On Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit.
The petition for a writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
Petitioner in this case, James Messer, was sentenced to death by a jury that was unable in any meaningful fashion to give him the " individualized consideration" to which he has a constitutional right, Lockett v. Ohio, 438 U.S. 586, 605 , 2965 ( 1978) (plurality opinion), because of egregiously unprofessional assistance by his trial counsel. I believe that petitioner has clearly met the standard that this Court set in Strickland v. Washington, 466 U.S. 668 (1984), for establishing ineffective assistance during the sentencing phase of his trial, and I would accordingly grant the petition and vacate petitioner's sentence. [ Messer v. Kemp 474 U.S. 1088 (1986) ][1088-Continued.]
Petitioner was convicted of kidnaping and murdering his 8-year-old niece. After his conviction and sentence were affirmed on direct review, he sought a writ of habeas corpus in state court, alleging, inter alia, ineffective assistance of counsel. The court declined to hold a hearing, made no findings, and denied the writ. Petitioner then sought federal habeas relief. The Magistrate to whom the case was referred recommended that the writ be granted as to the sentence, concluding that petitioner had received ineffective assistance during the penalty phase. The District Court nevertheless denied the writ. It concluded that petitioner had not established prejudice, as required by Strickland, supra, and therefore did not reach the question whether counsel gave adequate assistance. The Court of Appeals affirmed, 760 F.2d 1080 (CA11 1985), with one judge dissenting, id., at 1093 (Johnson, J.).
The only factfinder that has considered the question, the Federal Magistrate, found that petitioner has met the first Strickland criterion- that counsel's performance at the sentencing phase was "outside the wide range of professionally competent assistance," [474 U.S. 1088 , 1089] Strickland, supra, 466 U.S., at 690 . Even the most cursory review of petitioner's trial demonstrates that the Magistrate's conclusion was inescapable.
At petitioner's hearing before the Magistrate, counsel testified that he had decided as a matter of strategy to adopt a "low-key" approach during the guilt phase, in hopes of establishing credibility with the jury . He had then hoped to "humanize" petitioner during the sentencing phase and try to convince the jury to spare petitioner's life. 760 F.2d, at 1088. Both the majority and the dissenter in the Court of Appeals concluded that this strategy was not unreasonable in light of the overwhelming evidence of petitioner's guilt. Id., at 1090, 1095.
Counsel succeeded admirably in implementing the first part of his strategy. He made no opening statement and put on no case in chief. He performed only cursory cross-examination, and did not object to any evidence. Id., at 1089. Counsel's attempts to carry out the second prong of his strategy, however, were piteously deficient. His brief summation during the guilt phase, after acknowledging his "frustration" with the case, App. B to Pet. for Cert. 14 (opinion of District Court), went on to " emphasize the horror of the crime," 760 F.2d, at 1095 (Johnson, J., dissenting), to the very jury that would soon be called upon to determine whether the murder was "outrageously or wantonly vile, horrible, or inhuman," Ga.Code Ann. 17-10-30(b)(7) (1982).
During the penalty phase, counsel put on a single witness, petitioner's mother. She testified concerning petitioner's childhood, which was marred by mistreatment at the hands of his father and his parents' subsequent divorce. The effect of this implied plea for pity, however, was then destroyed when counsel, despite having previously warned the witness to avoid the topic, asked her what petitioner had told her about his expectations. She replied "he and I both, my sister, and my mother expect the death penalty here." 760 F.2d, at 1096.
It was counsel's summation during the penalty phase, however, that led the Magistrate to conclude that petitioner's Sixth Amendment right to counsel had been violated. His statement, which the Magistrate called a " nonargument," id., at 1097, made no mention of petitioner's mother's testimony nor of any other mitigating [474 U.S. 1088 , 1090] evidence.* Counsel did not inform the jury, during summation or at any other time, that petitioner had no prior criminal history, had been steadily employed, had an honorable military record, had been a regular churchgoer, and had cooperated with the police. See id., at 1096, n. 2. Counsel did not give the jury a single reason why it should spare petitioner's life. As the Magistrate noted, counsel "utterly failed to point out any matters which were favorable to [petitioner]-to 'humanize' him, even though this was his alleged 'tactic.' " App. C to Pet. for Cert. 51 (Magistrate's Report and Recommendation). Instead, counsel repeatedly hinted that death was the most appropriate sentence for petitioner. He " focused on the awesome burden placed on the jury in determining Messer's fate and the fortitude that would be required of a juror to decide to let him live, as if the easiest and most obvious verdict were the death sentence." 760 F.2d, at 1097.
The net result was that petitioner was without an advocate at the sentencing phase. "No one addressed the jury and said that Messer did not deserve to die." Ibid. Like the Magistrate and the dissenter in the Court of Appeals, I cannot help but conclude that a total breakdown in the adversarial process occurred in this case.
The District Court rejected the Magistrate's conclusion because it felt that petitioner had not established the second Strickland criterion- that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland, supra, 466 U.S., at 694 . The Court of Appeals held that counsel's performance was not constitutionally deficient. Yet it never even mentioned counsel's summation nor the Magistrate's finding that the summation was unreasonable and ineffective. I can only presume that the Court of Appeals failed to find prejudice as to the summation, based on its conclusory statement that "petitioner has failed to show that [counsel's] performance during the sentencing phase was deficient to the extent that this court cannot rely on the result as being just." 760 F.2d, at 1092 (citation omitted). [474 U.S. 1088 , 1091] The result below is thus an example of the gross unfairness that results when the Strickland prejudice standard is applied without regard to the special characteristics of a capital sentencing proceeding. See Strickland, 466 U.S., at 715 -717-2080 (MARSHALL, J., dissenting). Those proceedings have a much different function than the relatively mechanical inquiry of the guilt phase, and the likelihood that an appellate court can accurately divine a jury's probable response to evidence or arguments is accordingly less. Just last Term this Court reiterated that a capital defendant has a constitutional right to the consideration of "[w]hatever intangibles a jury might consider in its sentencing determination." Caldwell v. Mississippi, 472 U.S. 320 , 105 S. Ct. 2633 (1985); see also Lockett v. Ohio, 438 U.S. 586 (1978) (defendant has constitutional right to consideration of mitigating factors). Yet as applied by the courts below, Strickland permits unprofessional conduct by trial counsel to deprive a capital defendant of that right.
Viewed in the correct light-that is, considering what the jury in this case might have done if presented with a true adversarial debate on the appropriateness of sentencing petitioner to death-one cannot possibly conclude that there is no "reasonable probability" that the outcome would have been different. This is not a case in which, despite unreasonable errors by counsel, the jury was presented with a substantially accurate picture of the defendant and with some cogent argument in favor of life. The jury here was never apprised of several substantial mitigating factors . More important, counsel presented the jury with no reasons to spare petitioner's life and, indeed, strongly intimated that he could think of none.
Despite these strong indicia of unreliability, the District Court found the absence of prejudice as to the sentencing phase based primarily on its conclusion that the evidence of petitioner's guilt was overwhelming, App. B to Pet. for Cert. 3, and the Court of Appeals blithely assumed the jury's role, finding the result "just," 760 F.2d, at 1092. If the Strickland prejudice standard has any vitality at all, it requires a more searching inquiry than that. I dissent.
APPENDIX TO OPINION OF MARSHALL, J., DISSENTING
Justice BLACKMUN dissents from the denial of the petition for writ of certiorari.
[ Footnote * ] Counsel's summation at the penalty phase, in its entirety, is set out in an Appendix to this opinion.