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Dombos v. Jenecka

United States District Court, D. New Mexico
Apr 5, 2011
CIV 09-0200-JB-GBW (D.N.M. Apr. 5, 2011)

Opinion

CIV 09-0200-JB-GBW.

April 5, 2011


REPORT AND RECOMMENDATION


THIS MATTER comes before the Court upon a review of the record and Orders of this Court regarding supplementation of the record. Docs. 127, 129. Having now received and reviewed the additional materials, this Court renews its recommendation that Petitioner's claims of prosecutorial misconduct be dismissed on the merits.

I. PROCEDURAL HISTORY

On October 25, 2010, I entered my Proposed Findings and Recommended Disposition ("PFRD") concerning Petitioner's application for the Writ of Habeas Corpus. Doc. 104. Therein, I recommended that Judge Browning dismiss, on the merits, Petitioner's various claims of prosecutorial misconduct, grand jury misconduct, erroneous trial court rulings, and actual innocence. Id. at 9-32.

On February 4, 2011, Judge Browning sustained in part and overruled in part Petitioner's "Written Objections to the Proposed Findings and Recommended Disposition" ("Objections to the PFRD"). Doc. 127. First, Judge Browning sustained Petitioner's objections to the PFRD's recitation of the time line related to his state habeas claim. Id. at 4. Additionally, Judge Browning sustained three of Petitioner's objections to the PFRD's findings on his claims of prosecutorial misconduct. Id. at 9-11. These included the PFRD's findings concerning (1) Petitioner's claims of improper closing argument, (2) the significance of evidence presented against Petitioner at trial, and (3) Petitioner's claims of Brady and Giglio violations committed by the prosecutor. Id. Notably, Judge Browning did not sustain these final three objections on the merits. Id. To the contrary, Judge Browning crafted his ruling so that I might review additional evidence suggested by Petitioner, and thereafter, ascertain whether that proffer changed my recommendation on these claims. Id. at 10-11. Apart from these claims, Judge Browning overruled all Petitioner's remaining objections. Id. at 5-8, 11-13.

Contemporaneous with this ruling, Judge Browning held that Petitioner could supplement the record with additional evidence. See doc. 124. Since that time, Petitioner has proffered two Supplements for this Court's review. Docs. 131, 133. Recognizing Petitioner's inability to secure certain evidentiary materials, I ordered Respondents to produce the videotape introduced at Petitioner's trial, the taped interview of Ms. Ellen Dombos ("E. Dombos") by Deputy Sheriff Lisa Delorem ("Deputy Delorem"), the transcript of that interview, and legible copies of photographs taken of the crime scene. Doc. 129 at 2-3. With the exception of the taped interview between E. Dombos and Deputy Delorem, Respondents produced all the requested materials on February 23, 2011. Doc. 132.

In the relevant Order, Judge Browning recounted Petitioner's request "that the Court supplement the record with incident reports form the state court, tape logs, a video tape shown at trial, a taped interview of Ellen Dombos with a deputy, police scene photographs, a letter E. Dombos wrote, and his grand-jury transcripts." Doc. 124 at 3. Judge Browning also observed that "[Petitioner] alleges that the evidence he wishes to add to the record would clearly show that E. Dombos, the complaining witness in his case, was lying," and by Petitioner's estimation, would support the "claims in his federal habeas petition." Id. (citation omitted). Because the record proper "does not include all of the evidence to which [Petitioner] refers," Judge Browning allowed Petitioner "to supplement the record with evidence," while also expressly prohibiting Petitioner from supplementing the record "with additional argumentation." Id. at 4.

II. DISCUSSION

As mentioned above, both parties have now supplemented the record with additional evidence. These supplementary materials are detailed below.

A. Evidence Proffered to Supplement the Record

1. Petitioner's First Supplement

Petitioner filed his "First Supplement to the Record of Evidence" ("Supplement") on February 16, 2011. Doc. 131. Along with additional argument, this Supplement contains three attachments, each of which has been previously examined by this Court. See id. These include: (1) a letter from Wells Fargo concerning his former bank account and copies of two related checks; (2) a page from Petitioner's trial transcript; and (3) another letter from Wells Fargo regarding his closed bank account. Id. at 4-9; see also R. Proper 1040-42, 1044; Trial Tr. vol. 2, 287, Feb. 22, 2005.

2. Petitioner's Second Supplement

On February 22, 2011, Petitioner filed his "2nd Supplement to the Record of Evidence" ("Second Supplement"). Doc. 133. Unlike the Supplement filed by Petitioner one week prior, this Second Supplement does not attempt to provide the Court with additional evidence. See id. To the contrary, the Second Supplement directs the Court to fifty-eight (58) separate citations of evidence that Petitioner extracted primarily from the exhibits attached to Respondents' "Answer to Petition for Writ of Federal Habeas Corpus ( 28 U.S.C. § 2254)" ("Answer"). Doc. 60. Moreover, many of these fifty-eight (58) citations contain more than one reference to material in the record. As in Petitioner's First Supplement, Petitioner includes substantial additional argumentation in his Second Supplement. See id.

All materials attached to this pleading, including those now specifically cited by Petitioner, were reviewed by this Court in preparation of its original PFRD recommending dismissal of Petitioner's claims.

Specifically, Petitioner cites to the following evidentiary materials: (1) trial testimony given by E. Dombos, Trial Tr. vol. 2, 184-331, Feb. 22, 2005, vol. 3, 452-66, Feb. 23, 2005. (seven citations); (2) prosecutor's closing argument at trial, Id. vol. 4, 574-608, 639-44, Feb. 24, 2005 (five citations); (3) trial testimony of Deputy Delorem, Id. vol. 1, 38-121, Feb. 21, 2005 (five citations); (4) interview of E. Dombos by Deputy Delorem, Resp'ts' Answer, attach. 48 at 24-44, attach. 49 (four citations); (5) tape log minutes of Petitioner's divorce hearing, Id. attach. 22 at 13-22 (three citations); (6) tape log minutes of Petitioner's pre-trial motions hearing, Id. attach. 71 at 17-21 (three citations); (7) Grand Jury testimony of Deputy Delorem, Id. attach. 44 at 8-16, 19-42 (three citations); (8) bank records and correspondence, Id. attach. 20 at 36-37, attach. 21 at 1-17, attach. 35 at 4 (three citations); (9) Grand Jury transcripts generally, Id. attach. 37 at 22-36, attach. 38, attach. 39 at 1-3, 9-14, 47-52, attach. 44 at 8-16, 19-42 (three citations); (10) Grand Jury testimony of Sergeant Leon Ledbetter, R. Proper 2127-39 (three citations); (11) pretrial disclosure list, Resp'ts' Answer, attach. 52 at 3-4 (two citations); (12) disclosure list and certificate filed by prosecutor, Id. attach. 14 at 31-32 (two citations); (13) prosecutor's opening statement, Trial Tr. vol. 1, 9-28 (two citations); (14) Pima County police reports, Resp'ts' Answer, attach. 26 at 4-5, 13, attach. 40 at 24-26 (two citations); (15) police scene photographs, Id. attach. 15 at 21-22, attach. 16 at 1-7 (two citations) (Color copies of these photographs were provided by Respondents as an attachment to Doc. 132); (16) Respondents' Answer generally, Doc. 60 (one citation); (17) affidavit for search warrant of Petitioner's residence, R. Proper 18-21 (one citation); (18) text of search warrant for Petitioner's residence, Id. at 17 (one citation); (19) letter written by E. Dombos, Resp'ts' Answer, attach. 17 at 26-33 (one citation); (20) affidavit of Mr. John Shampton, Id. attach. 18 at 3-4 (one citation); (21) Petitioner's Amended Grand Jury Indictment, R. Proper 158-61 (one citation); (22) Response to Petitioner's Motion for Psychological Examination, Id. at 51-52 (one citation); (23) tape log minutes of hearing on Petitioner's Second Request for Psychological Examination, Id. at 114-19 (one citation); (24) tape log minutes of hearing held on February 4, 2005, Id. at 141-44 (one citation); (25) affidavit of Ms. Agnes Shampton, Resp'ts' Answer, attach. 20 at 35 (one citation); (26) testimony of Kim Montoya, Trial Tr. vol. 2, 332-63 (one citation); (27) order of the New Mexico Court of Appeals ("NMCA"), Resp'ts' Answer, attach. 73 at 31-36, attach. 74 at 1-23 (one citation); (28) closing argument of Petitioner's counsel, Trial Tr. vol. 4, 574-609 (one citation); (29) certificate of transcription for interview of E. Dombos by Deputy Delorem, Resp'ts' Answer, attach. 48 at 24 (one citation). Pet'r's Second Supplement 1-12.

3. Respondents' Supplement

On February 23, 2011, Respondents complied with this Court's Order to supplement the record. Doc. 132. Attached to this "Notice Re: Filing of Tape, Interview Transcript and Police Scene Photographs; and Notification of Victim's Death," Respondents proffer three exhibits for the Court's review. Among these, Respondents have attached a transcript of the interview Deputy Delorem conducted of E. Dombos on February 21, 2004. Further, Respondents have submitted seventy (70) color photographs of Petitioner's New Mexico trailer home, thirty-five (35) of which are distinct and printed to full-page scale, and thirty-five (35) of which are duplicates of these photographs, reduced for viewing to four photographs per page. These photographs, which were taken inside Petitioner's New Mexico home, document the following:

Although no video or audio recording of this interview has been produced as ordered, the transcription of the interview and certificate of its transcription suffice for purposes of this review.

The final of these four-print pages contains only three photographs.

(1) the kitchen;
(2) a corner occupied by boxes, a fan, and a mirror;
(3) a trash can containing, among other things, an empty bottle of vodka and cigarette butts;
(4) a trash can containing, among other things, empty beer cans and cigarette butts;
(5) a surface containing, among other things, two cell phones and a blood pressure monitor;
(6) a land line telephone, suitcase, and periodical;
(7) a mattress lifted to reveal a carrot and sash lying near the center of the boxspring;
(8) among other items, boxes of .38 caliber handgun ammunition;
(9) clothing in a closet;
(10) facing the head of the bed from its foot, the various items near the improvised night stand on the right side of the bed;
(11) an unknown white article lying next to the bed;
(12) contents of a closet;
(13) a room containing a mirror, boxes, and a window;
(14) an empty liquor bottle sitting in a box;
(15) a door to the trailer home;
(16) the porch area of the trailer home;
(17) a side view of the trailer home;
(18) a storage unit;
(19) a chain-link fence and a dog;
(20) a different angle on the mattress lifted to reveal a carrot and sash lying in approximately the center of the boxspring;
(21) various items appearing in the trailer home's living room;
(22) another photograph of the various items near the improvised night stand on the right side of the bed, when facing it;
(23) two tubes of what appear to be medication near the improvised night stand on the right side of the bed, when facing it from its foot;
(24) a wider view of the items lying near the right side of the bed, when facing it from its foot;
(25) a view of the items on the left side of the bed, when facing it from its foot;
(26) the sheets on the bed;
(27) the bed, two nightstands, surrounding items, and the wall behind the head of the bed;
(28) a tube of K-Y jelly on top of a towel, over-the-counter medication, and various other items;
(29) a bathroom, containing assorted toiletries and clothing hanging on the wall;
(30) a bathroom;
(31) a laundry appliance and the view into the master bedroom from the exterior hallway;
(32) among other things, a half-empty bottle of vodka next to the refrigerator;
(33) the hallway leading to the master bedroom;
(34) the living room;
(35) a different angle on the surface containing, among other things, two cell phones and a blood pressure monitor.

Lastly, Respondents have provided the Court a copy of the VHS videotape introduced at Petitioner's trial.

a. Contents of VHS videotape

Respondents' final proffer is the VHS videotape ("videotape") introduced and published to the jury at Petitioner's trial. In total, this videotape contains roughly fifty-five (55) minutes of footage. Of these fifty-five (55) minutes, approximately one minute consists of dynamic footage. The remaining fifty-four (54) minutes convey static images of carpet captured at close range.

The carpet images that dominate the videotape derive from E. Dombos and her efforts to purge the original recording of scenes that she found offensive. During her Grand Jury testimony, Deputy Delorem recalled how E. Dombos had contacted her shortly after viewing the videotape. R. Proper 2400. At that time, she testified that E. Dombos had become sick after discovering the videotape's contents, and shortly thereafter, began trying to record over the offensive footage by pointing the camera at the floor and recording. Id. at 2400-02. Before recording over everything on the videotape, however, E. Dombos contacted Deputy Delorem, who directed her to preserve what remained on the videotape. Id. E. Dombos testified in accord at Petitioner's trial. Trial Tr. vol. 2, 244:5-245:21, 304:1-6, 315:13-316:2.

Specifically, according to Deputy Delorem, "[t]he carpet in the living room is where [E. Dombos] taped over the tape." R. Proper 2403.

The relevant minute of videotape footage is dispersed across the initial eleven minutes of the videotape's footage. Furthermore, this minute of live film is divided into five sections, three of which are interrupted, but correspond to the same scene. Thus, fundamentally, the videotape contains three scenes, one of which is interrupted into three parts.

i. Scene one (dog scene)

This scene can be found from 0:00-0:02 on the videotape.

The first two seconds of film depict two women seated. One holds a dog in her arms. The scene ceases and cuts to carpet.

ii. Scene two (three-part bedroom scene)

Approximately twenty-five (25) seconds of this scene have survived being taped over. These three scenes can be found at 2:23-2:26, 9:55-10:12, and 10:45-10:47 on the videotape.

The second collection of footage reveals a male, identified at trial as Petitioner, and E. Dombos in bed. While Petitioner's face is hidden from the camera's view, the footage shows his figure sitting on the side of the bed with his left leg folded on the bed and right foot on the floor. Meanwhile, E. Dombos lies on the bed under Petitioner's folded left leg in varying degrees of nudity. Throughout all three parts of this scene, Petitioner engages in an aggressive and forcible questioning of E. Dombos. When E. Dombos attempts to roll over or sit up, Petitioner pushes her back down onto the bed and restrains her. Nevertheless, before he can do so, the camera captures multiple bruises of varying severity across her left torso and back.

Throughout the three parts of the scene, the camera angle remains constant. Therefore, all three parts reveal similar information about the room's contents. A bed, bedroom wall, nightstand, lamp, linens, and pillows are all distinguishable. Additionally, an unidentified light source can be discerned near the nightstand on the bed's far side. Because of the camera's narrow field, however, no other features are apparent.

This scene exists in three parts because of the interposition of two scenes that seem to have been recorded later. The first and second parts of this bedroom scene are divided by E. Dombos' recording of the carpet as described above for approximately seven minutes. The second part is then separated from the third by a scene that E. Dombos testified as depicting a carrot, in the hands of Petitioner, sodomizing her. This scene is described more fully in the next section.

iii. Scene three (sodomy scene)

This scene can be found at 10:13-10:44.

The last scene of distinct material on the videotape is also its most poorly lit. What can be perceived is a female form, seen from mid-back to just below the buttocks, naked and lying on her stomach. The only distinguishable feature of the perpetrator and film maker, beyond the appearance of his hand and fingers, is the light-colored sweatshirt covering his arm. From the inception of the video, a carrot can be seen already inserted into the female's anus. The perpetrator adjusts the female's position, secures a better hold on the camera, and then begins to sodomize the female by grabbing the carrot's end in his left hand and repeatedly thrusting the carrot in and out of the female's anus.

B. Effect of Additional Evidence on this Court's Recommendation

Having now augmented the record with additional evidence from all parties, this Court can reassess those findings in the PFRD that remain unadopted by Judge Browning. As stated above, those included the PFRD's recommendations with respect to: (1) Petitioner's claims of improper closing argument, (2) the significance of evidence presented against Petitioner at trial, and (3) Petitioner's claims of Brady and Giglio violations committed by the prosecutor. Doc. 127 at 9-11. These claims will be discussed seriatim.

As outlined above, Petitioner added absolutely nothing new to the record. Thus, the only additional evidence this Court will address consists of: (1) the transcript of the interview of E. Dombos by Deputy Delorem; (2) crime scene photographs; and (3) the videotape.

1. Improper closing argument

In his "Amended Habeas Corpus Petition With Consolidated Claim[]s" ("Amended Petition"), Petitioner avers that the prosecutor's closing argument "deprived [him] of a fair trial." Doc. 70 at 2. By Petitioner's recollection, the prosecutor called him a "liar" four times, stated that the sodomy videotape proved he was a liar, claimed that the most compelling reason to convict Petitioner was that he was a "sexual deviant," and misrepresented to the jury that the court had called him a sexual deviant and a monster during closing arguments. Id. After I recommended dismissal of this claim in the PFRD, Petitioner alleged in his Objections to the PFRD that some of the evidence he sought to add to the record, including crime scene photographs and a videotape, would demonstrate that the prosecutor was lying to the jury when he called Petitioner a liar. Doc. 107 at 41-45. Based on these contentions, Judge Browning concluded that he could not "carefully and thoughtfully make a fully informed decision on this issue without having the evidence as part of the record." Doc. 127 at 10. Consequently, Judge Browning sustained this objection so that I might "consider whether the supplemental evidence affects [my] determination." Id.

Doc. 104 at 11-12.

Having now reviewed the supplementation proffered by all parties, I renew my recommendation that this claim be dismissed on the merits. As a threshold matter, this Court continues to construe Petitioner's pleading to advance a due process claim. See doc. 104 at 9. Further, this Court recognizes that the NMCA adjudicated this claim in Petitioner's direct appeal, and as a consequence, this Court must proceed under the deferential standard set out in 28 U.S.C. § 2254(d). Id. Therefore, Petitioner must demonstrate that the State's decision was (1) contrary to or an unreasonable application of clearly established Supreme Court precedent, or (2) an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d).

Ordinarily, a prosecutor's misconduct will require reversal of a state court conviction only where the remark sufficiently infected the trial so as to make it fundamentally unfair, and, therefore, a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The Supreme Court has made clear that in these instances, "inappropriate prosecutorial comments, standing alone, [do] not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding." United States v. Young, 470 U.S. 1, 11 (1985); see Darden v. Wainwright, 477 U.S. 168, 181 (1986) ("[I]t is not enough that the prosecutors' remarks were undesirable or even universally condemned." (internal citation omitted)). To determine whether a trial is rendered fundamentally unfair, courts must examine the entire proceeding, "including the strength of the evidence against the petitioner, both as to guilt at that stage of the trial and as to moral culpability at the sentencing phase as well as any cautionary steps — such as instructions to the jury — offered by the court to counteract improper remarks." Bland v. Sirmons, 459 F.3d 999, 1024 (10th Cir. 2006) (internal quotation marks omitted). "The ultimate question is whether the jury was able to fairly judge the evidence in light of the prosecutors' conduct." Id.

Alternatively, however, "if the alleged prosecutorial misconduct denied the petitioner a specific constitutional right (rather than the general due process right to a fair trial), a valid habeas corpus claim may be established without proof that the entire trial was rendered fundamentally unfair." Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (citing Paxton v. Ward, 199 F.3d 1197, 1217 (10th Cir. 1999)). These rights include, among others, the privilege against compulsory self-incrimination and the right to cross-examine witnesses. These rights are not implicated by the prosecutor's remarks in this case.

In the instant case, I remain unable to find anything to suggest that the jury unfairly judged the evidence based on the prosecutor's closing remarks. What has become apparent, however, is that the representations in Petitioner's Amended Petition diverge from the record in critical respects. Specifically, the prosecutor did not inform the jury that the trial court considered Petitioner a sexual deviant or a monster. Id. at 577:8-16 (emphasis added). Likewise, the prosecutor did not urge the jury to convict Petitioner because he was a sexual deviant. Id.

The trial transcript evinces that the prosecutor called Petitioner a "sick, vile man" on one occasion and a "sexual deviant" on four. Trial Tr. vol. 4, 577:8, 576:13, 577:13, 584:9, 608:6. Additionally, the prosecutor referred to Petitioner as a "monster" twice. Id. at 584:9, 608:6. Finally, the prosecutor accused Petitioner of lying, uttering lies, or offering perjured Grand Jury testimony on one occasion each, for a total of three events. Id. at 594:13, 597:23-598:1, 601:2.

In trying to call the jury's attention to the primacy of its instructions, the prosecutor intoned, "the Court has told you that he can be a sexual deviant, he can be a violent man. But if it doesn't fit into the jury instructions, it doesn't matter." Trial Tr. vol. 4, 577:12-15. It appears that the prosecutor was actually reiterating to the jury that they could not find him guilty just because they did not like him. This obviously contrasts with Petitioner's account, where he asserts "[the prosecutor] told the jury, the court has told you, he is a sexual deviant, and [a] monster." Doc. 107 at 41.

Petitioner's claim can be distilled to the pejorative terms by which the prosecutor described him during closing argument. In this regard, Petitioner first contends that the remarks deprived him of a fair trial. On direct appeal, the NMCA considered these negative characterizations and ordered dismissal of this claim. In the PFRD, I recommended the same, finding that "the remarks did not deprive [Petitioner] of a fair trial," and, moreover, that the finding of the NMCA was "neither contrary to clearly established Supreme Court precedent nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Doc. 104 at 11-12. Since that time, the supplementary evidence provided by the parties has done nothing to alter my proposed findings.

By calling Petitioner a "liar," a "sick, vile man," a "monster," and a "sexual deviant," the NMCA found that the prosecutor "improperly sought to depict [Petitioner] as an evil person." State v. Dombos, 143 N.M. 668, 678 (Ct. App. 2008). Nevertheless, the NMCA held that "[a]lthough we discourage the use of such language, we cannot say that these comments fall within the categories of conduct that would deprive Defendant of a fair trial." Id. ( citing State v. Armendariz, 140 N.M. 712, 720 (Ct. App. 2006)).

In addition to his claim that the prosecutor's remarks "deprive[d] [him] of a fair trial," Petitioner also posits that the videotape and crime scene photographs "will show that the prosecutor was lying to the jury when he called [Petitioner] a liar." Doc. 127 at 9; Doc. 107 at 41-42. According to Petitioner, a review of these materials "proves the video tape was impossible to be made in my N.M. home," and when compared with "the police scene photos of my real N.M. residence," confirms "they are not the same place." Doc. 107 at 42. Thus, by Petitioner's reasoning, the prosecutor "knew [the] found video-tape [sic] was fabracated [sic] false evidence," and all reference made by the prosecutor to that tape for purposes of impeaching Petitioner constituted prosecutorial misconduct. Id.

In this instance, the prosecutor accused Petitioner of offering perjured Grand Jury testimony. Immediately preceding this, the prosecutor reviewed the various inconsistent statements Petitioner had offered to law enforcement on how E. Dombos had received anal lacerations. Trial Tr. vol. 4, 597:17-22. He then reviewed Petitioner's testimony at Grand Jury that he had not sodomized his wife with a carrot. Id. at 597:23-25. At that point, the prosecutor pronounced to the jury, "of course, you know from the videotape that that was perjured testimony." Id. at 597:25-598:1.

Notwithstanding Petitioner's assertions, nothing in the crime scene photographs or videotape reinforces his argument. In the three-part bedroom scene, even the closest analysis of the videotape cannot confirm, when compared with the crime scene photographs, that these materials depict the same or different residences. Notably, the videotape does reveal a bedroom configuration that parallels the one in the crime scene photographs. Furthermore, a night stand and lamp appear in the videotape that can also be seen in the crime scene photographs. Likewise, the bed, linens, and the wall abutting the head of the bed all seem congruous in shape and color.

Based on her viewing of the videotape, E. Dombos testified as follows:

Naturally, the multiple similarities between the photographs and the videotape are not what have captivated Petitioner's attention. Rather, Petitioner continues to argue that "[t]he police scene photos of my N.M. home clearly show a solid wall, the bed rest against. The videotape shows a window next to the nightstand, so I was framed in the classic sense . . ." Doc. 70 at 3. Unfortunately for Petitioner, neither the videotape nor the crime scene photographs conclusively portray what he would desire.

First, the crime scene photographs do not show an entire solid wall on the relevant side of the bed. In fact, the photographs only capture a marginal area of this wall nearest the night stand, all of which comports with the images on the videotape. Because they reveal such a small area of the wall, ample room remains in the area uncaptured by film where a window could be located.

Secondly, the videotape does not clearly show a window on any wall. What can be perceived in the three-part bedroom scene is a light source emitting from the far side of the bed. What the light source is or where it originates cannot be determined, as the narrow field of the camera precludes it. While the light could be coming from a window, such a conclusion is just one possibility given what can be seen in the videotape.

Most importantly, in the scene to which the prosecutor alluded — the sodomy scene — neither a window nor walls can be discerned. The low level of lighting and first-person perspective of the footage reveal almost nothing of where the scene was filmed. At trial, the only individual able to testify on the sodomy scene's contents was E. Dombos. To that end, she testified that she knew it was Petitioner sodomizing her "[b]ecause he's left handed and I recognized the sleeve of his shirt or sweater. And I know that was my bed, and I just put it together." Trial Tr. vol. 2, 254:13-15. Although he had no burden to do so, Petitioner proffered no tangible or testimonial evidence at trial to counter the claim that the videotape was made in New Mexico. Thus, at the time the prosecutor made his closing statement that Petitioner had perjured himself at the Grand Jury, the prosecutor had uncontroverted testimony and physical evidence on which to rely.

Having reviewed the supplemental evidence proffered, I remain convinced that the prosecutor's closing remarks, while improvident, did not deprive Petitioner of a fundamentally fair trial. Neither the crime scene photos, nor the videotape, nor a juxtaposition thereof substantiate his challenges. Therefore, I renew my recommendation that this claim be dismissed.

2. Significant evidence of guilt

In the PFRD, I found that the evidence against Petitioner was "significant." Doc. 104 at 11. Because the evidence proffered at trial was significant, and because the trial court carefully and properly instructed the jury, this Court was able to recommend the dismissal of Petitioner's claim of improper closing remarks.

Where an allegation of improper statements by the prosecutor is advanced, the strength of the state's case is a component of determining whether the petitioner still retained his right to a fundamentally fair trial. Even in those instances where a prosecutor may utter an improper closing remark, the strength of the state's case, limiting instructions given to the jury, and a relation of those remarks to proffered evidence will serve to provide fundamental fairness to the trial. See Malicoat v. Mullin, 426 F.3d 1241, 1256 (10th Cir. 2005) (concluding that improper statements by the prosecutor did not violate the defendant's due process rights in light of "the strength of the state's case and the fact that the majority of the prosecutor's argument was based upon evidence in the record"); Hooper v. Mullin, 314 F.3d 1162, 1173 (10th Cir. 2002) (concluding that the prosecutor's improper comments regarding the evidence did not violate due process when the evidence was substantial and the trial court instructed the jury to base its decision only on the evidence).

Subsequent to the filing of the PFRD, Judge Browning reviewed the PFRD's findings. Therein, he characterized my findings as follows:

there was significant evidence of [Petitioner's] guilt, and because the court instructed the jury to consider only witness testimony, attorneys' stipulations, and exhibits as evidence, the [NMCA's] holding that the remarks did not deprive [Petitioner] of a fair trial was neither contrary to clearly established Supreme Court precedent nor an unreasonable determination of the facts in light of the evidence.
Doc. 127 at 9-10. Based on Petitioner's numerous attestations that additional evidence would prove these findings in error, Judge Browning held that a final decision could not be made "without having the [supplemental] evidence as part of the record." Id. at 10. Therefore, he ordered that I consider this additional evidence and establish "whether the supplemental evidence affects [this Court's] determination." Id.

Now, having re-examined the record and all supplemental evidence proffered by the parties, I remain convinced that the evidence against Petitioner was significant. E. Dombos, the victim of the crimes with which Petitioner was charged, testified at the trial regarding each of the crimes. Trial Tr. vol. 2, 184-332. Her testimony was corroborated by several sources. One witness, who was a neighbor of Petitioner and E. Dombos, testified about her awareness of domestic abuse committed by Petitioner against E. Dombos during the relevant time period. Id. at 160-186. Further, E. Dombos' daughter testified about her personal knowledge of a pattern of domestic abuse committed by Petitioner against E. Dombos during the relevant time period. Id. at 364-73. The doctor who treated E. Dombos after the rape testified as to the injuries E. Dombos suffered on that evening as well as to the pervasive bruising she presented and how it was consistent with abuse over an extended period of time. Id. vol 1, 121-53. Moreover, the nurse who conducted the sexual assault examination of E. Dombos after the rape also testified about her significant injuries. Id. vol 2, 332-63. Finally, the videotape itself corroborates E. Dombos' testimony because it depicts Petitioner's domineering behavior toward her and the sexual assault with the carrot.

Taking the whole of Petitioner's trial into consideration and the record before this Court including the supplemental evidence, I remain convinced that significant evidence of his guilt was presented, and that his trial was fundamentally fair. More importantly, I also maintain that the NMCA's holding that the prosecutor's closing remarks did not deprive Petitioner of a fair trial is neither contrary to clearly established Supreme Court precedent nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

3. Brady, Giglio, and related claims

Petitioner's last surviving contention concerns the prosecutor's alleged failure to disclose Brady and Giglio information. Doc. 70 at 2-8. Interwoven into this claim, Petitioner infuses the allegation that the prosecution suborned and elicited perjurious testimony from prosecution witnesses. Id. at 5-6. In the PFRD, Petitioner's myriad allegations on this claim were extensively examined. Based on my review of the record, I recommended the dismissal of all Petitioner's Brady, Giglio, and presentation of perjurious testimony claims. Doc. 104 at 12-24.

Following the filing of Petitioner's Objections to the PFRD, Judge Browning observed that "[s]everal of [Petitioner's] objections to [this Court's] analysis rely on supplemental evidence that [this Court] has not allowed [Petitioner] to add to the record." Doc. 127 at 10. Judge Browning also noted that "[P]etitioner, in certain objections, argues that this evidence supports his arguments that the state committed Brady and Giglio violations." Id. Judge Browning then sustained Petitioner's objection to my recommendation so that this Court could "review the additional evidence that [Petitioner] presents, and determine whether [this Court] wishes to change [its] recommendations" regarding these claims. Id. at 10-11. Having reviewed all the supplemental evidence presented, I renew my recommendation that these claims be dismissed on the merits.

a. Brady and Giglio claims

Notwithstanding Petitioner's arguments, nothing in the supplemental evidence supports his broad accusations of the prosecutor committing Brady and Giglio violations. Under Tenth Circuit precedent, "[i]n order to establish a Brady or Giglio violation, `the defendant bears the burden of establishing (1) that the prosecution suppressed the evidence, (2) that the evidence was favorable to the accused, and (3) that the evidence was material.'" United States v. Wright, 506 F.3d 1294, 1301 (10th Cir. 2007) (quoting United States v. Gonzalez-Montoya, 161 F.3d 643, 649 (10th Cir. 1998)). Furthermore, the Tenth Circuit has made clear that a habeas petitioner bears both the burden of persuasion and production in this context. See Foster v. Ward, 182 F.3d 1177, 1191 (10th Cir. 1999) (holding that the petitioner "bears the burden of presenting evidence to establish a Brady or Giglio violation"). Petitioner has manifestly failed to meet either burden.

In Brady v. Maryland, the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963).

The Court announced in Giglio v. United States that where "the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule." Giglio v. United States, 405 U.S. 150, 154 (1972) (internal quotation marks omitted).

As a threshold matter, Petitioner has failed to show any suppression of evidence. In the PFRD, I scrutinized each claim submitted by Petitioner, and in each instance, found that Petitioner was either aware of the evidence, cited to evidence not in possession of the prosecution, or waived his right against late disclosure by refusing to continue his trial setting. Doc. 104 at 14-19. Nothing in the additional evidence impacts these findings. Hence, I renew my recommendation that these claims be dismissed on the merits.

If a defendant is aware of and can present the exculpatory evidence, no Brady violation can be sustained. See United States v. Erickson, 561 F.3d 1150, 1164-65 (10th Cir. 2009).

See United States v. Williams, 132 F.3d 1055, 1060 (5th Cir. 1998) (defendant waived argument that he was prejudiced by disclosure of Brady material during trial when he elected not to take advantage of court's offer of a continuance); see also United States v. Burke, 571 F.3d 1048, 1055-57 (10th Cir. 2009) (where defendant's continuance motion based upon Brady disclosure during trial is denied, defendant's failure to present evidence of prejudice from the delay to the trial court means the argument is forfeited).

b. Alleged presentation of false testimony

Although it represents the cornerstone of Petitioner's voluminous pleadings, nothing in the supplemental evidence supports his assertion that the prosecutor knowingly presented false testimony at his trial. Were Petitioner able to produce evidence showing that the prosecutor knowingly presented false evidence, a due process violation would exist, regardless of whether the evidence was relevant to substantive issues or to witness credibility only. Napue v. Illinois, 360 U.S. 264, 269 (1959). To establish such a violation, Petitioner would have to show "that (1) [the witness's] testimony was in fact false, (2) the prosecution knew it to be false, and (3) the testimony was material." United States v. Caballero, 277 F.3d 1235, 1243 (10th Cir. 2002). Because Petitioner cannot satisfy even the first prong of the relevant burden, I again recommend that this claim be dismissed.

Essentially, Petitioner contends that the prosecutor suborned perjurious testimony from Deputy Delorem and E. Dombos about the location where a tube of K-Y Jelly was found and the site where the relevant videotape was filmed. Doc. 104 at 20; Doc. 70 at 2-7. In light of the record and the supplemental evidence proffered by the parties, this allegation will be addressed in its component parts.

First, as highlighted in the PFRD, Deputy Delorem did not testify about where the K-Y Jelly was found. Doc. 104 at 20-21. To the contrary, she admitted at trial that she "wasn't present at that time." Trial Tr. vol. 1, 88:9-11. Nothing in the supplementary evidence affects this fact.

Similarly, E. Dombos never testified as to where the K-Y Jelly was found. At one point, she did testify that Petitioner kept the K-Y Jelly "[o]n his side of the bed," but never as to where it was immediately after the rape. Id. at vol. 2, 221:7-24. The crime scene photographs, which had been disclosed to Petitioner three days before trial, leave unclear where the K-Y Jelly was discovered. Although certain indicia in the only photograph showcasing the K-Y Jelly point to the tube's placement in the bathroom, only an observer with first-hand knowledge could state with certainty where it was found. Most importantly, even assuming that the K-Y Jelly was shown, irrefutably, to be found in the bathroom, it does not contravene E. Dombos' testimony that Petitioner "kept it" on his side of the bed. Any number of possibilities, including actions by Petitioner, could account for the K-Y Jelly being found in the bathroom at the time of the police search. Thus, Petitioner cannot demonstrate that either the testimony of Deputy Delorum or E. Dombos was in fact, false, with respect to the K-Y Jelly.

E. Dombos stated the same in her interview with Deputy Delorem following the rape. When asked where Petitioner kept the K-Y Jelly, E. Dombos replied, "[u]h, he keeps it on his side of the bed." Resp'ts' Answer, attach. 48 at 29.

With respect to the location where the incriminating videotape was filmed, Petitioner avers that the location pictured was not his home in New Mexico, but was instead his home in Arizona. Doc. 70 at 2-7. Based upon this belief, he claims that the "prosecutor had his witnesses lie, knowingly at trial that the . . . videotape was made in my N.M. home." Doc. 70 at 2. Nonetheless, even with the supplemental evidence provided, this allegation remains unproven.

This Court has reviewed the videotape and compared it with the crime scene photographs. As fully described above, there is no conclusive evidence that the relevant portions of the videotape were recorded outside of New Mexico. Despite a close examination of these items, I cannot conclude with any certainty whether the relevant portions of the videotape depict a room different from the room depicted in the police scene photographs. Deputy Delorem and E. Dombos both testified that they believed that videotape showed Petitioner's New Mexico residence. Trial Tr. vol. 1, 80:14-81:15, vol. 2, 246:7-17. Even with the additional evidence and acknowledging this court's role during collateral review, Petitioner has not established that either Deputy Delorem or E. Dombos testified falsely. See Barefoot v. Estelle, 463 U.S. 880, 887 (1983) ("Federal courts are not forums in which to relitigate state trials."); Herrera v. Collins, 506 U.S. 390, 400 ("federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact."); United States v. Scheffer, 523 U.S. 303, 313 (1998) ("A fundamental premise of our criminal trial system is that the jury is the lie detector. Determining the weight and credibility of witness testimony, therefore, has long been held to be the part of every case that belongs to the jury . . .").

See supra, pp. 17-19.

As I noted in the PFRD, this contention of a dramatic and obvious discrepancy between trial testimony and the videotape about the window's location does not survive a close review of the record. Doc. 104 at 22-23. Deputy Delorem did not specifically testify about where the window was located. She testified only that the location of "various things in the bedroom" such as the window and the carpet as seen in the videotape matched the bedroom in the New Mexico home. Trial Tr. vol. 1, 80:14-81:15. The only specific testimony from E. Dombos on the window was limited to the following: Q: And if I would imagine a queen size bed being against the wall and I was looking towards the bed, towards the (inaudible), where would the window be? A: On the left side — Q: Left side. A: On my side. Q: Your side of the bed. A: Um-hmm. Trial Tr. vol. 2 at 247:3-10.

Consequently, Petitioner has failed to establish the first prong of his due process claim that the prosecutor knowingly presented false evidence with respect to the K-Y Jelly or the videotape location. Even if one were to agree with some of the inconsistencies alleged by Petitioner, he has utterly failed to establish the second prong — that the prosecutor knew the testimony of Deputy Delorem and E. Dombos to be false. If, perhaps, the videotape so clearly and conclusively depicted a room different from that in the police scene photographs, one could infer that the prosecutor must have known that the contrary testimony of Deputy Delorem and E. Dombos was false. However, the additional evidence is not such a smoking gun. Not only is it difficult to see differences between the videotape and the photographs, they actually share a host of similarities as described above. The prosecutor would have no obvious reason not to accept the testimony of two individuals who had been in the New Mexico bedroom that the videotape depicted that room. Petitioner presents no evidence — beyond the "inconsistencies are so obvious the prosecutor must have known they were lying" argument — that the prosecutor knowingly presented false testimony. Given that this argument fails, Petitioner has failed to establish the second prong of this due process claim.

Because Petitioner has failed to establish two of the prerequisites for this due process claim, I renew my recommendation that this claim be dismissed on the merits.

III. IMPACT OF CULLEN V. PINHOLSTER

As described above, I have reviewed the supplemental evidence as directed. However, subsequent to the decision by Judge Browning to permit supplementation of the record, the Supreme Court has addressed the issue of what materials a federal court may properly consider when analyzing a state habeas petition under 28 U.S.C. § 2254(d). Cullen v. Pinholster, 562 U. S. ___, ___ (2011) (slip op., at 8-12). Without equivocation, the Cullen Court announced, "We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Id. at 9. Justice Thomas, in delivering the opinion of the Court, explained:

Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time — i.e., the record before the state court.
Id. Ultimately, the Court reasoned that "[i]t would be contrary to [section 2254's] purpose to allow a petitioner to overcome an adverse state-court decision with new evidence introduced in a federal habeas court and reviewed by that court in the first instance effectively de novo." Id. at 9-10 (emphasis in original).

In the instant Report and Recommendation, I have examined evidence that appears to be outside the scope of the state record. Specifically, the state record did not include the two letters from Wells Fargo attached to Petitioner's First Supplement. More importantly, the crime scene photographs may not have been in the "record before the state court." First, I note that copies of the crime scene photographs were included in Petitioner's original 1263-page state habeas petition. However, because the state court struck Petitioner's 1263-page habeas petition, its contents cannot properly be considered part of the state record. See Resp'ts' Answer, attach. 76 at 6-7 (order of the state court judge detailing the procedural history of Petitioner's state court habeas). The only discussion of the crime scene photographs before the trial court was over the issue of their late disclosure. Petitioner's counsel made an oral motion at the pre-trial motions hearing to have them excluded for late disclosure. After hearing oral argument from the parties, the trial court excluded them altogether. R. Proper 205-06. Because they were excluded as a discovery sanction, it does not appear that the trial court even looked at the photographs and they were certainly not made appellate exhibits. Id. On appeal, the contents of the photographs were not at issue. Instead, Petitioner simply argued that the "crime scene" photographs were not timely disclosed and that such non-disclosure constituted prosecutorial misconduct. See Doc. 60, Exs. D, E, F, H, I, K, M, N, O. Notably, Petitioner never provided any citation to the record for the photographs. Id. So, it appears that the record included only the general fact that "crime scene" photographs were not timely disclosed as opposed to including the actual photographs. Given that Petitioner's argument requires a comparison between the contents of the videotape and the contents of the photographs, this distinction is important. Under these circumstances, I would find that the photographs were not part of the "record before the state court." Consequently, Cullen would prohibit their consideration.

In fact, I did the same in the previous PFRD when I analyzed some of the crime scene photographs noted in this Report. See Doc. 104 at 22-23.

If the Court adopts this finding, the analysis above regarding the alleged inconsistencies between the videotape — which is in the record before the state court — and the photographs should be disregarded. Moreover, if I were to reconsider my recommendations in the PFRD excluding the crime scene photographs and all other items not in the state record but adding the videotape, I would reaffirm my recommendation that Petitioner's remaining claims be dismissed.

IV. CONCLUSION

Pursuant to Judge Browning's Order, I have reviewed the additional evidence described above. Following a thorough review of that evidence, I conclude that Petitioner has still failed to establish that he is entitled to habeas corpus relief on any of his remaining claims. If, pursuant to Cullen, this Court's reconsideration is informed only by the videotape, I would come to the same conclusion. Accordingly, I affirm my recommendation that his remaining claims and his petition be dismissed with prejudice.

Wherefore, IT IS HEREBY RECOMMENDED THAT:

Petitioner's habeas petition be dismissed with prejudice.

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of these Proposed Findings and Recommended Disposition they may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must timely file any objections with the Clerk of the District Court if that party wants to have appellate review of the proposed findings and recommended disposition. If no objections are filed, no appellate review will be allowed.

Pursuant to an earlier Order ( Doc. 102), Petitioner will be permitted an additional 3 days (i.e. 17 days from service) to file his objections.

ORDER

This matter comes before the Court upon a review of the record and the outstanding motions filed by Petitioner. In light of the contemporaneous Report and Recommendation filed by this Court ( Doc. 142), the Court will address each of these in turn.

PETITIONER'S MOTIONS

1. Motion to Appoint Counsel (Doc. 108)

This Court has repeatedly denied Petitioner's motions for appointment of counsel. Docs. 9, 72, 108. Nothing in this particular Motion dictates a different result. Moreover, Petitioner continues to present his claims adequately. While the undersigned has recommended dismissal of the Petition, I am not persuaded that appointed counsel could overcome the legal failings of the Petition. Therefore, the Court will DENY this Motion.

2. Motion to Dismiss Amended Petition and Proceed on Original Petition (Doc. 112)

The title given by Petitioner to this Motion is considerably longer. Having distilled its meaning, this caption seems appropriate.

Ostensibly, Petitioner's next Motion seeks the dismissal of his Amended Petition for the purposes of proceeding upon his Original Petition. Doc. 112. Petitioner's original Petition was 1263-pages long. Because it exceeded rules relating to page limits, Petitioner was ordered to submit an Amended Petition which was no longer than 50 handwritten pages. Doc. 64. Notwithstanding the page limit for argument, Petitioner was permitted to attach any number of exhibits for evidentiary purposes. Id. Petitioner complied with the Order and Judge Browning overruled his Objections to the Order. Doc. 72. Petitioner presents no persuasive reason why the Court should revisit this issue now.

Furthermore, this Court has allowed Petitioner to supplement the record with any additional evidence that he desired. As a result, whatever Petitioner could add to the federal record has been added and duly considered by this Court. For that reason, the Court will DENY this Motion.

3. Motion to Submit Exhibit (Doc. 114)

This title, also, has been the abbreviated by this Court.

In keeping with many of Petitioner's recent filings, his Motion to Submit Exhibit seeks to supplement the record. Doc. 114. Particularly, this Motion seeks to add several pages of booking materials to this Court's review. Although Petitioner filed this Motion before District Judge James Browning and this Court provided for additional supplementation, in keeping with the intent of that Order, the Court reviewed and considered this documentation when drafting the contemporaneously filed Report and Recommendation.

However, after the Court's review of these materials, the Supreme Court has held that review under § 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 562 U. S. ___, ___ (2011) (slip op., at 9). It does not appear that the booking documents attached to this Motion were included in the record before the state court. As such, these items are not relevant to this Court's review of the Petition.

Consequently, the Court must DENY this Motion.

4. Motion for Brief Continuance (Doc. 125)

This Motion seeks additional time to file a response to Respondents' "Notice RE: Opinions Issued by the United States Supreme Courts." Id. at 2; see doc. 132. Petitioner explains that he needs to obtain copies of the opinions to which the Notice alerts the Court. Petitioner is advised that the Notice does not require a response. Therefore, the Court DENIES this Motion. Nonetheless, the Court will attach copies of those opinions to this Order so that Petitioner might utilize the opinions as he drafts his objections.

5. Motion to Correct Order (Doc. 130)

In this Motion, Petitioner takes issue with a statement in the Court's Order to Supplement the Record. Doc. 129. The Order came after Judge Browning permitted Petitioner to supplement the record by a particular date. Doc. 127. The Order, which was an attempt to expedite matters and assist Petitioner, directed the State to produce the tape of the interview of E. Dombos, because the Court was aware that Petitioner did not possess the tape of the interview. Doc. 129 at 2. Petitioner believes that this statement needs to be corrected because a transcript of the E. Dombos was attached as an exhibit to Respondent's Answer. Petitioner misreads the Court's Order which was directed at the tape itself as opposed to the transcript. The Court was and is aware of the interview transcript and it has been considered in preparation of the Reports and Recommendations in the case. Consequently, the Court will DENY this Motion.

6. Motion to Order the Production of Evidence (Doc. 135)

In this Motion, Petitioner seeks to compel the production of multiple items. First, Petitioner prays the Court compel the production of the videotape introduced at his trial. Doc. 135 at 2. Next, Petitioner requests that the Court compel production of crime scene photographs and videotape taken of his New Mexico residence. Id. at 4. Lastly, Petitioner beseeches this Court to compel production of a bail bond receipt related to his arrest for domestic violence in Arizona. Id. at 3-4. For the reasons that follow, the Court will deny this Motion.

As an initial matter, the Court has already ordered the production of several materials requested by Petitioner. Specifically, on February 9, 2011, this Court ordered Respondents to produce the videotape introduced at Petitioner's trial and crime scene photographs for the Court's review. Doc. 129. These items have been produced by Respondents. Doc. 132. Thus, there is no need to compel their production at this time.

As to the "crime scene" videotape, the Court finds that the videotape would be duplicative of the crime scene photographs and, thus, unnecessary for a review of Petitioner's claims. Moreover, a review of the record demonstrates that the police scene video was never part of the state record. As such, that video should not be part of the Court's review. See Cullen, 562 U.S. ___ at 9. Therefore, I will not compel its production.

Finally, regarding the bail bond receipt, Petitioner seeks this item because it would supposedly undermine E. Dombos' testimony that she did not know a particular person. Doc. 135 at 3-4. Even assuming the receipt would impeach E. Dombos, Petitioner does not assert that the prosecutor was somehow aware of the alleged inconsistency. Therefore, the receipt cannot support Petitioner's remaining claim of willful prosecutorial misconduct. Consequently, the receipt need not be produced because it is irrelevant for the Court's current review. Moreover, it is apparent that the receipt was not part of the "record that was before the state court that adjudicated the claim on the merits." Cullen, 562 U.S. ___ at 9. As such, the receipt should not be part of the Court's review. Therefore, I will not compel its production.

Thus, the Court DENIES this Motion.

7. Motion for Production of Evidence (Doc. 139)

In this Motion, Petitioner seeks copies of items submitted to the Court by Respondents. Petitioner initially only prays that this Court order Respondents "to send [Petitioner] color copies of the (70) police scene photographs it sent this Court." Doc. 139 at 2. Later, the prayer for relief expands to request "production of the 2-21-2004 audio-tape [sic] of the interview of [E.] Dombos . . . with Deputy Lisa Delorm [sic]," as well as "the police scene video-tape [sic], taken on 2-21-04, of [Petitioner's] real N.M. residence" for the Court to review.

As mentioned above, this Court is not going to order the production of a crime scene videotape. Thus, there is no need for a copy to be sent to Petitioner.

Respondents have averred that they have been unable to obtain a copy of the audio tape of the E. Dombos interview. Doc. 132. Instead, they point to the transcript of the interview which is attached to their Answer. Id.; Doc. 60, Ex. OO. Petitioner has received a copy of this transcript and, thus, there is no need for another copy to be sent to Petitioner.

In fact, Petitioner specifically refers to this transcript in his Motion to Correct. Doc. 130.

Hence, as to these requests, the Court DENIES Petitioner's Motion IN PART.

Having resolved those requests, Petitioner's only remaining prayer regards the production of seventy (70) copies of crime scene photographs for his review. The Court finds not only that this request is reasonable and relevant, but that the production of the same copies of the crime scene photographs produced for the Court's review will aid Petitioner in drafting whatever objections he may have to the Court's most recent Report and Recommendation. Consequently, as to this request, the Court GRANTS Petitioner's Motion IN PART.

8. Objections to Respondent's Notice and Motion to Strike (Doc. 140)

This title is an abbreviation of the styling accorded by Petitioner.

Petitioner's final outstanding Motion repeats requests dealt with in the motions described above and asks that the Court strike a portion of Respondents' "Notice Re: Filing of Tape, Interview Transcript and Police Scene Photographs; and Notification of Victim's Death." Doc. 140 at 1-4; see doc. 132. Specifically, Petitioner takes issue with the Respondents' notification to the Court of the death of E. Dombos. As this notification did not and does not affect the Court's analysis of the Petition, striking the notification is unnecessary. Accordingly, the Court DENIES this Motion.

CONCLUSION

The Court HEREBY ORDERS THE FOLLOWING:

1. Petitioner's Motion to Appoint Counsel ( Doc. 108) is DENIED;
2. Petitioner's Motion to Dismiss Amended Petition and Proceed on Original Petition ( Doc. 112) is DENIED;
3. Petitioner's Motion to Submit Exhibit ( Doc. 114) is DENIED;
4. Petitioner's Motion for Brief Continuance ( Doc. 125) is DENIED;
5. Petitioner's Motion to Correct Order ( Doc. 130) is DENIED;
6. Petitioner's Motion to Order the Production of Evidence ( Doc. 135) is DENIED;
7. Petitioner's Objections to Respondent's Notice and Motion to Strike ( Doc. 140) is DENIED; and
8. Petitioner's Motion for Production of Evidence ( Doc. 139) is GRANTED IN PART AND DENIED IN PART. Respondents shall mail color copies of the photographs provided to the Court at doc. 132 no more than two days after the date of this Order.
IT IS SO ORDERED.

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 HARRINGTON, WARDEN v. RICHTER CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 09-587. Argued October 12, 2010 — Decided January 19, 2011 In 1994, deputies called to drug dealer Johnson's California home found

Johnson wounded and Klein fatally wounded. Johnson claimed that he was shot in his bedroom by respondent Richter's codefendant, Branscombe; that he found Klein on the living room couch; and that his gun safe, a pistol, and cash were missing. His account was corroborated by evidence at the scene, including, relevant here, spent shell casings, blood spatters, and blood pooled in the bedroom doorway. Investigators took a blood sample from a wall near the bedroom door, but not from the blood pool. A search of Richter's home turned up the safe and ammunition matching evidence at the scene. After his arrest on murder and other charges, Richter initially denied his involvement, but later admitted disposing of Johnson's and Branscombe's guns. The prosecution initially built its case on Johnson's testimony and the circumstantial evidence, but it adjusted its approach after Richter's counsel, in his opening statement, outlined the theory that Branscombe shot Johnson in self-defense and that Klein was killed in the crossfire in the bedroom doorway, and stressed the lack of forensic support for the prosecution's case. The prosecution then decided to call an expert in blood pattern evidence, who testified that it was unlikely that Klein had been shot outside the living room and then moved to the couch, and a serologist, who testified that the blood sample taken near the blood pool could be Johnson's but not Klein's. Under cross-examination, she conceded that she had not tested the sample for cross-contamination and that a degraded sample would make it difficult to tell if it had blood of Klein's type. Defense counsel called Richter to tell his conflicting version of events and called other witnesses to corroborate Richter's version. Richter was convicted and sentenced to life without parole. He later sought habeas relief from the California Supreme Court, asserting, inter alia, that his counsel provided ineffective assistance, see Strickland v. Washington, 466 U. S. 668, when he failed to present expert testimony on blood evidence, because it could have disclosed the blood pool's source and bolstered Richter's theory. He also offered affidavits from forensics experts to support his claim. The court denied the petition in a one-sentence summary order. Subsequently, he reasserted his state claims in a federal habeas petition. The District Court denied his petition. A Ninth Circuit panel affirmed, but the en banc court reversed. Initially it questioned whether 28 U.S.C. § 2254(d) — which, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), limits the availability of federal habeas relief for claims previously "adjudicated on the merits" in state court — applied to Richter's petition, since the State Supreme Court issued only a summary denial. But it found the state-court decision unreasonable anyway. In its view, trial counsel was deficient in failing to consult blood evidence experts in planning a trial strategy and in preparing to rebut expert evidence the prosecution might — and later did — offer.
Held:
1. Section 2254(d) applies to Richter's petition, even though the state court's order was unaccompanied by an opinion explaining the court's reasoning. Pp. 7 — 10.
(a) By its terms, § 2254(d) bars relitigation of a claim "adjudicated on the merits" in state court unless, among other exceptions, the earlier state-court "decision" involved "an unreasonable application" of "clearly established Federal law, as determined by" this Court, § 2254(d)(1). Nothing in its text — which refers only to a "decision" resulting "from an adjudication" — requires a statement of reasons. Where the state-court decision has no explanation, the habeas petitioner must still show there was no reasonable basis for the state court to deny relief. There is no merit to the assertion that applying § 2254(d) when state courts issue summary rulings will encourage those courts to withhold explanations. The issuance of summary dispositions can enable state judiciaries to concentrate resources where most needed. Pp. 7 — 9.
(b) Nor is there merit to Richter's argument that § 2254(d) does not apply because the California Supreme Court did not say it was adjudicating his claim "on the merits." When a state court has denied relief, adjudication on the merits can be presumed absent any contrary indication or state-law procedural principles. The presumption may be overcome by a more likely explanation for the state court's decision, but Richter does not make that showing here. Pp. 9 — 10.
2. Richter was not entitled to the habeas relief ordered by the Ninth Circuit. Pp. 10-24.
(a) That court failed to accord the required deference to the decision of a state court adjudicating the same claims later presented in the federal habeas petition. Its opinion shows an improper understanding of § 2254(d)'s unreasonableness standard and operation in the context of a Strickland claim. Asking whether the state court's application of Strickland's standard was unreasonable is different from asking whether defense counsel's performance fell below that standard. Under AEDPA, a state court must be granted a deference and latitude that are not in operation in a case involving direct review under Strickland. A state court's determination that a claim lacks merit precludes federal habeas relief so long as "fair-minded jurists could disagree" on the correctness of that decision. Yarborough v. Alvarado, 541 U. S. 652, 664. And the more general the rule being considered, "the more leeway courts have in reaching outcomes in case-by-case determinations." Ibid. The Ninth Circuit explicitly conducted a de novo review and found a Strickland violation; it then declared without further explanation that the state court's contrary decision was unreasonable. But § 2254(d) requires a habeas court to determine what arguments or theories supported, or could have supported, the state-court decision; and then to ask whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with a prior decision of this Court. AEDPA's unreasonableness standard is not a test of the confidence of a federal habeas court in the conclusion it would reach as a de novo matter. Even a strong case for relief does not make the state court's contrary conclusion unreasonable. Section 2254(d) is designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions. Pp. 10 — 14.
(b) The Ninth Circuit erred in concluding that Richter demonstrated an unreasonable application of Strickland by the state court. Pp. 14-23.
(1) Richter could have secured relief in state court only by showing both that his counsel provided deficient assistance and that prejudice resulted. To be deficient, counsel's representation must have fallen "below an objective standard of reasonableness," Strickland, 466 U. S., at 688; and there is a "strong presumption" that counsel's representation is within the "wide range" of reasonable professional assistance, id., at 689. The question is whether counsel made errors so fundamental that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Prejudice requires demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., at 694. "Surmounting Strickland's high bar is never . . . easy." Padilla v. Kentucky, 559 U. S. ___, ___. Strickland can function as a way to escape rules of waiver and forfeiture. The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom. Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is even more difficult, since both standards are "highly deferential," 466 U. S, at 689, and since Strickland's general standard has a substantial range of reasonable applications. The question under § 2254(d) is not whether counsel's actions were reasonable, but whether there is any reasonable argument that counsel satisfied Strickland's deferential standard. Pp. 14-16.
(2) The Ninth Circuit erred in holding that because Richter's attorney had not consulted forensic blood experts or introduced expert evidence, the State Supreme Court could not reasonably have concluded counsel provided adequate representation.
A state court could reasonably conclude that a competent attorney could elect a strategy that did not require using blood evidence experts. Rare are the situations in which the latitude counsel enjoys will be limited to any one technique or approach. There were any number of experts whose insight might have been useful to the defense. Counsel is entitled to balance limited resources in accord with effective trial tactics and strategies. In finding otherwise the Ninth Circuit failed to "reconstruct the circumstances of counsel's challenged conduct" and "evaluate the conduct from counsel's perspective at the time." Strickland, supra, at 689. Given the many factual differences between the prosecution and defense versions of events, it was far from evident at the time of trial that the blood source was central to Richter's case. And relying on "the harsh light of hindsight" to cast doubt on a trial that took place over 15 years ago is precisely what Strickland and AEDPA seek to prevent. See Bell v. Cone, 535 U. S. 685, 702. Even had the value of expert testimony been apparent, it would be reasonable to conclude that a competent attorney might elect not to use it here, where counsel had reason to question the truth of his client's account. Making blood evidence a central issue could also have led the prosecution to produce its own expert analysis, possibly destroying Richter's case, or distracted the jury with esoteric questions of forensic science. Defense counsel's opening statement may have inspired the prosecution to present forensic evidence, but that shows only that the defense strategy did not work out as well as hoped. In light of the record here there was no basis to rule that the state court's determination was unreasonable.
The Court of Appeals erred in dismissing such concern as an inaccurate account of counsel's actual thinking, since Strickland examined only the objective reasonableness of counsel's actions. As to whether counsel was constitutionally deficient for not preparing expert testimony as a response to the prosecution's, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for remote possibilities. Here, even if counsel was mistaken, the prosecution itself did not expect to present forensic testimony until the eve of trial. Thus, it is at least debatable whether counsel's error was so fundamental as to call the trial's fairness into doubt. Even if counsel should have foreseen the prosecution's tactic, Richter would still need to show it was indisputable that Strickland required his attorney to rely on a rebuttal witness rather than on cross-examination to discredit the witnesses, but Strickland imposes no such requirement. And while it is possible an isolated error can constitute ineffective assistance if it is sufficiently egregious, it is difficult to establish ineffective assistance where counsel's overall performance reflects active and capable advocacy. Pp. 16 — 22.
(3) The Ninth Circuit also erred in concluding that Richter had established prejudice under Strickland, which asks whether it is "reasonably likely" the verdict would have been different, 466 U. S., at 696, not whether a court can be certain counsel's performance had no effect on the outcome or that reasonable doubt might have been established had counsel acted differently. There must be a substantial likelihood of a different result. The State Supreme Court could have reasonably concluded that Richter's prejudice evidence fell short of this standard. His expert serology evidence established only a theoretical possibility of Klein's blood being in the blood pool; and at trial, defense counsel extracted a similar concession from the prosecution's expert. It was also reasonable to find Richter had not established prejudice given that he offered no evidence challenging other conclusions of the prosecution's experts, e.g., that the blood sample matched Johnson's blood type. There was, furthermore, sufficient conventional circumstantial evidence pointing to Richter's guilt, including, e.g., the items found at his home. Pp. 22 — 23.
578 F. 3d 944, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, BREYER, ALITO, and SOTOMAYOR, JJ., joined. GINSBURG, J., filed an opinion concurring in the judgment. KAGAN, J., took no part in the consideration or decision of the case.

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, Washington, 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. 09-587 KELLY HARRINGTON, WARDEN, PETITIONER v. JOSHUA RICHTER ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [January 19, 2011] JUSTICE KENNEDY delivered the opinion of the Court.

The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources. Those resources are diminished and misspent, however, and confidence in the writ and the law it vindicates undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review. The Court of Appeals, in disagreement with the contrary conclusions of the Supreme Court of the State of California and of a United States District Court, ordered habeas corpus relief granted to set aside the conviction of Joshua Richter, respondent here. This was clear error.

Under 28 U.S.C. § 2254(d), the availability of federal habeas relief is limited with respect to claims previously "adjudicated on the merits" in state-court proceedings. The first inquiry this case presents is whether that provision applies when state-court relief is denied without an accompanying statement of reasons. If it does, the question is whether the Court of Appeals adhered to the statute's terms, in this case as it relates to ineffective-assistance claims judged by the standard set forth in Strickland v. Washington, 466 U. S. 668 (1984). A second case decided today, Premo v. Moore, post, p. ___, presents similar issues. Here, as in that case, it is necessary to reverse the Court of Appeals for failing to accord required deference to the decision of a state court.

I

It is necessary to begin by discussing the details of a crime committed more than a decade and a half ago.

A

Sometime after midnight on December 20, 1994, sheriff's deputies in Sacramento County, California, arrived at the home of a drug dealer named Joshua Johnson. Hours before, Johnson had been smoking marijuana in the company of Richter and two other men, Christian Branscombe and Patrick Klein. When the deputies arrived, however, they found only Johnson and Klein. Johnson was hysterical and covered in blood. Klein was lying on a couch in Johnson's living room, unconscious and bleeding. Klein and Johnson each had been shot twice. Johnson recovered; Klein died of his wounds.

Johnson gave investigators this account: After falling asleep, he awoke to find Richter and Branscombe in his bedroom, at which point Branscombe shot him. Johnson heard more gunfire in the living room and the sound of his assailants leaving. He got up, found Klein bleeding on the living room couch, and called 911. A gun safe, a pistol, and $6,000 cash, all of which had been in the bedroom, were missing.

Evidence at the scene corroborated Johnson's account. Investigators found spent shell casings in the bedroom (where Johnson said he had been shot) and in the living room (where Johnson indicated Klein had been shot). In the living room there were two casings, a .32 caliber and a .22 caliber. One of the bullets recovered from Klein's body was a .32 and the other was a .22. In the bedroom there were two more casings, both .32 caliber. In addition detectives found blood spatter near the living room couch and bloodstains in the bedroom. Pools of blood had collected in the kitchen and the doorway to Johnson's bedroom. Investigators took only a few blood samples from the crime scene. One was from a blood splash on the wall near the bedroom doorway, but no sample was taken from the doorway blood pool itself.

Investigators searched Richter's residence and found Johnson's gun safe, two boxes of .22-caliber ammunition, and a gun magazine loaded with cartridges of the same brand and type as the boxes. A ballistics expert later concluded the .22-caliber bullet that struck Klein and the .22-caliber shell found in the living room matched the ammunition found in Richter's home and bore markings consistent with the model of gun for which the magazine was designed.

Richter and Branscombe were arrested. At first Richter denied involvement. He would later admit taking Johnson's pistol and disposing of it and of the .32-caliber weapon Branscombe used to shoot Johnson and Klein. Richter's counsel produced Johnson's missing pistol, but neither of the guns used to shoot Johnson and Klein was found.

B

Branscombe and Richter were tried together on charges of murder, attempted murder, burglary, and robbery. Only Richter's case is presented here.

The prosecution built its case on Johnson's testimony and on circumstantial evidence. Its opening statement took note of the shell casings found at the crime scene and the ammunition and gun safe found at Richter's residence. Defense counsel offered explanations for the circumstantial evidence and derided Johnson as a drug dealer, a paranoid, and a trigger-happy gun fanatic who had drawn a pistol on Branscombe and Richter the last time he had seen them. And there were inconsistencies in Johnson's story. In his 911 call, for instance, Johnson first said there were four or five men who had broken into his house, not two; and in the call he did not identify Richter and Branscombe among the intruders.

Blood evidence does not appear to have been part of the prosecution's planned case prior to trial, and investigators had not analyzed the few blood samples taken from the crime scene. But the opening statement from the defense led the prosecution to alter its approach. Richter's attorney outlined the theory that Branscombe had fired on Johnson in self-defense and that Klein had been killed not on the living room couch but in the crossfire in the bedroom doorway. Defense counsel stressed deficiencies in the investigation, including the absence of forensic support for the prosecution's version of events.

The prosecution took steps to adjust to the counterattack now disclosed. Without advance notice and over the objection of Richter's attorney, one of the detectives who investigated the shootings testified for the prosecution as an expert in blood pattern evidence. He concluded it was unlikely Klein had been shot outside the living room and then moved to the couch, given the patterns of blood on Klein's face, as well as other evidence including "high velocity" blood spatter near the couch consistent with the location of a shooting. The prosecution also offered testimony from a serologist. She testified the blood sample taken near the pool by the bedroom door could be Johnson's but not Klein's.

Defense counsel's cross-examination probed weaknesses in the testimony of these two witnesses. The detective who testified on blood patterns acknowledged that his inferences were imprecise, that it was unlikely Klein had been lying down on the couch when shot, and that he could not say the blood in the living room was from either of Klein's wounds. Defense counsel elicited from the serologist a concession that she had not tested the bedroom blood sample for cross-contamination. She said that if the year-old sample had degraded, it would be difficult to tell whether blood of Klein's type was also present in the sample.

For the defense, Richter's attorney called seven witnesses. Prominent among these was Richter himself. Richter testified he and Branscombe returned to Johnson's house just before the shootings in order to deliver something to one of Johnson's roommates. By Richter's account, Branscombe entered the house alone while Richter waited in the driveway; but after hearing screams and gunshots, Richter followed inside. There he saw Klein lying not on the couch but in the bedroom doorway, with Johnson on the bed and Branscombe standing in the middle of the room. According to Richter, Branscombe said he shot at Johnson and Klein after they attacked him. Other defense witnesses provided some corroboration for Richter's story. His former girlfriend, for instance, said she saw the gun safe at Richter's house shortly before the shootings.

The jury returned a verdict of guilty on all charges. Richter was sentenced to life without parole. On appeal, his conviction was affirmed. People v. Branscombe, 72 Cal. Rptr. 2d 773 (Cal. App. 1998) (officially depublished). The California Supreme Court denied a petition for review, People v. Branscombe, No. S069751, 1998 Cal. LEXIS 4252 (June 24, 1998), and Richter did not file a petition for certiorari with this Court. His conviction became final.

C

Richter later petitioned the California Supreme Court for a writ of habeas corpus. He asserted a number of grounds for relief, including ineffective assistance of counsel. As relevant here, he claimed his counsel was deficient for failing to present expert testimony on serology, pathology, and blood spatter patterns, testimony that, he argued, would disclose the source of the blood pool in the bedroom doorway. This, he contended, would bolster his theory that Johnson had moved Klein to the couch.

He offered affidavits from three types of forensic experts. First, he provided statements from two blood serologists who said there was a possibility Klein's blood was intermixed with blood of Johnson's type in the sample taken from near the pool in the bedroom doorway. Second, he provided a statement from a pathologist who said the blood pool was too large to have come from Johnson given the nature of his wounds and his own account of his actions while waiting for the police. Third, he provided a statement from an expert in bloodstain analysis who said the absence of "a large number of satellite droplets" in photographs of the area around the blood in the bedroom doorway was inconsistent with the blood pool coming from Johnson as he stood in the doorway. App. 118. Richter argued this evidence established the possibility that the blood in the bedroom doorway came from Klein, not Johnson. If that were true, he argued, it would confirm his account, not Johnson's. The California Supreme Court denied Richter's petition in a one-sentence summary order. See In re Richter, No. S082167 (Mar. 28, 2001), App. to Pet. for Cert. 22a. Richter did not seek certiorari from this Court.

After the California Supreme Court issued its summary order denying relief, Richter filed a petition for habeas corpus in United States District Court for the Eastern District of California. He reasserted the claims in his state petition. The District Court denied his petition, and a three-judge panel of the Court of Appeals for the Ninth Circuit affirmed. See Richter v. Hickman, 521 F. 3d 1222 (2008). The Court of Appeals granted rehearing en banc and reversed the District Court's decision. See Richter v. Hickman, 578 F. 3d 944 (2009).

As a preliminary matter, the Court of Appeals questioned whether 28 U.S.C. § 2254(d) was applicable to Richter's petition, since the California Supreme Court issued only a summary denial when it rejected his Strickland claims; but it determined the California decision was unreasonable in any event and that Richter was entitled to relief. The court held Richter's trial counsel was deficient for failing to consult experts on blood evidence in determining and pursuing a trial strategy and in preparing to rebut expert evidence the prosecution might — and later did — offer. Four judges dissented from the en banc decision.

We granted certiorari. 559 U. S. ___ (2010).

II

The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
"(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
"(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

As an initial matter, it is necessary to decide whether § 2254(d) applies when a state court's order is unaccompanied by an opinion explaining the reasons relief has been denied.

By its terms § 2254(d) bars relitigation of any claim "adjudicated on the merits" in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2). There is no text in the statute requiring a statement of reasons. The statute refers only to a "decision," which resulted from an "adjudication." As every Court of Appeals to consider the issue has recognized, determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning. See Chadwick v. Janecka, 312 F. 3d 597, 605-606 (CA3 2002); Wright v. Secretary for Dept. of Corrections, 278 F. 3d 1245, 1253-1254 (CA11 2002); Sellan v. Kuhlman, 261 F. 3d 303, 311-312 (CA2 2001); Bell v. Jarvis, 236 F. 3d 149, 158-162 (CA4 2000) (en banc); Harris v. Stovall, 212 F. 3d 940, 943, n. 1 (CA6 2000); Aycox v. Lytle, 196 F. 3d 1174, 1177-1178 (CA10 1999); James v. Bowersox, 187 F. 3d 866, 869 (CA8 1999). And as this Court has observed, a state court need not cite or even be aware of our cases under § 2254(d). Early v. Packer, 537 U. S. 3, 8 (2002) ( per curiam). Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief. This is so whether or not the state court reveals which of the elements in a multipart claim it found insufficient, for § 2254(d) applies when a "claim," not a component of one, has been adjudicated.

There is no merit to the assertion that compliance with § 2254(d) should be excused when state courts issue summary rulings because applying § 2254(d) in those cases will encourage state courts to withhold explanations for their decisions. Opinion-writing practices in state courts are influenced by considerations other than avoiding scrutiny by collateral attack in federal court. Cf. In re Robbins, 18 Cal. 4th 770, 778, n. 1, 959 P. 2d 311, 316, n. 1 (1998) (state procedures limiting habeas are "a means of protecting the integrity of our own appeal and habeas corpus process," rather than a device for "insulating our judgments from federal court review" (emphasis deleted)). At the same time, requiring a statement of reasons could undercut state practices designed to preserve the integrity of the case-law tradition. The issuance of summary dispositions in many collateral attack cases can enable a state judiciary to concentrate its resources on the cases where opinions are most needed. See Brief for California Attorneys for Criminal Justice et al. as Amici Curiae 8 (noting that the California Supreme Court disposes of close to 10,000 cases a year, including more than 3,400 original habeas corpus petitions).

There is no merit either in Richter's argument that § 2254(d) is inapplicable because the California Supreme Court did not say it was adjudicating his claim "on the merits." The state court did not say it was denying the claim for any other reason. When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary. Cf. Harris v. Reed, 489 U. S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis).

The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely. See, e.g., Ylst v. Nunnemaker, 501 U. S. 797, 803 (1991). Richter, however, does not make that showing. He mentions the theoretical possibility that the members of the California Supreme Court may not have agreed on the reasons for denying his petition. It is pure speculation, however, to suppose that happened in this case. And Richter's assertion that the mere possibility of a lack of agreement prevents any attribution of reasons to the state court's decision is foreclosed by precedent. See ibid.

As has been noted before, the California courts or Legislature can alter the State's practices or elaborate more fully on their import. See Evans v. Chavis, 546 U. S. 189, 197, 199 (2006). But that has not occurred here. This Court now holds and reconfirms that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been "adjudicated on the merits." Richter has failed to show that the California Supreme Court's decision did not involve a determination of the merits of his claim. Section 2254(d) applies to his petition.

III

Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of this Court, § 2254(d)(1); Williams v. Taylor, 529 U. S. 362, 412 (2000); or that it "involved an unreasonable application of" such law, § 2254(d)(1); or that it "was based on an unreasonable determination of the facts" in light of the record before the state court, § 2254(d)(2).

The Court of Appeals relied on the second of these exceptions to § 2254(d)'s relitigation bar, the exception in § 2254(d)(1) permitting relitigation where the earlier state decision resulted from an "unreasonable application of" clearly established federal law. In the view of the Court of Appeals, the California Supreme Court's decision on Richter's ineffective-assistance claim unreasonably applied the holding in Strickland. The Court of Appeals' lengthy opinion, however, discloses an improper understanding of § 2254(d)'s unreasonableness standard and of its operation in the context of a Strickland claim.

The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." Williams, supra, at 410. A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.

A state court's determination that a claim lacks merit precludes federal habeas relief so long as "fairminded jurists could disagree" on the correctness of the state court's decision. Yarborough v. Alvarado, 541 U. S. 652, 664 (2004). And as this Court has explained, "[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Ibid. "[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." Knowles v. Mirzayance, 556 U. S. ___, ___ (2009) (slip op., at 9-10) (internal quotation marks omitted).

Here it is not apparent how the Court of Appeals' analysis would have been any different without AEDPA. The court explicitly conducted a de novo review, 578 F. 3d, at 952; and after finding a Strickland violation, it declared, without further explanation, that the "state court's decision to the contrary constituted an unreasonable application of Strickland." 578 F. 3d, at 969. AEDPA demands more. Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court. The opinion of the Court of Appeals all but ignored "the only question that matters under § 2254(d)(1)." Lockyer v. Andrade, 538 U. S. 63, 71 (2003).

The Court of Appeals appears to have treated the unreasonableness question as a test of its confidence in the result it would reach under de novo review: Because the Court of Appeals had little doubt that Richter's Strickland claim had merit, the Court of Appeals concluded the state court must have been unreasonable in rejecting it. This analysis overlooks arguments that would otherwise justify the state court's result and ignores further limitations of § 2254(d), including its requirement that the state court's decision be evaluated according to the precedents of this Court. See Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 11-12). It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable. See Lockyer, supra, at 75.

If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U. S. 651, 664 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U. S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

The reasons for this approach are familiar. "Federal habeas review of state convictions frustrates both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Calderon v. Thompson, 523 U. S. 538, 555-556 (1998) (internal quotation marks omitted). It "disturbs the State's significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority." Reed, 489 U. S., at 282 (KENNEDY, J., dissenting).

Section 2254(d) is part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions. Under the exhaustion requirement, a habeas petitioner challenging a state conviction must first attempt to present his claim in state court. 28 U.S.C. § 2254(b). If the state court rejects the claim on procedural grounds, the claim is barred in federal court unless one of the exceptions to the doctrine of Wainwright v. Sykes, 433 U. S. 72, 82-84 (1977), applies. And if the state court denies the claim on the merits, the claim is barred in federal court unless one of the exceptions to § 2254(d) set out in §§ 2254(d)(1) and (2) applies. Section 2254(d) thus complements the exhaustion requirement and the doctrine of procedural bar to ensure that state proceedings are the central process, not just a preliminary step for a later federal habeas proceeding, see id., at 90.

Here, however, the Court of Appeals gave § 2254(d) no operation or function in its reasoning. Its analysis illustrates a lack of deference to the state court's determination and an improper intervention in state criminal processes, contrary to the purpose and mandate of AEDPA and to the now well-settled meaning and function of habeas corpus in the federal system.

IV

The conclusion of the Court of Appeals that Richter demonstrated an unreasonable application by the state court of the Strickland standard now must be discussed. To have been entitled to relief from the California Supreme Court, Richter had to show both that his counsel provided deficient assistance and that there was prejudice as a result.

To establish deficient performance, a person challenging a conviction must show that "counsel's representation fell below an objective standard of reasonableness." 466 U. S., at 688. A court considering a claim of ineffective assistance must apply a "strong presumption" that counsel's representation was within the "wide range" of reasonable professional assistance. Id., at 689. The challenger's burden is to show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id., at 687.

With respect to prejudice, a challenger must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 694. It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Id., at 693. Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., at 687.

"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 14). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest "intrusive post-trial inquiry" threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U. S., at 689-690. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is "all too tempting" to "second-guess counsel's assistance after conviction or adverse sentence." Id., at 689; see also Bell v. Cone, 535 U. S. 685, 702 (2002); Lockhart v. Fretwell, 506 U. S. 364, 372 (1993). The question is whether an attorney's representation amounted to incompetence under "prevailing professional norms," not whether it deviated from best practices or most common custom. Strickland, 466 U. S., at 690.

Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both "highly deferential," id., at 689; Lindh v. Murphy, 521 U. S. 320, 333, n. 7 (1997), and when the two apply in tandem, review is "doubly" so, Knowles, 556 U. S., at ___ (slip op., at 11). The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U. S., at ___ (slip op., at 11). Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

A

With respect to defense counsel's performance, the Court of Appeals held that because Richter's attorney had not consulted forensic blood experts or introduced expert evidence, the California Supreme Court could not reasonably have concluded counsel provided adequate representation. This conclusion was erroneous.

1

The Court of Appeals first held that Richter's attorney rendered constitutionally deficient service because he did not consult blood evidence experts in developing the basic strategy for Richter's defense or offer their testimony as part of the principal case for the defense. Strickland, however, permits counsel to "make a reasonable decision that makes particular investigations unnecessary." 466 U. S., at 691. It was at least arguable that a reasonable attorney could decide to forgo inquiry into the blood evidence in the circumstances here.

Criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence, whether pretrial, at trial, or both. There are, however, "countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Id., at 689. Rare are the situations in which the "wide latitude counsel must have in making tactical decisions" will be limited to any one technique or approach. Ibid. It can be assumed that in some cases counsel would be deemed ineffective for failing to consult or rely on experts, but even that formulation is sufficiently general that state courts would have wide latitude in applying it. Here it would be well within the bounds of a reasonable judicial determination for the state court to conclude that defense counsel could follow a strategy that did not require the use of experts regarding the pool in the doorway to Johnson's bedroom.

From the perspective of Richter's defense counsel when he was preparing Richter's defense, there were any number of hypothetical experts — specialists in psychiatry, psychology, ballistics, fingerprints, tire treads, physiology, or numerous other disciplines and subdisciplines — whose insight might possibly have been useful. An attorney can avoid activities that appear "distractive from more important duties." Bobby v. Van Hook, 558 U. S. ___, ___ (2009) ( per curiam) (slip op., at 8). Counsel was entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies. See Knowles, supra, at ___ (slip op., at 14-15); Rompilla v. Beard, 545 U. S. 374, 383 (2005); Wiggins v. Smith, 539 U. S. 510, 525 (2003); Strickland, 466 U. S., at 699.

In concluding otherwise the Court of Appeals failed to "reconstruct the circumstances of counsel's challenged conduct" and "evaluate the conduct from counsel's perspective at the time." Id., at 689. In its view Klein's location was "the single most critical issue in the case" given the differing theories of the prosecution and the defense, and the source of the blood in the doorway was therefore of central concern. 578 F. 3d, at 953-954. But it was far from a necessary conclusion that this was evident at the time of the trial. There were many factual differences between prosecution and defense versions of the events on the night of the shootings. It is only because forensic evidence has emerged concerning the source of the blood pool that the issue could with any plausibility be said to stand apart. Reliance on "the harsh light of hindsight" to cast doubt on a trial that took place now more than 15 years ago is precisely what Strickland and AEDPA seek to prevent. Cone, 535 U. S., at 702; see also Lockhart, 506 U. S., at 372.

Even if it had been apparent that expert blood testimony could support Richter's defense, it would be reasonable to conclude that a competent attorney might elect not to use it. The Court of Appeals opinion for the en banc majority rests in large part on a hypothesis that reasonably could have been rejected. The hypothesis is that without jeopardizing Richter's defense, an expert could have testified that the blood in Johnson's doorway could not have come from Johnson and could have come from Klein, thus suggesting that Richter's version of the shooting was correct and Johnson's a fabrication. This theory overlooks the fact that concentrating on the blood pool carried its own serious risks. If serological analysis or other forensic evidence demonstrated that the blood came from Johnson alone, Richter's story would be exposed as an invention. An attorney need not pursue an investigation that would be fruitless, much less one that might be harmful to the defense. Strickland, supra, at 691. Here Richter's attorney had reason to question the truth of his client's account, given, for instance, Richter's initial denial of involvement and the subsequent production of Johnson's missing pistol.

It would have been altogether reasonable to conclude that this concern justified the course Richter's counsel pursued. Indeed, the Court of Appeals recognized this risk insofar as it pertained to the suggestion that counsel should have had the blood evidence tested. 578 F. 3d, at 956, n. 9. But the court failed to recognize that making a central issue out of blood evidence would have increased the likelihood of the prosecution's producing its own evidence on the blood pool's origins and composition; and once matters proceeded on this course, there was a serious risk that expert evidence could destroy Richter's case. Even apart from this danger, there was the possibility that expert testimony could shift attention to esoteric matters of forensic science, distract the jury from whether Johnson was telling the truth, or transform the case into a battle of the experts. Accord, Bonin v. Calderon, 59 F. 3d 815, 836 (CA9 1995).

True, it appears that defense counsel's opening statement itself inspired the prosecution to introduce expert forensic evidence. But the prosecution's evidence may well have been weakened by the fact that it was assembled late in the process; and in any event the prosecution's response shows merely that the defense strategy did not work out as well as counsel had hoped, not that counsel was incompetent.

To support a defense argument that the prosecution has not proved its case it sometimes is better to try to cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates. All that happened here is that counsel pursued a course that conformed to the first option. If this case presented a de novo review of Strickland, the foregoing might well suffice to reject the claim of inadequate counsel, but that is an unnecessary step. The Court of Appeals must be reversed if there was a reasonable justification for the state court's decision. In light of the record here there was no basis to rule that the state court's determination was unreasonable.

The Court of Appeals erred in dismissing strategic considerations like these as an inaccurate account of counsel's actual thinking. Although courts may not in-dulge "post hoc rationalization" for counsel's decisionmaking that contradicts the available evidence of counsel's actions, Wiggins, 539 U. S., at 526-527, neither may they insist counsel confirm every aspect of the strategic basis for his or her actions. There is a "strong presumption" that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than "sheer neglect." Yarborough v. Gentry, 540 U. S. 1, 8 (2003) ( per curiam). After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind. 466 U. S., at 688.

2

The Court of Appeals also found that Richter's attorney was constitutionally deficient because he had not expected the prosecution to offer expert testimony and therefore was unable to offer expert testimony of his own in response.

The Court of Appeals erred in suggesting counsel had to be prepared for "any contingency," 578 F. 3d, at 946 (internal quotation marks omitted). Strickland does not guarantee perfect representation, only a "`reasonably competent attorney.'" 466 U. S., at 687 (quoting McMann v. Richardson, 397 U. S. 759, 770 (1970)); see also Gentry, supra, at 7. Representation is constitutionally ineffective only if it "so undermined the proper functioning of the adversarial process" that the defendant was denied a fair trial. Strickland, supra, at 686. Just as there is no expectation that competent counsel will be a flawless strategist or tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities.

Here, Richter's attorney was mistaken in thinking the prosecution would not present forensic testimony. But the prosecution itself did not expect to make that presentation and had made no preparations for doing so on the eve of trial. For this reason alone, it is at least debatable whether counsel's error was so fundamental as to call the fairness of the trial into doubt.

Even if counsel should have foreseen that the prosecution would offer expert evidence, Richter would still need to show it was indisputable that Strickland required his attorney to act upon that knowledge. Attempting to establish this, the Court of Appeals held that defense counsel should have offered expert testimony to rebut the evidence from the prosecution. But Strickland does not enact Newton's third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense.

In many instances cross-examination will be sufficient to expose defects in an expert's presentation. When defense counsel does not have a solid case, the best strategy can be to say that there is too much doubt about the State's theory for a jury to convict. And while in some instances "even an isolated error" can support an ineffective-assistance claim if it is "sufficiently egregious and prejudicial," Murray v. Carrier, 477 U. S. 478, 496 (1986), it is difficult to establish ineffective assistance when counsel's overall performance indicates active and capable advocacy. Here Richter's attorney represented him with vigor and conducted a skillful cross-examination. As noted, defense counsel elicited concessions from the State's experts and was able to draw attention to weaknesses in their conclusions stemming from the fact that their analyses were conducted long after investigators had left the crime scene. For all of these reasons, it would have been reasonable to find that Richter had not shown his attorney was deficient under Strickland.

B

The Court of Appeals further concluded that Richter had established prejudice under Strickland given the expert evidence his attorney could have introduced. It held that the California Supreme Court would have been unreasonable in concluding otherwise. This too was error.

In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. See Wong v. Belmontes, 558 U. S. ___, ___ (2009) ( per curiam) (slip op., at 13); Strickland, 466 U. S., at 693. Instead, Strickland asks whether it is "reasonably likely" the result would have been different. Id., at 696. This does not require a showing that counsel's actions "more likely than not altered the outcome," but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters "only in the rarest case." Id., at 693, 697. The likelihood of a different result must be substantial, not just conceivable. Id., at 693.

It would not have been unreasonable for the California Supreme Court to conclude Richter's evidence of prejudice fell short of this standard. His expert serology evidence established nothing more than a theoretical possibility that, in addition to blood of Johnson's type, Klein's blood may also have been present in a blood sample taken near the bedroom doorway pool. At trial, defense counsel extracted a concession along these lines from the prosecution's expert. The pathology expert's claim about the size of the blood pool could be taken to suggest only that the wounded and hysterical Johnson erred in his assessment of time or that he bled more profusely than estimated. And the analysis of the purported blood pattern expert indicated no more than that Johnson was not standing up when the blood pool formed.

It was also reasonable to find Richter had not established prejudice given that he offered no evidence directly challenging other conclusions reached by the prosecution's experts. For example, there was no dispute that the blood sample taken near the doorway pool matched Johnson's blood type. The California Supreme Court reasonably could have concluded that testimony about patterns that form when blood drips to the floor or about the rate at which Johnson was bleeding did not undermine the results of chemical tests indicating blood type. Nor did Richter provide any direct refutation of the State's expert testimony describing how blood spatter near the couch suggested a shooting in the living room and how the blood patterns on Klein's face were inconsistent with Richter's theory that Klein had been killed in the bedroom doorway and moved to the couch.

There was, furthermore, sufficient conventional circumstantial evidence pointing to Richter's guilt. It included the gun safe and ammunition found at his home; his flight from the crime scene; his disposal of the .32-caliber gun and of Johnson's pistol; his shifting story concerning his involvement; the disappearance prior to the arrival of the law enforcement officers of the .22-caliber weapon that killed Klein; the improbability of Branscombe's not being wounded in the shootout that resulted in a combined four bullet wounds to Johnson and Klein; and the difficulties the intoxicated and twice-shot Johnson would have had in carrying the body of a dying man from bedroom doorway to living room couch, not to mention the lack of any obvious reason for him to do so. There was ample basis for the California Supreme Court to think any real possibility of Richter's being acquitted was eclipsed by the remaining evidence pointing to guilt.

* * *

The California Supreme Court's decision on the merits of Richter's Strickland claim required more deference than it received. Richter was not entitled to the relief ordered by the Court of Appeals. The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE KAGAN took no part in the consideration or decision of this case.

GINSBURG, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 09-587 KELLY HARRINGTON, WARDEN, PETITIONER v. JOSHUA RICHTER ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [January 19, 2011] JUSTICE GINSBURG, concurring in the judgment.

In failing even to consult blood experts in preparation for the murder trial, Richter's counsel, I agree with the Court of Appeals, "was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U. S. 668, 687 (1984). The strong force of the prosecution's case, however, was not significantly reduced by the affidavits offered in support of Richter's habeas petition. I would therefore not rank counsel's lapse "so serious as to deprive [Richter] of a fair trial, a trial whose result is reliable." Ibid. For that reason, I concur in the Court's judgment.

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 PREMO, SUPERINTENDENT, OREGON STATE PENITENTIARY v. MOORE CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 09-658. Argued October 12, 2010 — Decided January 19, 2011 Respondent Moore and two accomplices attacked and bloodied Kenneth Rogers, tied him up, and threw him in the trunk of a car before driving into the Oregon countryside, where Moore fatally shot him. Afterwards, Moore and one accomplice told Moore's brother and the accomplice's girlfriend that they had intended to scare Rogers, but that Moore had accidentally shot him. Moore and the accomplice repeated this account to the police. On the advice of counsel, Moore agreed to plead no contest to felony murder in exchange for the minimum sentence for that offense. He later sought postconviction relief in state court, claiming that he had been denied effective assistance of counsel. He complained that his lawyer had not moved to suppress his confession to police in advance of the lawyer's advice that Moore considered before accepting the plea offer. The court concluded the suppression motion would have been fruitless in light of Moore's other admissible confession to two witnesses. Counsel gave that as his reason for not making the motion. He added that he had advised Moore that, because of the abuse Rogers suffered before the shooting, Moore could be charged with aggravated murder. That crime was punishable by death or life in prison without parole. These facts led the state court to conclude Moore had not established ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668. Moore sought federal habeas relief, renewing his ineffective-assistance claim. The District Court denied the petition, but the Ninth Circuit reversed, holding that the state court's conclusion was an unreasonable application of clearly established law in light of Strickland and was contrary to Arizona v. Fulminante, 499 U. S. 279.

Held: Moore was not entitled to the habeas relief ordered by the Ninth Circuit. Pp. 4-17.

(a) Under 28 U.S.C. § 2254(d), federal habeas relief may not be granted with respect to any claim a state court has adjudicated on the merits unless, among other exceptions, the state-court decision denying relief involves "an unreasonable application" of "clearly established Federal law, as determined by" this Court. The relevant federal law is the standard for ineffective assistance of counsel under Strickland, which requires a showing of "both deficient performance by counsel and prejudice." Knowles v. Mirzayance, 556 U. S. ___, ___. Pp. 4-6.
(b) The state-court decision was not an unreasonable application of either part of the Strickland rule. Pp. 6-16.
(1) The state court would not have been unreasonable to accept as a justification for counsel's action that suppression would have been futile in light of Moore's other admissible confession to two witnesses. This explanation confirms that counsel's representation was adequate under Strickland, so it is unnecessary to consider the reasonableness of his other justification — that a suppression motion would have failed. Plea bargains involve complex negotiations suffused with uncertainty, and defense counsel must make strategic choices in balancing opportunities — pleading to a lesser charge and obtaining a lesser sentence — and risks — that the plea bargain might come before the prosecution finds its case is getting weaker, not stronger. Failure to respect the latitude Strickland requires can create at least two problems. First, the potential for distortions and imbalance that can inhere in a hindsight perspective may become all too real; and habeas courts must be mindful of their limited role, to assess deficiency in light of information then available to counsel. Second, ineffective-assistance claims that lack necessary foundation may bring instability to the very process the inquiry seeks to protect because prosecutors must have assurances that a plea will not be undone in court years later. In applying and defining the Strickland standard — reasonable competence in representing the accused — substantial deference must be accorded to counsel's judgment. The absence of a developed and extensive record and well-defined prosecution or defense case creates a particular risk at the early plea stage. Here, Moore's prospects at trial were anything but certain. Counsel knew that the two witnesses presented a serious strategic concern and that delaying the plea for further proceedings might allow the State to uncover additional incriminating evidence in support of a capital prosecution. Under these circumstances, counsel made a reasonable choice. At the very least, the state court would not have been unreasonable to so conclude. The Court of Appeals relied further on Fulminante, but a state-court adjudication of counsel's performance under the Sixth Amendment cannot be "contrary to" Ful-minante, for Fulminante — which involved the admission of an involuntary confession in violation of the Fifth Amendment — says nothing about Strickland's effectiveness standard. Pp. 6 — 12.
(2) The state court also reasonably could have concluded that Moore was not prejudiced by counsel's actions. To prevail in state court, he had to demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U. S. 52, 59. Deference to the state court's prejudice determination is significant, given the uncertainty inherent in plea negotiations. That court reasonably could have determined that Moore would have accepted the plea agreement even if his second confession had been ruled inadmissible. The State's case was already formidable with two witnesses to an admissible confession, and it could have become stronger had the investigation continued. Moore also faced the possibility of grave punishments. Counsel's bargain for the minimum sentence for the crime of conviction was thus favorable, and forgoing a challenge to the confession may have been essential to securing that agreement. Again, the state court's finding could not be contrary to Fulminante, which does not speak to Strickland's prejudice standard or contemplate prejudice in the plea bargain context. To the extent Fulminante's harmless-error analysis sheds any light on this case, it suggests that the state court's prejudice determination was reasonable. Pp. 12 — 16.
574 F. 3d 1092, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, BREYER, ALITO, and SOTOMAYOR, JJ., joined. GINSBURG, J., filed an opinion concurring in the judgment. KAGAN, J., took no part in the consideration or decision of the case.

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, Washington, 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. 09-658 JEFF PREMO, SUPERINTENDENT, OREGON STATE PENITENTIARY, PETITIONER v. RANDY JOSEPH MOORE ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [January 19, 2011] JUSTICE KENNEDY delivered the opinion of the Court.

This case calls for determinations parallel in some respects to those discussed in today's opinion in Harrington v. Richter, ante, p. ___. Here, as in Richter, the Court reviews a decision of the Court of Appeals for the Ninth Circuit granting federal habeas corpus relief in a challenge to a state criminal conviction. Here, too, the case turns on the proper implementation of one of the stated premises for issuance of federal habeas corpus contained in 28 U.S.C. § 2254(d), the instruction that federal habeas corpus relief may not be granted with respect to any claim a state court has adjudicated on the merits unless, among other exceptions, the state court's decision denying relief involves "an unreasonable application" of "clearly established Federal law, as determined by the Supreme Court of the United States." And, as in Richter, the relevant clearly established law derives from Strickland v. Washington, 466 U. S. 668 (1984), which provides the standard for inadequate assistance of counsel under the Sixth Amendment. Richter involves a California conviction and addresses the adequacy of representation when counsel did not consult or use certain experts in pretrial preparation and at trial. The instant case involves an unrelated Oregon conviction and concerns the adequacy of representation in providing an assessment of a plea bargain without first seeking suppression of a confession assumed to have been improperly obtained.

I

On December 7, 1995, respondent Randy Moore and two confederates attacked Kenneth Rogers at his home and bloodied him before tying him with duct tape and throwing him in the trunk of a car. They drove into the Oregon countryside, where Moore shot Rogers in the temple, killing him.

Afterwards, Moore and one of his accomplices told two people — Moore's brother and the accomplice's girlfriend — about the crimes. According to Moore's brother, Moore and his accomplice admitted:

"[T]o make an example and put some scare into Mr. Rogers . . ., they had blind-folded him [and] duct taped him and put him in the trunk of the car and took him out to a place that's a little remote. . . . [T]heir intent was to leave him there and make him walk home . . . [Moore] had taken the revolver from Lonnie and at the time he had taken it, Mr. Rogers had slipped backwards on the mud and the gun discharged." App. 157-158.

Moore and his accomplice repeated this account to the police. On the advice of counsel Moore agreed to plead no contest to felony murder in exchange for a sentence of 300 months, the minimum sentence allowed by law for the offense.

Moore later filed for postconviction relief in an Oregon state court, alleging that he had been denied his right to effective assistance of counsel. He complained that his lawyer had not filed a motion to suppress his confession to police in advance of the lawyer's advice that Moore considered before accepting the plea offer. After an evidentiary hearing, the Oregon court concluded a "motion to suppress would have been fruitless" in light of the other admissible confession by Moore, to which two witnesses could testify. Id., at 140. As the court noted, Moore's trial counsel explained why he did not move to exclude Moore's confession to police:

"Mr. Moore and I discussed the possibility of filing a Motion to Suppress and concluded that it would be unavailing, because . . . he had previously made a full confession to his brother and to [his accomplice's girlfriend], either one of whom could have been called as a witness at any time to repeat his confession in full detail." Jordan Affidavit (Feb. 26, 1999), App. to Pet. for Cert. 70, ¶ 4.

Counsel added that he had made Moore aware of the possibility of being charged with aggravated murder, which carried a potential death sentence, as well as the possibility of a sentence of life imprisonment without parole. See Ore. Rev. Stat. § 163.105(1)(a) (1995). The intense and serious abuse to the victim before the shooting might well have led the State to insist on a strong response. In light of these facts the Oregon court concluded Moore had not established ineffective assistance of counsel under Strickland.

Moore filed a petition for habeas corpus in the United States District Court for the District of Oregon, renewing his ineffective-assistance claim. The District Court denied the petition, finding sufficient evidence to support the Oregon court's conclusion that suppression would not have made a difference.

A divided panel of the United States Court of Appeals for the Ninth Circuit reversed. Moore v. Czerniak, 574 F. 3d 1092 (2009). In its view the state court's conclusion that counsel's action did not constitute ineffective assistance was an unreasonable application of clearly established law in light of Strickland and was contrary to Arizona v. Fulminante, 499 U. S. 279 (1991). Six judges dissented from denial of rehearing en banc. 574 F. 3d, at 1162.

We granted certiorari. 559 U. S. ___ (2010).

II

The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is defined by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
"(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
"(2) resulted in a decision that was based on an un-reasonable determination of the facts in light of the evidence presented in the State court proceeding."

AEDPA prohibits federal habeas relief for any claim adjudicated on the merits in state court, unless one of the exceptions listed in § 2254(d) obtains. Relevant here is § 2254(d)(1)'s exception "permitting relitigation where the earlier state decision resulted from an `unreasonable application of' clearly established federal law." Richter, ante, at 11. The applicable federal law consists of the rules for determining when a criminal defendant has received inadequate representation as defined in Strickland.

To establish ineffective assistance of counsel "a defendant must show both deficient performance by counsel and prejudice." Knowles v. Mirzayance, 556 U. S. ___, ___ (2009) (slip op., at 10). In addressing this standard and its relationship to AEDPA, the Court today in Richter, ante, at 14-16, gives the following explanation:

"To establish deficient performance, a person challenging a conviction must show that `counsel's representation fell below an objective standard of reasonableness.' [Strickland,] 466 U. S., at 688. A court considering a claim of ineffective assistance must apply a `strong presumption' that counsel's representation was within the `wide range' of reasonable professional assistance. Id., at 689. The challenger's burden is to show `that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' Id., at 687.
"With respect to prejudice, a challenger must demonstrate `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' . . .
"`Surmounting Strickland's high bar is never an easy task.' Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 14). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial [or in pretrial proceedings], and so the Strickland standard must be applied with scrupulous care, lest `intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U. S., at 689-690. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is `all too tempting' to `second-guess counsel's assistance after conviction or adverse sentence.' Id., at 689; see also Bell v. Cone, 535 U. S. 685, 702 (2002); Lockhart v. Fretwell, 506 U. S. 364, 372 (1993). The question is whether an attorney's representation amounted to incompetence under `prevailing professional norms,' not whether it deviated from best practices or most common custom. Strickland, 466 U. S., at 690.
"Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both `highly deferential,' id., at 689; Lindh v. Murphy, 521 U. S. 320, 333, n. 7 (1997), and when the two apply in tandem, review is `doubly' so, Knowles, 556 U. S., at ___ (slip op., at 11). The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U. S., at ___ (slip op., at 11). Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard."

III

The question becomes whether Moore's counsel provided ineffective assistance by failing to seek suppression of Moore's confession to police before advising Moore regarding the plea. Finding that any "motion to suppress would have been fruitless," the state postconviction court concluded that Moore had not received ineffective assistance of counsel. App. 140. The state court did not specify whether this was because there was no deficient performance under Strickland or because Moore suffered no Strickland prejudice, or both. To overcome the limitation imposed by § 2254(d), the Court of Appeals had to conclude that both findings would have involved an unreasonable application of clearly established federal law. See Richter, ante, at 19-20. In finding that this standard was met, the Court of Appeals erred, for the state-court decision was not an unreasonable application of either part of the Strickland rule.

A

The Court of Appeals was wrong to accord scant deference to counsel's judgment, and doubly wrong to conclude it would have been unreasonable to find that the defense attorney qualified as counsel for Sixth Amendment purposes. Knowles, supra, at ___ (slip op., at 11); Strickland, 466 U. S., at 687. Counsel gave this explanation for his decision to discuss the plea bargain without first challenging Moore's confession to the police: that suppression would serve little purpose in light of Moore's other full and admissible confession, to which both his brother and his accomplice's girlfriend could testify. The state court would not have been unreasonable to accept this explanation.

Counsel also justified his decision by asserting that any motion to suppress was likely to fail. Reviewing the reasonableness of that justification is complicated by the possibility that petitioner forfeited one argument that would have supported its position: The Court of Appeals assumed that a motion would have succeeded because the warden did not argue otherwise. Of course that is not the same as a concession that no competent attorney would think a motion to suppress would have failed, which is the relevant question under Strickland. See Kimmelman v. Morrison, 477 U. S. 365, 382 (1986); Richter, ante, at 19-20. It is unnecessary to consider whether counsel's second justification was reasonable, however, since the first and independent explanation — that suppression would have been futile — confirms that his representation was adequate under Strickland, or at least that it would have been reasonable for the state court to reach that conclusion.

Acknowledging guilt and accepting responsibility by an early plea respond to certain basic premises in the law and its function. Those principles are eroded if a guilty plea is too easily set aside based on facts and circumstances not apparent to a competent attorney when actions and advice leading to the plea took place. Plea bargains are the result of complex negotiations suffused with uncertainty, and defense attorneys must make careful strategic choices in balancing opportunities and risks. The opportunities, of course, include pleading to a lesser charge and obtaining a lesser sentence, as compared with what might be the outcome not only at trial but also from a later plea offer if the case grows stronger and prosecutors find stiffened resolve. A risk, in addition to the obvious one of losing the chance for a defense verdict, is that an early plea bargain might come before the prosecution finds its case is getting weaker, not stronger. The State's case can begin to fall apart as stories change, witnesses become unavailable, and new suspects are identified.

These considerations make strict adherence to the Strickland standard all the more essential when reviewing the choices an attorney made at the plea bargain stage. Failure to respect the latitude Strickland requires can create at least two problems in the plea context. First, the potential for the distortions and imbalance that can inhere in a hindsight perspective may become all too real. The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision. There are, moreover, special difficulties in evaluating the basis for counsel's judgment: An attorney often has insights borne of past dealings with the same prosecutor or court, and the record at the pretrial stage is never as full as it is after a trial. In determining how searching and exacting their review must be, habeas courts must respect their limited role in determining whether there was manifest deficiency in light of information then available to counsel. Lockhart v. Fretwell, 506 U. S. 364, 372 (1993). AEDPA compounds the imperative of judicial caution.

Second, ineffective-assistance claims that lack necessary foundation may bring instability to the very process the inquiry seeks to protect. Strickland allows a defendant "to escape rules of waiver and forfeiture," Richter, ante, at 15. Prosecutors must have assurance that a plea will not be undone years later because of infidelity to the requirements of AEDPA and the teachings of Strickland. The prospect that a plea deal will afterwards be unraveled when a court second-guesses counsel's decisions while failing to accord the latitude Strickland mandates or disregarding the structure dictated by AEDPA could lead prosecutors to forgo plea bargains that would benefit defendants, a result favorable to no one.

Whether before, during, or after trial, when the Sixth Amendment applies, the formulation of the standard is the same: reasonable competence in representing the accused. Strickland, 466 U. S., at 688. In applying and defining this standard substantial deference must be accorded to counsel's judgment. Id., at 689. But at different stages of the case that deference may be measured in different ways.

In the case of an early plea, neither the prosecution nor the defense may know with much certainty what course the case may take. It follows that each side, of necessity, risks consequences that may arise from contingencies or circumstances yet unperceived. The absence of a developed or an extensive record and the circumstance that neither the prosecution nor the defense case has been well defined create a particular risk that an after-the-fact assessment will run counter to the deference that must be accorded counsel's judgment and perspective when the plea was negotiated, offered, and entered.

Prosecutors in the present case faced the cost of litigation and the risk of trying their case without Moore's confession to the police. Moore's counsel could reasonably believe that a swift plea bargain would allow Moore to take advantage of the State's aversion to these hazards. And whenever cases involve multiple defendants, there is a chance that prosecutors might convince one defendant to testify against another in exchange for a better deal. Moore's plea eliminated that possibility and ended an ongoing investigation. Delaying the plea for further proceedings would have given the State time to uncover additional incriminating evidence that could have formed the basis of a capital prosecution. It must be remembered, after all, that Moore's claim that it was an accident when he shot the victim through the temple might be disbelieved.

It is not clear how the successful exclusion of the confession would have affected counsel's strategic calculus. The prosecution had at its disposal two witnesses able to relate another confession. True, Moore's brother and the girlfriend of his accomplice might have changed their accounts in a manner favorable to Moore. But the record before the state court reveals no reason to believe that either witness would violate the legal obligation to convey the content of Moore's confession. And to the extent that his accomplice's girlfriend had an ongoing interest in the matter, she might have been tempted to put more blame, not less, on Moore. Then, too, the accomplices themselves might have decided to implicate Moore to a greater extent than his own confession did, say by indicating that Moore shot the victim deliberately, not accidentally. All these possibilities are speculative. What counsel knew at the time was that the existence of the two witnesses to an additional confession posed a serious strategic concern.

Moore's prospects at trial were thus anything but certain. Even now, he does not deny any involvement in the kidnaping and killing. In these circumstances, and with a potential capital charge lurking, Moore's counsel made a reasonable choice to opt for a quick plea bargain. At the very least, the state court would not have been unreasonable to so conclude. Cf. Yarborough v. Alvarado, 541 U. S. 652, 664 (2004) (explaining that state courts enjoy "more leeway" under AEDPA in applying general standards).

The Court of Appeals' contrary holding rests on a case that did not involve ineffective assistance of counsel: Arizona v. Fulminante, 499 U. S. 279 (1991). To reach that result, it transposed that case into a novel context; and novelty alone — at least insofar as it renders the relevant rule less than "clearly established" — provides a reason to reject it under AEDPA. See Yarborough, supra, at 666 ("Section 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law . . . [, although c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt"). And the transposition is improper even on its own terms. According to the Court of Appeals, "Fulminante stands for the proposition that the admission of an additional confession ordinarily reinforces and corroborates the others and is therefore prejudicial." 574 F. 3d, at 1111. Based on that reading, the Court of Appeals held that the state court's decision "was contrary to Fulminante." Id., at 1102. But Fulminante may not be so incorporated into the Strickland performance inquiry.

A state-court adjudication of the performance of counsel under the Sixth Amendment cannot be "contrary to" Fulminante, for Fulminante — which involved the admission of an involuntary confession in violation of the Fifth Amendment — says nothing about the Strickland standard of effectiveness. See Bell v. Cone, 535 U. S. 685, 694 (2002) ("A federal habeas court may issue the writ under the `contrary to' clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts"). The Fulminante prejudice inquiry presumes a constitutional violation, whereas Strickland seeks to define one. The state court accepted counsel's view that seeking to suppress Moore's second confession would have been "fruitless." It would not have been unreasonable to conclude that counsel could incorporate that view into his assessment of a plea offer, a subject with which Fulminante is in no way concerned.

A finding of constitutionally adequate performance under Strickland cannot be contrary to Fulminante. The state court likely reached the correct result under Strickland. And under § 2254(d), that it reached a reasonable one is sufficient. See Richter, ante, at 19.

B

The Court of Appeals further concluded that it would have been unreasonable for the state postconviction court to have found no prejudice in counsel's failure to suppress Moore's confession to police. To prevail on prejudice before the state court Moore had to demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U. S. 52, 59 (1985).

Deference to the state court's prejudice determination is all the more significant in light of the uncertainty inherent in plea negotiations described above: The stakes for defendants are high, and many elect to limit risk by forgoing the right to assert their innocence. A defendant who accepts a plea bargain on counsel's advice does not necessarily suffer prejudice when his counsel fails to seek suppression of evidence, even if it would be reversible error for the court to admit that evidence.

The state court here reasonably could have determined that Moore would have accepted the plea agreement even if his second confession had been ruled inadmissible. By the time the plea agreement cut short investigation of Moore's crimes, the State's case was already formidable and included two witnesses to an admissible confession. Had the prosecution continued to investigate, its case might well have become stronger. At the same time, Moore faced grave punishments. His decision to plead no contest allowed him to avoid a possible sentence of life without parole or death. The bargain counsel struck was thus a favorable one — the statutory minimum for the charged offense — and the decision to forgo a challenge to the confession may have been essential to securing that agreement.

Once again the Court of Appeals reached a contrary conclusion by pointing to Fulminante: "The state court's finding that a motion to suppress a recorded confession to the police would have been `fruitless' . . . was without question contrary to clearly established federal law as set forth in Fulminante." 574 F. 3d, at 1112. And again there is no sense in which the state court's finding could be contrary to Fulminante, for Fulminante says nothing about prejudice for Strickland purposes, nor does it contemplate prejudice in the plea bargain context.

The Court of Appeals appears to have treated Fulminante as a per se rule of prejudice, or something close to it, in all cases involving suppressible confessions. It is not. In Fulminante five Justices made the uncontroversial observation that many confessions are powerful evidence. See, e.g., 499 U. S., at 296. Fulminante's prejudice analysis arose on direct review following an acknowledged constitutional error at trial. The State therefore had the burden of showing that it was "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Neder v. United States, 527 U. S. 1, 18 (1999) (paraphrasing Fulminante, supra). That standard cannot apply to determinations of whether inadequate assistance of counsel prejudiced a defendant who entered into a plea agreement. Many defendants reasonably enter plea agreements even though there is a significant probability — much more than a reasonable doubt — that they would be acquitted if they proceeded to trial. Thus, the question in the present case is not whether Moore was sure beyond a reasonable doubt that he would still be convicted if the extra confession were suppressed. It is whether Moore established the reasonable probability that he would not have entered his plea but for his counsel's deficiency, Hill, supra, at 59, and more to the point, whether a state court's decision to the contrary would be unreasonable.

To the extent Fulminante's application of the harmlesserror standard sheds any light on the present case, it suggests that the state court's prejudice determination was reasonable. Fulminante found that an improperly admitted confession was not harmless under Chapman v. California, 386 U. S. 18 (1967) because the remaining evidence against the defendant was weak. The additional evidence consisted primarily of a second confession that Fulminante had made to the informant's fiancée. But many of its details were not corroborated, the fiancée had not reported the confession for a long period of time, the State had indicated that both confessions were essential to its case, and the fiancée potentially "had a motive to lie." 499 U. S., at 300. Moore's plea agreement, by contrast, ended the government's investigation well before trial, yet the evidence against Moore was strong. The accounts of Moore's second confession to his brother and his accomplice's girlfriend corroborated each other, were given to people without apparent reason to lie, and were reported without delay.

The State gave no indication that its felony-murder prosecution depended on the admission of the police confession, and Moore does not now deny that he kidnaped and killed Rogers. Given all this, an unconstitutional admission of Moore's confession to police might well have been found harmless even on direct review if Moore had gone to trial after the denial of a suppression motion.

Other than for its discussion of the basic proposition that a confession is often powerful evidence, Fulminante is not relevant to the present case. The state postconviction court reasonably could have concluded that Moore was not prejudiced by counsel's actions. Under AEDPA, that finding ends federal review. See Richter, ante, at 19.

Judge Berzon's concurring opinion in the Court of Appeals does not provide a basis for issuance of the writ. The concurring opinion would have found the state court's prejudice determination unreasonable in light of Kimmelman. It relied on Kimmelman to find that Moore suffered prejudice for Strickland purposes because there was a reasonable possibility that he would have obtained a better plea agreement but for his counsel's errors. But Kimmelman concerned a conviction following a bench trial, so it did not establish, much less clearly establish, the appropriate standard for prejudice in cases involving plea bargains. See 477 U. S., at 389. That standard was established in Hill, which held that a defendant who enters a plea agreement must show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." 474 U. S., at 59. Moore's failure to make that showing forecloses relief under AEDPA.

IV

There are certain differences between inadequate assistance of counsel claims in cases where there was a full trial on the merits and those, like this one, where a plea was entered even before the prosecution decided upon all of the charges. A trial provides the full written record and factual background that serve to limit and clarify some of the choices counsel made. Still, hindsight cannot suffice for relief when counsel's choices were reasonable and legitimate based on predictions of how the trial would proceed. See Richter, ante, at 18.

Hindsight and second guesses are also inappropriate, and often more so, where a plea has been entered without a full trial or, as in this case, even before the prosecution decided on the charges. The added uncertainty that results when there is no extended, formal record and no actual history to show how the charges have played out at trial works against the party alleging inadequate assistance. Counsel, too, faced that uncertainty. There is a most substantial burden on the claimant to show ineffective assistance. The plea process brings to the criminal justice system a stability and a certainty that must not be undermined by the prospect of collateral challenges in cases not only where witnesses and evidence have disappeared, but also in cases where witnesses and evidence were not presented in the first place. The substantial burden to show ineffective assistance of counsel, the burden the claimant must meet to avoid the plea, has not been met in this case.

The state postconviction court's decision involved no unreasonable application of Supreme Court precedent. Because the Court of Appeals erred in finding otherwise, its judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE KAGAN took no part in the consideration or decision of this case.

GINSBURG, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 09-658 JEFF PREMO, SUPERINTENDENT, OREGON STATE PENITENTIARY, PETITIONER v. RANDY JOSEPH MOORE ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [January 19, 2011] JUSTICE GINSBURG, concurring in the judgment.

To prevail under the prejudice requirement of Strickland v. Washington, 466 U. S. 668, 694 (1984), a petitioner for federal habeas corpus relief must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial," Hill v. Lockhart, 474 U. S. 52, 59 (1985). As Moore's counsel confirmed at oral argument, see Tr. of Oral Arg. 32, Moore never declared that, better informed, he would have resisted the plea bargain and opted for trial. For that reason, I concur in the Court's judgment.

Q: Now since you gave that tape to [Deputy] Delorem, have you had a chance to view it in the D.A.'s office? A: Yes. Q: Where was the videotape produced? A: In my bedroom. Q: How do you — what bedroom? A: My present bedroom. Q: How do you know that? A: Well, I could see the window in my bedroom and the nightstands there at that time. I know that was my bedroom. Trial Tr. vol. 2, 246:7-17.


Summaries of

Dombos v. Jenecka

United States District Court, D. New Mexico
Apr 5, 2011
CIV 09-0200-JB-GBW (D.N.M. Apr. 5, 2011)
Case details for

Dombos v. Jenecka

Case Details

Full title:FRANK J. DOMBOS, Petitioner, v. JAMES JENECKA, Warden, Lea County…

Court:United States District Court, D. New Mexico

Date published: Apr 5, 2011

Citations

CIV 09-0200-JB-GBW (D.N.M. Apr. 5, 2011)