlfriend stated that Trevino “was a
`good father and caring toward her, but was easily influ-
`
`enced by his friends.” Id., at 550. She also recounts in-
`stances where he “was violent toward her,” including a
`time when Trevino “put a gun to [her] head” and another
`
`when “he attempted to rape her at knifepoint.” Ibid. She
`says she “‘was always fearful of him,’” and Trevino’s
`brother says he had “witnessed Trevino be physically
`violent toward [the former girlfriend], including choking
`
`her.” Ibid.
`
`
`Trevino’s former employer commented that Trevino
`
`“was a good worker that lacked initiative.” Ibid. A friend
`stated that Trevino is “‘peaceful’” and “‘not violent,’” but
`acknowledged that Trevino “‘had firearms and was part of
`a street gang,’” and that when Trevino was released on
`parole he “went out with friends, ‘getting high and drunk
`——————
`
`visuospatial memory; visuospatial construction; processing speed;
`
`executive functioning, especially on tasks that provide lower levels of
`
`structure and as such require greater independent problem solving or
`
`abstraction skills; communication skills, especially receptive skills;
`
`daily living skills, primarily ‘community skills’; and socialization skills.”
`
`
`Id., at 553–554 (Dennis, J., dissenting).
`
`
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`

`

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`
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`Cite as: 584 U. S. ____ (2018)
`
` SOTOMAYOR, J., dissenting
`
`
` and robbing people.’” Ibid.
`
`
`
`
`
`7
`
`
`
`
`
`C
` Reviewing Trevino’s claim de novo,4 the Fifth Circuit
`
`majority concluded that the evidence is “insufficient to
`create a reasonable probability that Trevino would not
`have been sentenced to death had it been presented to the
`
`jury.” Ibid. The majority first attempted to distinguish
`
`
`Wiggins, where the Court concluded that trial counsel
`rendered ineffective assistance in failing to discover and
`present mitigation information.
`“Unlike in Wiggins,”
`
`where the only mitigation presented at trial was “‘that
`
`Wiggins had no prior convictions,’” the majority reasoned
`that “Trevino’s trial counsel did present mitigating evi-
`dence,” in that his aunt “covered his mother’s alcohol
`problems, his absent father, his trouble in school, and the
`
`love he demonstrated toward [the aunt’s] daughters.” 861
`F. 3d, at 550.
`
`
`Then, looking at the new evidence in isolation, the
`
`majority noted that “[t]he mitigating evidence that Tre-
`vino suffers from FASD would be heard along with [his
`
`former girlfriend’s] graphic testimony of Trevino’s violence
`toward her and [his friend’s] testimony that he was in-
`
`volved in gang and criminal activity.” Ibid. It also found
`that the additional mitigating evidence was “undermined
`by Dyer’s conclusion that Trevino’s FASD ‘would not have
`
`significantly interfered with his ability to know right from
`wrong, or to appreciate the nature and quality of his ac-
`tions at the time of the capital offense.’” Id., at 550–551.
`
`In light of these negative aspects of the new evidence,
`the majority concluded that it created “a significant double-
`
`edged problem that was not present in Wiggins.” Id., at
`551. Because “[j]urors could easily infer from this new
`——————
`4The Court of Appeals’ review was de novo because the state court
`
` “never reached the issue of prejudice.” Rompilla v. Beard, 545 U. S.
`374, 390 (2005).
`
`
`
`
`
`
`
`

`

`8
`
`
`
` TREVINO v. DAVIS
`
` SOTOMAYOR, J., dissenting
`
`
`FASD evidence that Trevino may have had developmental
`
` problems . . . and poor decisionmaking, but that he also
`engaged in a pattern of violent behavior . . . that he under-
`stood was wrong,” the majority concluded that he could
`not establish prejudice. Ibid. The analysis stopped there,
`
`and over the dissent of one judge, the majority affirmed
`
`the denial of habeas relief.
`
`
`
`
`
`
`
`II
`
`In focusing on what it considered to be the “double-
`
`edged” nature of the new evidence, the Fifth Circuit ma-
`jority failed to view the prejudice inquiry holistically. The
`requisite inquiry demands that courts consider the entirety
`of the evidence and reweigh it as if the jury had considered
`
` it all together in the first instance. Wiggins, 539 U. S., at
`534. The Court’s decisions in Williams v. Taylor, 529 U. S.
`362 (2000), Rompilla v. Beard, 545 U. S. 374 (2005), and
`Wong v. Belmontes, 558 U. S. 15 (2009) (per curiam),
`control the outcome here.
`In Williams, new mitigation evidence presented in
`postconviction proceedings revealed that the petitioner
`was “‘borderline mentally retarded,’” experienced severe
`child abuse and neglect, and as a child spent time in “the
`custody of the social services bureau.” 529 U. S., at 395–
`396. The Court acknowledged, however, that “not all of
`
`the additional evidence was favorable to [the petitioner].”
`Id., at 396. For example, “juvenile records revealed that
`
`he had been thrice committed to the juvenile system” for
`
`various offenses. Ibid.
`
`
`The Court did not isolate that new evidence, which
`included both mitigating and potentially aggravating
`aspects, and decide that it canceled itself out. Rather, it
`considered all the evidence and evaluated how the new
`evidence would have affected the jury’s evaluation of
`future dangerousness and moral culpability in light of
`what the jury already knew. Specifically, the Court recog-
`
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`

`

`9
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` Cite as: 584 U. S. ____ (2018)
`
` SOTOMAYOR, J., dissenting
`
`
`nized that, although the additional evidence “may not
`have overcome a finding of future dangerousness, the
`graphic description of Williams’ childhood, filled with
`abuse and privation, or the reality that he was ‘borderline
`mentally retarded,’ might well have influenced the jury’s
`
`appraisal of his moral culpability.” Id., at 398.
` In Rompilla, the Court again discussed mitigating and
`aggravating aspects of new evidence presented in support
`
`of a failure-to-investigate claim. Postconviction mitigation
`
`investigation revealed that the petitioner “‘suffers from
`
`organic brain damage, an extreme mental disturbance
`significantly impairing several of his cognitive functions,’”
`that he read at a third-grade level, and that his mental
`health problems “‘were likely caused by fetal alcohol
`syndrome.’” 545 U. S., at 392. In addition to this mitigat-
`ing evidence, the Court acknowledged that new evidence
`
`also showed that the petitioner “‘early came to [the] atten-
`tion of juvenile authorities, quit school at 16, [and] started
`
`a series of incarcerations . . . often of assaultive nature
`and commonly related to over-indulgence in alcoholic
`beverages.’” Id., at 390–391 (some alterations in original).
`
`
`Despite what the Fifth Circuit majority here would have
`called the “double-edged” nature of that new evidence, the
`
`Court concluded that the petitioner was prejudiced by his
`
`counsel’s failure to investigate and introduce the evidence
`because “the undiscovered ‘mitigating evidence, taken as a
`
`whole, “might well have influenced the jury’s appraisal” of
`[Rompilla’s] culpability.’” Id., at 393 (alteration in origi-
`nal; emphasis added).
`In Wong, although the Court concluded that the peti-
`
`tioner had not been prejudiced by his counsel’s mitigation
`presentation, that conclusion resulted from an assessment
`
`of all the mitigation and aggravation evidence available in
`the record, both from trial and from the habeas proceed-
`ing. The Court found that much of the new “humanizing
`evidence” was cumulative of the mitigating evidence pre-
`
`
`
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`
`
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`

`

`10
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`
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` TREVINO v. DAVIS
`
` SOTOMAYOR, J., dissenting
`
`
`
` sented at trial, 558 U. S., at 22, whereas the new aggra-
`vating evidence was “potentially devastating” information
`that the jury had not heard, namely, that Wong had com-
`mitted a prior, unrelated murder “execution style,” id., at
`17. The Court emphasized the importance of considering
`“all the evidence—the good and the bad—when evaluating
`prejudice.” Id., at 26. It ultimately concluded that be-
`cause “the worst kind of evidence would have come in with
`
`the good,” all of the mitigating evidence would not have
`outweighed the aggravating evidence. Ibid.
`
`The Fifth Circuit majority’s misguided focus on the
`
`
`“double-edged problem” of the new evidence failed to
`comport with the clear takeaway from Williams, Rompilla,
`and Wong that a court assessing prejudice based on failure
`
`to investigate and present mitigating evidence must con-
`sider the value of the newly discovered evidence in the
`context of the whole record.
`That legal error is particularly evident given Texas’
`
` capital sentencing scheme. In Texas, if a jury reaches a
`
`mitigation inquiry, it necessarily already has concluded
` beyond a reasonable doubt that the defendant poses a
`
`continuing threat to society. Tex. Code Crim. Proc. Ann.,
`Art. 37.071, §§2(b)(1), (c), (g). Just as in Williams, it may
`be that the new evidence that Trevino uncovered in his
`habeas proceedings would “not have overcome [the] find-
`
`ing” that he posed a threat to society. 529 U. S., at 398.
`In fact, some of the new evidence may bolster that deter-
`mination. But whether the defendant poses a risk of
`future dangerousness is not the only inquiry a jury consid-
`ering death must undertake. Having found future dan-
`gerousness, a jury still must consider whether “there is a
`sufficient mitigating circumstance or circumstances to
`
`warrant that a sentence of life imprisonment without
`parole rather than a death sentence be imposed,” in light
`
`of variables such as the “circumstances of the offense, the
`defendant’s character and background, and the personal
`
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`

`

`
`11
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`Cite as: 584 U. S. ____ (2018)
`
` SOTOMAYOR, J., dissenting
`
`
`In that
`moral culpability of the defendant.” §2(e)(1).
`inquiry, as the Court in Williams stated, “[m]itigating
`evidence unrelated to dangerousness may alter the jury’s
`selection of penalty, even if it does not undermine or rebut
`the prosecution’s death-eligibility case.” Id., at 398.
`
`Had the Fifth Circuit majority undertaken a full in-
`quiry, it is unlikely that the new aggravating evidence
`would have factored substantially into the jury’s mitiga-
`tion decision, as much of the new aggravating evidence
`“was merely cumulative” of the evidence presented at
`trial. Wong, 558 U. S., at 22. The jury already knew, for
`example, that Trevino was a member of a street gang and
`a violent prison gang. The allegations that Trevino as-
`saulted his former girlfriend, although serious, reflected
`his violent tendencies and were hardly new character-and-
`background information for a jury that had just convicted
`Trevino of capital murder. The fact that one expert testi-
`fied that Trevino’s FASD “‘would not have significantly
`
`interfered with his ability to know right from wrong, or to
`
`appreciate the nature and quality of his actions at the
`
`time of the capital offense,’” 861 F. 3d, at 549, cannot be
`
`considered new aggravating evidence given that “Trevino
`did not assert an insanity defense and the same jury had
`already found him guilty of the offense,” id., at 556 (Den-
`nis, J., dissenting).
`
`In contrast, the new mitigating evidence relating to
`FASD is completely different in kind from any other evi-
`
`dence that the jury heard about Trevino. At sentencing,
`
`
`the testimony of Trevino’s aunt did not in any sense touch
`
`on Trevino’s FASD or its implications for his cognitive
`development.5 Had the jury learned of the FASD and
`
`——————
` 5The Fifth Circuit majority considered the aunt’s testimony to have
`
`been at least more substantial than the mitigation presented in Wig-
`
`
` gins v. Smith, 539 U. S. 510 (2003), but that point is irrelevant. This
`
` Court has “never limited the prejudice inquiry under Strickland to
`
` cases in which there was only little or no mitigation presented.” Sears
`
`
`
`
`
`
`
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`

`

`
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`12
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`TREVINO v. DAVIS
`
` SOTOMAYOR, J., dissenting
`
`
`related testimony, it would have had a much fuller per-
`spective of his character and background. For example,
`
`the jurors learned that Trevino dropped out of school
`
`early, but they had no idea that his disorder affected his
`academic functioning, including his problem-solving skills,
`
`memory, and reading ability, or that his achievement of
`basic childhood milestones like potty training had been so
`severely delayed. As in Williams, where the jury had not
`
`learned that the petitioner was “‘borderline mentally
`retarded,’” 529 U. S., at 398, the jurors here did not know
`that Trevino’s “‘daily functioning skills are essentially at a
`
`level that might be expected from an individual who was
`diagnosed with an intellectual disability.’” 861 F. 3d,
`at 550.
`
`The jurors heard that Trevino was a good father and
`often cared for his aunt’s children, but they did not know
`of the childhood abuse and neglect that he overcame to
`
`learn to care for other children. The jurors were aware
`that Trevino’s mother had alcohol problems, but they were
`
`unaware that she drank 18 to 24 beers per day during
`pregnancy, resulting in Trevino’s developmental delays.
`
`
`Evidence of FASD also would have helped the jury
`better understand the circumstances leading to the capital
`murder charges, as the disorder “would . . . have impacted
`any of . . . Trevino’s decisions to participate in or refrain
`from [related] activities.” Id., at 549. The jurors heard
`that Trevino had violent tendencies, but they did not know
`that his FASD impacted his ability to work through and
`adapt to frustration and anger, or that FASD affected his
`
`ability to withstand and ignore group influences.
`
`
`All in all, the new mitigating evidence had remarkable
`——————
`v. Upton, 561 U. S. 945, 954 (2010) (per curiam) (internal quotation
`marks omitted). The fact that trial counsel made an “effort to present
`some mitigation evidence” does not “foreclose an inquiry into whether a
`facially deficient mitigation investigation might have prejudiced the
`defendant.” Id., at 955 (emphasis in original).
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` 13
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` Cite as: 584 U. S. ____ (2018)
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` SOTOMAYOR, J., dissenting
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`value, especially given this Court’s recognition that evi-
`dence relating to a defendant’s cognitive functioning plays
`an important role in a jury’s selection of a penalty. See
`Williams, 529 U. S., at 398; Rompilla, 545 U. S., at 391–
`393. Yet, despite the lack of any other evidence at trial
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`that dealt with Trevino’s lifelong cognitive disorder, the
`Fifth Circuit majority discounted the new evidence in its
`entirety under its double-edged theory, without consider-
`ing its potential effect on a jury’s “appraisal of [Trevino’s]
`moral culpability.” Williams, 529 U. S., at 398.
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`The Fifth Circuit majority’s error is glaring, because
`considering all of the evidence, including that relating to
`Trevino’s FASD, it is obvious that “there is a reasonable
`probability that at least one juror would have struck a
`different balance.” Wiggins, 539 U. S., at 537.
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`III
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`The Fifth Circuit majority plainly misapplied our prece-
`dents. Absent intervention from this Court to correct that
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`error, Trevino remains subject to a death sentence having
`received inadequate consideration of his claim of ineffec-
`tive assistance of trial counsel, and with no jury having
`fairly appraised the substantial new mitigating evidence
`that a competent counsel would have discovered. That
`result is indefensible, especially where our failure to in-
`tervene sanctions the taking of a life by the state.
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`I therefore respectfully dissent from the denial of certiorari.
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