SCHRIRO, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS v. LANDRIGAN, aka HILL

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Syllabus
SCHRIRO, DIRECTOR, ARIZONA DEPARTMENT OF
CORRECTIONS v. LANDRIGAN, aka HILL
certiorari to the united states court of appeals for
the ninth circuit
No. 05–1575. Argued January 9, 2007—Decided May 14, 2007
Respondent Landrigan refused to allow his counsel to present the testi
mony of his ex-wife and birth mother as mitigating evidence at his sen
tencing hearing for a felony-murder conviction. He also interrupted as
counsel tried to proffer other evidence, and he told the Arizona trial
judge he did not wish to present any mitigating evidence and to “bring
on” the death penalty. The court sentenced him to death, and the sen
tence was affirmed. The state postconviction court rejected Landri
gan’s claim that his counsel was ineffective for failing to conduct further
investigation into mitigating circumstances, finding that he had in
structed counsel at sentencing not to present any mitigating evidence
at all. Landrigan then filed a federal habeas petition under 28 U. S. C.
§ 2254. Exercising its discretion, the District Court refused to grant
him an evidentiary hearing because he could not make out even a color
able ineffective-assistance-of-counsel claim. The en banc Ninth Circuit
reversed, holding that Landrigan’s counsel’s performance fell below the
standard required by Strickland v. Washington, 466 U. S. 668.
Held: The District Court did not abuse its discretion in refusing to grant
Landrigan an evidentiary hearing. Pp. 473–481.
(a) The Antiterrorism and Effective Death Penalty Act of 1996 has
not changed the basic rule that the decision to grant an evidentiary
hearing is left to the district court’s sound discretion, but it has changed
the standards for granting federal habeas relief by prohibiting such re
lief unless a state court’s adjudication “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly estab
lished Federal law, as determined by [this Court],” § 2254(d)(1), or “was
based on an unreasonable determination of the facts in light of the evi
dence presented in the State court proceeding,” § 2254(d)(2). Because
§ 2254’s deferential standards control whether to grant habeas relief,
a federal court must take into account those standards in deciding
whether an evidentiary hearing is appropriate. In deciding whether to
grant an evidentiary hearing, a federal court must consider whether the
hearing could enable an applicant to prove the petition’s factual allega
tions, which, if true, would entitle the applicant to federal habeas relief.
It follows that if the record refutes the applicant’s factual allegations or

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otherwise precludes habeas relief, a district court is not required to hold
an evidentiary hearing. Pp. 473–475.
(b) Contrary to the Ninth Circuit’s reasoning, the District Court was
well within its discretion to determine that, even with the benefit of an
evidentiary hearing, Landrigan could not develop a factual record enti
tling him to federal habeas relief. Pp. 475–480.
(1) The Ninth Circuit concluded that the Arizona state courts’ find
ings that Landrigan had instructed his counsel not to offer any miti
gating evidence took Landrigan’s sentencing colloquy out of context,
amounting to an unreasonable determination of the facts. However, the
colloquy’s language plainly indicates that Landrigan told his counsel not
to present any mitigating evidence, and the record conclusively dispels
the Circuit’s conclusion that Landrigan’s statements referred to only his
ex-wife’s and birth mother’s testimony. On that record, the state
court’s determination that Landrigan refused to allow the presentation
of any mitigating evidence was a reasonable determination of the facts.
Thus, it was not an abuse of discretion for the District Court to conclude
that Landrigan could not overcome § 2254(d)(2)’s bar to granting federal
habeas relief. That court was entitled to conclude that regardless of
what information counsel might have uncovered in his investigation,
Landrigan would have interrupted and refused to allow him to present
it. Thus, it could conclude that because of his established recalcitrance,
Landrigan could not demonstrate prejudice under Strickland even if
granted an evidentiary hearing. Pp. 475–477.
(2) The Ninth Circuit also erred in finding two alternative reasons
for its holding. It concluded that the Arizona courts’ determination
that Landrigan’s claims were frivolous and meritless was an unreason
able application of this Court’s precedent, based on the belief, derived
from Wiggins v. Smith, 539 U. S. 510, that his last minute decision to
block testimony could not excuse his counsel’s failure to do an adequate
investigation before sentencing. However, this Court has never ad
dressed a situation in which a client interferes with counsel’s efforts to
present mitigating evidence to a sentencing court. Thus, it was not
objectively unreasonable for the Arizona postconviction court to con
clude that a defendant who refused to allow any mitigating evidence to
be presented could not establish Strickland prejudice based on his coun
sel’s failure to investigate further possible mitigating evidence. The
Ninth Circuit also found that the record does not indicate that Landri
gan’s decision was informed and knowing, or that he understood its con
sequences. This Court has never held that an “informed and knowing”
requirement exists with respect to the decision not to introduce mitigat
ing evidence. But even assuming such a requirement exists in this
case, Landrigan cannot benefit from it. First, because he never devel

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oped his claim properly before the Arizona courts, § 2254(e)(2) barred
the District Court from granting an evidentiary hearing on that basis.
Second, his counsel told the sentencing court in Landrigan’s presence
that he had carefully explained to Landrigan the importance of mitigat
ing evidence in death penalty cases and his duty as counsel to disclose
mitigating factors for consideration. In light of Landrigan’s demon
strated propensity for interjecting himself into the proceedings, it is
doubtful that he would have sat idly by while counsel lied about such
discussions. Third, it is apparent from Landrigan’s statement to the
sentencing court to bring on the death penalty that he clearly under
stood the consequences of telling the judge that there were no relevant
mitigating circumstances. Pp. 477–480.
(c) The Ninth Circuit also erred in rejecting the District Court’s find
ing that the poor quality of Landrigan’s alleged mitigating evidence pre
vented him from making a colorable prejudice claim. Because most of
the evidence that Landrigan now wishes to offer would have been of
fered by his birth mother and ex-wife had he allowed them to testify,
and because the sentencing court had much of the evidence before it by
way of counsel’s proffer, the District Court could reasonably conclude
that any additional evidence would have made no difference in the sen
tencing. Pp. 480–481.
(d) Even assuming the truth of all the facts Landrigan sought to
prove at an evidentiary hearing, he still could not be granted federal
habeas relief because the state courts’ factual determination that he
would not have allowed counsel to present any mitigating evidence at
sentencing is not an unreasonable determination of the facts under
§ 2254(d)(2), and the mitigating evidence he seeks to introduce would not
have changed the result. P. 481.
441 F. 3d 638, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Scalia, Kennedy, and Alito, JJ., joined. Stevens, J., filed a dis
senting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined,
post, p. 482.
Kent E. Cattani, Assistant Attorney General of Arizona,
argued the cause for petitioner. With him on the briefs
were Terry Goddard, Attorney General, Mary R. O’Grady,
Solicitor General, and Patricia Nigro, Assistant Attorney
General.
Donald B. Verrilli, Jr., argued the cause for respondent.
With him on the brief were Jon M. Sands, Dale A. Baich,

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468 SCHRIRO v. LANDRIGAN
Opinion of the Court
Sylvia J. Lett, Ian Heath Gershengorn, Elaine J. Golden
berg, and Scott B. Wilkens.*
Justice Thomas delivered the opinion of the Court.
In cases where an applicant for federal habeas relief is not
barred from obtaining an evidentiary hearing by 28 U. S. C.
§ 2254(e)(2), the decision to grant such a hearing rests in the
discretion of the district court. Here, the District Court de
termined that respondent could not make out a colorable
claim of ineffective assistance of counsel and therefore was
not entitled to an evidentiary hearing. It did so after re
viewing the state-court record and expanding the record to
*Briefs of amici curiae urging reversal were filed for the State of Cali
fornia et al. by Bill Lockyer, Attorney General of California, Manuel M.
Medeiros, State Solicitor General, Mary Jo Graves, Chief Assistant Attor
ney General, Pamela C. Hamanaka, Senior Assistant Attorney General,
Donald E. De Nicola, Deputy State Solicitor General, Keith H. Borjon,
Supervising Deputy Attorney General, and Kristofer Jorstad and James
William Bilderback II, Deputy Attorneys General, by Kevin T. Kane,
Chief State’s Attorney of Connecticut, and by the Attorneys General for
their respective States as follows: Troy King of Alabama, Mike Beebe of
Arkansas, John W. Suthers of Colorado, Thurbert E. Baker of Georgia,
Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Gregory D. Stumbo
of Kentucky, Charles C. Foti, Jr., of Louisiana, Jim Hood of Mississippi,
Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Jon
Bruning of Nebraska, George J. Chanos of Nevada, Kelly A. Ayotte of
New Hampshire, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma,
Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Henry
D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Greg
Abbott of Texas, Mark L. Shurtleff of Utah, Robert F. McDonnell of Vir
ginia, Rob McKenna of Washington, and Patrick J. Crank of Wyoming;
and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and
Rhonda C. Canby.
Briefs of amici curiae urging affirmance were filed for the American
Bar Association by Karen J. Mathis, Lawrence J. Fox, and David J. Kess
ler; and for the National Association of Criminal Defense Lawyers by An
drew J. Pincus, Charles A. Rothfeld, Giovanna Shay, Christopher Lasch,
and Pamela Harris.

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include additional evidence offered by respondent. The
Court of Appeals held that the District Court abused its dis
cretion in refusing to grant the hearing. We hold that it
did not.
I
Respondent Jeffrey Landrigan was convicted in Oklahoma
of second-degree murder in 1982. In 1986, while in custody
for that murder, Landrigan repeatedly stabbed another in
mate and was subsequently convicted of assault and bat
tery with a deadly weapon. Three years later, Landrigan
escaped from prison and murdered Chester Dean Dyer in
Arizona.
An Arizona jury found Landrigan guilty of theft, second
degree burglary, and felony murder for having caused the
victim’s death in the course of a burglary. At sentencing,
Landrigan’s counsel attempted to present the testimony of
Landrigan’s ex-wife and birth mother as mitigating evidence.
But at Landrigan’s request, both women refused to testify.
When the trial judge asked why the witnesses refused,
Landrigan’s counsel responded that “it’s at my client’s
wishes.” App. to Pet. for Cert. D–3. Counsel explained
that he had “advised [Landrigan] very strongly that I think
it’s very much against his interests to take that particular
position.” Ibid. The court then questioned Landrigan:
“THE COURT: Mr. Landrigan, have you instructed
your lawyer that you do not wish for him to bring any
mitigating circumstances to my attention?
“THE DEFENDANT: Yeah.
“THE COURT: Do you know what that means?
“THE DEFENDANT: Yeah.
“THE COURT: Mr. Landrigan, are there mitigating
circumstances I should be aware of?
“THE DEFENDANT: Not as far as I’m concerned.”
Id., at D–3 to D–4.

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Still not satisfied, the trial judge directly asked the wit
nesses to testify. Both refused. The judge then asked
counsel to make a proffer of the witnesses’ testimony.
Counsel attempted to explain that the witnesses would tes
tify that Landrigan’s birth mother used drugs and alcohol
(including while she was pregnant with Landrigan), that
Landrigan abused drugs and alcohol, and that Landrigan had
been a good father.
But Landrigan would have none of it. When counsel tried
to explain that Landrigan had worked in a legitimate job to
provide for his family, Landrigan interrupted and stated,
“If I wanted this to be heard, I’d have my wife say it.”
Id., at D–6. Landrigan then explained that he was not only
working but also “doing robberies supporting my family.”
Id., at D–7. When counsel characterized Landrigan’s first
murder as having elements of self-defense, Landrigan inter
rupted and clarified: “He didn’t grab me. I stabbed him.”
Id., at D–9. Responding to counsel’s statement implying
that the prison stabbing involved self-defense because the
assaulted inmate knew Landrigan’s first murder victim, Lan
drigan interrupted to clarify that the inmate was not ac
quainted with his first victim, but just “a guy I got in an
argument with. I stabbed him 14 times. It was lucky he
lived.” Ibid.
At the conclusion of the sentencing hearing, the judge
asked Landrigan if he had anything to say. Landrigan made
a brief statement that concluded, “I think if you want to give
me the death penalty, just bring it right on. I’m ready for
it.” Id., at D–16.
The trial judge found two statutory aggravating circum
stances: that Landrigan murdered Dyer in expectation of pe
cuniary gain and that Landrigan was previously convicted of
two felonies involving the use or threat of violence on an
other person. Id., at D–23. In addition, the judge found
two nonstatutory mitigating circumstances: that Landrigan’s
family loved him and an absence of premeditation. Ibid.

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Finally, the trial judge stated that she considered Landrigan
“a person who has no scruples and no regard for human life
and human beings.” Ibid. Based on these findings, the
court sentenced Landrigan to death. On direct appeal, the
Arizona Supreme Court unanimously affirmed Landrigan’s
sentence and conviction. In addressing an ineffective
assistance-of-counsel claim not relevant here, the court noted
that Landrigan had stated his “desire not to have mitigating
evidence presented in his behalf.” State v. Landrigan, 176
Ariz. 1, 8, 859 P. 2d 111, 118 (1993).
On January 31, 1995, Landrigan filed a petition for state
postconviction relief and alleged his counsel’s “fail[ure] to ex
plore additional grounds for arguing mitigation evidence.”
App. to Pet. for Cert. F–3 (internal quotation marks omit
ted). Specifically, Landrigan maintained that his counsel
should have investigated the “biological component” of his
violent behavior by interviewing his biological father and
other relatives. Id., at E–2. In addition, Landrigan stated
that his biological father could confirm that his biological
mother used drugs and alcohol while pregnant with Landri
gan. Ibid.
The Arizona postconviction court, presided over by the
same judge who tried and sentenced Landrigan, rejected
Landrigan’s claim. The court found that “[Landrigan]
instructed his attorney not to present any evidence at the
sentencing hearing, [so] it is difficult to comprehend how
[Landrigan] can claim counsel should have presented other
evidence at sentencing.” Id., at F–4. Noting Landrigan’s
contention that he “ ‘would have cooperated’ ” had other miti
gating evidence been presented, the court concluded that
Landrigan’s “statements at sentencing belie his new-found
sense of cooperation.” Ibid. Describing Landrigan’s claim
as “frivolous,” id., at F–5, the court declined to hold an evi
dentiary hearing and dismissed Landrigan’s petition. The
Arizona Supreme Court denied Landrigan’s petition for re
view on June 19, 1996.

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Landrigan then filed a federal habeas application under
§ 2254. The District Court determined, after “expand[ing]
the record to include . . . evidence of [Landrigan’s] troubled
background, his history of drug and alcohol abuse, and his
family’s history of criminal behavior,” id., at C–22, that
Landrigan could not demonstrate that he was prejudiced by
any error his counsel may have made. Because Landrigan
could not make out even a “colorable” ineffective-assistance
of-counsel claim, id., at C–46, the District Court refused to
grant him an evidentiary hearing.
On appeal, a unanimous panel of the Court of Appeals for
the Ninth Circuit affirmed, but the full court granted rehear
ing en banc, Landrigan v. Stewart, 397 F. 3d 1235 (2005), and
reversed. The en banc Court of Appeals held that Landri
gan was entitled to an evidentiary hearing because he raised
a “colorable claim” that his counsel’s performance fell below
the standard required by Strickland v. Washington, 466
U. S. 668 (1984). 441 F. 3d 638, 650 (2006). With respect to
counsel’s performance, the Ninth Circuit found that he “did
little to prepare for the sentencing aspect of the case,” id.,
at 643, and that investigation would have revealed a wealth
of mitigating evidence, including the family’s history of drug
and alcohol abuse and propensity for violence.
Turning to prejudice, the court held the Arizona post
conviction court’s determination that Landrigan refused to
permit his counsel to present any mitigating evidence was
“an ‘unreasonable determination of the facts.’ ” Id., at 647
(quoting 28 U. S. C. § 2254(d)(2)). The Court of Appeals
found that when Landrigan stated that he did not want his
counsel to present any mitigating evidence, he was clearly
referring only to the evidence his attorney was about to in
troduce—that of his ex-wife and birth mother. 441 F. 3d, at
646. The court further held that, even if Landrigan in
tended to forgo the presentation of all mitigation evidence,
such a “last-minute decision cannot excuse his counsel’s fail
ure to conduct an adequate investigation prior to the sen

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tencing.” Id., at 647. In conclusion, the court found “a
reasonable probability that, if Landrigan’s allegations are
true, the sentencing judge would have reached a different
conclusion.” Id., at 650. The court therefore remanded the
case for an evidentiary hearing.
We granted certiorari, 548 U. S. 941 (2006), and now
reverse.
II
Prior to the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 110 Stat. 1214, the decision to grant
an evidentiary hearing was generally left to the sound dis
cretion of district courts. Brown v. Allen, 344 U. S. 443,
463–464 (1953); see also Townsend v. Sain, 372 U. S. 293, 313
(1963). That basic rule has not changed. See 28 U. S. C.
§ 2254, Rule 8(a) (“[T]he judge must review the answer [and]
any transcripts and records of state-court proceedings . . . to
determine whether an evidentiary hearing is warranted”).
AEDPA, however, changed the standards for granting fed
eral habeas relief.1 Under AEDPA, Congress prohibited
federal courts from granting habeas relief unless a state
court’s adjudication of a claim “resulted in a decision that
was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or the rel
evant state-court decision “was based on an unreasonable de
termination of the facts in light of the evidence presented
in the State court proceeding,” § 2254(d)(2). The question
under AEDPA is not whether a federal court believes the
state court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher
threshold. See Williams v. Taylor, 529 U. S. 362, 410 (2000).
AEDPA also requires federal habeas courts to presume the
1 Although not at issue here, AEDPA generally prohibits federal habeas
courts from granting evidentiary hearings when applicants have failed to
develop the factual bases for their claims in state courts. 28 U. S. C.
§ 2254(e)(2).

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correctness of state courts’ factual findings unless applicants
rebut this presumption with “clear and convincing evi
dence.” § 2254(e)(1).
In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could
enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas
relief. See, e. g., Mayes v. Gibson, 210 F. 3d 1284, 1287
(CA10 2000). Because the deferential standards prescribed
by § 2254 control whether to grant habeas relief, a federal
court must take into account those standards in deciding
whether an evidentiary hearing is appropriate. See id., at
1287–1288 (“Whether [an applicant’s] allegations, if proven,
would entitle him to habeas relief is a question governed
by [AEDPA]”).2
It follows that if the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing. The
Ninth Circuit has recognized this point in other cases, hold
ing that “an evidentiary hearing is not required on issues
that can be resolved by reference to the state court record.”
Totten v. Merkle, 137 F. 3d 1172, 1176 (1998) (emphasis de
leted) (affirming the denial of an evidentiary hearing where
the applicant’s factual allegations “fl[ew] in the face of logic
in light of . . . [the applicant’s] deliberate acts which are easily
discernible from the record”). This approach is not unique
to the Ninth Circuit. See Anderson v. Attorney General of
Kan., 425 F. 3d 853, 858–859 (CA10 2005) (holding that no
evidentiary hearing is required if the applicant’s allegations
are contravened by the existing record); cf. Clark v. Johnson,
202 F. 3d 760, 767 (CA5 2000) (holding that no hearing is
required when the applicant has failed to present clear and
2 Indeed, the Court of Appeals below, recognizing this point, applied
§ 2254(d)(2) to reject certain of the Arizona court’s factual findings that
established a hearing would be futile.

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convincing evidence to rebut a state court’s factual findings);
Campbell v. Vaughn, 209 F. 3d 280, 290 (CA3 2000) (same).
This principle accords with AEDPA’s acknowledged pur
pose of “reduc[ing] delays in the execution of state and fed
eral criminal sentences.” Woodford v. Garceau, 538 U. S.
202, 206 (2003) (citing Williams v. Taylor, supra, at 386
(opinion of Stevens, J.) (“Congress wished to curb delays,
to prevent ‘retrials’ on federal habeas, and to give effect to
state convictions to the extent possible under law”)). If dis
trict courts were required to allow federal habeas applicants
to develop even the most insubstantial factual allegations in
evidentiary hearings, district courts would be forced to re
open factual disputes that were conclusively resolved in the
state courts. With these standards in mind, we turn to the
facts of this case.
III
For several reasons, the Court of Appeals believed that
Landrigan might be entitled to federal habeas relief and that
the District Court, therefore, abused its discretion by deny
ing Landrigan an evidentiary hearing. To the contrary, the
District Court was well within its discretion to determine
that, even with the benefit of an evidentiary hearing, Landri
gan could not develop a factual record that would entitle him
to habeas relief.
A
The Court of Appeals first addressed the State’s conten
tion that Landrigan instructed his counsel not to offer any
mitigating evidence. If Landrigan issued such an instruc
tion, counsel’s failure to investigate further could not have
been prejudicial under Strickland. The Court of Appeals
rejected the findings of “the Arizona Supreme Court (on di
rect appeal) and the Arizona Superior Court (on habeas re
view)” that Landrigan instructed his counsel not to introduce
any mitigating evidence. 441 F. 3d, at 646. According to
the Ninth Circuit, those findings took Landrigan’s colloquy

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with the sentencing court out of context in a manner that
“amounts to an ‘unreasonable determination of the facts.’ ”
Id., at 647 (quoting 28 U. S. C. § 2254(d)(2)).
Upon review of record material and the transcripts from
the state courts, we disagree. As a threshold matter, the
language of the colloquy plainly indicates that Landrigan
informed his counsel not to present any mitigating evidence.
When the Arizona trial judge asked Landrigan if he had
instructed his lawyer not to present mitigating evidence,
Landrigan responded affirmatively. Likewise, when asked
if there was any relevant mitigating evidence, Landrigan an
swered, “Not as far as I’m concerned.” App. to Pet. for
Cert. D–4. These statements establish that the Arizona
postconviction court’s determination of the facts was reason
able. And it is worth noting, again, that the judge presiding
on postconviction review was ideally situated to make this
assessment because she is the same judge who sentenced
Landrigan and discussed these issues with him.
Notwithstanding the plainness of these statements, the
Court of Appeals concluded that they referred to only the
specific testimony that counsel planned to offer—that of
Landrigan’s ex-wife and birth mother. The Court of Ap
peals further concluded that Landrigan, due to counsel’s fail
ure to investigate, could not have known about the mit
igating evidence he now wants to explore. The record
conclusively dispels that interpretation. First, Landrigan’s
birth mother would have offered testimony that overlaps
with the evidence Landrigan now wants to present. For ex
ample, Landrigan wants to present evidence from his biologi
cal father that would “confirm [his biological mother’s] alco
hol and drug use during her pregnancy.” Id., at E–2. But
the record shows that counsel planned to call Landrigan’s
birth mother to testify about her “drug us[e] during her
pregnancy,” id., at D–10, and the possible effects of such
drug use. Second, Landrigan interrupted repeatedly when
counsel tried to proffer anything that could have been con

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sidered mitigating. He even refused to allow his attorney
to proffer that he had worked a regular job at one point.
Id., at D–6, D–7. This behavior confirms what is plain from
the transcript of the colloquy: that Landrigan would have
undermined the presentation of any mitigating evidence that
his attorney might have uncovered.
On the record before us, the Arizona court’s determination
that Landrigan refused to allow the presentation of any miti
gating evidence was a reasonable determination of the facts.
In this regard, we agree with the initial Court of Appeals
panel that reviewed this case:
“In the constellation of refusals to have mitigating evi
dence presented . . . this case is surely a bright star.
No other case could illuminate the state of the client’s
mind and the nature of counsel’s dilemma quite as
brightly as this one. No flashes of insight could be more
fulgurous than those which this record supplies. ”
Landrigan v. Stewart, 272 F. 3d 1221, 1226 (CA9 2001).
Because the Arizona postconviction court reasonably de
termined that Landrigan “instructed his attorney not to
bring any mitigation to the attention of the [sentencing]
court,” App. to Pet. for Cert. F–4, it was not an abuse of
discretion for the District Court to conclude that Landrigan
could not overcome § 2254(d)(2)’s bar to granting federal ha
beas relief. The District Court was entitled to conclude that
regardless of what information counsel might have uncov
ered in his investigation, Landrigan would have interrupted
and refused to allow his counsel to present any such evi
dence. Accordingly, the District Court could conclude that
because of his established recalcitrance, Landrigan could not
demonstrate prejudice under Strickland even if granted an
evidentiary hearing.
B
The Court of Appeals offered two alternative reasons for
holding that Landrigan’s inability to make a showing of prej

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udice under Strickland did not bar any potential habeas re
lief and, thus, an evidentiary hearing.
1
The Court of Appeals held that, even if Landrigan did not
want any mitigating evidence presented, the Arizona courts’
determination that Landrigan’s claims were “ ‘frivolous’ and
‘meritless’ was an unreasonable application of United States
Supreme Court precedent.” 441 F. 3d, at 647 (citing 28
U. S. C. § 2254(d)(1)). This holding was founded on the be
lief, derived from Wiggins v. Smith, 539 U. S. 510 (2003), that
“Landrigan’s apparently last-minute decision cannot excuse
his counsel’s failure to conduct an adequate investigation
prior to the sentencing.” 441 F. 3d, at 647.
Neither Wiggins nor Strickland addresses a situation in
which a client interferes with counsel’s efforts to present
mitigating evidence to a sentencing court. Wiggins, supra,
at 523 (“[W]e focus on whether the investigation supporting
counsel’s decision not to introduce mitigating evidence of
Wiggins’ background was itself reasonable” (emphasis added
and deleted)). Indeed, we have never addressed a situation
like this. In Rompilla v. Beard, 545 U. S. 374, 381 (2005),
on which the Court of Appeals also relied, the defendant re
fused to assist in the development of a mitigation case, but
did not inform the court that he did not want mitigating evi
dence presented. In short, at the time of the Arizona post
conviction court’s decision, it was not objectively unreason
able for that court to conclude that a defendant who refused
to allow the presentation of any mitigating evidence could
not establish Strickland prejudice based on his counsel’s fail
ure to investigate further possible mitigating evidence.
2
The Court of Appeals also stated that the record does not
indicate that Landrigan’s decision not to present mitigating
evidence was “informed and knowing,” 441 F. 3d, at 647, and
that “[t]he trial court’s dialogue with Landrigan tells us little

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479 Cite as: 550 U. S. 465 (2007)
Opinion of the Court
about his understanding of the consequences of his decision,”
ibid. We have never imposed an “informed and knowing”
requirement upon a defendant’s decision not to introduce
evidence. Cf., e. g., Iowa v. Tovar, 541 U. S. 77, 88 (2004)
(explaining that waiver of the right to counsel must be know
ing and intelligent). Even assuming, however, that an
“informed and knowing” requirement exists in this case,
Landrigan cannot benefit from it, for three reasons.
First, Landrigan never presented this claim to the Arizona
courts.3 Rather, he argued that he would have complied had
other evidence been offered. Thus, Landrigan failed to de
velop this claim properly before the Arizona courts, and
§ 2254(e)(2) therefore barred the District Court from grant
ing an evidentiary hearing on that basis.
Second, in Landrigan’s presence, his counsel told the sen
tencing court that he had carefully explained to Landrigan
the importance of mitigating evidence, “especially concern
ing the fact that the State is seeking the death penalty.”
App. to Pet. for Cert. D–3. Counsel also told the court that
he had explained to Landrigan that as counsel, he had a duty
to disclose “any and all mitigating factors . . . to th[e] [c]ourt
for consideration regarding the sentencing.” Ibid. In light
of Landrigan’s demonstrated propensity for interjecting him
self into the proceedings, it is doubtful that Landrigan would
have sat idly by while his counsel lied about having pre
viously discussed these issues with him. And as Landri
gan’s counsel conceded at oral argument before this Court,
we have never required a specific colloquy to ensure that
a defendant knowingly and intelligently refused to present
mitigating evidence. Tr. of Oral Arg. 26.
Third, the Court of Appeals overlooked Landrigan’s final
statement to the sentencing court: “I think if you want to
3 Landrigan made this argument for the first time in a motion for rehear
ing from the denial of his postconviction petition. Under Arizona law, a
defendant cannot raise new claims in a motion for rehearing. State v.
Byers, 126 Ariz. 139, 142, 613 P. 2d 299, 302 (App. 1980), overruled on
other grounds, State v. Pope, 130 Ariz. 253, 635 P. 2d 846 (1981).

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480 SCHRIRO v. LANDRIGAN
Opinion of the Court
give me the death penalty, just bring it right on. I’m ready
for it.” App. to Pet. for Cert. D–16. It is apparent from
this statement that Landrigan clearly understood the conse
quences of telling the judge that, “as far as [he was] con
cerned,” there were no mitigating circumstances of which
she should be aware. Id., at D–4.
IV
Finally, the Court of Appeals erred in rejecting the Dis
trict Court’s finding that the poor quality of Landrigan’s
alleged mitigating evidence prevented him from making
“a colorable claim” of prejudice. Id., at C–46. As summa
rized by the Court of Appeals, Landrigan wanted to intro
duce as mitigation evidence
“[that] he was exposed to alcohol and drugs in utero,
which may have resulted in cognitive and behavioral de
ficiencies consistent with fetal alcohol syndrome. He
was abandoned by his birth mother and suffered aban
donment and attachment issues, as well as other behav
ioral problems throughout his childhood.
“His adoptive mother was also an alcoholic, and Lan
drigan’s own alcohol and substance abuse began at an
early age. Based on his biological family’s history of
violence, Landrigan claims he may also have been genet
ically predisposed to violence.” 441 F. 3d, at 649.
As explained above, all but the last sentence refer to infor
mation that Landrigan’s birth mother and ex-wife could have
offered if Landrigan had allowed them to testify. Indeed,
the state postconviction court had much of this evidence be
fore it by way of counsel’s proffer. App. to Pet. for Cert.
D–21. The District Court could reasonably conclude that
any additional evidence would have made no difference in
the sentencing.
In sum, the District Court did not abuse its discretion in
finding that Landrigan could not establish prejudice based

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Opinion of the Court
on his counsel’s failure to present the evidence he now wishes
to offer. Landrigan’s mitigation evidence was weak, and the
postconviction court was well acquainted with Landrigan’s
exceedingly violent past and had seen first hand his belliger
ent behavior. Again, it is difficult to improve upon the ini
tial Court of Appeals panel’s conclusion:
“The prospect was chilling; before he was 30 years of
age, Landrigan had murdered one man, repeatedly
stabbed another one, escaped from prison, and within
two months murdered still another man. As the Ari
zona Supreme Court so aptly put it when dealing with
one of Landrigan’s other claims, ‘[i]n his comments [to
the sentencing judge], defendant not only failed to show
remorse or offer mitigating evidence, but he flaunted his
menacing behavior.’ On this record, assuring the court
that genetics made him the way he is could not have
been very helpful. There was no prejudice.” 272
F. 3d, at 1229 (citations and footnote omitted).
V
The Court of Appeals erred in holding that the District
Court abused its discretion in declining to grant Landrigan
an evidentiary hearing. Even assuming the truth of all the
facts Landrigan sought to prove at the evidentiary hearing,
he still could not be granted federal habeas relief because
the state courts’ factual determination that Landrigan would
not have allowed counsel to present any mitigating evidence
at sentencing is not an unreasonable determination of the
facts under § 2254(d)(2), and the mitigating evidence he seeks
to introduce would not have changed the result. In such
circumstances, a District Court has discretion to deny an evi
dentiary hearing. The judgment of the Court of Appeals for
the Ninth Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.

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482 SCHRIRO v. LANDRIGAN
Stevens, J., dissenting
Justice Stevens, with whom Justice Souter, Justice
Ginsburg, and Justice Breyer join, dissenting.
Significant mitigating evidence—evidence that may well
have explained respondent’s criminal conduct and unruly be
havior at his capital sentencing hearing—was unknown at
the time of sentencing. Only years later did respondent
learn that he suffers from a serious psychological condition
that sheds important light on his earlier actions. The rea
son why this and other mitigating evidence was unavailable
is that respondent’s counsel failed to conduct a constitution
ally adequate investigation. See Wiggins v. Smith, 539 U. S.
510 (2003). In spite of this, the Court holds that respondent
is not entitled to an evidentiary hearing to explore the preju
dicial impact of his counsel’s inadequate representation. It
reasons that respondent “would have” waived his right to
introduce any mitigating evidence that counsel might have
uncovered, ante, at 476, 479, and that such evidence “would
have” made no difference in the sentencing anyway, ante,
at 480. Without the benefit of an evidentiary hearing, this
is pure guesswork.
The Court’s decision rests on a parsimonious appraisal of
a capital defendant’s constitutional right to have the sentenc
ing decision reflect meaningful consideration of all relevant
mitigating evidence, see, e. g., Abdul-Kabir v. Quarterman,
ante, p. 233; Skipper v. South Carolina, 476 U. S. 1 (1986);
Lockett v. Ohio, 438 U. S. 586 (1978), a begrudging apprecia
tion of the need for a knowing and intelligent waiver of con
stitutionally protected trial rights, see, e. g., Schneckloth
v. Bustamonte, 412 U. S. 218 (1973); Johnson v. Zerbst,
304 U. S. 458 (1938), and a cramped reading of the record.
Unlike this Court, the en banc Court of Appeals properly
accounted for these important constitutional and factual
considerations. Its narrow holding that the District Court
abused its discretion in denying respondent an evidentiary
hearing should be affirmed. See Townsend v. Sain, 372

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Stevens, J., dissenting
U. S. 293, 312, 318 (1963); see also 28 U. S. C. § 2254 Rule 8(a)
(2000 ed., Supp. IV).
I
No one, not even the Court, seriously contends that coun
sel’s investigation of possible mitigating evidence was consti
tutionally sufficient. See Wiggins, 539 U. S., at 521; Strick
land v. Washington, 466 U. S. 668, 688 (1984). Indeed, both
the majority and dissenting judges on the en banc Court of
Appeals agreed that “counsel’s limited investigation of Lan
drigan’s background fell below the standards of professional
representation prevailing” at the time of his sentencing
hearing. 441 F. 3d 638, 650 (CA9 2006) (Bea, J., dissenting);
see id., at 643–645 (“On the record before us, it appears that
Landrigan’s counsel did little to prepare for the sentencing
aspect of the case. . . . A comparison of the results of the
minimal investigation by [counsel] with the amount of avail
able mitigating evidence Landrigan claims was available
leaves us with grave doubts whether Landrigan received ef
fective assistance of counsel during his penalty phase pro
ceeding”). The list of evidence that counsel failed to investi
gate is long. For instance, counsel did not complete a
psychological evaluation of respondent, which we now know
would have uncovered a serious organic brain disorder. He
failed to consult an expert to explore the effects of respond
ent’s birth mother’s drinking and drug use during pregnancy.
And he never developed a history of respondent’s troubled
childhood with his adoptive family—a childhood marked by
physical and emotional abuse, neglect by his adoptive par
ents, his own serious substance abuse problems (including an
overdose in his eighth or ninth grade classroom), a stunted
education, and recurrent placement in substance abuse reha
bilitation facilities, a psychiatric ward, and police custody.
See Declaration of Shannon Sumter, App. 180–192. Coun
sel’s failure to develop this background evidence was so glar
ing that even the sentencing judge noted that she had “re
ceived very little information concerning the defendant’s

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484 SCHRIRO v. LANDRIGAN
Stevens, J., dissenting
difficult family history.” App. to Pet. for Cert. D–21.1 At
the time of sentencing, counsel was only prepared to put on
the testimony by respondent’s ex-wife and birth mother.
By any measure, and especially for a capital case, this mea
ger investigation “fell below an objective standard of reason
ableness.” Strickland, 466 U. S., at 688.
Given this deficient performance, the only issue is whether
counsel’s inadequate investigation prejudiced the outcome of
sentencing. The bulk of the Court’s opinion argues that the
District Court reasonably found that respondent waived his
right to present any and all mitigating evidence. See ante,
at 475–480. As I shall explain, this argument finds no sup
port in the Constitution or the record of this case.
II
It is well established that a citizen’s waiver of a constitu
tional right must be knowing, intelligent, and voluntary. As
far back as Johnson v. Zerbst, we held that courts must “ ‘in
dulge every reasonable presumption against waiver’ of fun
damental constitutional rights.” 304 U. S., at 464. Since
then, “[w]e have been unyielding in our insistence that a de
fendant’s waiver of his trial rights cannot be given effect
unless it is ‘knowing’ and ‘intelligent.’ ” Illinois v. Rodri
guez, 497 U. S. 177, 183 (1990) (citing Zerbst, 304 U. S. 458).
Twenty-five years af ter Ze rbst, our decisi on i n
Schneckloth v. Bustamonte added crucial content to our ju
risprudence on the knowing and intelligent waiver of con
stitutional rights. That case considered whether Zerbst’s
1 Even more troubling is that prior to sentencing, counsel had clues for
where to find this important mitigating evidence. As the Court of Ap
peals noted, respondent has alleged that his birth mother sent a letter to
counsel explaining that “(1) Landrigan began drinking at an early age
because his adoptive mother was an alcoholic and would walk around nude
in front of him, (2) Landrigan’s father was on death row in Arkansas and
the ‘blood link to Darrel [and] I are what has messed up his whole life,’
and (3) ‘Jeff needs help mentally like his father did.’ ” 441 F. 3d 638, 644
(CA9 2006) (en banc). Counsel failed to follow up on any of these leads.

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Stevens, J., dissenting
requirement applied to a citizen’s consent to a search or sei
zure. In determining that it did not, our decision turned on
the “vast difference between those rights that protect a fair
criminal trial and the rights guaranteed under the Fourth
Amendment.” 412 U. S., at 241. We explained:
“The requirement of a ‘knowing’ and ‘intelligent’ waiver
was articulated in a case involving the validity of a de
fendant’s decision to forgo a right constitutionally guar
anteed to protect a fair trial and the reliability of the
truth-determining process. . . . Almost without excep
tion, the requirement of a knowing and intelligent
waiver has been applied only to those rights which the
Constitution guarantees to a criminal defendant in order
to preserve a fair trial.” Id., at 236–237.
We then ran through the extensive list of trial rights to
which the knowing-and-intelligent-waiver requirement had
already been applied.2 We further noted that the Zerbst re
quirement had been applied to the “waiver of trial rights in
trial-type situations,” 3 and to guilty pleas, which we said
must be “carefully scrutinized to determine whether the ac
cused knew and understood all the rights to which he would
be entitled at trial.” 4 412 U. S., at 238. If our emphasis on
trial rights was not already clear, we went on to state:
2 See, e. g., Brookhart v. Janis, 384 U. S. 1 (1966) (right to confrontation);
Adams v. United States ex rel. McCann, 317 U. S. 269 (1942) (right to
jury trial); Barker v. Wingo, 407 U. S. 514 (1972) (right to speedy trial);
Green v. United States, 355 U. S. 184 (1957) (right to be free from double
jeopardy).
3 See, e. g., Smith v. United States, 337 U. S. 137 (1949) (waiver of the
privilege against compulsory self-incrimination before an administrative
agency); Emspak v. United States, 349 U. S. 190 (1955) (waiver of the privi
lege against compulsory self-incrimination before a congressional commit
tee); In re Gault, 387 U. S. 1 (1967) (waiver of counsel in a juvenile
proceeding).
4 See, e. g., McCarthy v. United States, 394 U. S. 459 (1969); Boykin v.
Alabama, 395 U. S. 238 (1969); Von Moltke v. Gillies, 332 U. S. 708 (1948);
Uveges v. Pennsylvania, 335 U. S. 437 (1948).

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486 SCHRIRO v. LANDRIGAN
Stevens, J., dissenting
“A strict standard of waiver has been applied to those
rights guaranteed to a criminal defendant to insure that
he will be accorded the greatest possible opportunity to
utilize every facet of the constitutional model of a fair
criminal trial. Any trial conducted in derogation of
that model leaves open the possibility that the trial
reached an unfair result precisely because all the protec
tions specified in the Constitution were not provided. . . .
The Constitution requires that every effort be made to
see to it that a defendant in a criminal case has not un
knowingly relinquished the basic protections that the
Framers thought indispensable to a fair trial.” Id., at
241–242.
Given this unmistakable focus on trial rights, it makes lit
tle difference that we have not specifically “imposed an ‘in
formed and knowing’ requirement upon a defendant’s deci
sion not to introduce evidence.” Ante, at 479. A capital
defendant’s right to present mitigating evidence is firmly es
tablished 5 and can only be exercised at a sentencing trial.
For a capital defendant, the right to have the sentencing au
thority give full consideration to mitigating evidence that
might support a sentence other than death is of paramount
importance—in some cases just as important as the right to
representation by counsel protected in Zerbst or any of the
trial rights discussed in Schneckloth. Our longstanding
precedent—from Zerbst to Schneckloth to the only waiver
case that the majority cites, Iowa v. Tovar, 541 U. S. 77
(2004) 6—requires that any waiver of the right to adduce such
5 See, e. g., Abdul-Kabir v. Quarterman, ante, p. 233; Brewer v. Quarter
man, ante, p. 286; Skipper v. South Carolina, 476 U. S. 1 (1986); Lockett
v. Ohio, 438 U. S. 586 (1978).
6 See Tovar, 541 U. S., at 81 (“Waiver of the right to counsel, as of consti
tutional rights in the criminal process generally, must be a ‘knowing,
intelligent ac[t] done with sufficient awareness of the relevant circum
stances’ ” (quoting Brady v. United States, 397 U. S. 742, 748 (1970); em
phasis added)).

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Stevens, J., dissenting
evidence be knowing, intelligent, and voluntary. As such,
the state postconviction court’s conclusion that respondent
completely waived his right to present mitigating evidence
involved an unreasonable application of clearly established
federal law as determined by this Court. See 28 U. S. C.
§ 2254(d)(1).
Respondent’s statements at the sentencing hearing do not
qualify as an informed waiver under our precedents. To un
derstand why, it is important to remember the context in
which the waiver issue arose. In all of his postconviction
proceedings, respondent has never brought a freestand
ing claim that he failed to knowingly or intelligently waive
his right to present mitigating evidence. See Keeney v.
Tamayo-Reyes, 504 U. S. 1 (1992) (considering a claim that a
defendant’s guilty plea was not knowing and intelligent).
That is because respondent believes he never waived his
right to present all available mitigating evidence. See Brief
for Respondent 20 (“Landrigan has alleged that . . . he in
tended at most to forgo his right to put on his ex-wife and
birth mother as witnesses”); Part III, infra. Respondent’s
only claim is that his counsel was ineffective for failing to
investigate and present mitigating evidence.
In light of this posture, the Court’s conclusion that re
spondent cannot make a knowing-and-intelligent-waiver ar
gument because he failed to present it in the Arizona courts
is nothing short of baffling. See ante, at 479. Respondent
never intended for waiver to become an issue because he
never thought it was an issue. Waiver only became a con
cern when he was forced to answer: (1) the State’s argument
that he could not establish prejudice under Strickland be
cause he waived the right to present all mitigating evidence;
and (2) the state postconviction court’s conclusion that
“[s]ince the defendant instructed his attorney not to bring
any mitigation to the attention of the court, he cannot now
claim counsel was ineffective because he did not ‘explore
additional grounds for arguing mitigation evidence.’ ” App.

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488 SCHRIRO v. LANDRIGAN
Stevens, J., dissenting
to Pet. for Cert. F–4. It is instructive that both the State
and the postconviction court considered the waiver issue
within the context of the prejudice prong of respondent’s
ineffective-assistance-of-counsel claim. Even now, respond
ent’s only “claim” within the meaning of 28 U. S. C.
§ 2254(e)(2) is that his counsel was ineffective for not ade
quately investigating and presenting mitigating evidence.
An argument—particularly one made in the alternative and
in response to another party—is fundamentally different
from a claim. Cf. Yee v. Escondido, 503 U. S. 519, 534
(1992).7
Turning back to that claim, respondent’s purported waiver
can only be appreciated in light of his counsel’s deficient per
formance. To take just one example, respondent’s counsel
asked a psychologist, Dr. Mickey McMahon, to conduct an
initial interview with respondent. But Dr. McMahon has
submitted an affidavit stating that his experience was “quite
different from the working relationship [he] had with coun
sel on other death penalty cases in which the psychologi
cal study went through a series of steps.” Declaration of
7 The Court also misapplies § 2254(e)(2) by failing to account for our hold
ing that “[u]nder the opening clause of § 2254(e)(2), a failure to develop the
factual basis of a claim is not established unless there is lack of diligence,
or some greater fault, attributable to the prisoner or the prisoner’s coun
sel.” Williams v. Taylor, 529 U. S. 420, 432 (2000) (emphasis added).
“Diligence . . . depends upon whether the prisoner made a reasonable
attempt, in light of the information available at the time, to investigate
and pursue claims in state court.” Id., at 435. At the time respondent
filed his state postconviction petition, he was under the impression that
he had not waived his right to present all mitigating evidence. Once the
state postconviction court informed him otherwise, he immediately raised
this argument in a motion for rehearing. See ante, at 479, n. 3. The
consequence of today’s decision is that prisoners will be forced to file sepa
rate claims in anticipation of every possible argument that might be made
in response to their genuine claims. That is no way to advance “[the
Antiterrorism and Effective Death Penalty Act of 1996’s] acknowledged
purpose of reduc[ing] delays in the execution of state and federal criminal
sentences.” Ante, at 475 (internal quotation marks omitted).

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Mickey McMahon, App. 247. In this case, Dr. McMahon was
“not authorized to conduct the next step in psychological
testing that would have told [him] if . . . there were any
cognitive or neuropsychological deficits not observed during
just an interview.” Id., at 246. Even though Dr. McMahon
told respondent’s counsel that “much more work was needed
to provide an appropriate psychological study for a death
penalty case,” ibid., counsel refused to let him investigate
any further.8
A more thorough investigation would have revealed that
respondent suffers from an organic brain disorder. See
Abdul-Kabir, ante, at 262 (recognizing that “possible neu
rological damage” is relevant mitigating evidence). Years
after Dr. McMahon’s aborted examination, another psycholo
gist, Dr. Thomas C. Thompson, conducted a complete anal
ysis of respondent. Based on extensive interviews with
respondent and several of his family members, a review of
his family history, and multiple clinical tests, Dr. Thompson
diagnosed respondent with Antisocial Personality Disorder.
See Declaration of Thomas C. Thompson, App. 149. Dr.
Thompson filed an affidavit in the District Court describing
his diagnosis:
“[Respondent’s] actions did not constitute a lifestyle
choice in the sense of an individual operating with a
large degree of freedom, as we have come to define free
will. The inherited, prenatal, and early developmental
factors severely impaired Mr. Landrigan’s ability to
function in a society that expects individuals to operate
in an organized and adaptive manner, taking into ac
8 An investigator named George LaBash had a similar experience with
respondent’s counsel. Although counsel had hired LaBash to look into
respondent’s case, LaBash stated in an affidavit that counsel “did not ask
me to do much.” Declaration of George LaBash, App. 242. In fact, La-
Bash spent only 13 hours working on the case, never conducted a mitiga
tion investigation, and described his experience working with respondent’s
counsel as “quite frustrating.” Id., at 242–243.

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count the actions and consequences of their behaviors
and their impact on society and its individual members.
Based on evaluation and investigation along with other
relevant data, this type of responsible functioning is sim
ply beyond Mr. Landrigan and, as far back as one can
go, there is no indication that he ever had these capac
ities.” Id., at 160.
On the day of the sentencing hearing, the only mitigating
evidence that respondent’s counsel had investigated was the
testimony of respondent’s birth mother and ex-wife. None
of this neuropsychological information was available to re
spondent at the time of his purported waiver. Yet the
Court conspicuously avoids any mention of respondent’s or
ganic brain disorder. It instead provides an incomplete list
of other mitigating evidence that respondent would have pre
sented and incorrectly assumes that respondent’s birth
mother and ex-wife would have covered it all. See ante, at
476, 480. Unless I missed the portion of the record indicat
ing that respondent’s ex-wife and birth mother were trained
psychologists, neither could have offered expert testimony
about respondent’s organic brain disorder.
It is of course true that respondent was aware of many of
the individual pieces of mitigating evidence that contributed
to Dr. Thompson’s subsequent diagnosis. He knew that his
birth mother abandoned him at the age of six months, see
App. 147; that his biological family had an extensive criminal
history, see id., at 146–147; that his adoptive mother had “af
fective disturbances and chronic alcoholism,” id., at 148; that
she routinely drank vodka until she passed out, see id., at
184; that she would frequently strike him, once even “hit[ting
him] with a frying pan hard enough to leave a dent,” id., at
183, 185; that his childhood was difficult, and he exhibited
abandonment and attachment problems at an early age, see
id., at 148; that he had a bad temper and often threw violent
tantrums as a child, see id., at 182; and that he “began get
ting into trouble and using alcohol and drugs at an early age

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Stevens, J., dissenting
and, by adolescence, he had begun a series of placements in
juvenile detention facilities, a psychiatric ward, and twice in
drug abuse rehabilitation programs,” id., at 148. Perhaps
respondent also knew that his biological mother abused alco
hol and amphetamines during her pregnancy, and that in
utero exposure to drugs and alcohol has deleterious effects
on the child. See id., at 155–156.
But even if respondent knew all these things, we cannot
assume that he could understand their consequences the way
an expert psychologist could. Without years of advanced
education and a battery of complicated testing, respondent
could not know that these experiences resulted in a serious
organic brain disorder or what effect such a disorder might
have on his behavior. And precisely because his counsel
failed to conduct a proper investigation, he did not know that
this important evidence was available to him when he pur
portedly waived the right to present mitigating evidence.
It is hard to see how respondent’s claim of Strickland preju
dice can be prejudiced by counsel’s Strickland error. See
Hill v. Lockhart, 474 U. S. 52, 58–59 (1985).
Without ever acknowledging that respondent lacked this
information, the Court clings to counsel’s discussion with re
spondent about “the importance of mitigating evidence.”
Ante, at 479. The majority also places great weight on the
fact that counsel explained to respondent that, as counsel, he
had a “duty to disclose ‘any and all mitigating factors . . .
to th[e] [c]ourt for consideration regarding the sentencing.’ ”
Ibid. Leaving aside the fact that counsel’s deficient per
formance did not demonstrate an understanding of the “im
portance of mitigating evidence”—let alone knowledge of
“ ‘any and all’ ” such evidence—counsel’s abstract explanation
cannot satisfy the demands of Zerbst and Schneckloth. Un
less respondent knew of the most significant mitigation evi
dence available to him, he could not have made a knowing
and intelligent waiver of his constitutional rights. See Bat
tenfield v. Gibson, 236 F. 3d 1215, 1229–1233 (CA10 2001)

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492 SCHRIRO v. LANDRIGAN
Stevens, J., dissenting
(holding a defendant’s waiver invalid where there was “no
indication [counsel] explained . . . what specific mitigation
evidence was available”); Coleman v. Mitchell, 268 F. 3d 417,
447–448 (CA6 2001); see generally Tovar, 541 U. S., at 88.
III
Even if the putative waiver had been fully informed, the
Arizona postconviction court’s determination that respond
ent “instructed his attorney not to bring any mitigation to
the attention of the [sentencing] court” is plainly contra
dicted by the record. App. to Pet. for Cert. F–4. The
Court nevertheless defers to this finding, concluding that it
was not an “unreasonable determination of the facts” under
28 U. S. C. § 2254(d)(2). “[I]n the context of federal habeas,”
however, “deference does not imply abandonment or abdica
tion of judicial review.” Miller-El v. Cockrell, 537 U. S. 322,
340 (2003). A careful examination of the “record material
and the transcripts from the state courts,” ante, at 476, does
not indicate that respondent intended to make a waiver that
went beyond the testimony of his birth mother and ex-wife.
The Court reads the following exchange as definitive proof
that respondent “informed his counsel not to present any
mitigating evidence,” ibid.:
“THE COURT: Mr. Landrigan, have you instructed
your lawyer that you do not wish for him to bring any
mitigating circumstances to my attention?
“THE DEFENDANT: Yeah.
“THE COURT: Do you know what that means?
“THE DEFENDANT: Yeah.
“THE COURT: Mr. Landrigan, are there mitigating
circumstances I should be aware of?
“THE DEFENDANT: Not as far as I’m concerned.”
App. to Pet. for Cert. D–3 to D–4.
The Court also infers from respondent’s disruptive behavior
at the sentencing hearing that he “would have undermined

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the presentation of any mitigating evidence that his attorney
might have uncovered.” Ante, at 477. But this record ma
terial does not conclusively establish that respondent would
have waived his right to present other mitigating evidence
if his counsel had made it available to him.
The brief exchange between respondent and the trial court
must be considered in the context of the entire sentencing
proceeding. The above-quoted dialogue came immediately
after a lengthy colloquy between the trial court and respond
ent’s counsel:
“MR. FARRELL: Your Honor, at this time . . . I have
two witnesses that I wished to testify before this Court,
one I had brought in from out of state and is my client’s
ex-wife, Ms. Sandy Landrigan. The second witness is
my client’s natural mother, Virginia Gipson. I believe
both of those people had some important evidence that
I believed the Court should take into mitigation con
cerning my client. However, Mr. Landrigan has made
it clear to me . . . that he does not wish anyone from his
family to testify on his behalf today.
“I have talked with Sandra Landrigan, his ex-wife.
I have talked a number of times with her and confirmed
what I thought was important evidence that she should
present for the Court. And I have also talked with
Ms. Gipson, and her evidence I think is very important
and should have been brought to this Court’s attention.
Both of them, after talking with Jeff today, have agreed
with their, in one case son and the other ex-husband,
they will not testify in his behalf.
“THE COURT: Why not?
“MR. FARRELL: Basically it’s at my client’s wishes,
Your Honor. I told him that in order to effectively rep
resent him, especially concerning the fact that the State
is seeking the death penalty, any and all mitigating fac
tors, I was under a duty to disclose those factors to this

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494 SCHRIRO v. LANDRIGAN
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Court for consideration regarding the sentencing. He
is adamant he does not want any testimony from his
family, specifically these two people that I have here, his
mother, under subpoena, and as well as having flown in
his ex-wife.” App. to Pet. for Cert. D–2 to D–3 (empha
sis added).
Respondent’s answers to the trial judge’s questions must
be read in light of this discussion. When the judge immedi
ately turned from counsel to respondent and asked about
“any mitigating circumstances,” the entire proceeding to that
point had been about the possible testimony of his birth
mother or ex-wife. Counsel had only informed the court
that respondent did not want any testimony “from his fam
ily.” Id., at D–3. Neither counsel nor respondent said any
thing about other mitigating evidence. A fair reading of the
full sentencing transcript makes clear that respondent’s an
swers referred only to the testimony of his ex-wife and
birth mother.9
What is more, respondent’s answers were necessarily in
fected by his counsel’s failure to investigate. Respondent
does not dispute that he instructed his counsel not to present
his family’s testimony. Brief for Respondent 47 (“Landrigan
contends that his intent was not to effect a broad waiver but,
instead, merely to waive presentation of testimony from his
mother and his ex-wife”). But his limited waiver cannot
change the fact that he was unaware that the words “any
9 The Court disregards another important contextual clue—that re
spondent’s counsel requested three 30-day continuances to investigate and
prepare a mitigation case, and that respondent consented on the record to
each one. App. 10, 12–13, 15. If respondent had instructed his counsel
not to develop any mitigating evidence, his consent would be difficult to
explain. Similarly, there is clear evidence that respondent cooperated
with counsel’s minimal investigation. He allowed counsel to interview his
birth mother and ex-wife, he assisted in counsel’s gathering of his medical
records, and he freely met with Dr. McMahon. See App. to Pet. for Cert.
D–2 to D–3; App. 12; id., at 129. These are not the actions of a man who
wanted to present no mitigating evidence.

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mitigating circumstances” could include his organic brain dis
order, the medical consequences of his mother’s drinking and
drug use during pregnancy, and his abusive upbringing with
his adoptive family.10 In respondent’s mind, the words “any
mitigating circumstances” just meant the incomplete evi
dence that counsel offered to present. As the en banc Court
of Appeals explained, “[h]ad his lawyer conducted an investi
gation and uncovered other types of mitigating evidence,
Landrigan might well have been able to direct the court to
other mitigating circumstances.” 441 F. 3d, at 646. It is
therefore error to read respondent’s simple “Yeah” and “Not
as far as I’m concerned” as waiving anything other than the
little he knew was available to him.
Accordingly, the state postconviction court’s finding that
petitioner waived his right to present any mitigating evi
dence was an unreasonable determination of the facts under
§ 2254(d)(2). While the Court is correct that the postconvic
tion judge was the same judge who sentenced respondent,
we must remember that her postconviction opinion was writ
ten in 1995—five years after the sentencing proceeding. Al
though the judge’s memory deserves some deference, her
opinion reflects many of the same flaws as does the Court’s
opinion. Instead of reexamining the entire trial transcript,
she only quoted the same two-question exchange with re
spondent. App. to Pet. for Cert. F–4. And unlike this
10 Contrary to the Court’s contention, see ante, at 476, 480, respondent’s
birth mother could not have testified about his difficult childhood with his
adoptive family. In fact, respondent sought a state postconviction eviden
tiary hearing so that his adoptive sister could present such evidence. See
Petition for Post-Conviction Relief, App. 88 (“Petitioner’s sister, Shannon
Sumter, would also have verified that their mother, Mrs. Landrigan, was
an alcoholic and that that disease caused significant problems within the
family which impacted adversely on Petitioner as he was growing up. . . .
She would, moreover, have provided additional information concerning fa
milial problems which preceded the time of sentencing and which may
have offered at least a partial explanation of Petitioner’s conduct at
sentencing”).

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Court’s repeated reference to respondent’s behavior at sen
tencing, she did not mention it at all. Her analysis consists
of an incomplete review of the transcript and an unsupported
summary conclusion that respondent told his attorney not to
present any mitigating evidence.
While I believe that neither the Constitution nor the rec
ord supports the Court’s waiver holding, respondent is at
least entitled to an evidentiary hearing on this question as
well as his broader claim of ineffective assistance of counsel.
Respondent insists that he never instructed his counsel not
to investigate other mitigating evidence. Even the State
concedes that there has been no finding on this issue. See,
e. g., Brief for Respondent 37 (“ ‘[Judge Kozinski]: There’s no
[state court] finding at all even by inference as to investiga
tion? There’s . . . no finding that . . . the trial court made
that goes to Landrigan’s attitude about allowing his lawyer
to investigate? . . . [Counsel for State]: I would agree’ ” (quot
ing Ninth Circuit Oral Argument Audio 43:55–44:30)). He
has long maintained that he would have permitted the pres
entation of mitigating evidence if only counsel was prepared
to introduce evidence other than testimony from his birth
mother and ex-wife. See, e. g., App. to Pet. for Cert. E–2.
Respondent planned to call his counsel at an evidentiary
hearing to testify about these very assertions. See App.
126. Because counsel is in the best position to clarify
whether respondent gave any blanket instructions not to in
vestigate or present mitigating evidence, the Court is wrong
to decide this case before any evidence regarding respond
ent’s instructions can be developed.
IV
Almost as an afterthought, the Court holds in the alterna
tive that “the District Court did not abuse its discretion in
finding that Landrigan could not establish prejudice based on
his counsel’s failure to present the evidence he now wishes to
offer.” Ante, at 480–481. It of course does this on a cold and

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incomplete factual record. Describing respondent’s mitiga
tion case as “weak,” and emphasizing his “exceedingly vio
lent past” and “belligerent behavior” at sentencing, the
Court concludes that there is no way that respondent can
establish prejudice with the evidence he seeks to introduce.
Ante, at 481. This reasoning is flawed in several respects.
First, as has been discussed above but bears repeating,
the Court thoroughly misrepresents respondent’s mitigating
evidence. It is all too easy to view respondent’s mitigation
case as “weak” when you assume away his most powerful
evidence. The Court ignores respondent’s organic brain dis
order, which would have explained not only his criminal his
tory but also the repeated outbursts at sentencing.11 It mis
takenly assumes that respondent’s birth mother and ex-wife
could have testified about the medical consequences of fetal
alcohol syndrome. And it inaccurately states that these
women could have described his turbulent childhood with his
adoptive family. We have repeatedly said that evidence of
this kind can influence a sentencer’s decision as to whether
death is the proper punishment. See, e. g., Wiggins, 539
U. S., at 535 (“[E]vidence about the defendant’s background
and character is relevant because of the belief, long held
by this society, that defendants who commit criminal acts
that are attributable to a disadvantaged background [or to
emotional and mental problems] may be less culpable than
defendants who have no such excuse” (internal quotation
marks omitted)); Eddings v. Oklahoma, 455 U. S. 104, 115
(1982) (“[T]here can be no doubt that evidence of a turbulent
family history, of beatings by a harsh father, and of severe
11 See Declaration of Thomas C. Thompson, App. 149 (stating that tests
revealed that respondent has “deficits with cognitive processing, poor
adaptability, incomplete understanding of his surroundings and his effect
on others, and very limited impulse control” (emphasis added)); id., at 150
(noting that individuals with antisocial personality disorder typically act
“irresponsibl[y] across areas of their daily lives with decisions character
ized by impulsivity” (emphasis added)).

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emotional disturbance is particularly relevant”). The evi
dence here might well have convinced a sentencer that a
death sentence was not appropriate.
Second, the aggravating circumstances relied on by the
sentencing judge are not as strong as the Court makes them
out to be.12 To be sure, respondent had already committed
two violent offenses. But so had Terry Williams, and this
Court still concluded that he suffered prejudice when his at
torney failed to investigate and present mitigating evidence.
See Williams v. Taylor, 529 U. S. 362, 368 (2000) (noting that
Williams confessed to “two separate violent assaults on el
derly victims,” including one that left an elderly woman in a
“ ‘vegetative state’ ”); id., at 398 (“[T]he graphic description
of Williams’ childhood, filled with abuse and privation, or the
reality that he was ‘borderline mentally retarded,’ might
well have influenced the jury’s appraisal of his moral cul
pability”). The only other aggravating factor was that
Landrigan committed his crime for pecuniary gain13—but
there are serious doubts about that. As the en banc Court
12 In fact, while the Court’s terse prejudice analysis relies heavily on a
colorful quote from the original Ninth Circuit panel, see ante, at 481, it
declines to mention that one judge on that panel switched her vote and
joined the en banc majority after further consideration of respondent’s
mitigating evidence.
13 Notwithstanding the Court’s repeated assertions, the sentencing
judge did not consider respondent’s courtroom behavior as an aggravating
factor. Compare ibid. with App. to Pet. for Cert. D–17 to D–18. In fact,
the sentencing judge noted that until the day of sentencing, respondent
had “acted appropriately in the courtroom” and his conduct had been
“good.” Id., at D–22. Even more importantly, she understood his behav
ior that day to be a mere “release . . . of his frustration,” ibid.—not as an
aggravating factor and certainly not as an indication of his intent to waive
his right to present mitigating evidence. At most, the sentencing judge
treated respondent’s behavior on the day of sentencing as a reason not to
credit his earlier “good” behavior as a mitigating circumstance. In any
event, a defendant’s poor behavior at trial is not listed as an aggravating
factor under Arizona’s capital sentencing statute. See Ariz. Rev. Stat.
Ann. § 13–703(F) (West Supp. 2006).

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of Appeals explained, “[t]here was limited evidence regard
ing the pecuniary gain aggravator. The judge noted that
the victim’s apartment had been ransacked as if the perpe
trator were looking for something, and that this demon
strated an expectation of pecuniary gain, even though Lan
drigan did not actually steal anything of value.” 441 F. 3d,
at 649 (emphasis added). Thus, while we should not ignore
respondent’s violent past, it is certainly possible—even
likely—that evidence of his neurological disorder, fetal alco
hol syndrome, and abusive upbringing would have influenced
the sentencing judge’s assessment of his moral blameworthi
ness and altered the outcome of his sentencing. As such,
respondent has plainly alleged facts that, if substantiated at
an evidentiary hearing, would entitle him to relief. See
Townsend, 372 U. S., at 312.
V
In the end, the Court’s decision can only be explained by
its increasingly familiar effort to guard the floodgates of liti
gation. Immediately before turning to the facts of this case,
it states that “[i]f district courts were required to allow fed
eral habeas applicants to develop even the most insubstantial
factual allegations in evidentiary hearings, district courts
would be forced to reopen factual disputes that were conclu
sively resolved in the state courts.” Ante, at 475. How
ever, habeas cases requiring evidentiary hearings have been
“few in number,” and “there is no clear evidence that this
particular classification of habeas proceedings has burdened
the dockets of the federal courts.” Keeney, 504 U. S., at 24
(Kennedy, J., dissenting). Even prior to the passage of the
Antiterrorism and Effective Death Penalty Act of 1996, dis
trict courts held evidentiary hearings in only 1.17% of all fed
eral habeas cases. See Report to the Federal Courts Study
Committee of the Subcommittee on the Role of the Federal
Courts and their Relation to the States (Mar. 12, 1990) (Rich
ard A. Posner, Chair), in 1 Federal Courts Study Committee,

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Working Papers and Subcommittee Reports 468–515 (July 1,
1990). This figure makes it abundantly clear that doing jus
tice does not always cause the heavens to fall. The Court
would therefore do well to heed Justice Kennedy’s just
reminder that “[w]e ought not to take steps which diminish
the likelihood that [federal] courts will base their legal deci
sion on an accurate assessment of the facts.” Keeney, 504
U. S., at 24 (dissenting opinion).
It may well be true that respondent would have com
pletely waived his right to present mitigating evidence if
that evidence had been adequately investigated at the time
of sentencing. It may also be true that respondent’s miti
gating evidence could not outweigh his violent past. What
is certainly true, however, is that an evidentiary hearing
would provide answers to these questions. I emphatically
agree with the majority of judges on the en banc Court of
Appeals that it was an abuse of discretion to refuse to con
duct such a hearing in this capital case.
Accordingly, I respectfully dissent.