KNOWLES, WARDEN v. MIRZAYANCE

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KNOWLES, WARDEN v. MIRZAYANCE
certiorari to the united states court of appeals for
the ninth circuit
No. 07–1315. Argued January 13, 2009—Decided March 24, 2009
Respondent Mirzayance entered pleas of not guilty and not guilty by rea
son of insanity (NGI) at his state-court murder trial. During the guilt
phase, he sought to avoid a conviction for first-degree murder and in
stead obtain a second-degree murder verdict by presenting medical tes
timony that he was insane at the time of the crime and was, therefore,
incapable of the necessary premeditation or deliberation. The jury nev
ertheless convicted him of first-degree murder. After the trial’s NGI
phase was scheduled, Mirzayance accepted his counsel’s recommendation
to abandon the insanity plea. Counsel believed that a defense verdict
was unlikely because the jury had just rejected medical testimony simi
lar to that which would be presented to establish the NGI defense.
Moreover, although counsel had planned to supplement the medical evi
dence with testimony by Mirzayance’s parents as to their son’s mental
illness, the parents refused to testify at the last moment. Following
his conviction, Mirzayance alleged in state postconviction proceedings
that his attorney’s recommendation to withdraw the NGI plea consti
tuted ineffective assistance of counsel under Strickland v. Washington,
466 U. S. 668. The trial court denied relief, and the California Court of
Appeal affirmed.
Mirzayance then applied for federal habeas relief, which the District
Court denied. The Ninth Circuit reversed, ordering an evidentiary
hearing on counsel’s recommendation to withdraw the NGI plea. Dur
ing the hearing, the Magistrate Judge made extensive factfindings, in
cluding, inter alia, that the NGI phase medical evidence essentially
would have duplicated the evidence the jury rejected in the guilt phase;
that counsel doubted the likelihood of prevailing on the NGI claim be
cause the jury’s finding of first-degree murder as a practical matter
would cripple Mirzayance’s chances of convincing the jury that he never
theless was incapable of understanding the nature and quality of his act
and of distinguishing right from wrong; that Mirzayance’s parents were
not simply reluctant, but had effectively refused, to testify; that counsel
had made a carefully reasoned decision not to proceed with the NGI plea
after weighing his options and discussing the matter with experienced
co-counsel; but that counsel’s performance was nevertheless deficient
because Mirzayance had “nothing to lose” by going forward with the

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NGI phase of the trial. The Magistrate Judge also found prejudice and
recommended habeas relief. The District Court accepted the recom
mendation and granted the writ. The Court of Appeals affirmed, rul
ing, among other things, that counsel’s performance had been deficient
because Mirzayance’s parents had not refused, but had merely expressed
reluctance to testify, and because competent counsel would have at
tempted to persuade them to testify, which Mirzayance’s counsel admit
tedly did not. The court essentially concluded that competent counsel
would have pursued the insanity defense because counsel had nothing
to lose by putting on the only defense available. In addition, the court
found prejudice because, in the court’s view, there was a reasonable
probability the jury would have found Mirzayance insane had counsel
pursued the NGI phase. The Ninth Circuit concluded that federal ha
beas relief was authorized under 28 U. S. C. § 2254(d)(1) because the Cal
ifornia Court of Appeal had “unreasonabl[y] appli[ed] clearly established
Federal law.”
Held: Whether the state-court decision is reviewed under § 2254(d)(1)’s
standard or de novo, Mirzayance has failed to establish that his counsel’s
performance was ineffective. Pp. 121–128.
(a) The State Court of Appeal’s denial of Mirzayance’s ineffective
assistance claim did not violate clearly established federal law. The
Ninth Circuit reached a contrary result based largely on its application
of an improper review standard—it blamed counsel for abandoning the
NGI claim because there was “nothing to lose” by pursuing it. But it
is not “an unreasonable application of ” “clearly established Federal law”
for a state court to decline to apply a specific legal rule that has not
been squarely established by this Court. See, e. g., Wright v. Van Pat
ten, 552 U. S. 120, 123. Absent anything akin to the “nothing to lose”
standard in this Court’s precedent, habeas relief could have been
granted under § 2254(d)(1) only if the state-court decision in this case
had unreasonably applied Strickland’s more general standard for
ineffective-assistance claims, whereby a defendant must show both de
ficient performance by counsel and prejudice, 466 U. S., at 687. The
question “is not whether a federal court believes the state court’s deter
mination” under Strickland “was incorrect but whether [it] was unrea
sonable—a substantially higher threshold.” Schriro v. Landrigan, 550
U. S. 465, 473. And, because Strickland’s is a general standard, a state
court has even more latitude to reasonably determine that a defendant
has not satisfied that standard. Under the doubly deferential judi
cial review that applies to a Strickland claim evaluated under the
§ 2254(d)(1) standard, Mirzayance’s ineffective-assistance claim fails. It
was not unreasonable for the state court to conclude that counsel’s per

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formance was not deficient when he counseled Mirzayance to abandon a
claim that stood almost no chance of success. Pp. 121–123.
(b) Even if Mirzayance’s ineffective-assistance claim were eligible for
de novo review, it would still fail because he has not shown ineffective
assistance at all. Mirzayance can establish neither the deficient per
formance nor the prejudice required by Strickland. As to perform
ance, he has not shown “that counsel’s representation fell below an
objective standard of reasonableness.” 466 U. S., at 687–688. Rather,
counsel merely recommended the withdrawal of what he reasonably be
lieved was a claim doomed because similar medical testimony had al
ready been rejected and the parents’ testimony, which he believed to
be his strongest evidence, would not be available. The Ninth Circuit’s
position that competent counsel might have persuaded the reluctant par
ents to testify is in tension with the Magistrate Judge’s contrary find
ings and applies a more demanding standard than Strickland prescribes.
The failure to show ineffective assistance is also confirmed by the Magis
trate Judge’s finding that counsel’s decision was essentially an informed
one “made after thorough investigation of law and facts relevant to plau
sible options,” and was therefore “virtually unchallengeable.” Id., at
690. The Ninth Circuit’s insistence that counsel was required to assert
the only defense available, even one almost certain to lose, is not sup
ported by any “prevailing professional norms” of which the Court is
aware. See id., at 688. Nor has Mirzayance demonstrated that he suf
fered prejudice, which requires a showing of “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” See id., at 694. In fact, it was highly
improbable that the jury, having just rejected testimony about Mirzay
ance’s mental condition in the guilt phase, would have reached a differ
ent result based on similar evidence at the NGI phase. Pp. 123–128.
Reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Stevens, Kennedy, Breyer, and Alito, JJ., joined, and in which
Scalia, Souter, and Ginsburg, JJ., joined all but Part II.
Steven E. Mercer, Deputy Attorney General of California,
argued the cause for petitioner. With him on the briefs
were Edmund G. Brown, Jr., Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Senior Assistant Attorney General, Donald E.
de Nicola, Deputy State Solicitor General, and Kristofer Jor
stad, Deputy Attorney General.

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114 KNOWLES v. MIRZAYANCE
Opinion of the Court
Charles M. Sev illa argued the cause for respondent.
With him on the brief was Eric Multhaup.*
Justice Thomas delivered the opinion of the Court.†
A federal court may grant a habeas corpus application
arising from a state-court adjudication on the merits if the
state court’s decision “was contrary to, or involved an un
reasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”
28 U. S. C. § 2254(d)(1). In this case, respondent Alexandre
Mirzayance claimed ineffective assistance of counsel because
his attorney recommended withdrawing his insanity defense.
The California courts rejected this claim on state postconvic
tion review. We must decide whether this decision was con
trary to or an unreasonable application of clearly established
federal law. We hold that it was not. Whether reviewed
under the standard of review set forth in § 2254(d)(1) or de
novo, Mirzayance failed to establish that his counsel’s per
formance was ineffective, see Strickland v. Washington, 466
U. S. 668 (1984).
I
Mirzayance confessed that he stabbed his 19-year-old
cousin nine times with a hunting knife and then shot her four
times. At trial, he entered pleas of not guilty and not guilty
by reason of insanity (NGI). Under California law, when
both of these pleas are entered, the court must hold a bifur
cated trial, with guilt determined during the first phase and
the viability of the defendant’s NGI plea during the second.
Cal. Penal Code Ann. § 1026(a) (West Supp. 2008). During
the guilt phase of Mirzayance’s trial, he sought to avoid a
conviction for first-degree murder by obtaining a verdict on
the lesser included offense of second-degree murder. To
*Pamela Harris, John H. Blume, and Keir M. Weyble filed a brief for
the National Association of Criminal Defense Lawyers as amicus curiae.
†Justice Scalia, Justice Souter, and Justice Ginsburg join all but
Part II of this opinion.

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that end, he presented medical testimony that he was insane
at the time of the crime and was, therefore, incapable of the
premeditation or deliberation necessary for a first-degree
murder conviction. The jury nevertheless convicted Mir
zayance of first-degree murder.
The trial judge set the NGI phase to begin the day after
the conviction was entered but, on the advice of counsel, Mir
zayance abandoned his NGI plea before it commenced. He
would have borne the burden of proving his insanity during
the NGI phase to the same jury that had just convicted him
of first-degree murder. Counsel had planned to meet that
burden by presenting medical testimony similar to that pre
sented in the guilt phase, including evidence that Mirzayance
was insane and incapable of premeditating or deliberating.
Because the jury rejected similar evidence at the guilt phase
(where the State bore the burden of proof), counsel believed
a defense verdict at the NGI phase (where the burden was
on the defendant) was unlikely. He planned, though, to have
Mirzayance’s parents testify and thus provide an emotional
account of Mirzayance’s struggles with mental illness to sup
plement the medical evidence of insanity. But on the morn
ing that the NGI phase was set to begin, Mirzayance’s par
ents refused to testify. After consulting with co-counsel,
counsel advised Mirzayance that he should withdraw the
NGI plea. Mirzayance accepted the advice.
After he was sentenced, Mirzayance challenged his convic
tion in state postconviction proceedings. Among other alle
gations, he claimed that counsel’s recommendation to with
draw the NGI plea constituted ineffective assistance of
counsel under Strickland. The California trial court denied
the petition, and the California Court of Appeal affirmed
without offering any reason for its rejection of this par
ticular ineffective-assistance claim. People v. Mirzayance,
Nos. B116856, B124764 (Mar. 31, 1999), App. to Pet. for Cert.
165–167, 200–201 (hereinafter App.). Mirzayance then filed
an application for federal habeas relief under 28 U. S. C.

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§ 2254, which the District Court denied without an eviden
tiary hearing. The Court of Appeals reversed the District
Court and ordered an evidentiary hearing on counsel’s rec
ommendation to withdraw the NGI plea. Mirzayance v.
Hickman, 66 Fed. Appx. 676, 679–681 (CA9 2003). During
that evidentiary hearing, a Magistrate Judge made factual
findings that the District Court later adopted. Post-
Remand Report and Recommendation of United States Mag
istrate Judge in No. CV 00–01388 DT (RZ) (CD Cal.), App.
38, 68; Mirzayance v. Knowles, No. CV 00–1388 DT (RZ) (CD
Cal., Nov. 15, 2004), id., at 35–36.
According to the Magistrate Judge, counsel’s strategy for
the two-part trial was to seek a second-degree murder ver
dict in the first stage and to seek an NGI verdict in the sec
ond stage. This strategy faltered when the jury instead
convicted Mirzayance of first-degree murder. In the circum
stances of this case, the medical evidence that Mirzayance
planned to adduce at the NGI phase essentially would have
duplicated evidence that the jury had necessarily rejected in
the guilt phase. First-degree murder in California includes
any killing that is “willful, deliberate, and premeditated.”
Cal. Penal Code Ann. § 189 (West 1999). To prove NGI, a
defendant must show that he was incapable of knowing or
understanding the nature of his act or of distinguishing right
from wrong at the time of the offense. See People v. Law
ley, 27 Cal. 4th 102, 170, 38 P. 3d 461, 508 (2002). Highlight
ing this potential contradiction, the trial judge instructed the
jury during the guilt phase that “[t]he word ‘deliberate,’ ” as
required for a first-degree murder conviction, “means formed
or arrived at or determined upon as a result of careful
thought and weighing of considerations for and against the
proposed course of action.” App. 48–49 (some internal quo
tation marks omitted).
When the jury found Mirzayance guilty of first-degree
murder, counsel doubted the likelihood of prevailing on the
NGI claim. According to the Magistrate Judge:

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“The defense suspected that a jury’s finding, beyond a
reasonable doubt, that [Mirzayance] had ‘deliberated’
and ‘premeditated’ his killing of [the victim] as a practi
cal matter would cripple [Mirzayance’s] chances of con
vincing the jury later, during the sanity phase, that
[Mirzayance] nevertheless ‘was incapable of knowing or
understanding the nature and quality of his . . . act and
of distinguishing right from wrong at the time of the
commission of the offense,’ Cal. Penal Code § 25(b) . . . .
. . . . .
“Any remaining chance of securing an NGI verdict . . .
now depended (in [counsel’s] view) on presenting some
‘emotional [im]pact’ testimony by [Mirzayance’s] parents,
which [counsel] had viewed as key even if the defense
had secured a second-degree murder verdict at the guilt
phase.” Id., at 50–51 (emphasis in original; capitaliza
tion omitted).
But, as the Magistrate Judge found, on the morning that
the NGI phase was set to begin, Mirzayance’s parents effec
tively refused to testify:
“[T]he parents at least expressed clear reluctance to tes
tify, which, in context, conveyed the same sense as a
refusal.” Id., at 72 (emphasis in original).
Although the parties disputed this point, the parents’ later
actions supported the Magistrate Judge’s finding that the
parents’ reluctance to testify amounted to refusal:
“Corroborating the Court’s finding that [Mirzayance’s]
parents indicated a strong disinclination to testify at the
NGI phase are the facts that (1) they did not testify
later at his sentencing hearing, and (2) the reason for
their choosing not to do so . . . is that . . . [it] would have
been ‘too emotional’ for them. . . . If weeks after the
guilty verdict and the withdrawal of their son’s NGI
plea, [Mirzayance’s] parents’ emotions still prevented

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them from testifying at the sentencing hearing, then
surely those emotional obstacles to their testifying in
the NGI phase would have been at least as potent, and
probably more so.” Id., at 73 (emphasis in original).
The Magistrate Judge found that counsel made a carefully
reasoned decision not to go forward with the NGI plea:
“[Counsel] carefully weighed his options before making
his decision final; he did not make it rashly. . . . [Coun
sel’s] strategy at the NGI phase . . . depended entirely
on the heartfelt participation of [Mirzayance’s] parents
as witnesses. . . . Moreover, [counsel] knew that, al
though he had experts lined up to testify, their testi
mony had significant weaknesses. . . . [Counsel’s] NGI
phase strategy became impossible to attempt once
[Mirzayance’s] parents . . . expressed . . . their reluctance
to [testify] . . . . All [counsel] was left with were four
experts, all of whom reached a conclusion—that [Mirzay
ance] did not premeditate and deliberate his crime—that
the same jury about to hear the NGI evidence already
had rejected under a beyond-a-reasonable-doubt stand
ard of proof. The experts were subject to other im
peachment as well. . . . [Counsel] discussed the situation
with his experienced co-counsel . . . who concurred in
[counsel’s] proposal that he recommend to [Mirzayance]
the withdrawal of the NGI plea.” Id., at 69–71.
Based on these factual findings, the Magistrate Judge stated
that, in his view, counsel’s performance was not deficient.
Despite this determination, the Magistrate Judge con
cluded that the court was bound by the Court of Appeals’
remand order to determine only whether “ ‘there were tacti
cal reasons for abandoning the insanity defense.’ ” Id., at 98
(quoting Hickman, 66 Fed. Appx., at 680). Even though the
Magistrate Judge thought that counsel was reasonable in
recommending that a very weak claim be dropped, the Mag

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istrate Judge understood the remand order to mean that
counsel’s performance was deficient if withdrawing the NGI
plea would achieve no tactical advantage. The Magistrate
Judge found that “[Mirzayance] had nothing to lose” by going
forward with the NGI phase of the trial, App. 100, and thus
held, under the remand order, that counsel’s performance
was deficient, ibid. As to prejudice, the Magistrate Judge
concluded the court was similarly bound by the remand order
because the Court of Appeals described the NGI defense as
remaining “ ‘viable and strong.’ ” Id., at 98 (quoting Hick
man, supra, at 681). Accordingly, the Magistrate Judge
found prejudice and recommended granting the writ of ha
beas corpus. The District Court accepted this recommenda
tion and granted the writ.
The Court of Appeals affirmed. Mirzayance v. Knowles,
175 Fed. Appx. 142, 143 (CA9 2006). It first stated that the
lower court had misunderstood its remand order, which it
described as requiring an examination of “counsel’s rea
son for abandoning the insanity defense,” rather than as
mandating that the District Court must find deficient per
formance if it found counsel had “nothing to lose” by pursu
ing the insanity defense. Ibid.; App. 98–99. Nonetheless,
the Court of Appeals affirmed the finding of deficient per
formance. According to the court, Mirzayance’s “parents
did not refuse, but merely expressed reluctance to testify.”
Knowles, 175 Fed. Appx., at 144. And because they may
have been willing, “[c]ompetent counsel would have at
tempted to persuade them to testify, which counsel here ad
mits he did not.” Ibid.1 The Court of Appeals also “dis
1 At best, the Court of Appeals’ characterization of counsel’s efforts to
persuade the parents to testify is misleading. According to the Magis
trate Judge, counsel testified that he did attempt to persuade the parents
to testify but that their response “ ‘was kind of flat, and I had no influence
over them.’ ” App. 54 (quoting testimony from evidentiary hearing). In
his efforts to convince the parents to testify, counsel told them that Mir
zayance “had no chance of securing an NGI verdict without the ‘emotional
quality from nonprofessional witnesses’ that Mr. and Mrs. Mirzayance’s

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agree[d] that counsel’s decision was carefully weighed and
not made rashly.” Ibid.
Furthermore, even though it had suggested that the Dis
trict Court unnecessarily evaluated counsel’s strategy under
a “nothing to lose” standard, the Court of Appeals affirmed
the District Court in large part because Mirzayance’s “coun
sel did not make a true tactical choice” based on its view that
counsel had nothing to gain by dropping the NGI defense.
Ibid. The court held that “[r]easonably effective assistance
would put on the only defense available, especially in a case
such as this where there was significant potential for suc
cess.” Id., at 145 (internal quotation marks omitted). The
Court of Appeals also found prejudice because, in its view,
“[i]f counsel had pursued the insanity phase of the trial, there
is a reasonable probability . . . that the jury would have found
Mirzayance insane.” Ibid.
We granted the petition for writ of certiorari, vacated the
Court of Appeals’ opinion, and remanded for further consid
eration in light of Carey v. Musladin, 549 U. S. 70 (2006),
which held that a state court had not “ ‘unreasonabl[y] ap
pli[ed] clearly established Federal law’ ” when it declined to
apply our precedent concerning state-sponsored courtroom
practices to a case involving spectator conduct at trial, id., at
76–77. Knowles v. Mirzayance, 549 U. S. 1199 (2007). On
remand, the Court of Appeals concluded that its decision
was unaffected by Musladin and again affirmed the District
Court’s grant of habeas corpus. App. 4. The Court of Ap
peals reiterated the same analysis on which it had relied
prior to this Court’s remand, again finding that the Cal
ifornia court had unreasonably applied clearly established
federal law because defense counsel’s failure to pursue the
insanity defense constituted deficient performance as it
“secured . . . [n]o actual tactical advantage.” Id., at 8. We
granted certiorari, 554 U. S. 932 (2008).
testimony could provide; and ‘that they were abandoning their son.’ ” Id.,
at 53–54 (same).

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II
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 28 U. S. C. § 2254(d)(1), a federal court may
not grant a state prisoner’s habeas application unless the rel
evant 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.” 2
Here, the relevant state-court decision is the California
Court of Appeal’s decision denying state habeas relief.
We conclude that the state court’s decision to deny Mirzay
ance’s ineffective-assistance-of-counsel claim did not vio
late clearly established federal law. The Court of Appeals
reached a contrary result based, in large measure, on its ap
plication of an improper standard of review—it blamed coun
sel for abandoning the NGI claim because there was nothing
2 Before the Court of Appeals, Mirzayance contended that the standard
of review set forth in § 2254(d)(1) should not apply to his case. See Brief
for Appellee in No. 04–57102 (CA9), pp. 28–29, 33. Before this Court,
however, Mirzayance contends that the Court of Appeals correctly applied
§ 2254(d) to his claim. See Brief for Respondent 27, 32. Mirzayance did
question whether the California Court of Appeal’s denial of his claim
should receive as much deference as the “prototypical” state-court adjudi
cation “involv[ing] both a reasoned, written opinion and an adequate devel
opment of the factual record in support of the claims.” Id., at 33. Mir
zayance thus contends that “the usual § 2254(d) deferential approach must
be modified and adapted” in evaluating his claim. Id., at 34. Nonethe
less, because Mirzayance has not argued that § 2254(d) is entirely inappli
cable to his claim or that the state court failed to reach an adjudication on
the merits, we initially evaluate his claim through the deferential lens of
§ 2254(d). See United States v. International Business Machines Corp.,
517 U. S. 843, 855, n. 3 (1996) (finding that party abandoned issue by failing
to address it in the party’s brief on the merits); Posters ‘N’ Things, Ltd.
v. United States, 511 U. S. 513, 527 (1994) (same).
In addition, we do not decide whether the Court of Appeals was correct
in finding that an evidentiary hearing on Mirzayance’s claim was required.
See Mirzayance v. Hickman, 66 Fed. Appx. 676, 679–681 (CA9 2003).
Mirzayance’s ineffective-assistance-of-counsel claim fails even under the
facts presented at the evidentiary hearing.

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to lose by pursuing it.3 But this Court has held on numer
ous occasions that it is not “an unreasonable application of ”
“clearly established Federal law” for a state court to decline
to apply a specific legal rule that has not been squarely es
tablished by this Court. See Wright v. Van Patten, 552
U. S. 120, 123 (2008) (per curiam); Schriro v. Landrigan, 550
U. S. 465, 478 (2007); Musladin, supra, at 76–77. This Court
has never established anything akin to the Court of Appeals’
“nothing to lose” standard for evaluating Strickland claims.
Indeed, Mirzayance himself acknowledges that a “nothing to
lose” rule is “unrecognized by this Court.” Brief for Re
spondent 28. And the Court of Appeals did not cite any
Supreme Court decision establishing a “nothing to lose”
standard in any of its three opinions in this case. See
App. 3–12; Knowles, 175 Fed. Appx. 142; Hickman, 66 Fed.
Appx. 676.
With no Supreme Court precedent establishing a “nothing
to lose” standard for ineffective-assistance-of-counsel claims,
habeas relief cannot be granted pursuant to § 2254(d)(1)
based on such a standard. Instead, such relief may be
granted only if the state-court decision unreasonably applied
the more general standard for ineffective-assistance-of
counsel claims established by Strickland, in which this Court
held that a defendant must show both deficient performance
by counsel and prejudice in order to prove that he has re
ceived ineffective assistance of counsel, 466 U. S., at 687.
Indeed, this Court has repeatedly applied that standard to
evaluate ineffective-assistance-of-counsel claims where there
3 Although the Court of Appeals implicitly disavowed the “nothing to
lose” standard applied by the District Court and Magistrate Judge, see
App. 5; Mirzayance v. Knowles, 175 Fed. Appx. 142, 143 (CA9 2006), it
nevertheless concluded that “[n]o actual tactical advantage was to be
gained” by counsel’s withdrawal of the insanity defense, App. 8; Knowles,
supra, at 144. Finding that counsel is deficient by abandoning a defense
where there is nothing to gain from that abandonment is equivalent to
finding that counsel is deficient by declining to pursue a strategy where
there is nothing to lose from pursuit of that strategy.

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is no other Supreme Court precedent directly on point. See,
e. g., Van Patten, supra, at 125 (evaluating claim under
Strickland where no Supreme Court precedent established
that any other standard applied to the “novel factual con
text” before the Court); Schriro, supra, at 478 (evaluating
claim under general Strickland standard where no Supreme
Court precedent addressed the particular “situation in which
a client interferes with counsel’s efforts to present mitigating
evidence to a sentencing court”).
The question “is not whether a federal court believes the
state court’s determination” under the Strickland stand
ard “was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Schriro,
supra, at 473. And, because the Strickland standard is a
general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that
standard. See Yarborough v. Alvarado, 541 U. S. 652, 664
(2004) (“[E]valuating whether a rule application was unrea
sonable requires considering the rule’s specificity. The more
general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations”).
Under the doubly deferential judicial review that applies
to a Strickland claim evaluated under the § 2254(d)(1) stand
ard, see Yarborough v. Gentry, 540 U. S. 1, 5–6 (2003) (per
curiam), Mirzayance’s ineffective-assistance claim fails. It
was not unreasonable for the state court to conclude that
his defense counsel’s performance was not deficient when he
counseled Mirzayance to abandon a claim that stood almost
no chance of success. As explained more fully below, this
Court has never required defense counsel to pursue every
claim or defense, regardless of its merit, viability, or realistic
chance for success. See also infra, at 127.
III
Even if Mirzayance’s ineffective-assistance-of-counsel
claim were eligible for de novo review, it would still fail.

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Opinion of the Court
Strickland requires a defendant to establish deficient per
formance and prejudice. 466 U. S., at 687. Mirzayance can
establish neither.
Mirzayance has not shown “that counsel’s representation
fell below an objective standard of reasonableness.” Id., at
687–688. “The proper measure of attorney performance re
mains simply reasonableness under prevailing professional
norms.” Id., at 688. “Judicial scrutiny of counsel’s per
formance must be highly deferential,” and “a court must in
dulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Id., at 689. “[S]trategic choices made after thorough inves
tigation of law and facts relevant to plausible options are
virtually unchallengeable.” Id., at 690.
Here, Mirzayance has not shown that his counsel violated
these standards. Rather, his counsel merely recommended
the withdrawal of what he reasonably believed was a claim
doomed to fail. The jury had already rejected medical testi
mony about Mirzayance’s mental state in the guilt phase,
during which the State carried its burden of proving guilt
beyond a reasonable doubt. The Magistrate Judge ex
plained this point:
“All [counsel] was left with were four experts, all of
whom reached a conclusion—that [Mirzayance] did not
premeditate and deliberate his crime—that the same
jury about to hear the NGI evidence already had re
jected under a beyond-a-reasonable-doubt standard of
proof. The experts were subject to other impeachment
as well.” App. 71.
In fact, the Magistrate Judge found that counsel “convinc
ingly detailed ways in which [the experts] could have been
impeached, for overlooking or minimizing facts which show
cased [Mirzayance’s] clearly goal-directed behavior.” Id.,
at 70.

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In the NGI phase, the burden would have switched to Mir
zayance to prove insanity by a preponderance of the evi
dence. Mirzayance’s counsel reasonably believed that there
was almost no chance that the same jury would have reached
a different result when considering similar evidence, espe
cially with Mirzayance bearing the burden of proof. Fur
thermore, counsel knew he would have had to present this
defense without the benefit of the parents’ testimony, which
he believed to be his strongest evidence. See ibid. (“[Coun
sel’s] strategy at the NGI phase had been to appeal to the
jury in one or both of two ways that depended entirely on
the heartfelt participation of [Mirzayance’s] parents as wit
nesses”). Counsel reasonably concluded that this defense
was almost certain to lose.
The Court of Appeals took the position that the situation
was not quite so dire because the parents “merely expressed
reluctance to testify.” Id., at 7; Knowles, 175 Fed. Appx.,
at 144. It explained that “[c]ompetent counsel would have
attempted to persuade them to testify.” App. 7; Knowles,
supra, at 144. But that holding is in tension with the Magis
trate Judge’s findings and applies a more demanding stand
ard than Strickland prescribes. The Magistrate Judge
noted that the parents “conveyed the same sense as a re
fusal.” App. 72. Indeed, the Magistrate Judge found that
the parents “did not testify later at [Mirzayance’s] sentencing
hearing” because it “would have been ‘too emotional’ for
them.” Id., at 73 (quoting testimony from evidentiary hear
ing). Competence does not require an attorney to browbeat
a reluctant witness into testifying, especially when the facts
suggest that no amount of persuasion would have succeeded.
Counsel’s acceptance of the parents’ “convey[ance] [of] . . . a
refusal,” id., at 72, does not rise to the high bar for deficient
performance set by Strickland.
Mirzayance’s failure to show ineffective assistance of
counsel is confirmed by the Magistrate Judge’s finding that

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“[counsel] carefully weighed his options before making his
decision final; he did not make it rashly.” App. 69. The
Magistrate Judge explained all of the factors that counsel
considered—many of which are discussed above—and noted
that counsel “discussed the situation with his experienced
co-counsel” before making it. Id., at 71. In making this
finding, the Magistrate Judge identified counsel’s decision as
essentially an informed decision “made after thorough inves
tigation of law and facts relevant to plausible options.”
Strickland, 466 U. S., at 690. As we stated in Strickland,
such a decision is “virtually unchallengeable.” Ibid.
Without even referring to the Magistrate Judge’s finding,
the Court of Appeals “disagree[d] that counsel’s decision was
carefully weighed and not made rashly.” App. 7; Knowles,
supra, at 144. In its view, “counsel acted on his subjective
feelings of hopelessness without even considering the poten
tial benefit to be gained in persisting with the plea.” App.
8; Knowles, supra, at 144–145. But courts of appeals may
not set aside a district court’s factual findings unless those
findings are clearly erroneous. Fed. Rule Civ. Proc. 52(a);
Anderson v. Bessemer City, 470 U. S. 564, 573–574 (1985).
Here, the Court of Appeals failed even to mention the
clearly-erroneous standard, let alone apply it, before effec
tively overturning the lower court’s factual findings related
to counsel’s behavior.
In light of the Magistrate Judge’s factual findings,
the state court’s re jection of Mirzayance’s ineffective
assistance-of-counsel claim was consistent with Strickland.
The Court of Appeals insisted, however, that “ ‘[r]easonably
effective assistance’ required here that counsel assert the
only defense available . . . .” App. 8; see also Knowles,
supra, at 145. But we are aware of no “prevailing profes
sional norms” that prevent counsel from recommending that
a plea be withdrawn when it is almost certain to lose. See
Strickland, supra, at 688. And in this case, counsel did not
give up “the only defense available.” Counsel put on a de

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Opinion of the Court
fense to first-degree murder during the guilt phase. Coun
sel also defended his client at the sentencing phase.4 The
law does not require counsel to raise every available non
frivolous defense. See Jones v. Barnes, 463 U. S. 745, 751
(1983); cf. Wiggins v. Smith, 539 U. S. 510, 533 (2003) (ex
plaining, in case involving similar issue of counsel’s responsi
bility to present mitigating evidence at sentencing, 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 . . . [or even]
to present mitigating evidence at sentencing in every case”).
Counsel also is not required to have a tactical reason—above
and beyond a reasonable appraisal of a claim’s dismal pros
pects for success—for recommending that a weak claim
be dropped altogether. Mirzayance has thus failed to
demonstrate that his counsel’s performance was deficient.
In addition, Mirzayance has not demonstrated that he suf
fered prejudice from his counsel’s performance. See Strick
land, 466 U. S., at 691 (“An error by counsel, even if profes
sionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect
on the judgment”). To establish prejudice, “[t]he 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 reasonable probability is a
probability sufficient to undermine confidence in the out
come.” Id., at 694. To prevail on his ineffective-assistance
claim, Mirzayance must show, therefore, that there is a “rea
sonable probability” that he would have prevailed on his in
sanity defense had he pursued it. This Mirzayance cannot
4 Mirzayance has no complaints about the sentencing phase since he re
ceived the lowest possible sentence for his first-degree murder conviction.
California authorizes three possible sentences for murder: death, life im
prisonment without parole, and imprisonment for 25 years to life. Cal.
Penal Code Ann. § 190(a) (West 1999). Mirzayance was sentenced to 25
years to life plus 4 years for a weapons enhancement.

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do. It was highly improbable that a jury, which had just
rejected testimony about Mirzayance’s mental condition
when the State bore the burden of proof, would have reached
a different result when Mirzayance presented similar evi
dence at the NGI phase. See supra, at 125.
IV
Mirzayance has not shown that the state court’s conclusion
that there was no ineffective assistance of counsel “was con
trary to, or involved an unreasonable application of, clearly
established Federal law” under § 2254. In fact, he has not
shown ineffective assistance at all. The judgment of the
Court of Appeals is reversed, and the case is remanded with
instructions to deny the petition.
It is so ordered.