Reeves v. Alabama ( 2017 )

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Cite as: 583 U. S. ____ (2017) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
MATTHEW REEVES v. ALABAMA
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS OF ALABAMA
No. 16–9282. Decided November 13, 2017
The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
and JUSTICE KAGAN join, dissenting from the denial of
certiorari.
Petitioner Matthew Reeves was convicted by an Ala-
bama jury of capital murder and sentenced to death. He
sought postconviction relief in state court based on, as
relevant here, several claims of ineffective assistance of
trial and appellate counsel. 1 Among those claims, Reeves
argued that his trial counsel was ineffective for failing to
hire an expert to evaluate him for intellectual disability,
despite having sought and obtained funding and an ap-
pointment order from the state trial court to hire a specific
neuropsychologist. His postconviction counsel subse-
quently hired that same neuropsychologist, who concluded
that Reeves was, in fact, intellectually disabled. Reeves
contended that this and other evidence could have been
used during the penalty phase of his trial to establish
mitigation.
The Alabama Circuit Court held an evidentiary hearing
on Reeves’ postconviction petition, at which Reeves pre-
——————
1 Reeves also argued in his postconviction petition that he was consti-
tutionally ineligible for the death penalty pursuant to Atkins v. Vir-
ginia, 536 U. S. 304 (2002). The Alabama Court of Criminal Appeals
rejected that claim, and Reeves does not challenge that decision in his
petition for writ of certiorari. Instead, he maintains that regardless of
whether he is ineligible for execution under Atkins, he has the right to
effective assistance in presenting evidence of his intellectual disability
as mitigation during the penalty phase of his trial. Pet. for Cert. 10,
n. 2.
2 REEVES v. ALABAMA
SOTOMAYOR, J., dissenting
sented substantial evidence regarding his intellectual
disability and his counsel’s performance. He did not,
however, call his trial or appellate counsel to testify. The
court denied the petition, and the Alabama Court of Crim-
inal Appeals affirmed. In doing so, the Court of Criminal
Appeals explained that a petitioner seeking postconviction
relief on the basis of ineffective assistance of counsel must
question his counsel about his reasoning and actions.
Without considering the extensive record evidence before
it regarding Reeves’ counsel’s performance or giving any
explanation as to why that evidence did not prove that his
counsel’s actions were unreasonable, the Court of Criminal
Appeals held that Reeves’ failure to call his attorneys to
testify was fatal to his claims of ineffective assistance of
counsel. The Alabama Supreme Court denied review.
There can be no dispute that the imposition of a categor-
ical rule that counsel must testify in order for a petitioner
to succeed on a federal constitutional ineffective-
assistance-of-counsel claim contravenes our decisions
requiring an objective inquiry into the adequacy and
reasonableness of counsel’s performance based on the full
record before the court. Even Alabama does not defend
such a rule. Instead, the dispute here is whether the
Alabama Court of Criminal Appeals in fact imposed such a
rule in this case. I believe it plainly did so. For that
reason, I respectfully dissent from the denial of certiorari.
I
At his capital trial, Reeves was initially appointed two
attorneys, Blanchard McLeod, Jr., and Marvin Wiggins, to
represent him. Before trial, McLeod and Wiggins filed a
motion requesting that the court appoint Dr. John R. Goff,
a clinical neuropsychologist, as an expert “to evaluate,
test, and interview” Reeves and require the State to pro-
vide them with the necessary funds to hire Dr. Goff. 1
Record in No. 98–77 (Ala. Crim. App.), pp. 64–65 (Direct
Cite as: 583 U. S. ____ (2017) 3
SOTOMAYOR, J., dissenting
Appeal Record). The trial court denied the motion, id., at
67, and McLeod and Wiggins requested rehearing. In the
rehearing request, the attorneys explained that they
“possesse[d] hundreds of pages of psychological, psycho-
metric and behavioral analysis material” and “[t]hat a
clinical neuropsychologist or a person of like standing and
expertise [was] the only avenue open to the defense to
compile [and] correlate this information, interview
[Reeves,] and present this information in an orderly and
informative fashion to the jury during the mitigation
phase of the trial.” Id., at 68–69.
During a hearing on the request, McLeod represented
that hiring Dr. Goff was critical to the attorneys’ prepara-
tion for the mitigation phase of Reeves’ trial. He urged the
importance of retaining Dr. Goff right away, as Dr. Goff
would require time to review the existing records, inter-
view people familiar with Reeves, and meet with Reeves
several times prior to testifying. 3 Direct Appeal Record,
Tr. in No. CC–97–31 (C. C. Dallas Cty., Ala.), pp. 9–10. As
support for that point, McLeod recounted that, in a recent
capital case in which another trial court had granted an
“identical” motion to appoint Dr. Goff, the counsel there
had filed “at a very late date” such that Dr. Goff “did not
have the time to adequately prepare” for that defendant’s
hearing, and the death penalty was imposed. Id., at 10.
The trial court reconsidered and granted the funding and
appointment requests. 1 id., at 75.
Shortly thereafter, McLeod withdrew as counsel and
was replaced by Thomas Goggans. Wiggins, however,
remained as counsel on the case, and he and Goggans
represented Reeves at trial.
Despite having received funding and an appointment
order from the court, Reeves’ trial counsel never contacted
Dr. Goff, nor did they hire any other expert to evaluate
Reeves for intellectual disability, notwithstanding the
“hundreds of pages” of materials they possessed. 13 Rec-
4 REEVES v. ALABAMA
SOTOMAYOR, J., dissenting
ord in No. CC–97–31.60 (Rule 32 Record), pp. 66–67; 4 id.,
at 697; 5 id., at 862.
After the guilt phase of the trial concluded, the jury
convicted Reeves of capital murder. During the penalty
phase, Reeves’ trial counsel called three mitigation wit-
nesses. First, they called Detective Pat Grindle, the officer
in charge of investigating the murder, who gave a physical
description of Reeves’ childhood home based on his search
of the house during the investigation. 8 Direct Appeal
Record, Tr. 1118–1122; ___ So. 3d ___, 2016 WL 3247447,
*3 (Ala. Crim. App., June 10, 2016). Next, petitioner’s
mother testified about Reeves’ childhood, including that he
had repeated two grades, was put in “special classes,”
received mental health services starting in second or third
grade, and was expelled in eighth grade. 8 Direct Appeal
Record, Tr. 1127. She also testified that, when he was
young, Reeves had “little blackout spells” and would report
“seeing things,” and that he was shot in the head a few
months before the murder for which he was convicted. Id.,
at 1127, 1131, 1137, 1120–1150. Finally, Reeves’ counsel
called Dr. Kathleen Ronan, a court-appointed clinical
psychologist, with whom counsel met and spoke for the first
time shortly before she took the witness stand. 4 Rule 32
Record 609. Dr. Ronan had evaluated Reeves for the
purposes of assessing his competency to stand trial and
his mental state at the time of the offense, but had not
conducted a penalty-phase evaluation or evaluated Reeves
for intellectual disability. Ibid. Dr. Ronan testified that
she had given Reeves only the verbal part of an intelli-
gence test, noting that this was the “portion [of the test
that] taps into the issues that were being asked by the
Court,” and had concluded based on that partial assess-
ment that he was at “the borderline of mental retarda-
tion.” 8 Direct Appeal Record, Tr. 1165.
The jury deliberated for less than an hour. 8 Direct
Appeal Record 1227. By a vote of 10 to 2, they recom-
Cite as: 583 U. S. ____ (2017) 5
SOTOMAYOR, J., dissenting
mended that Reeves be sentenced to death. 2 2 id., at 233.
The trial judge then considered the aggravating and miti-
gating circumstances and found two mitigating factors:
Reeves’ age and lack of significant prior criminal history.
Id., at 236. He expressly refused to find that Reeves’
“capacity . . . to appreciate the criminality of his conduct or
to conform his conduct to the requirements of law was
substantially impaired.” Ala. Code §13A–5–51(6) (2015); 2
Direct Appeal Record 237. The trial judge found that the
aggravating circumstances outweighed the two mitigating
ones and sentenced Reeves to death. Id., at 239.
After his conviction and sentence were affirmed on
direct appeal, during which Goggans continued to repre-
sent him, Reeves, with the assistance of new counsel,
sought postconviction relief in state court pursuant to
Rule 32 of the Alabama Rules of Criminal Procedure. He
alleged, inter alia, ineffective assistance of both his trial
and appellate counsel. Among his claims were that his
trial counsel were ineffective for failing to hire Dr. Goff or
another neuropsychologist to evaluate him for intellectual
disability, failing to present expert testimony of intellectu-
al disability during the penalty phase to establish a miti-
gating circumstance, and failing to conduct an adequate
mitigation investigation.
The Alabama Circuit Court held a 2-day hearing on
Reeves’ Rule 32 petition. Reeves did not call McLeod,
Wiggins, or Goggans to testify. 3 He did, however, call Dr.
Goff, who had evaluated Reeves for purposes of his post-
——————
2 Had only one more juror voted against imposing the death penalty,
the jury could not have recommended death. Ala. Code §13A–5–46(f )
(2015).
3 Reeves implies in his petition for writ of certiorari that one reason
he did not call Wiggins to testify was that Wiggins had become a state-
court judge by the time the Rule 32 proceedings had started and thus
would have had to testify before one of his judicial colleagues about
whether his prior professional conduct had been deficient.
6 REEVES v. ALABAMA
SOTOMAYOR, J., dissenting
conviction petition. Dr. Goff testified based on his review
of Reeves’ childhood and adolescent records and the re-
sults of a battery of tests designed to assess IQ, neuropsy-
chological functioning, cognitive abilities, and adaptive
functioning. He concluded that Reeves had significantly
subaverage intellectual functioning and significant deficits
in multiple areas of adaptive functioning, both of which
manifested before Reeves was 18 years old, and that
Reeves therefore was intellectually disabled. 2016 WL
3247447, *11–*12. Dr. Goff further testified that, had
Reeves’ trial counsel asked him to evaluate Reeves years
earlier for purposes of testifying at trial, he would have
performed similar evaluations and reached the same
conclusion. 13 Rule 32 Record 21–22, 66–68; 4 id., at 704.
Reeves also introduced testimony from Dr. Ronan about
the limitations of her earlier evaluation. She stated in an
affidavit that even though she had been asked “only to
evaluate [Reeves] for the purposes of Competence to Stand
Trial and Mental State at the Time of Offense, i.e., for the
trial phase of the case,” and “was not requested to com-
plete a sentencing phase evaluation” or “extensive clinical
evaluation regarding mental retardation,” Reeves’ counsel
nonetheless “called [her] to testify at the sentencing
phase.” Id., at 609. Dr. Ronan explained that “[t]he eval-
uation for [c]apital sentencing would contain different
components than those for the trial phase evaluations, and
would be more extensive in terms of testing and back-
ground investigation.” Id., at 610. She confirmed that
Reeves’ counsel would have known about these differ-
ences, because she “informed [them] as to the limitations
of any testimony during [c]apital sentencing, in that the
original evaluation was not performed for that purpose.”
Id., at 609.
In addition, Reeves presented a report and testimony
from Dr. Karen Salekin, a forensic and developmental
psychologist who conducted a mitigation evaluation. 13
Cite as: 583 U. S. ____ (2017) 7
SOTOMAYOR, J., dissenting
id., at 111, 118, 125. Dr. Salekin testified about her as-
sessment of the risk factors in Reeves’ life and stated that,
based on her review of the evidence presented at trial, Dr.
Ronan and Reeves’ mother had failed to identify several of
those factors and had inadequately addressed the impact
of others during their testimony at the sentencing hearing.
Id., at 130–190. Among those factors were the harmful
influence of Reeves’ brother and Reeves’ exposure to do-
mestic violence, guns, and substance abuse as a child. Id.,
at 140, 144–150.
The State presented one rebuttal witness, Dr. Glen
David King, a clinical and forensic psychologist who testi-
fied that, based on his testing and the information availa-
ble to him, Reeves “was in the borderline range of intellec-
tual ability, but was not intellectually disabled.” 2016 WL
3247447, *18. On cross-examination, Dr. King acknowl-
edged that Reeves had achieved a score of 68 on an IQ test
Dr. King administered, and on that basis, suffered from
significant subaverage intellectual functioning. Ibid. Dr.
King also testified on cross-examination that his testing
revealed that Reeves’ adaptive functioning skills in three
categories—domestic activity, prevocational/vocational
activity, and self-direction—were in the 25th percentile of
developmentally disabled individuals. Id., at *17–*18; 14
Rule 32 Record 265–268, 273–280; 2 id., at 385.
Following the Rule 32 hearing, the Circuit Court held
that Reeves failed to prove his ineffective-assistance
claims. The Alabama Court of Criminal Appeals affirmed
on the basis that Reeves did not present testimony of his
former counsel. The court stressed that “ ‘to overcome the
strong presumption of effectiveness, a Rule 32 petitioner
must, at his evidentiary hearing, question trial counsel
regarding his or her actions and reasoning.’ ” 2016 WL
3247447, *29 (quoting Stallworth v. State, 171 So. 3d 53,
92 (Ala. Crim. App. 2013); emphasis in original). “The
burden was on Reeves to prove by a preponderance of the
8 REEVES v. ALABAMA
SOTOMAYOR, J., dissenting
evidence that his counsel’s challenged decisions were not
the result of reasonable strategy,” the court explained.
2016 WL 3247447, *31. “[B]ecause Reeves failed to call
his counsel to testify, the record is silent as to the reasons
trial counsel” made various decisions, including the choice
“not to hire Dr. Goff or another neuropsychologist to eval-
uate Reeves for intellectual disability” and the choice “not
to present testimony from such an expert during the pen-
alty phase of the trial . . . in order to establish a mitigating
circumstance.” Ibid. The court therefore concluded, with-
out any consideration of the ample evidence before it of
Reeves’ counsel’s actions and reasoning, that the presump-
tion of effectiveness had not been disturbed and rejected
Reeves’ ineffective-assistance claims. Id., at *32. The
Alabama Supreme Court denied review.
Reeves petitioned for a writ of certiorari. He contended
that the state appellate court’s position that a defendant
must present his counsel’s testimony to establish that his
counsel’s performance was deficient is unreasonable under
and at odds with Strickland v. Washington, 466 U. S. 668(1984). I agree. Because I further agree that the proceed-
ing below was tainted by this constitutional error, I would
grant the petition and summarily reverse.
II
A
Strickland established the legal principles governing
ineffective-assistance-of-counsel claims. Namely, a de-
fendant must show both deficient performance and preju-
dice. Id., at 687. It is the first prong of the Strickland test
that is at issue here. In assessing deficiency, a court
presumes that counsel “rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment.” Id., at 690. The burden to rebut
that strong presumption rests with the defendant, id., at
687, who must present evidence of what his counsel did or
Cite as: 583 U. S. ____ (2017) 9
SOTOMAYOR, J., dissenting
did not do, see Burt v. Titlow, 571 U. S. ___, ___ (2013).
This Court has never, however, required that a defend-
ant present evidence of his counsel’s actions or reasoning
in the form of testimony from counsel, nor has it ever
rejected an ineffective-assistance claim solely because the
record did not include such testimony. Rather, Strickland
and its progeny establish that when a court is presented
with an ineffective-assistance-of-counsel claim, it should
look to the full record presented by the defendant to de-
termine whether the defendant satisfied his burden to
prove deficient performance. The absence of counsel’s
testimony may make it more difficult for a defendant to
meet his burden, but that fact alone does not absolve a
court of its duty to look at the whole record and evaluate
the reasonableness of counsel’s professional assistance in
light of that evidence.
That Strickland does not require testimony from counsel
to succeed on an ineffective-assistance claim is clear from
past decisions in which this Court has found deficient
performance despite such testimony, based on review of
the full record. For example, in Wiggins v. Smith, 539
U. S. 510 (2003), the Court considered the decision of two
attorneys “to limit the scope of their investigation into
potential mitigating evidence.” Id., at 521. Counsel justi-
fied their limited investigation as reflecting a tactical
judgment to pursue an alternative strategy, ibid., but the
Court did not simply accept that explanation at face value.
Instead, it “conduct[ed] an objective review of their per-
formance.” Id., at 523. In reviewing “[t]he record as a
whole,” id., at 531, the Court considered, among other
evidence, that the State had made funds available for the
retention of a forensic social worker to prepare a social
history report, yet counsel had decided not to commission
such a report, id., at 516–517, 524. Based on the record,
the Court concluded that the attorneys’ conduct was un-
reasonable, “not reasoned strategic judgment” as they had
10 REEVES v. ALABAMA
SOTOMAYOR, J., dissenting
testified. Id., at 526.
In Porter v. McCollum, 558 U. S. 30 (2009) (per curiam),
the Court again addressed a claim of an attorney’s alleged
failure to investigate and present mitigating evidence.
Counsel there also testified at the postconviction hearing
about his preparation for the penalty phase, but the Court
still looked at the full record to assess whether the de-
fendant had nevertheless demonstrated deficient perfor-
mance. For instance, the Court pointed to court-ordered
competency evaluations in the record that discussed the
defendant’s academic history, military service, and
wounds sustained during combat, and observed, based on
that evidence, that counsel had “ignored pertinent ave-
nues for investigation of which he should have been
aware.” Id., at 40. Again, here, trial counsel’s testimony
about his reasoning did not defeat the ineffective-
assistance-of-counsel claim, given the Court’s considera-
tion of the evidence in the record as a whole.
As Porter and Wiggins illustrate, trial counsel’s testi-
mony is not sufficient to find adequate performance when the
full record rebuts the reasonableness of the proffered
justification. It cannot be, then, that such testimony is
necessary in every case. Where counsel does not testify
but the defendant offers other record evidence, a court can
simply presume that counsel would have justified his
actions as tactical decisions and then consider whether the
record rebuts the reasonableness of that justification.
Not only is the imposition of a per se rule requiring
testimonial evidence from counsel inconsistent with our
precedent, it is also at odds with the Court’s observation in
Massaro v. United States, 538 U. S. 500 (2003), that inef-
fective-assistance claims need not always be brought on
collateral review because “[t]here may be cases in which
trial counsel’s ineffectiveness is so apparent from the
record that appellate counsel will consider it advisable to
raise the issue on direct appeal” or an appellate court will
Cite as: 583 U. S. ____ (2017) 11
SOTOMAYOR, J., dissenting
address the deficiencies sua sponte. Id., at 508. As a
challenge on direct appeal is made without any further
factual development, Massaro necessarily recognized that
an ineffective-assistance-of-counsel claim can be proved
even absent counsel’s testimony.
Lastly, that courts have a duty to look to the whole
record when considering whether a defendant has met his
burden makes good practical sense. There are many
reasons why counsel may be unable or unwilling to testify
about his reasoning, including death, illness, or memory
loss. Such circumstances should not in and of themselves
defeat an ineffective-assistance claim.
B
Alabama rightly does not attempt to defend the Court of
Criminal Appeals’ rule on its merits. Instead, the State
asserts that Reeves misreads the decision below. The
Court of Criminal Appeals, it maintains, did not hold that
trial counsel’s testimony is required to prove an ineffec-
tive-assistance claim. Brief in Opposition 14. Rather, in
the State’s view, the court “made the sound decision that
Reeves failed to prove his ineffective assistance of counsel
claims” because he “failed to present any evidence, includ-
ing the testimony of trial counsel, to prove that his attor-
ney’s strategic decisions were unreasonable.” Id., at 16.
That position, however, is belied by the record before the
court and the decision’s express language and analysis.
Reeves presented ample evidence in support of his claim
that his counsel’s performance was deficient, but the court
never considered or explained why, in light of that evi-
dence, his counsel’s strategic decisions were reasonable. It
rested its decision solely on the fact that Reeves had not
called his counsel to testify at the postconviction hearing.
In the course of explaining the requirement that a de-
fendant must overcome the strong presumption that coun-
sel acted reasonably with “evidence to the contrary,” 2016
12 REEVES v. ALABAMA
SOTOMAYOR, J., dissenting
WL 3247447, *28 (emphasis in original), the decision
below plainly stated, with emphasis, that “ ‘to overcome
the strong presumption of effectiveness, a Rule 32 peti-
tioner must, at his evidentiary hearing, question trial
counsel regarding his or her actions and reasoning,’ ” id.,
at *29 (quoting Stallworth, 171 So. 3d, at 92). That pro-
nouncement was followed by citations to other Alabama
Court of Criminal Appeals cases with explanatory paren-
theticals noting that those decisions had held “that a
petitioner failed to meet his burden of overcoming the
presumption that counsel were effective because the peti-
tioner failed to question . . . counsel regarding their rea-
soning.” 2016 WL 3247447, *29 (citing Broadnax v. State,
130 So. 3d 1232, 155–156 (2013); Whitson v. State, 109 So.
3d 665, 676 (2012); Brooks v. State, 929 So. 2d 491, 497
(2005); McGahee v. State, 885 So. 2d 191, 221–222 (2003)).
This was not mere stock language. The appellate court
unquestionably applied this requirement to Reeves’
claims. At the outset of its analysis, it announced that
“Reeves’s failure to call his attorneys to testify is fatal to
his claims of ineffective assistance of counsel.” 2016 WL
3247447, *30. As described above, the court explained
that “because Reeves failed to call his counsel to testify,
the record [was] silent” as to his counsel’s reasons and
actions, and the presumption of effective assistance there-
fore could not be rebutted. Id., at *31, *32. In total, the
court emphasized that Reeves did not call his counsel to
testify at five different points in the opinion. Id., at *4,
*28, *30, *31, *32.
Unlike the whole-record analysis undertaken in Wiggins
and Porter, the Alabama Court of Criminal Appeals never
considered whether the other, non-counsel-testimony
evidence before it could rebut the presumption of reasona-
ble professional assistance. Its failure to do so is baffling
given that there was ample such evidence in the record
below, all of which Reeves pointed the court to in his brief.
Cite as: 583 U. S. ____ (2017) 13
SOTOMAYOR, J., dissenting
See Brief for Appellant in No. CR–13–1504, pp. 58–82.
For instance, the Court of Criminal Appeals had before
it trial counsel’s two motions for the appointment and
funding of Dr. Goff, in which they explained why his assis-
tance and testimony would be critical to the case;
the representations made by Reeves’ counsel during the
pretrial hearing on the rehearing motion; and the trial
court’s order granting the request. From those motions
and representations, the court knew that trial counsel had
in their possession voluminous materials bearing on
Reeves’ intellectual impairments. The court further knew
from the record and Dr. Goff’s testimony at the Rule 32
hearing that, despite the appointment order and funding,
Reeves’ counsel never contacted him and never obtained
any other intellectual disability evaluation in preparation
for trial.
The court also knew from Dr. Ronan’s affidavit that the
first time Reeves’ counsel spoke with her was shortly
before she took the stand and that she had not conducted
a penalty-stage evaluation, evaluated Reeves for intellec-
tual disability, or administered a complete IQ test. More-
over, it knew that a capital sentencing evaluation would
have involved different components and been more exten-
sive, and that Reeves’ attorneys were informed as to such
differences.
The court, too, knew that Dr. Salekin had presented
significant mitigation evidence at the Rule 32 hearing that
was not set forth in any testimony during the sentencing-
phase hearing.
The Alabama Court of Criminal Appeals was not free to
ignore this evidence simply because Reeves did not call his
counsel to testify at the postconviction hearing. On this
point, Strickland could not be more clear:
“[A] court deciding an actual ineffectiveness claim
must judge the reasonableness of counsel’s challenged
14 REEVES v. ALABAMA
SOTOMAYOR, J., dissenting
conduct on the facts of the particular case, viewed as
of the time of counsel’s conduct. A convicted defend-
ant making a claim of ineffective assistance must
identify the acts or omissions of counsel that are al-
leged not to have been the result of reasonable profes-
sional judgment. The court must then determine
whether, in light of all the circumstances, the identi-
fied acts or omissions were outside the wide range of
professionally competent assistance.” 466 U. S., at 690.
Reeves identified the omissions of his counsel that he
alleged were constitutionally deficient. He presented
evidence of what his counsel knew, which included several
red flags indicating intellectual disability; what his coun-
sel believed to be necessary for his defense, which included
funding for an expert to evaluate him for intellectual
disability; what his counsel did, which included repeatedly
asking for and securing such funding; and what his coun-
sel did not do, which included failing to then use that
funding to hire such an expert and failing to present evi-
dence of intellectual disability as mitigation. In so doing,
Reeves upheld his end of the evidentiary bargain. The
Alabama Court of Criminal Appeals, on the other hand,
did not. It never explained, in light of the substantial
record before it, why the choices Reeves’ counsel made
were reasonable.
Strickland and its progeny demand more. In light of the
constitutional error below, I would grant the petition for
writ of certiorari, reverse, and remand so that the Court of
Criminal Appeals could explain why, given the full factual
record, Reeves’ counsel’s choices constituted reasonable
performance. Instead, the Court has cleared the way for
Reeves’ execution. That is a result with which I cannot
agree.
I respectfully dissent from the denial of certiorari.