WOODFORD, WARDEN v. VISCIOTTI

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Syllabus
WOODFORD, WARDEN v. VISCIOTTI
on petition for writ of certiorari to the united
states court of appeals for the ninth circuit
No. 02–137. Decided November 4, 2002
Respondent killed one person and seriously wounded another during a
robbery. A California jury convicted him of murder and sentenced him
to death. The State Supreme Court affirmed. In subsequently deny-
ing his state habeas corpus petition, that court assumed that respond-
ent’s trial counsel provided constitutionally inadequate representation
during the trial’s penalty phase, but found that it did not prejudice the
jury’s sentencing decision. The Federal District Court later granted
respondent federal habeas relief as to his sentence, finding that he had
been denied effective assistance of counsel during the penalty phase.
In affirming, the Ninth Circuit ruled that the State Supreme Court’s
decision ran afoul of 28 U. S. C. § 2254(d) because it was “contrary to”
Strickland v. Washington, 466 U. S. 668, and an “unreasonable applica-
tion” of this Court’s clearly established principles.
Held: The Ninth Circuit’s decision exceeds § 2254(d)’s limits on federal ha-
beas review. First, that court erred in holding that the state court
applied the wrong standard for evaluating prejudice. Under Strick-
land, a defendant need only establish a “reasonable probability” that,
but for counsel’s unprofessional errors, the result of his sentencing pro-
ceeding would have been different. Id., at 694. Strickland specifically
rejected a higher standard: that the defendant must prove it more likely
than not that the outcome would have been altered. Id., at 693. The
Ninth Circuit erred in finding that the State Supreme Court held re-
spondent to this higher standard because it used “probable” without the
modifier “reasonably” in three places in its opinion. The Ninth Circuit’s
readiness to attribute error is inconsistent with the presumption that
state courts know and follow the law, and is incompatible with § 2254(d)’s
highly deferential standard for evaluating state-court rulings. The
Ninth Circuit also erred in finding that the state-court decision involved
an unreasonable application of this Court’s clearly established prece-
dents. There is no support for the conclusion that the state court failed
to take into account the totality of the available mitigating evidence and
to consider the prejudicial impact of counsel’s actions. The state court
found that, because the aggravating factors were so severe, respond-
ent suffered no prejudice from trial counsel’s (assumed) inadequacy.
Whether or not a federal habeas court would have reached that same

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conclusion, habeas relief is not permissible under § 2254(d) unless the
state court’s decision is objectively unreasonable.
Certiorari granted; 288 F. 3d 1097, reversed.
Per Curiam.
The United States Court of Appeals for the Ninth Circuit
affirmed the grant of habeas relief to respondent John Visci-
otti after concluding that he had been prejudiced by ineffec-
tive assistance of counsel at trial. 288 F. 3d 1097 (2002).
Because this decision exceeds the limits imposed on federal
habeas review by 28 U. S. C. § 2254(d), we reverse.
I
Respondent and a co-worker, Brian Hefner, devised a plan
to rob two fellow employees, Timothy Dykstra and Michael
Wolbert, on November 8, 1982, their payday. They invited
the pair to join them at a party. As the four were driving to
that supposed destination in Wolbert’s car, respondent asked
Wolbert to stop in a remote area so that he could relieve
himself. When all four men had left the car, respondent
pulled a gun, demanded the victims’ wallets (which turned
out to be almost empty), and got Wolbert to tell him where
in the car the cash was hidden. After Hefner had retrieved
the cash, respondent walked over to the seated Dykstra and
killed him with a shot in the chest from a distance of three
or four feet. Respondent then raised the gun in both hands
and shot Wolbert three times, in the torso and left shoulder,
and finally, from a distance of about two feet, in the left eye.
Respondent and Hefner fled the scene in Wolbert’s car.
Wolbert miraculously survived to testify against them.
Respondent was convicted by a California jury of first-
degree murder, attempted murder, and armed robbery, with
a special-circumstance finding that the murder was com-
mitted during the commission of a robbery. The same jury
determined that respondent should suffer death. The Cali-
fornia Supreme Court affirmed the conviction and sentence.
People v. Visciotti, 2 Cal. 4th 1, 825 P. 2d 388 (1992).

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Respondent filed a petition for a writ of habeas corpus in
the California Supreme Court, alleging ineffective assistance
of counsel. That court appointed a referee to hold an evi-
dentiary hearing and make findings of fact—after which, and
after briefing on the merits, it denied the petition in a
lengthy opinion. In re Visciotti, 14 Cal. 4th 325, 926 P. 2d
987 (1996). The California Supreme Court assumed that re-
spondent’s trial counsel provided constitutionally inadequate
representation during the penalty phase, but concluded that
this did not prejudice the jury’s sentencing decision. Id., at
353, 356–357, 926 P. 2d, at 1004, 1006.
Respondent filed a federal habeas petition in the United
States District Court for the Central District of California.
That court determined that respondent had been denied ef-
fective assistance of counsel during the penalty phase of his
trial, and granted the habeas petition as to his sentence.
The State appealed to the Court of Appeals for the Ninth
Circuit.
The Court of Appeals correctly observed that a federal
habeas application can only be granted if it meets the re-
quirements of 28 U. S. C. § 2254(d), which provides:
“An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceed-
ings unless the adjudication of the claim—
“(1) resulted in a decision that was contrary to, or in-
volved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States; or
“(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evi-
dence presented in the State court proceeding.”
The Court of Appeals found that the California Supreme
Court decision ran afoul of both the “contrary to” and the

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“unreasonable application” conditions of § 2254(d)(1), and af-
firmed the District Court’s grant of relief. See 288 F. 3d, at
1118–1119. The State of California petitioned for a writ of
certiorari, which we now grant along with respondent’s mo-
tion for leave to proceed in forma pauperis.
II
A
We consider first the Ninth Circuit’s holding that the Cali-
fornia Supreme Court’s decision was “contrary to” our deci-
sion in Strickland v. Washington, 466 U. S. 668 (1984).
Strickland held that to prove prejudice the defendant must
establish a “reasonable probability that, but for counsel’s un-
professional errors, the result of the proceeding would have
been different,” id., at 694 (emphasis added); it specifically
rejected the proposition that the defendant had to prove it
more likely than not that the outcome would have been al-
tered, id., at 693. The Court of Appeals read the State Su-
preme Court opinion in this case as applying the latter test—
as requiring respondent to prove, by a preponderance of the
evidence, that the result of the sentencing proceedings would
have been different. See 288 F. 3d, at 1108–1109. That is,
in our view, a mischaracterization of the state-court opinion,
which expressed and applied the proper standard for evalu-
ating prejudice.
The California Supreme Court began its analysis of the
prejudice inquiry by setting forth the “reasonable probabil-
ity” criterion, with a citation of the relevant passage in
Strickland; and it proceeded to state that “[t]he question we
must answer is whether there is a reasonable probability
that, but for counsel’s errors and omissions, the sentencing
authority would have found that the balance of aggravating
and mitigating factors did not warrant imposition of the
death penalty,” again with a citation of Strickland. In re
Visciotti, 14 Cal. 4th, at 352, 926 P. 2d, at 1003 (citing Strick-
land, supra, at 696). Twice, the court framed its inquiry as

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turning on whether there was a “reasonable probability” that
the sentencing jury would have reached a more favorable
penalty-phase verdict. 14 Cal. 4th, at 352, 353, 926 P. 2d, at
1003, 1004. The following passage, moreover, was central to
the California Supreme Court’s analysis:
“In In re Fields, . . . we addressed the process by which
the court assesses prejudice at the penalty phase of a
capital trial at which counsel was, allegedly, incompetent
in failing to present mitigating evidence: ‘What kind of
evidentiary showing will undermine confidence in the
outcome of a penalty trial that has resulted in a death
verdict? Strickland . . . and the cases it cites offer
some guidance. United States v. Agurs . . . , the first
case cited by Strickland, spoke of evidence which raised
a reasonable doubt, although not necessarily of such
character as to create a substantial likelihood of
acquittal. . . . United States v. Valenzuela-Bernal . . . ,
the second case cited by Strickland, referred to evi-
dence which is “material and favorable . . . in ways not
merely cumulative. . . .” ’ ” Id., at 353–354, 926 P. 2d,
at 1004.
“Undermin[ing] confidence in the outcome” is exactly Strick-
land’s description of what is meant by the “reasonable proba-
bility” standard. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strick-
land, supra, at 694.
Despite all these citations of, and quotations from, Strick-
land, the Ninth Circuit concluded that the California Su-
preme Court had held respondent to a standard of proof
higher than what that case prescribes for one reason: in
three places (there was in fact a fourth) the opinion used the
term “probable” without the modifier “reasonably.” 288 F.
3d, at 1108–1109, and n. 11. This was error. The California
Supreme Court’s opinion painstakingly describes the Strick-
land standard. Its occasional shorthand reference to that

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standard by use of the term “probable” without the modifier
may perhaps be imprecise, but if so it can no more be consid-
ered a repudiation of the standard than can this Court’s own
occasional indulgence in the same imprecision. See Mick-
ens v. Taylor, 535 U. S. 162, 166 (2002) (“probable effect upon
the outcome”); Williams v. Taylor, 529 U. S. 362, 393 (2000)
(“probably affected the outcome”).
The Court of Appeals made no effort to reconcile the state
court’s use of the term “probable” with its use, elsewhere,
of Strickland’s term “reasonably probable,” nor did it even
acknowledge, much less discuss, the California Supreme
Court’s proper framing of the question as whether the evi-
dence “undermines confidence” in the outcome of the sen-
tencing proceeding. This readiness to attribute error is in-
consistent with the presumption that state courts know and
follow the law. See, e. g., Parker v. Dugger, 498 U. S. 308,
314–316 (1991); Walton v. Arizona, 497 U. S. 639, 653 (1990),
overruled on other grounds, Ring v. Arizona, 536 U. S.
584 (2002); LaVallee v. Delle Rose, 410 U. S. 690, 694–695
(1973) (per curiam). It is also incompatible with § 2254(d)’s
“highly deferential standard for evaluating state-court rul-
ings,” Lindh v. Murphy, 521 U. S. 320, 333, n. 7 (1997), which
demands that state-court decisions be given the benefit of
the doubt.
B
The Court of Appeals also held that, regardless of whether
the California Supreme Court applied the proper standard
for determining prejudice under Strickland, its decision in-
volved an unreasonable application of our clearly established
precedents. 288 F. 3d, at 1118. Specifically, the Ninth Cir-
cuit concluded that the determination that Visciotti suffered
no prejudice as a result of his trial counsel’s deficiencies was
“objectively unreasonable.” Ibid. Under § 2254(d)’s “un-
reasonable application” clause, a federal habeas court may
not issue the writ simply because that court concludes in its
independent judgment that the state-court decision applied

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Strickland incorrectly. See Bell v. Cone, 535 U. S. 685, 698–
699 (2002); Williams, supra, at 411. Rather, it is the habeas
applicant’s burden to show that the state court applied
Strickland to the facts of his case in an objectively unreason-
able manner. An “unreasonable application of federal law
is different from an incorrect application of federal law.”
Williams, supra, at 410; see Bell, supra, at 694. The Ninth
Circuit did not observe this distinction, but ultimately substi-
tuted its own judgment for that of the state court, in contra-
vention of 28 U. S. C. § 2254(d).
The Ninth Circuit based its conclusion of “objective unrea-
sonableness” upon its perception (1) that the California Su-
preme Court failed to “take into account” the totality of the
available mitigating evidence, and “to consider” the prejudi-
cial impact of certain of counsel’s actions, and (2) that the
“aggravating factors were not overwhelming.” 288 F. 3d, at
1118. There is no support for the first of these contentions.
All of the mitigating evidence, and all of counsel’s prejudicial
actions, that the Ninth Circuit specifically referred to as hav-
ing been left out of account or consideration were in fact
described in the California Supreme Court’s lengthy and
careful opinion. The Court of Appeals asserted that the
California Supreme Court “completely ignored the mitigat-
ing effect of Visciotti’s brain damage,” and failed to consider
the prejudicial effect of counsel’s “multiple concessions dur-
ing closing argument.” Ibid. However, the California Su-
preme Court specifically considered the fact that an expert
“had testified at the guilt phase that [Visciotti] had a minimal
brain injury of a type associated with impulse disorder and
learning disorder.” In re Visciotti, 14 Cal. 4th, at 354, 926
P. 2d, at 1004. And it noted that under the trial court’s in-
structions, this and other evidence that had been introduced
“might have been considered mitigating at the penalty
phase,” despite trial counsel’s concessions during closing
argument. Ibid.

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The California Supreme Court then focused on counsel’s
failure to introduce mitigating evidence about respondent’s
background, including expert testimony that could have been
presented about his “growing up in a dysfunctional family in
which he suffered continual psychological abuse.” Id., at
355, 926 P. 2d, at 1005. This discussion referred back to a
lengthy, detailed discussion about the undiscovered mitigat-
ing evidence that trial counsel might have presented during
the penalty phase. See id., at 341–345, 926 P. 2d, at 996–998.
The California Supreme Court concluded that despite the
failure to present evidence of respondent’s “troubled family
background,” id., at 355, 926 P. 2d, at 1005, which included
his being “berated,” being “markedly lacking in self-esteem
and depressed,” having been “born with club feet,” having
“feelings of inadequacy, incompetence, inferiority,” and the
like, moving “20 times” while he was growing up, and possi-
bly suffering a “seizure disorder,” id., at 341–343, 926 P. 2d,
at 996–998, the aggravating factors were overwhelming. In
the state court’s judgment, the circumstances of the crime (a
cold-blooded execution-style killing of one victim and at-
tempted execution-style killing of another, both during the
course of a preplanned armed robbery) coupled with the ag-
gravating evidence of prior offenses (the knifing of one man,
and the stabbing of a pregnant woman as she lay in bed try-
ing to protect her unborn baby) was devastating. See id.,
at 355, 926 P. 2d, at 1005; see also People v. Visciotti, 2 Cal.
4th, at 33–34, 825 P. 2d, at 402. The California Supreme
Court found these aggravating factors to be so severe that
it concluded respondent suffered no prejudice from trial
counsel’s (assumed) inadequacy. In re Visciotti, supra, at
355, 926 P. 2d, at 1005.
The Court of Appeals disagreed with this assessment, sug-
gesting that the fact that the jury deliberated for a full day
and requested additional guidance on the meaning of “moral
justification” and “extreme duress” meant that the “aggra-
vating factors were not overwhelming.” 288 F. 3d, at 1118.

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Perhaps so. However, “under § 2254(d)(1), it is not enough
to convince a federal habeas court that, in its independent
judgment, the state-court decision applied Strickland incor-
rectly.” Bell, 535 U. S., at 699. The federal habeas scheme
leaves primary responsibility with the state courts for these
judgments, and authorizes federal-court intervention only
when a state-court decision is objectively unreasonable. It
is not that here. Whether or not we would reach the same
conclusion as the California Supreme Court, “we think at the
very least that the state court’s contrary assessment was not
‘unreasonable.’ ” Id., at 701. Habeas relief is therefore not
permissible under § 2254(d).
* * *
The judgment of the Court of Appeals for the Ninth Cir-
cuit is
Reversed.