WIGGINS v. SMITH, WARDEN, et al.

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Syllabus
WIGGINS v. SMITH, WARDEN, et al.
certiorari to the united states court of appeals for
the fourth circuit
No. 02–311. Argued March 24, 2003—Decided June 26, 2003
In 1989, petitioner Wiggins was convicted of capital murder by a Maryland
judge and subsequently elected to be sentenced by a jury. His public
defenders, Schlaich and Nethercott, moved to bifurcate the sentencing,
representing that they planned to prove that Wiggins did not kill the
victim by his own hand and then, if necessary, to present a mitigation
case. The court denied the motion. At sentencing, Nethercott told the
jury in her opening statement that they would hear, among other things,
about Wiggins’ difficult life, but such evidence was never introduced.
Before closing arguments and outside the presence of the jury, Schlaich
made a proffer to the court to preserve the bifurcation issue for appeal,
detailing the mitigation case counsel would have presented. Schlaich
never mentioned Wiggins’ life history or family background. The jury
sentenced Wiggins to death, and the Maryland Court of Appeals af-
firmed. Represented by new counsel, Wiggins sought postconviction
relief, arguing that his trial counsel had rendered ineffective assistance
by failing to investigate and present mitigating evidence of his dysfunc-
tional background. He presented expert testimony by a forensic social
worker about the severe physical and sexual abuse he had suffered at
the hands of his mother and while under the care of a series of foster
parents. Schlaich testified that he did not remember retaining a foren-
sic social worker to prepare a social history before sentencing, even
though state funds were available for that purpose, and explained that
he and Nethercott had decided to focus on retrying the factual case and
disputing Wiggins’ direct responsibility for the murder. The trial court
denied the petition, and the State Court of Appeals affirmed, concluding
that trial counsel had made a reasoned choice to proceed with what
they considered their best defense. Subsequently, the Federal District
Court granted Wiggins relief on his federal habeas petition, holding that
the Maryland courts’ rejection of his ineffective assistance claim in-
volved an unreasonable application of clearly established federal law.
In reversing, the Fourth Circuit found trial counsel’s strategic decision
to focus on Wiggins’ direct responsibility to be reasonable.
Held: The performance of Wiggins’ attorneys at sentencing violated his
Sixth Amendment right to effective assistance of counsel. Pp. 519–538.

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(a) A federal writ can be granted only if a state court decision “was
contrary to, or involved an unreasonable application of, clearly estab-
lished” precedents of this Court. 28 U. S. C. § 2254(d)(1). This “unrea-
sonable application” prong permits the writ to be granted when a state
court identifies the correct governing legal principle but unreasonably
applies it to the facts of a petitioner’s case. Williams v. Taylor, 529
U. S. 362, 413. For this standard to be satisfied, the state court decision
must have been “objectively unreasonable,” id., at 409, not just incorrect
or erroneous. An ineffective assistance claim has two components: A
petitioner must show that counsel’s performance was deficient, and that
the deficiency prejudiced the defense. Strickland v. Washington, 466
U. S. 668, 687. Performance is deficient if it falls below an objective
standard of reasonableness, which is defined in terms of prevailing pro-
fessional norms. Id., at 688. Here, as in Strickland, counsel claim that
their limited investigation into petitioner’s background reflected a tacti-
cal judgment not to present mitigating evidence and to pursue an alter-
native strategy instead. In evaluating petitioner’s claim, this Court’s
principal concern is not whether counsel should have presented a mitiga-
tion case, but whether the investigation supporting their decision not to
introduce mitigating evidence of Wiggins’ background was itself reason-
able. The Court thus conducts an objective review of their perform-
ance, measured for reasonableness under prevailing professional norms,
including a context-dependent consideration of the challenged conduct
as seen from counsel’s perspective at the time of that conduct. Id., at
688, 689. Pp. 519–523.
(b) Counsel did not conduct a reasonable investigation. Their deci-
sion not to expand their investigation beyond a presentence investiga-
tion (PSI) report and Baltimore City Department of Social Services
(DSS) records fell short of the professional standards prevailing in
Maryland in 1989. Standard practice in Maryland capital cases at that
time included the preparation of a social history report. Although
there were funds to retain a forensic social worker, counsel chose not to
commission a report. Their conduct similarly fell short of the American
Bar Association’s capital defense work standards. Moreover, in light of
the facts counsel discovered in the DSS records concerning Wiggins’
alcoholic mother and his problems in foster care, counsel’s decision to
cease investigating when they did was unreasonable. Any reasonably
competent attorney would have realized that pursuing such leads was
necessary to making an informed choice among possible defenses, partic-
ularly given the apparent absence of aggravating factors from Wiggins’
background. Indeed, counsel discovered no evidence to suggest that
a mitigation case would have been counterproductive or that further
investigation would have been fruitless, thus distinguishing this case

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from precedents in which this Court has found limited investigations
into mitigating evidence to be reasonable. The record of the sentencing
proceedings underscores the unreasonableness of counsel’s conduct by
suggesting that their failure to investigate thoroughly stemmed from
inattention, not strategic judgment. Until the trial court denied their
bifurcation motion, they had had every reason to develop the most pow-
erful mitigation case possible. During the sentencing process itself,
counsel did not focus exclusively on Wiggins’ direct responsibility for
the murder; rather they put on a halfhearted mitigation case instead.
The Maryland Court of Appeals’ assumption that counsel’s investigation
was adequate reflected an unreasonable application of Strickland. In
deferring to counsel’s decision not to present every conceivable mitiga-
tion defense despite the fact that counsel based their alleged choice on
an inadequate investigation, the Maryland Court of Appeals further un-
reasonably applied Strickland. And the court’s conclusion that the so-
cial services records revealed incidences of sexual abuse, when they in
fact did not, reflects “an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding,” 28 U. S. C.
§ 2254(d)(2). Contrary to the State’s and the United States’ contention,
the record as a whole does not support the conclusion that counsel con-
ducted a more thorough investigation than the one this Court describes.
Ultimately, this Court’s conclusion that counsel’s investigation was inad-
equate does not mean that Strickland requires counsel to investigate
every conceivable line of mitigating evidence no matter how unlikely
the effort would be to assist the defendant at sentencing. Nor does
Strickland require counsel to present such evidence at sentencing in
every case. Rather, the conclusion is based on the much more limited
principle that “strategic choices made after less than complete investiga-
tion are reasonable” only to the extent that “reasonable professional
judgments support the limitations on investigation.” Strickland,
supra, at 690–691. Pp. 523–534.
(c) Counsel’s failures prejudiced Wiggins’ defense. To establish prej-
udice, a defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the proceeding’s result would
have been different. Strickland, supra, at 694. This Court assesses
prejudice by reweighing the aggravating evidence against the totality
of the mitigating evidence adduced both at trial and in the habeas pro-
ceedings. Williams v. Taylor, supra, at 397–398. The mitigating evi-
dence counsel failed to discover and present here is powerful. Wiggins
experienced severe privation and abuse while in the custody of his alco-
holic, absentee mother and physical torment, sexual molestation, and
repeated rape while in foster care. His time spent homeless and his
diminished mental capacities further augment his mitigation case. He

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thus has the kind of troubled history relevant to assessing a defendant’s
moral culpability. Penry v. Lynaugh, 492 U. S. 302, 319. Given the
nature and extent of the abuse, there is a reasonable probability that a
competent attorney, aware of this history, would have introduced it at
sentencing, and that a jury confronted with such mitigating evidence
would have returned with a different sentence. The only significant
mitigating factor the jury heard was that Wiggins had no prior convic-
tions. Had it been able to place his excruciating life history on the
mitigating side of the scale, there is a reasonable probability that at
least one juror would have struck a different balance. Wiggins had no
record of violent conduct that the State could have introduced to offset
this powerful mitigating narrative. Thus, the available mitigating evi-
dence, taken as a whole, might well have influenced the jury’s appraisal
of his moral culpability. Pp. 534–538.
288 F. 3d 629, reversed and remanded.
O’Connor, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, Kennedy, Souter, Ginsburg, and Breyer, JJ.,
joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined,
post, p. 538.
Donald B. Verrilli, Jr., argued the cause for petitioner.
With him on the briefs were Ian Heath Gershengorn and
Lara M. Flint.
Gary E. Bair, Solicitor General of Maryland, argued the
cause for respondents. With him on the brief were J. Joseph
Curran, Jr., Attorney General, and Kathryn Grill Graeff
and Ann N. Bosse, Assistant Attorneys General.
Dan Himmelfarb argued the cause for the United States
as amicus curiae urging affirmance. With him on the brief
were Solicitor General Olson, Assistant Attorney General
Chertoff, Deputy Solicitor General Dreeben, and Robert J.
Erickson.*
*Briefs of amici curiae urging reversal were filed for the American Bar
Association by Alfred P. Carlton, Lawrence J. Fox, David J. Kessler, and
Robin M. Maher; for the Constitution Project by Virginia E. Sloan and
Stephen F. Hanlon; for the National Association of Criminal Defense Law-
yers et al. by David A. Reiser, Eleanor H. Smith, and Lisa B. Kemler;
for the National Association of Social Workers et al. by Thomas C. Gold-

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514 WIGGINS v. SMITH
Opinion of the Court
Justice O’Connor delivered the opinion of the Court.
Petitioner, Kevin Wiggins, argues that his attorneys’ fail-
ure to investigate his background and present mitigating evi-
dence of his unfortunate life history at his capital sentencing
proceedings violated his Sixth Amendment right to counsel.
In this case, we consider whether the United States Court
of Appeals for the Fourth Circuit erred in upholding the
Maryland Court of Appeals’ rejection of this claim.
I
A
On September 17, 1988, police discovered 77-year-old Flor-
ence Lacs drowned in the bathtub of her ransacked apart-
ment in Woodlawn, Maryland. Wiggins v. State, 352 Md.
580, 585, 724 A. 2d 1, 5 (1999). The State indicted petitioner
for the crime on October 20, 1988, and later filed a notice of
intention to seek the death penalty. Two Baltimore County
public defenders, Carl Schlaich and Michelle Nethercott, as-
sumed responsibility for Wiggins’ case. In July 1989, peti-
tioner elected to be tried before a judge in Baltimore County
stein and Amy Howe; and for Janet F. Reno et al. by Robert S. Litt, Kath-
leen A. Behan, and John A. Freedman.
Briefs of amici curiae urging affirmance were filed for the State of
California et al. by Bill Lockyer, Attorney General of California, Manuel
M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney Gen-
eral, and Kristofer Jorstad, A. Scott Hayward, and Donald E. De Nicola,
Deputy Attorneys General, and by the Attorneys General for their respec-
tive States as follows: William H. Pryor, Jr., of Alabama, Terry Goddard
of Arizona, Ken Salazar of Colorado, Thurbert E. Baker of Georgia, Lisa
Madigan of Illinois, Steve Carter of Indiana, Richard P. Ieyoub of Louisi-
ana, Mike McGrath of Montana, Jon Bruning of Nebraska, Brian Sando-
val of Nevada, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma,
D. Michael Fisher of Pennsylvania, Larry Long of South Dakota, Mark L.
Shurtleff of Utah, Jerry W. Kilgore of Virginia, and Christine O. Gregoire
of Washington; and for the Criminal Justice Legal Foundation by Kent
S. Scheidegger.

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Circuit Court. Ibid. On August 4, after a 4-day trial, the
court found petitioner guilty of first-degree murder, robbery,
and two counts of theft. App. 32.
After his conviction, Wiggins elected to be sentenced by a
jury, and the trial court scheduled the proceedings to begin
on October 11, 1989. On September 11, counsel filed a mo-
tion for bifurcation of sentencing in hopes of presenting Wig-
gins’ case in two phases. Id., at 34. Counsel intended first
to prove that Wiggins did not act as a “principal in the first
degree,” ibid.—i. e., that he did not kill the victim by his own
hand. See Md. Ann. Code, Art. 27, § 413 (1996) (requiring
proof of direct responsibility for death eligibility). Counsel
then intended, if necessary, to present a mitigation case. In
the memorandum in support of their motion, counsel argued
that bifurcation would enable them to present each case in
its best light; separating the two cases would prevent the
introduction of mitigating evidence from diluting their claim
that Wiggins was not directly responsible for the murder.
App. 36–42, 37.
On October 12, the court denied the bifurcation motion,
and sentencing proceedings commenced immediately there-
after. In her opening statement, Nethercott told the jurors
they would hear evidence suggesting that someone other
than Wiggins actually killed Lacs. Id., at 70–71. Counsel
then explained that the judge would instruct them to weigh
Wiggins’ clean record as a factor against a death sentence.
She concluded: “ ‘You’re going to hear that Kevin Wiggins
has had a difficult life. It has not been easy for him. But
he’s worked. He’s tried to be a productive citizen, and he’s
reached the age of 27 with no convictions for prior crimes of
violence and no convictions, period. . . . I think that’s an
important thing for you to consider.’ ” Id., at 72. During
the proceedings themselves, however, counsel introduced no
evidence of Wiggins’ life history.
Before closing arguments, Schlaich made a proffer to the
court, outside the presence of the jury, to preserve bifurca-

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tion as an issue for appeal. He detailed the mitigation case
counsel would have presented had the court granted their
bifurcation motion. He explained that they would have in-
troduced psychological reports and expert testimony demon-
strating Wiggins’ limited intellectual capacities and childlike
emotional state on the one hand, and the absence of aggres-
sive patterns in his behavior, his capacity for empathy, and
his desire to function in the world on the other. See id., at
349–351. At no point did Schlaich proffer any evidence of
petitioner’s life history or family background. On October
18, the court instructed the jury on the sentencing task be-
fore it, and later that afternoon, the jury returned with a
sentence of death. Id., at 409–410. A divided Maryland
Court of Appeals affirmed. Wiggins v. State, 324 Md. 551,
597 A. 2d 1359 (1991), cert. denied, 503 U. S. 1007 (1992).
B
In 1993, Wiggins sought postconviction relief in Baltimore
County Circuit Court. With new counsel, he challenged the
adequacy of his representation at sentencing, arguing that
his attorneys had rendered constitutionally defective assist-
ance by failing to investigate and present mitigating evi-
dence of his dysfunctional background. App. to Pet. for
Cert. 132a. To support his claim, petitioner presented testi-
mony by Hans Selvog, a licensed social worker certified as
an expert by the court. App. 419. Selvog testified con-
cerning an elaborate social history report he had prepared
containing evidence of the severe physical and sexual abuse
petitioner suffered at the hands of his mother and while in
the care of a series of foster parents. Relying on state social
services, medical, and school records, as well as interviews
with petitioner and numerous family members, Selvog chron-
icled petitioner’s bleak life history. App. to Pet. for Cert.
163a.
According to Selvog’s report, petitioner’s mother, a chronic
alcoholic, frequently left Wiggins and his siblings home alone

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for days, forcing them to beg for food and to eat paint chips
and garbage. Id., at 166a–167a. Mrs. Wiggins’ abusive be-
havior included beating the children for breaking into the
kitchen, which she often kept locked. She had sex with men
while her children slept in the same bed and, on one occasion,
forced petitioner’s hand against a hot stove burner—an in-
cident that led to petitioner’s hospitalization. Id., at 167a–
171a. At the age of six, the State placed Wiggins in foster
care. Petitioner’s first and second foster mothers abused
him physically, id., at 175a–176a, and, as petitioner explained
to Selvog, the father in his second foster home repeatedly
molested and raped him. Id., at 176a–179a. At age 16,
petitioner ran away from his foster home and began living
on the streets. He returned intermittently to additional fos-
ter homes, including one in which the foster mother’s sons
allegedly gang-raped him on more than one occasion. Id.,
at 190a. After leaving the foster care system, Wiggins
entered a Job Corps program and was allegedly sexually
abused by his supervisor. Id., at 192a.
During the postconviction proceedings, Schlaich testified
that he did not remember retaining a forensic social worker
to prepare a social history, even though the State made funds
available for that purpose. App. 487–488. He explained
that he and Nethercott, well in advance of trial, decided to
focus their efforts on “ ‘retry[ing] the factual case’ ” and dis-
puting Wiggins’ direct responsibility for the murder. Id., at
485–486. In April 1994, at the close of the proceedings, the
judge observed from the bench that he could not remember
a capital case in which counsel had not compiled a social his-
tory of the defendant, explaining, “ ‘[n]ot to do a social his-
tory, at least to see what you have got, to me is absolute
error. I just—I would be flabbergasted if the Court of Ap-
peals said anything else.’ ” Id., at 605. In October 1997,
however, the trial court denied Wiggins’ petition for postcon-
viction relief. The court concluded that “when the decision
not to investigate . . . is a matter of trial tactics, there is no

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ineffective assistance of counsel.” App. to Pet. for Cert.
155a–156a.
The Maryland Court of Appeals affirmed the denial of re-
lief, concluding that trial counsel had made “a deliberate, tac-
tical decision to concentrate their effort at convincing the
jury” that appellant was not directly responsible for the mur-
der. Wiggins v. State, 352 Md., at 608, 724 A. 2d, at 15.
The court observed that counsel knew of Wiggins’ unfortu-
nate childhood. They had available to them both the pre-
sentence investigation (PSI) report prepared by the Division
of Parole and Probation, as required by Maryland law, Md.
Ann. Code, Art. 41, § 4–609(d) (1988), as well as “more de-
tailed social service records that recorded incidences of phys-
ical and sexual abuse, an alcoholic mother, placements in fos-
ter care, and borderline retardation.” 352 Md., at 608–609,
724 A. 2d, at 15. The court acknowledged that this evidence
was neither as detailed nor as graphic as the history elabo-
rated in the Selvog report but emphasized that “counsel did
investigate and were aware of appellant’s background.” Id.,
at 610, 724 A. 2d, at 16 (emphasis in original). Counsel knew
that at least one uncontested mitigating factor—Wiggins’
lack of prior convictions—would be before the jury should
their attempt to disprove Wiggins’ direct responsibility for
the murder fail. As a result, the court concluded, Schlaich
and Nethercott “made a reasoned choice to proceed with
what they thought was their best defense.” Id., at 611–612,
724 A. 2d, at 17.
C
In September 2001, Wiggins filed a petition for writ of
habeas corpus in Federal District Court. The trial court
granted him relief, holding that the Maryland courts’ rejec-
tion of his ineffective assistance claim “involved an unreason-
able application of clearly established federal law.” Wiggins
v. Corcoran, 164 F. Supp. 2d 538, 557 (2001) (citing Williams
v. Taylor, 529 U. S. 362 (2000)). The court rejected the
State’s defense of counsel’s “tactical” decision to “ ‘retry

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guilt,’ ” concluding that for a strategic decision to be rea-
sonable, it must be “based upon information the attorney
has made after conducting a reasonable investigation.” 164
F. Supp. 2d, at 558. The court found that though counsel
were aware of some aspects of Wiggins’ background, that
knowledge did not excuse them from their duty to make a
“fully informed and deliberate decision” about whether to
present a mitigation case. In fact, the court concluded, their
knowledge triggered an obligation to look further. Id., at
559.
Reviewing the District Court’s decision de novo, the
Fourth Circuit reversed, holding that counsel had made a
reasonable strategic decision to focus on petitioner’s direct
responsibility. Wiggins v. Corcoran, 288 F. 3d 629, 639–640
(2002). The court contrasted counsel’s complete failure to
investigate potential mitigating evidence in Williams, 288
F. 3d, at 640, with the fact that Schlaich and Nethercott knew
at least some details of Wiggins’ childhood from the PSI and
social services records, id., at 641. The court acknowledged
that counsel likely knew further investigation “would have
resulted in more sordid details surfacing,” but agreed with
the Maryland Court of Appeals that counsel’s knowledge of
the avenues of mitigation available to them “was sufficient to
make an informed strategic choice” to challenge petitioner’s
direct responsibility for the murder. Id., at 641–642. The
court emphasized that conflicting medical testimony with re-
spect to the time of death, the absence of direct evidence
against Wiggins, and unexplained forensic evidence at the
crime scene supported counsel’s strategy. Id., at 641.
We granted certiorari, 537 U. S. 1027 (2002), and now
reverse.
II
A
Petitioner renews his contention that his attorneys’ per-
formance at sentencing violated his Sixth Amendment right

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to effective assistance of counsel. The amendments to 28
U. S. C. § 2254, enacted as part of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), circumscribe
our consideration of Wiggins’ claim and require us to limit
our analysis to the law as it was “clearly established” by our
precedents at the time of the state court’s decision. Section
2254 provides:
“(d) 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 in-
volved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States; or
“(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evi-
dence presented in the State court proceeding.”
We have made clear that the “unreasonable application”
prong of § 2254(d)(1) permits a federal habeas court to “grant
the writ if the state court identifies the correct governing
legal principle from this Court’s decisions but unreasonably
applies that principle to the facts” of petitioner’s case. Wil-
liams v. Taylor, supra, at 413; see also Bell v. Cone, 535 U. S.
685, 694 (2002). In other words, a federal court may grant
relief when a state court has misapplied a “governing legal
principle” to “a set of facts different from those of the case
in which the principle was announced.” Lockyer v. An-
drade, 538 U. S. 63, 76 (2003) (citing Williams v. Taylor,
supra, at 407). In order for a federal court to find a state
court’s application of our precedent “unreasonable,” the state
court’s decision must have been more than incorrect or erro-
neous. See Lockyer, supra, at 75. The state court’s appli-

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cation must have been “objectively unreasonable.” See Wil-
liams v. Taylor, 529 U. S., at 409.
We established the legal principles that govern claims of
ineffective assistance of counsel in Strickland v. Washing-
ton, 466 U. S. 668 (1984). An ineffective assistance claim has
two components: A petitioner must show that counsel’s per-
formance was deficient, and that the deficiency prejudiced
the defense. Id., at 687. To establish deficient perform-
ance, a petitioner must demonstrate that counsel’s represen-
tation “fell below an objective standard of reasonableness.”
Id., at 688. We have declined to articulate specific guide-
lines for appropriate attorney conduct and instead have em-
phasized that “[t]he proper measure of attorney performance
remains simply reasonableness under prevailing professional
norms.” Ibid.
In this case, as in Strickland, petitioner’s claim stems from
counsel’s decision to limit the scope of their investigation
into potential mitigating evidence. Id., at 673. Here, as in
Strickland, counsel attempt to justify their limited investiga-
tion as reflecting a tactical judgment not to present mitigat-
ing evidence at sentencing and to pursue an alternative
strategy instead. In rejecting the respondent’s claim, we
defined the deference owed such strategic judgments in
terms of the adequacy of the investigations supporting
those judgments:
“[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtu-
ally unchallengeable; and strategic choices made after
less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments
support the limitations on investigation. In other
words, counsel has a duty to make reasonable investiga-
tions or to make a reasonable decision that makes partic-
ular investigations unnecessary. In any ineffectiveness
case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circum-

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stances, applying a heavy measure of deference to coun-
sel’s judgments.” Id., at 690–691.
Our opinion in Williams v. Taylor is illustrative of the
proper application of these standards. In finding Williams’
ineffectiveness claim meritorious, we applied Strickland and
concluded that counsel’s failure to uncover and present volu-
minous mitigating evidence at sentencing could not be justi-
fied as a tactical decision to focus on Williams’ voluntary con-
fessions, because counsel had not “fulfill[ed] their obligation
to conduct a thorough investigation of the defendant’s back-
ground.” 529 U. S., at 396 (citing 1 ABA Standards for
Criminal Justice 4–4.1, commentary, p. 4–55 (2d ed. 1980)).
While Williams had not yet been decided at the time the
Maryland Court of Appeals rendered the decision at issue in
this case, cf. post, at 542 (Scalia, J., dissenting), Williams’
case was before us on habeas review. Contrary to the dis-
sent’s contention, post, at 543, we therefore made no new law
in resolving Williams’ ineffectiveness claim. See Williams,
529 U. S., at 390 (noting that the merits of Williams’ claim
“are squarely governed by our holding in Strickland”); see
also id., at 395 (noting that the trial court correctly applied
both components of the Strickland standard to petitioner’s
claim and proceeding to discuss counsel’s failure to investi-
gate as a violation of Strickland’s performance prong). In
highlighting counsel’s duty to investigate, and in referring to
the ABA Standards for Criminal Justice as guides, we ap-
plied the same “clearly established” precedent of Strickland
we apply today. Cf. 466 U. S., at 690–691 (establishing that
“thorough investigation[s]” are “virtually unchallengeable”
and underscoring that “counsel has a duty to make reason-
able investigations”); see also id., at 688–689 (“Prevailing
norms of practice as reflected in American Bar Association
standards and the like . . . are guides to determining what
is reasonable”).
In light of these standards, our principal concern in decid-
ing whether Schlaich and Nethercott exercised “reasonable

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professional judgmen[t],” id., at 691, is not whether counsel
should have presented a mitigation case. Rather, we focus
on whether the investigation supporting counsel’s decision
not to introduce mitigating evidence of Wiggins’ background
was itsel f reasonable. Ibid. Cf. Williams v. Taylor,
supra, at 415 (O’Connor, J., concurring) (noting counsel’s
duty to conduct the “requisite, diligent” investigation into
his client’s background). In assessing counsel’s investiga-
tion, we must conduct an objective review of their perform-
ance, measured for “reasonableness under prevailing profes-
sional norms,” Strickland, 466 U. S., at 688, which includes
a context-dependent consideration of the challenged conduct
as seen “from counsel’s perspective at the time,” id., at 689
(“[E]very effort [must] be made to eliminate the distorting
effects of hindsight”).
B
1
The record demonstrates that counsel’s investigation drew
from three sources. App. 490–491. Counsel arranged for
William Stejskal, a psychologist, to conduct a number of
tests on petitioner. Stejskal concluded that petitioner had
an IQ of 79, had difficulty coping with demanding situations,
and exhibited features of a personality disorder. Id., at 44–
45, 349–351. These reports revealed nothing, however, of
petitioner’s life history. Tr. of Oral Arg. 24–25.
With respect to that history, counsel had available to them
the written PSI, which included a one-page account of Wig-
gins’ “personal history” noting his “misery as a youth,” quot-
ing his description of his own background as “ ‘disgusting,’ ”
and observing that he spent most of his life in foster care.
App. 20–21. Counsel also “tracked down” records kept by
the Baltimore City Department of Social Services (DSS) doc-
umenting petitioner’s various placements in the State’s fos-
ter care system. Id., at 490; Lodging of Petitioner. In de-
scribing the scope of counsel’s investigation into petitioner’s

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life history, both the Fourth Circuit and the Maryland Court
of Appeals referred only to these two sources of information.
See 288 F. 3d, at 640–641; Wiggins v. State, 352 Md., at 608–
609, 724 A. 2d, at 15.
Counsel’s decision not to expand their investigation be-
yond the PSI and the DSS records fell short of the profes-
sional standards that prevailed in Maryland in 1989. As
Schlaich acknowledged, standard practice in Maryland in
capital cases at the time of Wiggins’ trial included the prepa-
ration of a social history report. App. 488. Despite the fact
that the Public Defender’s office made funds available for the
retention of a forensic social worker, counsel chose not to
commission such a report. Id., at 487. Counsel’s conduct
similarly fell short of the standards for capital defense work
articulated by the American Bar Association (ABA)—stand-
ards to which we long have referred as “guides to deter-
mining what is reasonable.” Strickland, supra, at 688;
Williams v. Taylor, supra, at 396. The ABA Guidelines
provide that investigations into mitigating evidence “should
comprise efforts to discover all reasonably available miti-
gating evidence and evidence to rebut any aggravating evi-
dence that may be introduced by the prosecutor.” ABA
Guidelines for the Appointment and Performance of Counsel
in Death Penalty Cases 11.4.1(C), p. 93 (1989) (emphasis
added). Despite these well-defined norms, however, counsel
abandoned their investigation of petitioner’s background
after having acquired only rudimentary knowledge of his his-
tory from a narrow set of sources. Cf. id., 11.8.6, p. 133 (not-
ing that among the topics counsel should consider presenting
are medical history, educational history, employment and
training history, family and social history, prior adult and
juvenile correctional experience, and religious and cultural
influences (emphasis added)); 1 ABA Standards for Criminal
Justice 4–4.1, commentary, p. 4–55 (2d ed. 1982) (“The lawyer
also has a substantial and important role to perform in rais-
ing mitigating factors both to the prosecutor initially and

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to the court at sentencing. . . . Investigation is essential to
fulfillment of these functions”).
The scope of their investigation was also unreasonable in
light of what counsel actually discovered in the DSS records.
The records revealed several facts: Petitioner’s mother was
a chronic alcoholic; Wiggins was shuttled from foster home
to foster home and displayed some emotional difficulties
while there; he had frequent, lengthy absences from school;
and, on at least one occasion, his mother left him and his
siblings alone for days without food. See Lodging of Peti-
tioner 54–95, 126, 131–136, 140, 147, 159–176. As the Fed-
eral District Court emphasized, any reasonably competent
attorney would have realized that pursuing these leads was
necessary to making an informed choice among possible de-
fenses, particularly given the apparent absence of any aggra-
vating factors in petitioner’s background. 164 F. Supp. 2d,
at 559. Indeed, counsel uncovered no evidence in their in-
vestigation to suggest that a mitigation case, in its own right,
would have been counterproductive, or that further investi-
gation would have been fruitless; this case is therefore dis-
tinguishable from our precedents in which we have found
limited investigations into mitigating evidence to be reason-
able. See, e. g., Strickland, supra, at 699 (concluding that
counsel could “reasonably surmise . . . that character and
psychological evidence would be of little help”); Burger v.
Kemp, 483 U. S. 776, 794 (1987) (concluding counsel’s limited
investigation was reasonable because he interviewed all wit-
nesses brought to his attention, discovering little that was
helpful and much that was harmful); Darden v. Wainwright,
477 U. S. 168, 186 (1986) (concluding that counsel engaged
in extensive preparation and that the decision to present a
mitigation case would have resulted in the jury hearing evi-
dence that petitioner had been convicted of violent crimes
and spent much of his life in jail). Had counsel investigated
further, they might well have discovered the sexual abuse
later revealed during state postconviction proceedings.

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The record of the actual sentencing proceedings under-
scores the unreasonableness of counsel’s conduct by suggest-
ing that their failure to investigate thoroughly resulted from
inattention, not reasoned strategic judgment. Counsel
sought, until the day before sentencing, to have the proceed-
ings bifurcated into a retrial of guilt and a mitigation stage.
See supra, at 515. On the eve of sentencing, counsel repre-
sented to the court that they were prepared to come forward
with mitigating evidence, App. 45, and that they intended to
present such evidence in the event the court granted their
motion to bifurcate. In other words, prior to sentencing,
counsel never actually abandoned the possibility that they
would present a mitigation defense. Until the court denied
their motion, then, they had every reason to develop the
most powerful mitigation case possible.
What is more, during the sentencing proceeding itself,
counsel did not focus exclusively on Wiggins’ direct responsi-
bility for the murder. After introducing that issue in her
opening statement, id., at 70–71, Nethercott entreated the
jury to consider not just what Wiggins “is found to have
done,” but also “who [he] is.” Id., at 70. Though she told
the jury it would “hear that Kevin Wiggins has had a difficult
life,” id., at 72, counsel never followed up on that suggestion
with details of Wiggins’ history. At the same time, counsel
called a criminologist to testify that inmates serving life sen-
tences tend to adjust well and refrain from further violence
in prison—testimony with no bearing on whether petitioner
committed the murder by his own hand. Id., at 311–312.
Far from focusing exclusively on petitioner’s direct responsi-
bility, then, counsel put on a halfhearted mitigation case, tak-
ing precisely the type of “ ‘shotgun’ ” approach the Maryland
Court of Appeals concluded counsel sought to avoid. Wig-
gins v. State, 352 Md., at 609, 724 A. 2d, at 15. When viewed
in this light, the “strategic decision” the state courts and
respondents all invoke to justify counsel’s limited pursuit of
mitigating evidence resembles more a post hoc rationaliza-

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tion of counsel’s conduct than an accurate description of their
deliberations prior to sentencing.
In rejecting petitioner’s ineffective assistance claim, the
Maryland Court of Appeals appears to have assumed that
because counsel had some information with respect to peti-
tioner’s background—the information in the PSI and the
DSS records—they were in a position to make a tactical
choice not to present a mitigation defense. Id., at 611–612,
724 A. 2d, at 17 (citing federal and state precedents finding
ineffective assistance in cases in which counsel failed to con-
duct an investigation of any kind). In assessing the reason-
ableness of an attorney’s investigation, however, a court
must consider not only the quantum of evidence already
known to counsel, but also whether the known evidence
would lead a reasonable attorney to investigate further.
Even assuming Schlaich and Nethercott limited the scope
of their investigation for strategic reasons, Strickland does
not establish that a cursory investigation automatically justi-
fies a tactical decision with respect to sentencing strategy.
Rather, a reviewing court must consider the reasonableness
of the investigation said to support that strategy. 466
U. S., at 691.
The Maryland Court of Appeals’ application of Strick-
land’s governing legal principles was objectively unreason-
able. Though the state court acknowledged petitioner’s
claim that counsel’s failure to prepare a social history “did
not meet the minimum standards of the profession,” the
court did not conduct an assessment of whether the decision
to cease all investigation upon obtaining the PSI and the
DSS records actually demonstrated reasonable professional
judgment. Wiggins v. State, 352 Md., at 609, 724 A. 2d,
at 16. The state court merely assumed that the investiga-
tion was adequate. In light of what the PSI and the DSS
records actually revealed, however, counsel chose to abandon
their investigation at an unreasonable juncture, making a
fully informed decision with respect to sentencing strategy

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impossible. The Court of Appeals’ assumption that the in-
vestigation was adequate, ibid., thus reflected an unreason-
able application of Strickland. 28 U. S. C. § 2254(d)(1). As
a result, the court’s subsequent deference to counsel’s strate-
gic decision not “to present every conceivable mitigation de-
fense,” 352 Md., at 610, 724 A. 2d, at 16, despite the fact that
counsel based this alleged choice on what we have made clear
was an unreasonable investigation, was also objectively un-
reasonable. As we established in Strickland, “strategic
choices made after less than complete investigation are rea-
sonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” 466
U. S., at 690–691.
Additionally, the court based its conclusion, in part, on a
clear factual error—that the “social service records . . . re-
corded incidences of . . . sexual abuse.” 352 Md., at 608–609,
724 A. 2d, at 15. As the State and the United States now
concede, the records contain no mention of sexual abuse,
much less of the repeated molestations and rapes of peti-
tioner detailed in the Selvog report. Brief for Respondents
22; Brief for United States as Amicus Curiae 26; App. to
Pet. for Cert. 175a–179a, 190a. The state court’s assumption
that the records documented instances of this abuse has been
shown to be incorrect by “clear and convincing evidence,” 28
U. S. C. § 2254(e)(1), and reflects “an unreasonable determina-
tion of the facts in light of the evidence presented in the
State court proceeding,” § 2254(d)(2). This partial reliance
on an erroneous factual finding further highlights the unrea-
sonableness of the state court’s decision.
The dissent insists that this Court’s hands are tied, under
§ 2254(d), “by the state court’s factual determinations that
Wiggins’ trial counsel ‘did investigate and were aware
of [Wiggins’] background,’ ” post, at 550. But as we have
made clear, the Maryland Court of Appeals’ conclusion that
the scope of counsel’s investigation into petitioner’s back-
ground met the legal standards set in Strickland repre-

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sented an objectively unreasonable application of our prece-
dent. § 2254(d)(1). Moreover, the court’s assumption that
counsel learned of a major aspect of Wiggins’ background,
i. e., the sexual abuse, from the DSS records was clearly
erroneous. The requirements of § 2254(d) thus pose no bar
to granting petitioner habeas relief.
2
In their briefs to this Court, the State and the United
States contend that counsel, in fact, conducted a more thor-
ough investigation than the one we have just described.
This conclusion, they explain, follows from Schlaich’s post-
conviction testimony that he knew of the sexual abuse Wig-
gins suffered, as well as of the hand-burning incident. Ac-
cording to the State and its amicus, the fact that counsel
claimed to be aware of this evidence, which was not in the
social services records, coupled with Schlaich’s statement
that he knew what was in “other people’s reports,” App. 490–
491, suggests that counsel’s investigation must have ex-
tended beyond the social services records. Tr. of Oral Arg.
31–36; Brief for United States as Amicus Curiae 26–27, n. 4;
Brief for Respondents 35. Schlaich simply “was not asked
to and did not reveal the source of his knowledge” of the
abuse. Brief for United States as Amicus Curiae 27, n. 4.
In considering this reading of the state postconviction rec-
ord, we note preliminarily that the Maryland Court of Ap-
peals clearly assumed both that counsel’s investigation began
and ended with the PSI and the DSS records and that this
investigation was sufficient in scope to satisfy Strickland’s
reasonableness requirement. See Wiggins v. State, 352 Md.,
at 608, 724 A. 2d, at 15. The court also assumed, errone-
ously, that the social services records cited incidences of sex-
ual abuse. See id., at 608–609, 724 A. 2d, at 15. Respond-
ents’ interpretation of Schlaich’s postconviction testimony
therefore has no bearing on whether the Maryland Court of

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Appeals’ decision reflected an objectively unreasonable appli-
cation of Strickland.
In its assessment of the Maryland Court of Appeals’ opin-
ion, the dissent apparently does not dispute that if counsel’s
investigation in this case had consisted exclusively of the PSI
and the DSS records, the court’s decision would have consti-
tuted an unreasonable application of Strickland. See post,
at 543–544. Of necessity, then, the dissent’s primary conten-
tion is that the Maryland Court of Appeals did decide that
Wiggins’ counsel looked beyond the PSI and the DSS records
and that we must therefore defer to that finding under
§ 2254(e)(1). See post, at 544–551. Had the court found
that counsel’s investigation extended beyond the PSI and the
DSS records, the dissent, of course, would be correct that
§ 2254(e) would require that we defer to that finding. But
the state court made no such finding.
The dissent bases its conclusion on the Maryland Court of
Appeals’ statements that “ ‘[c]ounsel were aware that appel-
lant had a most unfortunate childhood,’ ” and that “ ‘counsel
did investigate and were aware of appellant’s background.’ ”
See post, at 540, 545 (quoting Wiggins v. State, supra, at 608,
610, 724 A. 2d, at 15, 16). But the state court’s description
of how counsel learned of petitioner’s childhood speaks for
itself. The court explained: “Counsel were aware that ap-
pellant had a most unfortunate childhood. Mr. Schlaich had
available to him not only the pre-sentence investigation re-
port . . . but also more detailed social service records.” See
352 Md., at 608–609, 724 A. 2d, at 15. This construction re-
flects the state court’s understanding that the investigation
consisted of the two sources the court mentions. Indeed,
when describing counsel’s investigation into petitioner’s
background, the court never so much as implies that counsel
uncovered any source other than the PSI and the DSS rec-
ords. The court’s conclusion that counsel were aware of “in-
cidences of . . . sexual abuse” does not suggest otherwise,
cf. supra, at 518, because the court assumed that counsel

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learned of such incidents from the social services records.
Wiggins v. State, 352 Md., at 608–609, 724 A. 2d, at 15.
The court’s subsequent statement that, “as noted, counsel
did investigate and were aware of appellant’s background,”
underscores our conclusion that the Maryland Court of Ap-
peals assumed counsel’s investigation into Wiggins’ child-
hood consisted of the PSI and the DSS records. The court’s
use of the phrase “as noted,” which the dissent ignores,
further confirms that counsel’s investigation consisted of the
sources previously described, i. e., the PSI and the DSS
records. It is the dissent, therefore, that “rests upon a fun-
damental fallacy,” post, at 544—that the Maryland Court of
Appeals determined that Schlaich’s investigation extended
beyond the PSI and the DSS records.
We therefore must determine, de novo, whether counsel
reached beyond the PSI and the DSS records in their investi-
gation of petitioner’s background. The record as a whole
does not support the conclusion that counsel conducted a
more thorough investigation than the one we have described.
The dissent, like the State and the United States, relies pri-
marily on Schlaich’s postconviction testimony to establish
that counsel investigated more extensively. But the ques-
tions put to Schlaich during his postconviction testimony all
referred to what he knew from the social services records;
the line of questioning, after all, first directed him to his
discovery of those documents. His subsequent reference to
“other people’s reports,” made in direct response to a ques-
tion concerning petitioner’s mental retardation, appears to
be an acknowledgment of the psychologist’s reports we know
counsel commissioned—reports that also revealed nothing of
the sexual abuse Wiggins experienced. App. 349. As the
state trial judge who heard this testimony concluded at the
close of the proceedings, there is “no reason to believe that
[counsel] did have all of this information.” Id., at 606 (em-
phasis added).

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The State maintained at oral argument that Schlaich’s ref-
erence to “other people’s reports” indicated that counsel
learned of the sexual abuse from sources other than the PSI
and the DSS records. Tr. of Oral Arg. 31, 33, 35. But when
pressed repeatedly to identify the sources counsel might
have consulted, the State acknowledged that no written re-
ports documented the sexual abuse and speculated that coun-
sel must have learned of it through “[o]ral reports” from
Wiggins himself. Id., at 36. Not only would the phrase
“other people’s reports” have been an unusual way for coun-
sel to refer to conversations with his client, but the record
contains no evidence that counsel ever pursued this line of
questioning with Wiggins. See id., at 24–25. For its part,
the United States emphasized counsel’s retention of the psy-
chologist. Id., at 51; Brief for United States as Amicus Cu-
riae 27. But again, counsel’s decision to hire a psychologist
sheds no light on the extent of their investigation into peti-
tioner’s social background. Though Stejskal based his con-
clusions on clinical interviews with Wiggins, as well as meet-
ings with Wiggins’ family members, Lodging of Petitioner,
his final report discussed only petitioner’s mental capacities
and attributed nothing of what he learned to Wiggins’ so-
cial history.
To further underscore that counsel did not know, prior to
sentencing, of the sexual abuse, as well as of the other inci-
dents not recorded in the DSS records, petitioner directs
us to the content of counsel’s October 17, 1989, proffer. Be-
fore closing statements and outside the presence of the jury,
Schlaich proffered to the court the mitigation case counsel
would have introduced had the court granted their motion to
bifurcate. App. 349–351. In his statement, Schlaich re-
ferred only to the results of the psychologist’s test and men-
tioned nothing of Wiggins’ troubled background. Given that
the purpose of the proffer was to preserve their pursuit of
bifurcation as an issue for appeal, they had every incentive
to make their mitigation case seem as strong as possible.

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Counsel’s failure to include in the proffer the powerful evi-
dence of repeated sexual abuse is therefore explicable only
if we assume that counsel had no knowledge of the abuse.
Contrary to the dissent’s claim, see post, at 547, we are not
accusing Schlaich of lying. His statements at the postcon-
viction proceedings that he knew of this abuse, as well as
of the hand-burning incident, may simply reflect a mistaken
memory shaped by the passage of time. After all, the state
postconviction proceedings took place over four years after
Wiggins’ sentencing. Ultimately, given counsel’s likely ig-
norance of the history of sexual abuse at the time of sentenc-
ing, we cannot infer from Schlaich’s postconviction testimony
that counsel looked further than the PSI and the DSS rec-
ords in investigating petitioner’s background. Indeed, the
record contains no mention of sources other than those it is
undisputed counsel possessed, see supra, at 523–524. We
therefore conclude that counsel’s investigation of petitioner’s
background was limited to the PSI and the DSS records.
3
In finding that Schlaich and Nethercott’s investigation did
not meet Strickland’s performance standards, we emphasize
that Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how un-
likely the effort would be to assist the defendant at sentenc-
ing. Nor does Strickland require defense counsel to pre-
sent mitigating evidence at sentencing in every case. Both
conclusions would interfere with the “constitutionally pro-
tected independence of counsel” at the heart of Strickland.
466 U. S., at 689. We base our conclusion on the much more
limited principle that “strategic choices made after less than
complete investigation are reasonable” only to the extent
that “reasonable professional judgments support the limita-
tions on investigation.” Id., at 690–691. A decision not to
investigate thus “must be directly assessed for reasonable-
ness in all the circumstances.” Id., at 691.

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Counsel’s investigation into Wiggins’ background did not
reflect reasonable professional judgment. Their decision to
end their investigation when they did was neither consistent
with the professional standards that prevailed in 1989, nor
reasonable in light of the evidence counsel uncovered in the
social services records—evidence that would have led a rea-
sonably competent attorney to investigate further. Coun-
sel’s pursuit of bifurcation until the eve of sentencing and
their partial presentation of a mitigation case suggest that
their incomplete investigation was the result of inattention,
not reasoned strategic judgment. In deferring to counsel’s
decision not to pursue a mitigation case despite their un-
reasonable investigation, the Maryland Court of Appeals
unreasonably applied Strickland. Furthermore, the court
partially relied on an erroneous factual assumption. The
requirements for habeas relief established by 28 U. S. C.
§ 2254(d) are thus satisfied.
III
In order for counsel’s inadequate performance to consti-
tute a Sixth Amendment violation, petitioner must show that
counsel’s failures prejudiced his defense. Strickland, 466
U. S., at 692. In Strickland, we made clear that, to establish
prejudice, a “defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A rea-
sonable probability is a probability sufficient to undermine
confidence in the outcome.” Id., at 694. In assessing pre-
judice, we reweigh the evidence in aggravation against the
totality of available mitigating evidence. In this case, our
review is not circumscribed by a state court conclusion with
respect to prejudice, as neither of the state courts below
reached this prong of the Strickland analysis.
The mitigating evidence counsel failed to discover and
present in this case is powerful. As Selvog reported based
on his conversations with Wiggins and members of his fam-

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ily, see Reply Brief for Petitioner 18–19, Wiggins experi-
enced severe privation and abuse in the first six years of his
life while in the custody of his alcoholic, absentee mother.
He suffered physical torment, sexual molestation, and re-
peated rape during his subsequent years in foster care. The
time Wiggins spent homeless, along with his diminished
mental capacities, further augment his mitigation case. Pe-
titioner thus has the kind of troubled history we have de-
clared relevant to assessing a defendant’s moral culpability.
Penry v. Lynaugh, 492 U. S. 302, 319 (1989) (“ ‘[E]vidence
about the defendant’s background and character is relevant
because of the belief, long held by this society, that defend-
ants who commit criminal acts that are attributable to a dis-
advantaged background . . . may be less culpable than de-
fendants who have no such excuse’ ”); see also Eddings v.
Oklahoma, 455 U. S. 104, 112 (1982) (noting that consider-
ation of the offender’s life history is a “ ‘part of the process
of inflicting the penalty of death’ ”); Lockett v. Ohio, 438 U. S.
586, 604 (1978) (invalidating Ohio law that did not permit
consideration of aspects of a defendant’s background).
Given both the nature and the extent of the abuse peti-
tioner suffered, we find there to be a reasonable probability
that a competent attorney, aware of this history, would have
introduced it at sentencing in an admissible form. While it
may well have been strategically defensible upon a reason-
ably thorough investigation to focus on Wiggins’ direct re-
sponsibility for the murder, the two sentencing strategies
are not necessarily mutually exclusive. Moreover, given the
strength of the available evidence, a reasonable attorney
might well have chosen to prioritize the mitigation case
over the direct responsibility challenge, particularly given
that Wiggins’ history contained little of the double edge we
have found to justify limited investigations in other cases.
Cf. Burger v. Kemp, 483 U. S. 776 (1987); Darden v. Wain-
wright, 477 U. S. 168 (1986).

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The dissent nevertheless maintains that Wiggins’ counsel
would not have altered their chosen strategy of focusing ex-
clusively on Wiggins’ direct responsibility for the murder.
See post, at 553–554. But as we have made clear, counsel
were not in a position to make a reasonable strategic choice
as to whether to focus on Wiggins’ direct responsibility, the
sordid details of his life history, or both, because the inves-
tigation supporting their choice was unreasonable. See
supra, at 524–527. Moreover, as we have noted, see supra,
at 526, Wiggins’ counsel did not focus solely on Wiggins’
direct responsibility. Counsel told the sentencing jury
“[y]ou’re going to hear that Kevin Wiggins has had a difficult
life,” App. 72, but never followed up on this suggestion.
We further find that had the jury been confronted with
this considerable mitigating evidence, there is a reasonable
probability that it would have returned with a different sen-
tence. In reaching this conclusion, we need not, as the dis-
sent suggests, post, at 554–556, make the state-law eviden-
tiary findings that would have been at issue at sentencing.
Rather, we evaluate the totality of the evidence—“both that
adduced at trial, and the evidence adduced in the habeas
proceeding[s].” Williams v. Taylor, 529 U. S., at 397–398
(emphasis added).
In any event, contrary to the dissent’s assertion, it appears
that Selvog’s report may have been admissible under Mary-
land law. In Whittlesey v. State, 340 Md. 30, 665 A. 2d 223
(1995), the Maryland Court of Appeals vacated a trial court
decision excluding, on hearsay grounds, testimony by Selvog
himself. The court instructed the trial judge to exercise its
discretion to admit “any relevant and reliable mitigating evi-
dence, including hearsay evidence that might not be admissi-
ble in the guilt-or-innocence phase of the trial.” Id., at 73,
665 A. 2d, at 244. This “relaxed standard,” the court ob-
served, would provide the factfinder with “the opportunity
to consider ‘any aspect of a defendant’s character or record
. . . that the defendant proffers as a basis for a sentence less

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than death.’ ” Ibid. See also Ball v. State, 347 Md. 156,
172–173, 699 A. 2d 1170, 1177 (1997) (noting that the trial
judge had admitted Selvog’s social history report on the de-
fendant). While the dissent dismisses the contents of the
social history report, calling Wiggins a “liar” and his claims
of sexual abuse “uncorroborated gossip,” post, at 554, 555,
Maryland appears to consider this type of evidence relevant
at sentencing, see Whittlesey, supra, at 71, 665 A. 2d, at 243
(“The reasons for relaxing the rules of evidence apply with
particular force in the death penalty context”). Not even
the State contests that Wiggins suffered from the various
types of abuse and neglect detailed in the PSI, the DSS rec-
ords, and Selvog’s social history report.
Wiggins’ sentencing jury heard only one significant miti-
gating factor—that Wiggins had no prior convictions. Had
the jury been able to place petitioner’s excruciating life his-
tory on the mitigating side of the scale, there is a reasonable
probability that at least one juror would have struck a differ-
ent balance. Cf. Borchardt v. State, 367 Md. 91, 139–140,
786 A. 2d 631, 660 (2001) (noting that as long as a single juror
concludes that mitigating evidence outweighs aggravating
evidence, the death penalty cannot be imposed); App. 369
(instructing the jury: “If you unanimously find that the State
has proven by a preponderance of the evidence that the ag-
gravating circumstance does outweigh the mitigating circum-
stances, then consider whether death is the appropriate
sentence”).
Moreover, in contrast to the petitioner in Williams v. Tay-
lor, supra, Wiggins does not have a record of violent conduct
that could have been introduced by the State to offset this
powerful mitigating narrative. Cf. id., at 418 (Rehnquist,
C. J., dissenting) (noting that Williams had savagely beaten
an elderly woman, stolen two cars, set fire to a home, stabbed
a man during a robbery, and confessed to choking two in-
mates and breaking a fellow prisoner’s jaw). As the Federal
District Court found, the mitigating evidence in this case is

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538 WIGGINS v. SMITH
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stronger, and the State’s evidence in support of the death
penalty far weaker, than in Williams, where we found preju-
dice as the result of counsel’s failure to investigate and pre-
sent mitigating evidence. Id., at 399. We thus conclude
that the available mitigating evidence, taken as a whole,
“might well have influenced the jury’s appraisal” of Wiggins’
moral culpability. Id., at 398. Accordingly, the judgment
of the United States Court of Appeals for the Fourth Circuit
is reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Scalia, with whom Justice Thomas joins,
dissenting.
The Court today vacates Kevin Wiggins’ death sentence
on the ground that his trial counsel’s investigation of poten-
tial mitigating evidence was “incomplete.” Ante, at 534.
Wiggins’ trial counsel testified under oath, however, that he
was aware of the basic features of Wiggins’ troubled child-
hood that the Court claims he overlooked. App. 490–491.
The Court chooses to disbelieve this testimony for reasons
that do not withstand analysis. Moreover, even if this dis-
belief could plausibly be entertained, that would certainly
not establish (as 28 U. S. C. § 2254(d) requires) that the Mary-
land Court of Appeals was unreasonable in believing it, and
in therefore concluding that counsel adequately investigated
Wiggins’ background. The Court also fails to observe
§ 2254(e)(1)’s requirement that federal habeas courts respect
state-court factual determinations not rebutted by “clear and
convincing evidence.” The decision sets at naught the stat-
utory scheme we once described as a “highly deferential
standard for evaluating state-court rulings,” Lindh v. Mur-
phy, 521 U. S. 320, 333, n. 7 (1997). I respectfully dissent.
I
Wiggins claims that his death sentence violates Strickland
v. Washington, 466 U. S. 668 (1984), because his trial attor-

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neys, had they further investigated his background, would
have learned—and could have presented to the jury—the fol-
lowing evidence: (1) According to family members, Wiggins’
mother was an alcoholic who neglected her children and
failed to feed them properly, App. to Pet. for Cert. 165a–169a;
(2) according to Wiggins and his sister India, Wiggins’
mother intentionally burned 5-year-old Wiggins’ hands on a
kitchen stove as punishment for playing with matches, id.,
at 169a–171a; (3) Wiggins was placed in foster care at age
six because of his mother’s neglect, and was moved in and
out of various foster families, id., at 173a–192a; (4) according
to Wiggins, one of his foster parents sexually abused him
“ ‘two or three times a week, sometimes everyday,’ ” when
he was eight years old, id., at 177a–179a; (5) according to
Wiggins, at age 16 he was knocked unconscious and raped
by two of his foster mother’s teenage children, id., at 190a;
(6) according to Wiggins, when he joined the Job Corps at
age 18 a Job Corps administrator “made sexual advances . . .
and they became sexually involved,” id., at 192a–193a (later,
according to Wiggins, the Job Corps supervisor drugged him
and when Wiggins woke up, he “knew he had been anally
penetrated,” id., at 193a); and (7) Wiggins is “ ‘borderline’ ”
mentally retarded, id., at 193a–194a. All this information is
contained in a “social history” report prepared by social
worker Hans Selvog for use in the state postconviction
proceedings.
In those proceedings, Carl Schlaich (one of Wiggins’ two
trial attorneys) testified that, although he did not retain a
social worker to assemble a “social history” report, he never-
theless had detailed knowledge of Wiggins’ background:
“ ‘Q But you knew that Mr. Wiggins, Kevin Wiggins,
had been removed from his natural mother as a result
of a finding of neglect and abuse when he was six years
old, is that correct?
“ ‘A I believe that we tracked all of that down.

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540 WIGGINS v. SMITH
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“ ‘Q You got the Social Service records?
“ ‘A That is what I recall.
“ ‘Q That was in the Social Service records?
“ ‘A Yes.
“ ‘Q So you knew that?
“ ‘A Yes.
“ ‘Q You also knew that where [sic] were reports of sex-
ual abuse at one of his foster homes?
“ ‘A Yes.
“ ‘Q Okay. You also knew that he had had his hands
burned as a child as a result of his mother’s abuse of
him?
“ ‘A Yes.
“ ‘Q You also knew about homosexual overtures made
toward him by his Job Corp supervisor?
“ ‘A Yes.
“ ‘Q And you also knew that he was borderline men-
tally retarded?
“ ‘A Yes.
“ ‘Q You knew all—
“ ‘A At least I knew that as it was reported in other
people’s reports, yes.
“ ‘Q But you knew it?
“ ‘A Yes.’ ” App. 490–491.
In light of this testimony, the Maryland Court of Appeals
found that “counsel did investigate and were aware of [Wig-
gins’] background,” Wiggins v. State, 352 Md. 580, 610, 724
A. 2d, 1, 16 (1999) (emphasis in original), and, specifically,
that “[c]ounsel were aware that [Wiggins] had a most unfor-
tunate childhood,” id., at 608, 724 A. 2d, at 15. These state-
court determinations of factual issues are binding on federal
habeas courts, including this Court, unless rebutted by clear

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541 Cite as: 539 U. S. 510 (2003)
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and convincing evidence.1 Relying on these factual findings,
the Maryland Court of Appeals rejected Wiggins’ claim that
his trial attorneys failed adequately to investigate potential
mitigating evidence. Wiggins’ trial counsel, it said, “did not
have as detailed or graphic a history as was prepared by
Mr. Selvog, but that is not a Constitutional deficiency. See
Gilliam v. State, 331 Md. 651, 680–82, 629 A. 2d 685, 700–02
(1993), cert. denied, 510 U. S. 1077 . . . (1994); Burger v.
Kemp, 483 U. S. 776, 788–96 . . . (1987).” Id., at 610, 724
A. 2d, at 16.
The state court having adjudicated Wiggins’ Sixth Amend-
ment claim on the merits, 28 U. S. C. § 2254(d) bars habeas
relief unless the state-court decision “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States,” § 2254(d)(1), or “was based on an unreason-
able determination of the facts in light of the evidence
presented in the State court proceeding,” § 2254(d)(2). The
Court concludes without foundation that the Maryland Court
of Appeals’ decision failed both these tests. I shall discuss
each in turn.
A
In concluding that the Maryland Court of Appeals un-
reasonably applied our clearly established precedents, the
Court disregards § 2254(d)(1)’s command that only “clearly
established Federal law, as determined by the Supreme
Court of the United States,” be used in assessing the reason-
ableness of state-court decisions. Further, the Court misde-
scribes the state court’s opinion while ignoring § 2254(e)(1)’s
1 Title 28 U. S. C. § 2254(e)(1) provides:
“In a proceeding instituted by an application for a writ of habeas corpus
by a person in custody pursuant to the judgment of a State court, a deter-
mination of a factual issue made by a State court shall be presumed to be
correct. The applicant shall have the burden of rebutting the presump-
tion of correctness by clear and convincing evidence.”

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requirement that federal habeas courts respect state-court
factual determinations.
1
We have defined “clearly established Federal law, as deter-
mined by the Supreme Court of the United States,” to en-
compass “the holdings . . . of this Court’s decisions as of
the time of the relevant state-court decision.” Williams v.
Taylor, 529 U. S. 362, 412 (2000) (emphasis added). Yet in
discussing what our precedents have “clearly established”
with respect to ineffectiveness claims, the Court relies upon
a case—Williams v. Taylor, supra—that postdates the
Maryland court’s decision rejecting Wiggins’ Sixth Amend-
ment claim. See ante, at 522. The Court concedes that
Williams was not “clearly established Federal law” at the
time of the Maryland Court of Appeals’ decision, ante, at 522,
yet believes that it may ignore § 2254(d)’s strictures on the
ground that “Williams’ case was before us on habeas review[,
and] we therefore made no new law in resolving [his] ineffec-
tiveness claim,” ibid. The Court is wrong—in both its
premise and its conclusion.
Although Williams was a habeas case, we reviewed the
first prong of the habeas petitioner’s Strickland claim—
the inadequate-performance question—de novo. Williams
had surmounted § 2254(d)’s bar to habeas relief because we
held that the Virginia Supreme Court’s analysis with respect
to Strickland’s second prong—the prejudice prong—was
both “contrary to,” and “an unreasonable application of,”
our clearly established precedents. See Williams, supra, at
393–394, 397. That left us free to provide habeas relief—
and since the State had not raised a Teague defense, see
Teague v. Lane, 489 U. S. 288 (1989), we proceeded to analyze
the inadequate-performance contention de novo, rather than
under “clearly established” law. That is clear from the fact
that we cited no cases in our discussion of the inadequate-
performance question, see 529 U. S., at 395–396. The Court
is mistaken to assert that this discussion “made no new law,”

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ante, at 522. There was nothing in Strickland, or in any of
our “clearly established” precedents at the time of the Vir-
ginia Supreme Court’s decision, to support Williams’ state-
ment that trial counsel had an “obligation to conduct a thor-
ough investigation of the defendant’s background,” 529 U. S.,
at 396. That is why the citation supporting the statement
is not one of our opinions, but rather standards promulgated
by the American Bar Association, ibid. (citing 1 ABA Stand-
ards for Criminal Justice 4–4.1, commentary, p. 4–55 (2d
ed. 1980)). Insofar as this Court’s cases were concerned,
Burger v. Kemp, 483 U. S. 776, 794 (1987), had rejected an
ineffective-assistance claim even though acknowledging that
trial counsel “could well have made a more thorough investi-
gation than he did.” And Strickland had eschewed the im-
position of such “rules” on counsel, 466 U. S., at 688–689, spe-
cifically stating that the very ABA standards upon which
Williams later relied “are guides to determining what is rea-
sonable, but they are only guides.” 466 U. S., at 688 (empha-
sis added). Williams did make new law—law that was not
“clearly established” at the time of the Maryland Court of
Appeals’ decision.
But even if the Court were correct in its characterization
of Williams, that still cannot justify its decision to ignore an
Act of Congress. Whether Williams “made new law” or
not, what Williams held was not clearly established Su-
preme Court precedent as of the time of the state court’s
decision, and cannot be used to find fault in the state-court
opinion. Section 2254(d)(1) means what it says, and the
Court simply defies the congressionally imposed limits on
federal habeas review.
2
The Court concludes that Strickland was applied unrea-
sonably (and § 2254(d)(1) thereby satisfied) because the Mary-
land Court of Appeals’ conclusion that trial counsel ade-
quately investigated Wiggins’ background, see Wiggins, 352
Md., at 610, 724 A. 2d, at 16, was unreasonable. That assess-

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544 WIGGINS v. SMITH
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ment cannot possibly be sustained, particularly in light of
the state court’s factual determinations that bind this Court
under § 2254(e)(1). The Court’s analysis of this point rests
upon a fundamental fallacy: that the state court “clearly as-
sumed that counsel’s investigation began and ended with the
PSI and the DSS records,” ante, at 529. That is demonstra-
bly not so. The state court did observe that Wiggins’ trial
attorneys “had available” the presentence investigation
(PSI) report and the Maryland Department of Social Serv-
ices (DSS) reports, Wiggins, supra, at 608–609, 724 A. 2d, at
15–16, but there is absolutely nothing in the state-court opin-
ion that says (or assumes) that these were the only sources
on which counsel relied. It is rather this Court that makes
such an assumption—or rather, such a bald assertion, see
ante, at 527 (asserting that counsel “cease[d] all investiga-
tion” upon receipt of the PSI and DSS reports); ante, at 524
(referring to “[c]ounsel’s decision not to expand their investi-
gation beyond the PSI and DSS records”).
Nor could the Maryland Court of Appeals have “assumed”
that Wiggins’ trial counsel looked no further than the PSI
and DSS reports, because the state-court record is clear that
Wiggins’ trial attorneys had investigated well beyond these
sources. Public-defender investigators interviewed Wig-
gins’ family members, see Defendant’s Supplemental Answer
to State’s Discovery Request filed in No. 88–CR–5464 (Cir.
Ct. Baltimore Cty., Md., Sept. 18, 1989), Lodging of Respond-
ents, and Wiggins’ trial attorneys hired a psychologist,
Dr. William Stejskal (who reviewed the DSS records, con-
ducted clinical interviews, and performed six different psy-
chological tests of Wiggins, ibid.; App. 349–351), and a crimi-
nologist, Dr. Robert Johnson (who interviewed Wiggins and
testified that Wiggins would adjust adequately to life in
prison, id., at 319–321). Schlaich also testified in the state
postconviction proceedings that he knew information about
Wiggins’ background that was not contained in the DSS or
PSI reports—such as the allegation that Wiggins’ mother

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burned his hands as a child, id., at 490—so Schlaich must
have investigated sources beyond these reports.
As the Court notes, ante, at 529–530, the Maryland Court
of Appeals did not expressly state that counsel’s investiga-
tion extended beyond the PSI and DSS records. There was
no reason whatever to do so, since it had found that “counsel
did investigate and were aware of appellant’s background,”
Wiggins, supra, at 610, 724 A. 2d, at 16, and since that find-
ing was based on a state-court record that clearly demon-
strates investigation beyond the PSI and DSS reports. The
court’s failure to recite what is obvious from the record
surely provides no basis for believing that it stupidly “as-
sumed” the opposite of what is obvious from the record.
Once one eliminates the Court’s mischaracterization of the
state-court opinion—which did not and could not have “as-
sumed” that Wiggins’ counsel knew only what was contained
in the DSS and PSI reports—there is no basis for finding
it “unreasonable” to believe that counsel’s investigation was
adequate. As noted earlier, Schlaich testified in the state
postconviction proceedings that he was aware of the essen-
tial items contained in the later-prepared “social history” re-
port. He knew that Wiggins was subjected to neglect and
abuse from his mother, App. 490, that there were reports of
sexual abuse at one of his foster homes, ibid., that his mother
had burned his hands as a child, ibid., that a Job Corps su-
pervisor had made homosexual overtures toward him, id.,
at 490–491, and that Wiggins was “ ‘borderline’ ” mentally
retarded, id., at 491.2 Schlaich explained that, although he
2 The only incident contained in the “social history” report about which
Schlaich did not confirm knowledge was the occurrence of sexual abuse in
more than one of Wiggins’ foster homes. And that knowledge remained
unconfirmed only because the question posed asked him whether he knew
of reports of abuse at “ ‘one’ ” of the foster homes. App. 490. The record
does not show that Schlaich knew of all these incidents in the degree of
detail contained in the “social history” report—but it does not show that
he did not, either. In short, given Schlaich’s testimony, there is no basis

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546 WIGGINS v. SMITH
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was aware of all this potential mitigating evidence, he chose
not to present it to the jury for a strategic reason—namely,
that it would conflict with his efforts to persuade the jury
that Wiggins was not a “ ‘principal’ ” in Mrs. Lacs’s murder
(i. e., that he did not kill Lacs by his own hand). Id., at
504–505.
There are only two possible responses to this testimony
that might salvage Wiggins’ ineffective-assistance claim.
The first would be to declare that Schlaich had an ines-
capable duty to hire a social worker to construct a so-called
“social history” report, regardless of Schlaich’s pre-existing
knowledge of Wiggins’ background. Petitioner makes this
suggestion, see Brief for Petitioner 32, n. 8 (asserting that it
was “ ‘a normative standard’ ” at the time of Wiggins’ case
for capital defense lawyers in Maryland to obtain a social
history); and the Court flirts with accepting it, see ante, at
524 (“[P]rofessional standards that prevailed in Maryland . . .
at the time of Wiggins’ trial” included, for defense of capital
cases, “the preparation of a social history report”); ibid. (cit-
ing ABA Guidelines for the Appointment and Performance
of Counsel in Death Penalty Cases 11.8.6, p. 133 (1989) (here-
inafter ABA Guidelines), which says that counsel should
make efforts “ ‘to discover all reasonably available mitigat-
ing evidence’ ” (emphasis added by the Court)). To think
that the requirement of a “social history” was part of “clearly
established Federal law” (which is what § 2254(d) requires)
when the events here occurred would be absurd. Nothing
in our clearly established precedents requires counsel to re-
tain a social worker when he is already largely aware of his
client’s background. To the contrary, Strickland empha-
sizes that “[t]here are countless ways to provide effective
assistance in any given case,” 466 U. S., at 689, and further
states that “[p]revailing norms of practice as reflected in
American Bar Association standards and the like . . . are
for finding that he was without knowledge of anything in the “social his-
tory” report.

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guides to determining what is reasonable, but they are only
guides,” id., at 688. Cf. ante, at 524 (treating the ABA
Guidelines as “well-defined norms”). It is inconceivable that
Schlaich, assuming he testified truthfully regarding his de-
tailed knowledge of Wiggins’ troubled childhood, App. 490–
491, would need to hire a social worker to comport with
Strickland’s competence standards. And it certainly would
not have been unreasonable for the Maryland Court of Ap-
peals to conclude otherwise.
The second possible response to Schlaich’s testimony about
his extensive awareness of Wiggins’ background is to assert
that Schlaich lied. The Court assumes sub silentio through-
out its opinion that Schlaich was not telling the truth when
he testified that he knew of reports of sexual abuse in one of
Wiggins’ foster homes, see, e. g., ante, at 525 (“Had counsel
investigated further, they might well have discovered the
sexual abuse later revealed during state postconviction pro-
ceedings”), and eventually declares straight-out that it disbe-
lieves Schlaich, ante, at 531–533. This conclusion rests upon
a blatant mischaracterization of the record, and an improper
shifting of the burden of proof to the State to demonstrate
Schlaich’s awareness of Wiggins’ background, rather than re-
quiring Wiggins to prove Schlaich’s ignorance of it. But,
more importantly, it is simply not enough for the Court to
conclude, ante, at 533, that it “cannot infer from Schlaich’s
postconviction testimony that counsel looked further than
the PSI and DSS reports in investigating petitioner’s back-
ground.” If it is at least reasonable to believe Schlaich told
the truth, then it could not have been unreasonable for the
Maryland Court of Appeals to conclude that Wiggins’ trial
attorneys conducted an adequate investigation into his back-
ground. See 28 U. S. C. § 2254(d)(1).
Schlaich’s testimony must have been false, the Court in-
sists, because the social services records do not contain any
evidence of sexual abuse, and “the questions put to Schlaich
during his postconviction testimony all referred to what he

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548 WIGGINS v. SMITH
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knew from the social services records.” Ante, at 531. That
is not true. Schlaich was never asked “what he knew from
the social services records.” With regard to the alleged
sexual abuse in particular, Schlaich answered “ ‘[y]es’ ” to
the following question: “ ‘You also knew that where [sic]
were reports of sexual abuse at one of his foster homes?’ ”
This question did not “refe[r] to what [Schlaich] knew from
the social services records,” as the Court declares; and nei-
ther, by the way, did any of the other questions put to
Schlaich regarding his knowledge of Wiggins’ background.
See App. 490–491. Wiggins’ postconviction counsel simply
never asked Schlaich to reveal the source of his knowledge.
Schlaich’s most likely source of knowledge of the alleged
sexual abuse was Wiggins himself; even Hans Selvog’s ex-
tensive “social history” report unearthed no documentation
or corroborating witnesses with respect to that claim. Id.,
at 464; see App. to Pet. for Cert. 177a, 193a. The Court,
however, dismisses this possibility for two reasons. First,
because “the record contains no evidence that counsel
ever pursued this line of questioning with Wiggins.” Ante,
at 532. This statement calls for a timeout to get our bear-
ings: The burden of proof here is on Wiggins to show that
counsel made their decision without adequate knowledge.
See Strickland, 466 U. S., at 687. And when counsel has
testified, under oath, that he did have particular knowledge,
the burden is not on counsel to show how he obtained it, but
on Wiggins (if he wishes to impeach that testimony) to show
that counsel could not have obtained it. Thus, the absence
of evidence in the record as to whether or not Schlaich pur-
sued this line of questioning with Wiggins dooms, rather
than fortifies, Wiggins’ ineffective-assistance claim. Wig-
gins has produced no evidence that anything in Hans Sel-
vog’s “social history” report was unknown to Schlaich, and
no evidence that any source on which Selvog relied was not
used by Schlaich.

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The Court’s second reason for rejecting the possibility that
Schlaich learned of the alleged sexual abuse from Wiggins is
even more incomprehensible. The Court claims that “the
phrase ‘other people’s reports’ [would] have been an unusual
way for counsel to refer to conversations with his client.”
Ante, at 532. But Schlaich never used the phrase “other
people’s reports” in describing how he learned of the alleged
sexual abuse in Wiggins’ foster homes. Schlaich testified
only that he learned of Wiggins’ borderline mental retarda-
tion as it was reported in “ ‘other people’s reports’ ”:
“ ‘Q And you also knew that he was borderline men-
tally retarded?
“ ‘A Yes.
“ ‘Q You knew all—
“ ‘A At least I knew that as it was reported in other
people’s reports, yes.
“ ‘Q But you knew it?
“ ‘A Yes.’ ” App. 490–491 (emphasis added).
It is clear that when Schlaich said, “ ‘At least I knew that as
it was reported in other people’s reports,’ ” id., at 491 (em-
phasis added), the “ ‘that’ ” to which he referred was the fact
that Wiggins was borderline mentally retarded—not the
other details of Wiggins’ background which Schlaich had pre-
viously testified he knew.
The Court’s final reason for disbelieving Schlaich’s sworn
testimony is his failure to mention the alleged sexual abuse
in the proffer of mitigating evidence he would introduce if
the trial court granted his motion to bifurcate. “Counsel’s
failure to include in the proffer the powerful evidence of re-
peated sexual abuse is . . . explicable only if we assume that
counsel had no knowledge of the abuse.” Ante, at 533. But
because the only evidence of sexual abuse consisted of Wig-
gins’ own assertions, see App. 464; App. to Pet. for Cert.
177a, 193a (evidence not exactly worthy of the Court’s flat-
tering description as “powerful”), there was nothing to prof-

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550 WIGGINS v. SMITH
Scalia, J., dissenting
fer unless Schlaich declared an intent to put Wiggins on
the stand. Given counsel’s chosen trial strategy to prevent
Wiggins from testifying during the sentencing proceedings,
the decision not to mention sexual abuse in the proffer is
perfectly consistent with counsel’s claimed knowledge of the
alleged abuse.
Of course these reasons the Court offers—which range
from the incredible up to the feeble—are used only in sup-
port of the Court’s conclusion that, in its independent judg-
ment, Schlaich was lying. The Court does not even attempt
to establish (as it must) that it was objectively unreasonable
for the state court to believe Schlaich’s testimony and there-
fore conclude that he conducted an adequate investigation of
Wiggins’ background. It could not possibly make this show-
ing. Wiggins has not produced any direct evidence that his
attorneys were uninformed with respect to anything in his
background, and the Court can muster no circumstantial evi-
dence beyond the powerfully unconvincing fact that Schlaich
failed to mention the allegations of sexual abuse in his prof-
fer. To make things worse, the Court is still bound (though
one would not know it from the opinion) by the state court’s
factual determinations that Wiggins’ trial counsel “did inves-
tigate and were aware of [Wiggins’] background,” Wiggins,
352 Md., at 610, 724 A. 2d, at 16 (emphasis in original), and
that “[c]ounsel were aware that [Wiggins] had a most un-
fortunate childhood,” id., at 608, 724 A. 2d, at 15. See 28
U. S. C. § 2254(e)(1).3 Because it is at least reasonable to be-
3 The Court defends its refusal to adhere to these state-court factual
determinations on the ground that “the Maryland Court of Appeals’ con-
clusion that the scope of counsel’s investigation . . . met the legal standards
set forth in Strickland represented an objectively unreasonable applica-
tion of our precedent.” Ante, at 528–529. That is an inadequate re-
sponse, for several reasons. First, because in the very course of deter-
mining what was the scope of counsel’s investigation, the Court was bound
to accept (as it did not) the Maryland Court of Appeals’ factual findings
that counsel knew of Wiggins’ background, including his “most unfortu-
nate childhood.” And it is an inadequate response, secondly, because even

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lieve Schlaich’s testimony, and because § 2254(e)(1) requires
us to respect the state court’s factual determination that
Wiggins’ trial attorneys were aware of Wiggins’ background,
the Maryland Court of Appeals’ legal conclusion—that trial
counsel “did not have as detailed or graphic a history as was
prepared by Mr. Selvog, but that is not a Constitutional
deficiency,” Wiggins, supra, at 610, 724 A. 2d, at 16 (empha-
sis added)—is unassailable under § 2254(d)(1).
B
The Court holds in the alternative that Wiggins has satis-
fied § 2254(d)(2), which allows a habeas petitioner to escape
§ 2254(d)’s bar to relief when the state court’s adjudication
of his claim “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” (Emphasis
added.) This is so, the Court says, because the Maryland
Court of Appeals wrongly claimed that Wiggins’ social serv-
ices records “recorded incidences of . . . sexual abuse.” 352
Md., at 608–609, 724 A. 2d, at 15.
That it made that claim is true enough. And I will con-
cede that Wiggins has rebutted the presumption of correct-
ness by the “clear and convincing evidence” that § 2254(e)(1)
requires. It is both clear and convincing from reading the
DSS records that they contain no evidence of sexual abuse.
I will also assume, arguendo, that the state court’s error was
“unreasonable” in light of the evidence presented in the
state-court proceeding.
Given all that, the Court’s conclusion that a § 2254(d)(2)
case has been made out still suffers from the irreparable de-
after the Court concludes that the petitioner has avoided § 2254(d)’s bar to
relief because of that misapplication of Strickland (or because of the al-
leged mistaken factual assumption “that counsel learned of . . . sexual
abuse . . . from the DSS records,” ante, at 529), it still must observe
§ 2254(e)(1)’s presumption of correctness in deciding the merits of the ha-
beas question. See Miller-El v. Cockrell, 537 U. S. 322, 341, 348 (2003).

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552 WIGGINS v. SMITH
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fect that the Maryland Court of Appeals’ decision was not
“based on” this mistaken factual determination. What dif-
ference did it make whether the social services records
contained evidence of sexual abuse? Even if they did not,
the court’s decision would have been the same in light of
Schlaich’s sworn testimony that he was aware of the alleged
sexual abuse. The source of Schlaich’s knowledge—whether
he obtained it from the DSS reports or from Wiggins him-
self—was of no consequence. The only thing that mattered
was that Schlaich knew, and testified under oath that he
knew, enough about Wiggins’ background to make it reason-
able to proceed without a report by a social worker. The
Court’s opinion does not even discuss this requirement of
§ 2254(d)(2), that the unreasonable determination of facts be
one on which the state-court decision was based.
II
The Court’s indefensible holding that Wiggins has avoided
§ 2254(d)’s bar to relief is not alone enough to entitle Wiggins
to habeas relief on his Sixth Amendment claim. Wiggins
still must establish that he was “prejudiced” by his counsel’s
alleged “error.” Strickland, 466 U. S., at 691–696. Spe-
cifically, Wiggins must demonstrate that, if his trial attor-
neys had retained a licensed social worker to assemble a
“social history” of their client, there is a “reasonable proba-
bility” that (1) his attorneys would have chosen to present
the social history evidence to the jury, and (2) upon hearing
that evidence, the jury would have spared his life. The
Court’s analysis on these points continues its disregard for
the record in a determined procession toward a seemingly
preordained result.
There is no “reasonable probability” that a social-history
investigation would have altered the chosen strategy of Wig-
gins’ trial counsel. As noted earlier, Schlaich was well
aware—without the benefit of a “social history” report—that
Wiggins had a troubled childhood and background. And the

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Court remains bound, even after concluding that Wiggins has
satisfied the standards of §§ 2254(d)(1) and (d)(2), by the state
court’s factual determination that Wiggins’ trial attorneys
“were aware of [Wiggins’] background,” Wiggins, 352 Md., at
610, 724 A. 2d, at 16 (emphasis in original), and “were aware
that [Wiggins] had a most unfortunate childhood,” id., at 608,
724 A. 2d, at 15. See 28 U. S. C. § 2254(e)(1). Wiggins’ trial
attorneys chose, however, not to present evidence of Wig-
gins’ background to the jury because of their “deliberate,
tactical decision to concentrate their effort at convincing the
jury that appellant was not a principal in the killing of
Ms. Lacs.” Wiggins, supra, at 608, 724 A. 2d, at 15.
Wiggins has not shown that the incremental information
in Hans Selvog’s social-history report would have induced
counsel to change this course. Schlaich testified under oath
that presenting the type of evidence in Selvog’s report would
have conflicted with his chosen defense strategy to raise
doubts as to Wiggins’ role as a principal, and that he wanted
to avoid a “shotgun approach” with the jury. App. 504–505.4
(This testimony is entirely unrefuted by the Court’s state-
ment that at the time of trial counsel “were not in a position
to make a reasonable strategic choice,” because of their al-
leged inadequate investigation, ante, at 536. Schlaich pre-
sented this testimony in state postconviction proceedings,
when there was no doubt he was fully aware of the details of
Wiggins’ background. See App. 490–491.) It is irrelevant
whether a hypothetical “reasonable attorney” might have in-
troduced evidence of alleged sexual abuse, ante, at 535–536;
Wiggins’ attorneys would not have done so, and therefore
4 Introducing evidence that Wiggins suffered semiweekly (or perhaps
daily) sexual abuse as a child, for example, could have led the jury to
conclude that this horrible experience made Wiggins precisely the type of
person who could perpetrate this bizarre crime—in which a 77-year-old
woman was found drowned in the bathtub of her apartment, clothed but
missing her underwear, and sprayed with Black Flag Ant and Roach
Killer.

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554 WIGGINS v. SMITH
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Wiggins was not prejudiced by their allegedly inadequate
investigation. There is simply nothing to show (and the
Court does not even dare to assert) that there is a “reason-
able probability” this evidence would have been introduced
in this case. Ante, at 535–536.
What is more, almost all of Selvog’s social-history evidence
was inadmissible at the time of Wiggins’ trial. Maryland
law provides that evidence in a capital sentencing proceeding
must be “reliable” to be admissible, see Whittlesey v. State,
340 Md. 30, 70, 665 A. 2d 223, 243 (1995), and many of
the anecdotes regarding Wiggins’ childhood consist of the
baldest hearsay—statements that have been neither taken
in court, nor given under oath, nor subjected to cross-
examination, nor even submitted in the form of a signed af-
fidavit. Consider, for example, the allegation that Wiggins’
foster father sexually abused him “ ‘two or three times a
week, sometimes everyday,’ ” App. to Pet. for Cert. 177a.
The only source of that information was Wiggins himself,
in his unsworn and un-cross-examined interview with Hans
Selvog. There is absolutely no documentation or corrobora-
tion of the claim, App. 464, and the allegedly abusive foster
parent is apparently deceased, id., at 470. Wiggins was,
however, examined by a pediatrician during the time that
this supposed biweekly or daily sexual abuse occurred, and
the pediatrician’s report mentioned no signs of sexual abuse.
App. to Pet. for Cert. 181a; App. 464.
Much of the other “evidence” in Selvog’s report (including
Wiggins’ claim that he was drugged by his Job Corps super-
visor and raped while unconscious, and that he was raped by
the teenage sons at his fourth foster home) was also undocu-
mented and based entirely on Wiggins’ say-so. The Court
treats all this uncorroborated gossip as established fact,5
5 Wiggins’ postconviction lawyers could have increased the credibility of
these anecdotes, and assisted this Court’s prejudice determination, by at
least having Wiggins testify under oath in the state postconviction pro-
ceedings as to his allegedly abusive childhood. They did not do that—

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ante, at 534–535—indeed, even refers to it as “powerful” evi-
dence, ante, at 534—and assumes that Wiggins’ lawyers
could have simply handed Hans Selvog’s report to the jury.
Nothing could be further from the truth. As the State Cir-
cuit Court explained in rejecting Wiggins’ Sixth Amendment
claim, “Selvog’s report would have had a great deal of diffi-
culty in getting into evidence in Maryland. He was not li-
censed in Maryland, the report contains multiple instances
of hearsay, it contains many opinions in the nature of diagno-
sis of a medical nature.” App. to Pet. for Cert. 156a.
The Court contends that Selvog’s report “may have been
admissible,” ante, at 536—relying for that contention upon
Whittlesey v. State, supra. Whittlesey, however, merely va-
cated the trial judge’s decision that a social-history report
assembled by Selvog was per se inadmissible on hearsay
grounds and remanded for a determination whether the
hearsay evidence was “reliable.” Id., at 71–72, 665 A. 2d, at
243. Thus, unless the Court is prepared to make the implau-
sible contention that Wiggins’ hearsay statements in Sel-
vog’s report are “reliable” under Maryland law, there is no
basis for its conclusion that Maryland “consider[s] this type
of evidence relevant at sentencing,” ante, at 537. The State
Circuit Court in the present case, in its decision that post-
dated Whittlesey, certainly did not think Selvog’s report met
the standard of reliability, App. to Pet. for Cert. 156a, and
that court’s assessment was undoubtedly correct. Wiggins’
accounts of his background, as reported by Selvog, are the
hearsay statements of a convicted murderer and, as the trial
testimony in this case demonstrates, a serial liar. Wig-
gins lied to Geraldine Armstrong when he told her that
Mrs. Lacs’s car belongs to “ ‘a buddy of min[e],’ ” App. 179.
He lied when he told the police that he had obtained
perhaps anticipating, correctly alas, that they could succeed in getting this
Court to vacate a jury verdict of death on the basis of rumor and innuendo
in a “social history” report that would never be admissible in a court
of law.

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Mrs. Lacs’s car and credit cards on Friday in the afternoon,
rather than Thursday, id., at 180. He lied to Armstrong
about how he obtained Mrs. Lacs’s ring, ibid. And, knowing
that the information he provided to Selvog would be used to
attack his death sentence, Wiggins had every incentive to lie
again about the supposed abuse he suffered. The hearsay
statements in Selvog’s report pertaining to the alleged sex-
ual abuse were of especially dubious reliability; Maryland
courts have consistently refused to allow hearsay evidence
regarding alleged sexual abuse, except for statements pro-
vided by the victim to a treating physician. See Bohnert v.
State, 312 Md. 266, 276, 539 A. 2d 657, 662 (1988) (refusing to
admit into evidence a social worker’s opinion, based on a
child’s “unsubstantiated averments,” that the child had been
sexually abused); Nixon v. State, 140 Md. App. 170, 178–188,
780 A. 2d 344, 349–354 (2001) (child protective services
agent’s testimony that retarded teenager told agent she had
been sexually abused was inadmissible hearsay); Low v.
State, 119 Md. App. 413, 424–426, 705 A. 2d 67, 73–74 (1998)
(refusing to admit into evidence examining physician’s testi-
mony regarding a child’s statements of sexual abuse).
Given that the anecdotes in Selvog’s report were unrelia-
ble, and therefore inadmissible, the only way Wiggins’ trial
attorneys could have presented these allegations to the jury
would have been to place Wiggins on the witness stand.
Wiggins has not established (and the Court does not assert)
any “reasonable probability” that they would have done
this, given the dangers they saw in exposing their client to
cross-examination over a wide range of issues. See App.
353 (Wiggins’ trial attorneys advising him in open court:
“ ‘Kevin, if you do take the witness stand, you must answer
any question that’s asked of you. If it is a question the
judge rules is a permissible question, you would have to an-
swer’ ”). Their perception of those dangers must surely
have been heightened by their observation of Wiggins’ vola-
tile and obnoxious behavior throughout the trial. See, e. g.,

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id., at 32 (Wiggins interrupting the judge’s statement of the
verdict to say: “ ‘He can’t tell me I did it. I’m going to go
out. . . . I didn’t do it. He can’t tell me I did it’ ”); id., at 56
(Wiggins interrupting the prosecutor’s opening argument to
say: “ ‘I’m not going to take that because I didn’t kill that
lady. I’m not going to sit there and take that’ ”).
But even indulging, for the sake of argument, the Court’s
belief that Selvog’s report “may” have been admissible, ante,
at 536, the Court’s prejudice discussion simply assumes with-
out analysis that the sentencing jury would have believed
the report’s hearsay accounts of Wiggins’ statements. Ante,
at 536–537. Yet that same jury would have learned during
the guilt phase of the trial that Wiggins is a proven liar, see
App. 179–180, and Wiggins would not have aided his credibil-
ity with the jury by avoiding the witness stand and funneling
his story through a social worker. I doubt very much that
Wiggins’ jury would have shared the Court’s uncritical and
wholesale acceptance of these hearsay claims.
* * *
Today’s decision is extraordinary—even for our “ ‘death-
is-different’ ” jurisprudence. See Simmons v. South Caro-
lina, 512 U. S. 154, 185 (1994) (Scalia, J., dissenting). It
fails to give effect to § 2254(e)(1)’s requirement that state-
court factual determinations be presumed correct, and disbe-
lieves the sworn testimony of a member of the bar while
treating hearsay accounts of statements of a convicted mur-
derer as established fact. I dissent.