Andrus v. Texas ( 2022 )

Cite as: 596 U. S. ____ (2022) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
TERENCE TRAMAINE ANDRUS v. TEXAS
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS OF TEXAS
No. 21–6001. Decided June 13, 2022
The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and
JUSTICE KAGAN join, dissenting from the denial of certio-
rari.
A state habeas court recommended vacating petitioner
Terence Andrus’ death sentence after an 8-day hearing that
uncovered a plethora of mitigating evidence that trial coun-
sel had failed to investigate or present. The court held that
Andrus had received ineffective assistance of counsel at the
punishment phase of his trial. See Strickland v. Washing-
ton, 466 U. S. 668 (1984). The Court of Criminal Appeals of
Texas reversed; this Court summarily vacated and re-
manded. See Andrus v. Texas, 590 U. S. ___ (2020) (per cu-
riam).
This Court held that counsel had rendered constitution-
ally deficient performance. That conclusion was based on
an “apparent ‘tidal wave’ ” of “compelling” and “powerful
mitigating evidence” in the habeas record, none of which
counsel presented to the jury. Id., at ___, ___, ___ (slip op.,
at 9, 11, 18). The Court also found counsel ineffective for
several specific failures to investigate and rebut the State’s
case in aggravation. Id., at ___–___ (slip op., at 13–16). The
Court remanded to allow the Texas court to evaluate in the
first instance whether, in light of the Court’s holding as to
deficient performance, Andrus had shown prejudice under
Strickland.
On remand, the Court of Criminal Appeals, in a divided
5-to-4 decision, failed to follow this Court’s ruling. Instead
2 ANDRUS v. TEXAS
SOTOMAYOR, J., dissenting
of properly weighing the habeas evidence as a whole, the
Texas court concluded that Andrus failed to establish prej-
udice (and therefore denied habeas relief ) based on its dis-
agreement with, and rejection of, the determinations un-
derlying this Court’s holding that Andrus’ counsel had
rendered deficient performance. As a result, the dissenting
judges below explained, the Texas court’s opinion was irrec-
oncilable with this Court’s prior decision and barred by ver-
tical stare decisis and the law of the case.
I agree with the dissenting judges below. Andrus’ case
cries out for intervention, and it is particularly vital that
this Court act when necessary to protect against defiance of
its precedents. The Court, however, denies certiorari. I
would summarily reverse, and I respectfully dissent from
the Court’s failure to do so.
I
A
This Court’s prior decision outlined the events of Andrus’
trial and habeas proceedings. See Andrus, 590 U. S., at
___–___ (slip op., at 2–7). Only a brief summary follows.
In 2008, at age 20, Andrus killed Avelino Diaz and a by-
stander, Kim-Phuong Vu Bui, during an unsuccessful car-
jacking while under the influence of PCP-laced marijuana.
The State charged Andrus with capital murder. At the guilt
phase of trial, Andrus’ counsel did not put on a defense case
and informed the jury, in closing, that “the punishment
phase” was “where we are going to be fighting.” 45 Tr. 18.
But defense counsel hardly put up a fight at the punish-
ment phase. Counsel made no opening statement and al-
lowed the State to put on its case in aggravation essentially
without challenge. After the State rested, the jury heard a
mere shadow of a case in mitigation. See Andrus, 590 U. S.,
at ___–___ (slip op., at 3–4). Andrus’ counsel presented only
a handful of witnesses, none of whom testified to the ex-
treme neglect, privations, and trauma of Andrus’ youth or
Cite as: 596 U. S. ____ (2022) 3
SOTOMAYOR, J., dissenting
his mental-health struggles as an adult. One of the wit-
nesses, Andrus’ mother, directly contradicted Andrus’ own
testimony as to his childhood, testimony that was thor-
oughly corroborated in subsequent habeas proceedings.
Counsel thus enabled the State to argue credibly in closing
that there was no piece of evidence before the jury “that re-
duce[d]” Andrus’ “moral blameworthiness.” 52 Tr. 49.
“[N]ot one.” Ibid. On this incomplete and corrupted presen-
tation, the jury sentenced Andrus to death.
After the state appellate courts affirmed Andrus’ convic-
tion and sentence, he filed a state habeas application, now
represented by competent counsel. Andrus alleged in the
main that trial counsel had been ineffective for failing to
investigate or present available evidence at the penalty
phase. Over the course of an 8-day evidentiary hearing, An-
drus presented a “tidal wave of information . . . with regard
to mitigation” that the jury never heard. 7 Habeas Tr. 101.
Based on this abundance of new evidence, see Andrus, 590
U. S., at ___–___ (slip op., at 5–7), the state habeas court
granted relief and ordered a new punishment trial.
The Court of Criminal Appeals of Texas reversed. In a
unanimous order, it concluded that Andrus had “fail[ed] to
meet his burden under Strickland.” App. to Pet. for Cert.
29. The court “decline[d] to adopt any of the trial court’s
findings of fact and conclusion of law” and denied relief
based on “[its] own review of the record.” Ibid.B
Andrus petitioned for this Court’s review. The Court
granted certiorari, summarily vacated the decision below,
and remanded for further proceedings. See Andrus, 590
U. S., at ___. The Court held, after a review of the record
from the trial and habeas proceedings, that Andrus had met
his burden of establishing constitutionally deficient perfor-
mance by counsel under the first prong of Strickland.
This Court identified three categories in which counsel’s
4 ANDRUS v. TEXAS
SOTOMAYOR, J., dissenting
performance had fallen short. First, the Court held counsel
ineffective for “perform[ing] almost no mitigation investiga-
tion, overlooking vast tranches of mitigating evidence” (in-
cluding evidence of Andrus’ disturbing childhood, the
trauma he experienced in juvenile detention, and his life-
long mental-health struggles) that would have been “com-
pelling” and “powerful.” Andrus, 590 U. S., at ___, ___ (slip
op., at 9, 11). Second, the Court reasoned, counsel’s mysti-
fying introduction of “seemingly aggravating evidence,”
such as testimony from Andrus’ mother that downplayed
the horrors of his childhood and contradicted Andrus’ own
testimony, confirmed the “gaping distance” between his
performance at trial and the constitutional minimum. Id.,at ___ (slip op., at 12). Third, the Court concluded that
counsel had failed to investigate the State’s case in aggra-
vation and thus did not rebut critical aggravating evidence.
Id., at ___ (slip op., at 13).
Having found deficient performance, the Court remanded
for a determination of prejudice under the second prong of
Strickland. “[P]rejudice exists,” the Court explained, “if
there is a reasonable probability that, but for his counsel’s
ineffectiveness, the jury would have made a different judg-
ment about whether Andrus deserved the death penalty as
opposed to a lesser sentence.” Andrus, 590 U. S., at ___ (slip
op., at 16). The Court cautioned that the Court of Criminal
Appeals “must consider ‘the totality of the available mitiga-
tion evidence—both that adduced at trial, and the evidence
adduced in the habeas proceeding’—and ‘reweig[h] it
against the evidence in aggravation.’ ” Ibid. (quoting Wil-
liams v. Taylor, 529 U. S. 362, 397–398 (2000); alteration in
original). Because Texas law requires a unanimous jury
recommendation to impose death, “prejudice here requires
only ‘a reasonable probability that at least one juror would
have struck a different balance’ regarding Andrus’ ‘moral
culpability.’ ” Andrus, 590 U. S., at ___ (slip op., at 17)
(quoting Wiggins v. Smith, 539 U. S. 510, 537–538 (2003);
Cite as: 596 U. S. ____ (2022) 5
SOTOMAYOR, J., dissenting
citing Tex. Code Crim. Proc. Ann., Art. 37.071, §2(e)(1)
(Vernon 2006)).
C
On remand, the Texas Court of Criminal Appeals denied
relief, this time by a divided vote of five to four. Ex parte
Andrus, 622 S. W. 3d 892 (2021).
In summarizing this Court’s opinion vacating and re-
manding, the majority of the Texas court four times de-
scribed this Court’s conclusions as what the Court “be-
lieved.” Id., at 896–897. Twice more, the majority caveated
this Court’s determinations with “[a]ccording to the Court.”
Ibid. Most strikingly, the majority described what it called
“certain alleged failures by counsel” from this Court’s opin-
ion, which had directly held that these failures constituted
deficient performance under Strickland prong one. 622
S. W. 3d, at 897 (emphasis added); see Andrus, 590 U. S.,
at ___–___ (slip op., at 8–16).
The majority proceeded to find no prejudice under Strick-
land prong two “because the mitigating evidence offered at
the habeas stage was relatively weak . . . and because the
aggravating evidence was strong.” 622 S. W. 3d, at 899–
900. The majority based its decision almost entirely on its
disagreement with the conclusions underlying this Court’s
holding as to Strickland prong one. See, e.g., 622 S. W. 3d,
at 901 (“Although the Supreme Court described Applicant’s
infractions [while in juvenile detention] as ‘notably mild,’
we conclude that a jury would have been convinced other-
wise”); id., at 902 (“The Supreme Court discounted [Andrus’
prior] crimes, but we do not”); id., at 903–904 (“[T]he Su-
preme Court . . . criticized” a photo array, but “we do not
judge [it] to be unduly suggestive”). It accordingly dis-
missed the mitigating evidence this Court had found “com-
pelling” and “powerful,” Andrus, 590 U. S., at ___, ___ (slip
op., at 9, 11), as “not particularly compelling” and “rela-
tively weak,” 622 S. W. 3d, at 893, 900, 906.
6 ANDRUS v. TEXAS
SOTOMAYOR, J., dissenting
Judge Newell dissented, joined by three of his colleagues.
All four had joined their court’s prior decision denying relief
and expressed the belief that this Court’s decision to vacate
and remand was mistaken. Id., at 908. Even so, the dissent
opined, this Court’s “characterization of the mitigation evi-
dence that [Andrus’] trial attorney failed to uncover was in-
tegral to the determination that [Andrus’] attorney’s repre-
sentation fell below prevailing professional norms.” Id., at
909. In the dissent’s view, the majority was not free to de-
part from this Court’s conclusions. Ibid.
The dissent also criticized the majority for misapplying
the applicable prejudice standard. All Andrus had to show
was “a reasonable probability that at least one juror would
have struck a different balance . . . and voted to spare [An-
drus’] life.” Ibid. “Based upon the Supreme Court’s char-
acterization of the mitigation evidence in this case, [An-
drus] has met that standard.” Ibid.
Andrus now asks this Court to summarily reverse, Pet.
for Cert. 40, supported by eight amicus curiae briefs. The
Court, however, denies certiorari.
II
This Court previously held that Andrus received consti-
tutionally deficient assistance of counsel. Andrus contends
that he has shown that those deficiencies prejudiced him.
See Strickland, 466 U. S., at 694. As noted, prejudice exists
if there is a reasonable probability that, but for counsel’s
errors, a single juror “ ‘would have struck a different bal-
ance’ regarding Andrus’ ‘moral culpability.’ ” Andrus, 590
U. S., at ___ (slip op., at 17) (quoting Wiggins, 539 U. S., at537–538). A court must evaluate “the totality of the avail-
able mitigation evidence . . . in reweighing it against the ev-
idence in aggravation.” Williams, 529 U. S., at 397–398.
Instead of weighing the totality of the evidence in a man-
ner consistent with this Court’s decision, the Court of Crim-
inal Appeals violated vertical stare decisis and the law-of-
Cite as: 596 U. S. ____ (2022) 7
SOTOMAYOR, J., dissenting
the-case doctrine by rejecting or ignoring the conclusions of
this Court. It did not acknowledge powerful record evidence
that contradicted its reasoning, and when it did grapple
with the evidence this Court previously analyzed, it fol-
lowed the views of the dissent from the Court’s decision and
not the holdings of this Court. As a result, it “either did not
consider or unreasonably discounted” the evidence adduced
in the habeas proceeding. Porter v. McCollum, 558 U. S. 30,
42 (2009) (per curiam). Applying the proper standard, An-
drus is plainly entitled to relief, and the Texas court’s con-
trary determination should be summarily reversed.
A
The Court of Criminal Appeals unmistakably erred in its
analysis of prejudice as to both unpresented mitigating ev-
idence and unexplored evidence rebutting the State’s case
in aggravation.
1
Throughout its opinion, the Texas court rejected or ig-
nored this Court’s conclusions as to the childhood mitiga-
tion and mental-health mitigation evidence adduced on ha-
beas review. To the minimal extent that the Texas court’s
analysis of the mitigating evidence relied on any evidence
this Court did not consider, that reliance does not with-
stand the slightest scrutiny. The following analysis high-
lights only a small fraction of the volumes of mitigating ev-
idence in the habeas record.
Mitigating evidence—childhood. This Court previously
held that Andrus’ counsel performed deficiently in large
part because counsel failed to “look into or present the myr-
iad tragic circumstances that marked [his] life.” Andrus,
590 U. S., at ___ (slip op., at 10). As the Court outlined,
“[t]he [habeas] evidence revealed a childhood marked by ex-
treme neglect and privation.” Id., at ___ (slip op., at 5).
That evidence included affidavits, testimony, or both from
8 ANDRUS v. TEXAS
SOTOMAYOR, J., dissenting
two of Andrus’ siblings, numerous other family friends and
relatives, and two expert psychologists who investigated or
evaluated Andrus’ family circumstances, as well as many
volumes of family medical and criminal records.
The habeas evidence showed that Andrus and his siblings
were raised by a mother who engaged in prostitution, sold
drugs, and habitually used drugs in front of the children.
Ibid. She exposed the children to physical and sexual abuse
through her violent boyfriends, one of whom raped Andrus’
younger half-sister when she was a child. Ibid.; see also id.,at ___ (slip op., at 10) (“Andrus suffered ‘very pronounced
trauma’ and posttraumatic stress disorder symptoms from,
among other things, ‘severe neglect’ and exposure to domes-
tic violence, substance abuse, and death in his childhood”).
Beyond the evidence this Court specifically cited, expert ha-
beas testimony established that “[w]itnessing domestic vio-
lence” was “traumatic” for Andrus, and that even if Andrus
was not sexually abused himself, the consequences of the
rape of his younger half-sister (notably, her removal from
the family home) were emotionally disruptive for him, too.
6 Habeas Tr. 169, 218. There was also evidence that An-
drus himself suffered physical abuse: His mother would
beat him and his siblings with a board “until she got tired”
and would enlist boyfriends to “hold the children down
while she beat them” or beat them directly. 7 id., at 127.
Moreover, because Andrus’ mother was so often absent or
disoriented, she left her children to fend for themselves for
extended periods, often without leaving them enough food
to eat. Andrus, 590 U. S., at ___ (slip op., at 5). Lacking a
stable parental figure, Andrus assumed responsibility for
his four siblings at around 12 years old: He would cook
breakfast for them, get them ready for school, clean for
them, help them with their homework, make them dinner,
and put them to bed. Id., at ___–___ (slip op., at 5–6).
The jury heard virtually none of this evidence; counsel
presented only scattered snippets of testimony that Andrus
Cite as: 596 U. S. ____ (2022) 9
SOTOMAYOR, J., dissenting
was a good sibling and that his father was incarcerated for
much of his childhood. Thus, the Court explained, counsel
“overlook[ed] vast tranches” of “compelling” and “powerful”
mitigating evidence. Id., at ___, ___ (slip op., at 9, 11).1
This Court additionally held that counsel rendered defi-
cient performance because he not only failed to put forward
the mitigating evidence referred to above but also unwit-
tingly aided the State’s case in aggravation. The Court
noted that counsel elicited testimony from Andrus’ mother
that “did not reveal any difficult circumstances in Andrus’
childhood” but falsely “sketched a portrait of a tranquil up-
bringing, during which Andrus got himself into trouble de-
spite his family’s best efforts.” Id., at ___, ___ (slip op., at 3,
12). This portrait directly “undermined Andrus’ own testi-
mony.” Id., at ___ (slip op., at 13). In fact, when Andrus
testified that his mother sold drugs from their home, his
counsel pointed out that she had said nothing to that end in
her testimony. As this Court previously observed,
“[w]hether counsel merely intended to provide Andrus an
opportunity to explain the discrepancy (or, far worse,
sought to signal that his client was being deceitful) the jury
could have understood counsel’s statements to insinuate
that Andrus was lying,” a suggestion counsel “did nothing
to dislodge.” Ibid.On remand, the Court of Criminal Appeals found that An-
drus failed to establish prejudice in part because the evi-
dence of his horrific childhood “overlapped [with] evidence
heard by the jury,” save for some that was “not particularly
compelling” and “relatively weak.” 622 S. W. 3d, at 893,
900. In particular, the Texas court expressed doubt as to
——————
1 Expert evidence on habeas review explained that Andrus’ adverse
childhood experiences caused “significant limitations in his childhood
and adolescent development” that likely “formed the foundation for [his]
negative life trajectory,” including his “substance abuse, maladaptive be-
haviors, and ultimate resort to criminal violence.” 13 Habeas Tr., Def.
Exh. 5, p. 2; accord, 6 id., at 152, 167–168.
10 ANDRUS v. TEXAS
SOTOMAYOR, J., dissenting
whether Andrus had suffered physical or sexual abuse, re-
lying in part on a 2005 report stating that he denied physi-
cal abuse while in juvenile detention with the Texas Youth
Commission (TYC). Id., at 900. That directly ignored this
Court’s conclusion as to the devastating effects, and corre-
sponding mitigating value, of exposure to such abuse. In
addition, by relying on the 2005 TYC report to discount the
possibility that Andrus suffered physical abuse, the court
not only overlooked the habeas evidence of the details of his
beatings but also neglected to address expert testimony es-
tablishing that it was “common” and “expected” for juvenile
detainees to “deny having problems” in their homes so as to
avoid displaying weakness. 7 Habeas Tr. 32.2
As to the purported overlap, the Court of Criminal Ap-
peals stressed that some “evidence about family dysfunc-
tion” was presented to the jury. 622 S. W. 3d, at 900. It
observed that Andrus’ mother testified that Andrus was
helpful in raising the children, Andrus’ father testified that
he had been largely absent, and Andrus testified about his
mother’s drug dealing and periodic abandonment, indicat-
ing that the evidence uncovered in state habeas proceedings
was redundant of that evidence. Ibid. But the court did not
——————
2 The Court of Criminal Appeals also minimized the mitigating impact
of Andrus’ traumatic childhood because, while habeas evidence indicated
that he was left hungry, he reportedly once told a “Dr. Brown” that he
never went without food and did not testify to hunger at trial. 622 S. W.
3d, at 900–901. Here and elsewhere, the Texas court relied on represen-
tations in a letter from “Dr. Brown,” a psychologist contacted at the last
minute by deficient trial counsel and who received “limited life history
documents.” 13 Habeas Tr., Def. Exh. 2, p. 1. A testifying expert on ha-
beas review (who not only met with Andrus repeatedly but also reviewed
volumes of records and thoroughly investigated his background, and
whose testimony the state habeas court found credible) undercut Dr.
Brown’s letter as poorly reasoned and unsubstantiated. See 6 id., at 127–
128, 130; 7 id., at 63–68, 150–151; 1 Supp. Clerk’s Record 15. The Texas
court made no mention of this credible expert testimony, and more
broadly, it overlooked (as to the issue of hunger) that both Dr. Brown’s
letter and Andrus’ trial testimony were shaped by ineffective counsel.
Cite as: 596 U. S. ____ (2022) 11
SOTOMAYOR, J., dissenting
address the yawning gap between this broadly “tranquil”
portrait of Andrus’ upbringing at trial and the “disturbing”
reality revealed in excruciating detail on habeas review.
Andrus, 590 U. S., at ___, ___ (slip op., at 10, 12). Nor did
it consider how Andrus’ counsel’s presentation and com-
ments undercut Andrus’ testimony and aided the State.
See supra, at 9.
Mitigating evidence—mental health. This Court also
found deficient performance in counsel’s failure to investi-
gate or present evidence of Andrus’ mental health. See id.,
at ___–___ (slip op., at 10–11). The Court noted that even
“[w]hile attempting to care for his siblings,” Andrus “strug-
gled with mental-health issues.” Id., at ___ (slip op., at 6).
Expert habeas evidence established that “the trauma of be-
ing in charge of [his] siblings and not having a parent there”
contributed to Andrus’ mental-health issues, deprived him
of the ability to “trust anybody,” and meant that he did not
have his “own emotional needs met.” 6 Habeas Tr. 168, 183.
This Court further observed how these issues worsened
when a teenage Andrus spent 18 months in juvenile deten-
tion where he was “dosed on high quantities of psychotropic
drugs” and “frequently relegated to extended stints of soli-
tary confinement,” leaving “an already traumatized Andrus
all but suicidal.” Andrus, 590 U. S., at ___ (slip op., at 1).
The Court described Andrus’ forcible medication as part of
a traumatizing “ordeal,” ibid., again backed by compelling
evidence from the habeas proceeding.3 In addition, the
——————
3 Habeas evidence established that TYC officials improperly prescribed
Andrus medications that could cause mania, aggression, and psychosis,
among other adverse effects, and shifted him on and off these medica-
tions frequently. See 6 Habeas Tr. 160–165; 13 id., Def. Exh. 1, at 3, 5;
id., Def. Exh. 4, at 6–7. Even as officials diagnosed Andrus with mental
illnesses and subjected him to this rotating set of clinically inappropriate
medications, they never provided him with the interventions he needed.
See id., at 8–9. Instead, they subjected him to a punitive “resocialization
program” that was later discontinued and discredited, see id., at 5–6, 9,
and when he did not succeed, transferred him to adult prison, see, e.g., 5
12 ANDRUS v. TEXAS
SOTOMAYOR, J., dissenting
Court set forth the harm Andrus’ solitary confinement in
TYC custody imposed, levied “for purported infractions like
reporting that he had heard voices telling him to do bad
things.” Id., at ___ (slip op., at 6); see also id., at ___, n. 2
(slip op., at 14, n. 2) (citing habeas evidence that Andrus
was isolated “for 90 days at a time when [he] was 16 or 17
years old,” which “ ‘would horrify most current profession-
als’ ”).4 Andrus also engaged in self-harm and threats of su-
icide in TYC custody, this Court noted, acts that culminated
a few years later when, detained pending trial for his capi-
tal offense, he slashed his wrist and smeared bloody mes-
sages on the walls asking to “ ‘[j]ust let [him] die.’ ” Id., at
___–___ (slip op., at 6–7).
In reasoning that Andrus had not established prejudice,
the Court of Criminal Appeals stated that the evidence of
mental-health issues “deserve[d] some skepticism.” 622
S. W. 3d, at 901. It discounted Andrus’ mental-health chal-
lenges because they “were not so severe or persistent as to
keep him from . . . taking care of his siblings,” ibid., without
accounting for record evidence of how Andrus’ care for his
siblings was consistent with, and exacerbated, those chal-
lenges. It criticized Andrus for “on the one hand . . . now
claim[ing] he had mental health issues, but on the other . . .
decr[ying] having been treated for them” with psychotropic
medications while in TYC custody, ibid., contravening this
Court’s conclusion as to the damage Andrus suffered from
being forced to take clinically inappropriate medications.
——————
id., at 121–122 (TYC ombudsman: Andrus “was [unfairly] held account-
able for failing in a failed system”).
4 The TYC ombudsman, appointed after mounting complaints and pub-
lic scandals, condemned the agency’s use of isolation and explained that
it involved being locked in a small, dark, and windowless cell with a mat-
tress. 5 id., at 112, 122, 154–155; 13 id., Def. Exh. 4, at 2–4. According
to the ombudsman’s expert testimony, TYC records showed Andrus was
“decomposing” and “becoming unhinged” as a result of his repeated and
prolonged isolation “in a dark, damp room with no communication, [no]
school.” 5 id., at 170.
Cite as: 596 U. S. ____ (2022) 13
SOTOMAYOR, J., dissenting
Moreover, the Texas court did not grapple with the harm
Andrus suffered from his solitary confinement or his suicide
attempt, both of which this Court highlighted as salient.5
Finally, the Texas court reasoned in its prejudice analysis
that Andrus’ mental-health issues were “also aggravating”
because “Dr. Brown’s report revealed . . . a disturbing his-
tory of animal cruelty” and “also revealed that [Andrus] en-
joyed playing with fire and once set fire to his mother’s
apartment, though she was able to put out the fire.” Ibid.
The court again did not acknowledge Andrus’ expert testi-
mony (deemed credible by the state habeas court) attacking
the reliability of these claims, which were made in a letter
from a nontestifying psychologist contacted at the last mi-
nute by ineffective trial counsel. See n. 2, supra. But even
if the court had been right to view Andrus’ mental health
as a double-edged sword, that would not be dispositive. The
issue is whether the available mitigating evidence, whether
susceptible to multiple interpretations or not, “might have
sufficiently influenced the jury’s appraisal of Andrus’ moral
culpability.” Andrus, 590 U. S., at ___ (slip op., at 18) (in-
ternal quotation marks and alteration omitted). For that to
be true, the evidence need not have made Andrus “any more
likable to the jury,” so long as it “helped the jury understand
[him], and his horrendous acts.” Sears v. Upton, 561 U. S.
——————
5 To the extent the Texas court cited any evidence in its mental-health
mitigation discussion that this Court did not expressly mention, it gave
significant weight to two written observations by individual TYC ana-
lysts regarding Andrus’ mental health, pulled from about 1,000 pages of
TYC records. See 622 S. W. 3d, at 901. But a testifying expert on habeas
review, found credible by the state habeas court, testified that the TYC
analysts’ views were inconsistent, unreliable, and potentially pretextual,
see 7 Habeas Tr. 78–80, 85; 1 Supp. Clerk’s Record 15, and still other
expert testimony (again, found credible) showed that TYC’s mental-
health program at the time lacked adequate oversight, staffing, and qual-
ity assurance, see 5 Habeas Tr. 161–162; 13 id., Def. Exh. 4, at 6; 1 Supp.
Clerk’s Record 13. The Texas court did not so much as mention this con-
trary evidence.
14 ANDRUS v. TEXAS
SOTOMAYOR, J., dissenting
945, 951 (2010) (per curiam).
The Court of Criminal Appeals improperly failed to con-
sider or analyze any of Andrus’ mitigating evidence beyond
its rejection of this Court’s conclusions. See Williams, 529
U. S., at 397–398 (finding State Supreme Court decision not
just erroneous but unreasonable “insofar as it failed to eval-
uate the totality of the available mitigation evidence”).
2
Aggravating evidence. The Court of Criminal Appeals
was even more explicit in rejecting this Court’s conclusions
regarding counsel’s failure to rebut the State’s aggravating
evidence.
At the penalty phase, the State bore the burden of prov-
ing that Andrus presented a future danger to society. See
Tex. Code Crim. Proc. Ann., Art. 37.071, §2(b)(1). To that
end, it put forth evidence that Andrus had been hostile and
violent in TYC custody; that he had committed an un-
charged aggravated robbery of a dry-cleaning business; that
he had been involved in an aggravated robbery as a teen-
ager, for which he was sent to TYC detention; that he had
also been adjudicated as a juvenile for possession of a con-
trolled substance and later pleaded guilty to misdemeanor
theft; that he had gang-related tattoos; and that he had at-
tacked prison officials while awaiting trial.
This Court held counsel deficient for failing to pursue
“ample opportunit[ies]” to “rebut critical aggravating evi-
dence.” Andrus, 590 U. S., at ___ (slip op., at 13). First, this
Court noted that although the State relied heavily on An-
drus’ acts of aggression while detained in TYC custody, in-
vestigation would have shown “that [his] behavioral prob-
lems [in TYC custody] were notably mild, and the harms he
sustained severe.” Id., at ___ (slip op., at 14). The Court
cited evidence from a TYC ombudsman who testified that it
was “ ‘surpris[ing] how few’ citations Andrus received, ‘par-
ticularly in the dorms where [Andrus] was’ housed,” and
Cite as: 596 U. S. ____ (2022) 15
SOTOMAYOR, J., dissenting
that there was “ ‘nothing uncommon’ about Andrus’ alterca-
tions because ‘sometimes you . . . have to fight to get by’ in
the ‘violent atmosphere’ and ‘savage environment.’ ” Id., at
___, n. 2 (slip op., at 14, n. 2). Indeed, habeas evidence es-
tablished that the “vast majority” of Andrus’ citations at
TYC were for “disruption of program,” which could include
“talking out of turn.” 5 Habeas Tr. 174; 13 id., Def. Exh. 4,
p. 7.6 Meanwhile, although Andrus was removed from the
general population 77 times, approximately half of those
were not punishments but “self-referrals” that he initiated
to seek refuge from the “violent ‘Lord of the Flies’ scenario”
and “brutal pecking order” within TYC, despite the unique
horrors attended to isolation. 5 id., at 155–156, 179, 183,
189, 204–205. As noted, TYC officials also punished Andrus
with isolation for reporting that he was hearing voices. Id.,
at 183; Andrus, 590 U. S., at ___ (slip op., at 6).
In view of this evidence, this Court explained: “[W]ith suf-
ficient understanding of the violent environments Andrus
inhabited his entire life, counsel could have provided a
counternarrative of Andrus’ later episodes in prison.” Id.,
at ___ (slip op., at 14). “[I]nstead, counsel left all of that
aggravating evidence untouched at trial—even going so far
as to inform the jury that the evidence made it ‘probabl[e]’
——————
6 For example, Andrus was cited for “throwing a paperclip,” “shooting
a rubber band,” “talking while standing in line or . . . in the lunch room,”
and “eating a cookie in class.” 5 Habeas Tr. 174; see also id., at 187 (“I
saw once he asked for a calculator. . . . Violated dress code, usually that
means your shirt is not tucked in. He was talking during quiet time.
Talked once after the lights were out”). TYC staff also issued citations
simply to prove their work ethic to supervisors, or even for “self-referrals”
to isolation. Id., at 176–177. Given all of this, the TYC ombudsman ex-
plained, after reviewing about 1,000 pages of TYC records, that Andrus’
number of citations was in fact “average or pretty low.” Id., at 177. Yet
the jury heard none of this context. Instead, jurors heard largely unchal-
lenged testimony (which the State emphasized in closing) suggesting
that Andrus had received age-appropriate care and rejected a resociali-
zation program, see 48 Tr. 60–61, 68–69, 73–74; 52 id., at 31, a program
that was later discontinued and discredited, see n. 3, supra.
16 ANDRUS v. TEXAS
SOTOMAYOR, J., dissenting
that Andrus was ‘a violent kind of guy.’ ” Ibid.
Although this Court “described [Andrus’] infractions at
TYC as ‘notably mild,’ ” the Court of Criminal Appeals be-
lieved “a jury would have been convinced otherwise.” 622
S. W. 3d, at 901. The Texas court relied heavily on Andrus’
295 citations, including threats and assaults, and the 77
times he was “remove[d] . . . from the general population”
(i.e., placed in solitary confinement) before his transfer to
adult prison. Ibid. In the court’s view, this proved Andrus
“was far more dangerous and disruptive than the typical
juvenile held in custody of TYC,” evidence that categorically
“outweighed” the conditions at TYC. Id., at 902.
The Court of Criminal Appeals doubly erred here. First,
its assessment was irreconcilable with any reasonable anal-
ysis of Andrus’ TYC record or with this Court’s careful rec-
itation of the record evidence. The Texas court relied on a
mere sliver of the evidence: the overall numbers of times
Andrus was cited or isolated (numbers that, as this Court
previously explained, the record shows to be inflated) and
the violent nature of some of his infractions. This Court
considered that evidence and more, and it reached a directly
contrary conclusion based on expert testimony (found cred-
ible by the state habeas court) that placed those infractions
in context. See Andrus, 590 U. S., at ___, ___–___, and n. 2
(slip op., at 6, 13–14, and n. 2).
Second, this Court’s precedents teach that even if “it is
possible that a jury could have heard [all of the mitigating
evidence] and still have decided on the death penalty, that
is not the test.” Rompilla v. Beard, 545 U. S. 374, 393
(2005). The likelihood of a different result “must be sub-
stantial, not just conceivable,” Harrington v. Richter, 562
U. S. 86, 112 (2011), but “[w]e do not require a defendant to
show that counsel’s deficient conduct more likely than not
altered the outcome of his penalty proceeding,” Porter, 558
U. S., at 44 (internal quotation marks omitted). Moreover,
Cite as: 596 U. S. ____ (2022) 17
SOTOMAYOR, J., dissenting
here, the likelihood of a different result need only be estab-
lished as to one juror, not a unanimous jury. Andrus, 590
U. S., at ___ (slip op., at 17). Given the sheer volume of ev-
idence supporting this Court’s view of Andrus’ TYC record,
it is difficult to conclude that every reasonable juror would
have rejected it. By reasoning otherwise, the court below
appeared to hold Andrus to an improper standard.
Beyond Andrus’ TYC record, this Court found counsel
had been deficient by failing to rebut the State’s reliance on
Andrus’ alleged commission of a knifepoint robbery at a
dry-cleaning business. The Court noted that the State
never charged Andrus for this robbery and that “the only
evidence originally tying Andrus to the incident was a lone
witness statement, later recanted by the witness, that led
to the inclusion of Andrus’ photograph in a belated photo
array, which the police admitted gave rise to numerous re-
liability concerns.” Andrus, 590 U. S., at ___–___ (slip op.,
at 14–15) (footnote omitted). “The very problem” was that
the jury heard the State’s account, “but not any of the sig-
nificant evidence that would have cast doubt on Andrus’ in-
volvement in the offense at all.” Id., at ___ (slip op., at 15).
The Court of Criminal Appeals, on remand, found that
Andrus had not been prejudiced by this failure because alt-
hough “[t]he Supreme Court discounted” the State’s prior-
crimes evidence, it “d[id] not.” 622 S. W. 3d, at 902. On the
uncharged dry-cleaning robbery, the Texas court disap-
proved of this Court’s “question[ing of] the reliability of the
[pretrial, photo-array] identification,” which it “d[id] not
judge . . . to be unduly suggestive.” Id., at 903–904. The
Texas court also second-guessed this Court’s reliance on the
witness’ recantation and habeas testimony. Id., at 904.
Here again, the court squarely rejected this Court’s analy-
sis of the evidence on the performance prong to deny relief
on the prejudice prong.7 Moreover, the court overlooked
——————
7 The court disagreed with this Court’s characterization of a detective’s
18 ANDRUS v. TEXAS
SOTOMAYOR, J., dissenting
what this Court deemed “[t]he very problem” with counsel’s
failures: that the jury never heard any of the bases on which
the statement and photo identification (made months after
the incident by a victim who initially could tell the police
only that he had been assaulted by “a black man,” see 3 Ha-
beas Tr. 65) were vulnerable to attack. Again, the issue is
not whether habeas evidence conclusively establishes An-
drus’ innocence of the uncharged robbery, but whether it
would be reasonably probable to lead one juror to strike a
different balance.
The Court of Criminal Appeals also disputed this Court’s
analysis of the aggravated robbery for which Andrus was
sentenced to TYC. The Texas court charged this Court with
“discount[ing] this crime” because this Court said Andrus
“ ‘allegedly’ act[ed] as a ‘lookout.’ ” 622 S. W. 3d, at 902. Cit-
ing its opinion on direct appeal (from before the habeas
hearing), the Texas court opined that the victim had iden-
tified Andrus as the gunman by his clothing. Ibid. The
Texas court noted this Court’s contrary determination, but
concluded that “[t]he trial evidence solidly pointed to [An-
drus] as the gunman.” Id., at 902–903. It thus reached an-
other result that contradicted a conclusion of this Court.
See Andrus, 590 U. S., at ___, n. 1 (slip op., at 6, n. 1). To
——————
testimony regarding the reliability of the pretrial photo-array identifica-
tion, but the detective in fact conceded the relevant point. See 8 Habeas
Tr. 35 (“Q: . . . Only one of [the men in the array] is looking directly up
and out. Do you see that? And that’s Terence Andrus? A: Yes. [Number]
3 may be looking out, but I understand your point”). In any event, this
Court clearly considered and rejected the Texas court’s precise argu-
ment. Compare 622 S. W. 3d, at 903, with 590 U. S., at ___, and n. 4 (slip
op., at 15, and n. 4); id., at ___, n. 4 (ALITO, J., dissenting) (slip op., at 6,
n. 4). Similarly, for the witness’ recantation and habeas testimony, this
Court already considered and rejected all of the court below’s arguments
save one (the witness’ relationship with Andrus) in its exchange with the
dissent. Compare 622 S. W. 3d, at 904, with Andrus, 590 U. S., at ___,
n. 4 (slip op., at 15, n. 4); id., at ___, and nn. 3, 4 (ALITO, J., dissenting)
(slip op., at 6, and nn. 3, 4).
Cite as: 596 U. S. ____ (2022) 19
SOTOMAYOR, J., dissenting
be sure, as the Texas court noted, this Court erroneously
said that “the victim described at least two individuals as
wearing such clothing,” ibid. (emphasis added), when it
should have said that a responding sergeant described at
least two individuals as wearing such clothing, see 46 Tr.
25–27. The point stands, however: The victim could not
identify faces or individuals, only clothing, and Andrus was
not the only individual wearing the clothing identified by
the victim. More broadly, the Texas court once again
seemed to apply a heightened prejudice standard by dis-
missing the possibility that even one juror might agree with
this Court’s assessment of the evidence. See Wiggins, 539
U. S., at 537–538 (prejudice requires only “a reasonable
probability that at least one juror would have struck a dif-
ferent balance” of a capital defendant’s “moral culpability”).
3
Conclusion. Aside from the Court of Criminal Appeals’
description of the undisputed brutality of Andrus’ capital
crime and its accounting of his violence while incarcerated
pending trial, see 622 S. W. 3d, at 902, 904–905, its analysis
of prejudice impermissibly contravened the reasoning on
which this Court relied to find deficient performance. The
Court of Criminal Appeals also declined to account for sub-
stantial record evidence that undercut its conclusions and
misapplied the relevant legal standards.
Even the State, in its brief opposing certiorari, does not
meaningfully attempt to reconcile the Court of Criminal
Appeals’ reasoning with this Court’s prior decision. In-
stead, the State echoes the Texas court’s critiques of that
precedent, repeatedly attacking it rather than accepting its
premises as settled. On remand from this Court, however,
other courts generally are not free to dispute this Court’s
conclusions. To the contrary, “it is essential” that courts
“follow both the words and the music of Supreme Court
20 ANDRUS v. TEXAS
SOTOMAYOR, J., dissenting
opinions” on issues of federal law. United States v. Mar-
tinez-Cruz, 736 F. 3d 999, 1006 (CADC 2013) (Kavanaugh,
J., dissenting). The Court of Criminal Appeals followed nei-
ther here.
B
“[E]xtricating” the court’s “improper . . . analysis from
[its] opinion leaves too little that might warrant reaching a
different conclusion than did the trial court.” Moore v.
Texas, 586 U. S. ___, ___ (2019) (per curiam) (slip op., at 10).
It is impossible reasonably to disagree with the state ha-
beas court and the dissenting judges below: There exists a
reasonable probability that, had counsel presented the evi-
dence uncovered on habeas review, at least one juror would
have struck a different balance.
At sentencing, the jury heard next to nothing “that would
humanize [Andrus] or allow [the jury] to accurately gauge
his moral culpability.” Porter, 558 U. S., at 41. Andrus’
mother offered only a sparse chronology of his childhood
and painted a counterproductive portrait of that period of
his life as relatively tranquil. Andrus’ biological father, who
also testified at sentencing, hardly knew Andrus (having
been absent or incarcerated for almost all of his childhood)
and could venture only that Andrus seemed “good around
[him]” the one year they lived together. 50 Tr. 8. Counsel’s
direct examination of Andrus about his childhood was cur-
sory (constituting about four pages of the trial transcript)
and followed the contrary testimony of his mother. The
only potentially mitigating evidence, then, was (1) a lone
expert’s generalized opinion that drugs can hamper the ad-
olescent brain’s ability to make sound judgments, and (2)
lay testimony that Andrus’ “antisocial personality disorder”
led him to be “manipulative” and that Andrus had begun to
vocalize remorse in the prior two months. 51 id., at 34, 37.
But the former point hardly needs proof (as the State
pointed out, see Andrus, 590 U. S., at ___ (slip op., at 4)),
Cite as: 596 U. S. ____ (2022) 21
SOTOMAYOR, J., dissenting
and the latter testimony told a double-edged and incom-
plete story at best. All told, the jury heard hardly a whisper
of the appalling circumstances that marred Andrus’ child-
hood and adolescence, enabling the State to assert while
cross-examining Andrus that the jury never “heard one mit-
igating circumstance in [his] life.” 51 Tr. 60.
Meanwhile, “there exists too much mitigating evidence
that was not presented to now be ignored.” Porter, 558
U. S., at 44 (internal quotation marks omitted). The jury
never heard the extensive reports that, throughout Andrus’
childhood, Andrus’ mother was often too drugged to pay at-
tention to her children, had a string of abusive and drug-
addicted boyfriends, and frequently left her five children to
fend for themselves while she went out and took drugs for
extended periods. The jury never heard the details regard-
ing the physical abuse young Andrus reportedly suffered,
the domestic violence he witnessed, or the sexual abuse that
tore a beloved younger sibling from his home. The jury
never heard the poignant accounts by Andrus’ siblings of
how Andrus had cared and provided for them when their
parents would not. The jury never heard expert testimony
that the severe neglect and privation Andrus suffered as a
child left him damaged and emotionally stunted.8 The jury
never heard about the harrowing experiences Andrus en-
dured in the TYC system, the damaging effects of his pro-
longed periods of isolation there, and the utter lack of ap-
propriate support he received. The jury never heard about
the line Andrus’ experts later drew between all of this hard-
ship and trauma and the trajectory of his life. The jury
——————
8 This Court has repeatedly recognized the potency of childhood neglect
and exposure to violence as mitigating evidence in capital punishment
proceedings, even where it does not directly rebut the prosecution’s ar-
guments for death. See, e.g., Porter, 558 U. S., at 33, 43; Rompilla v.
Beard, 545 U. S. 374, 392 (2005); Wiggins v. Smith, 539 U. S. 510, 525
(2003); Williams v. Taylor, 529 U. S. 362, 395 (2000).
22 ANDRUS v. TEXAS
SOTOMAYOR, J., dissenting
never heard about Andrus’ diagnosis with affective psycho-
sis or his various other mitigating mental-health issues.
These scores of lengthy reports went well beyond anything
in Andrus’ brief trial testimony, which was uncorroborated
at trial and undermined by his own mother. All of this “ac-
cumulated [evidence] would have destroyed the benign con-
ception of [Andrus’] upbringing and mental capacity de-
fense counsel had formed.” Rompilla, 545 U. S., at 391.
The State’s unrebutted aggravating evidence, to be sure,
was forceful. The evidence of Andrus’ violent behavior and
defiance while detained, however, could have been under-
stood in a much different light had counsel investigated and
presented the significant body of mitigating evidence re-
vealed at the habeas hearing. As noted, there was “nothing
uncommon” about the citations Andrus received for violent
behavior while in TYC custody; given the “savage” environ-
ment, the TYC ombudsman was “surprised how few” inci-
dents were noted in Andrus’ record. 5 Habeas Tr. 189. An-
drus’ exceptionally turbulent introduction to the state
detention system, a punishment for his inability to succeed
in a failed and discredited program when he was 16, also
may have influenced how the jury evaluated his later inci-
dents of violence in prison. Especially considering the se-
vere neglect Andrus experienced as a child, the jury could
have viewed his aggressive behavior as borne out of deep-
seated distrust of others. See Sears, 561 U. S., at 951.
Beyond that, untapped evidence could have blunted the
force of the State’s other aggravating circumstances. As the
habeas evidence revealed, counsel could have introduced
significant doubt regarding the State’s linking of Andrus to
the uncharged dry-cleaning robbery. As for the State’s sug-
gestion that Andrus lacked remorse because he appeared to
express it only shortly before trial, evidence of his mental-
health struggles, culminating in his suicide attempt while
incarcerated pending trial, could have persuaded the jury
that he was battling inner turmoil far beyond what he was
Cite as: 596 U. S. ____ (2022) 23
SOTOMAYOR, J., dissenting
able to vocalize.9
In sum, effective counsel would have painted a vividly dif-
ferent tableau of aggravating and mitigating evidence than
was presented at trial. During the punishment phase, the
State’s aggravating evidence went largely unchallenged,
while the defense’s mitigating evidence consisted of a few
biographical facts about Andrus and some damaging infor-
mation that tended to portray Andrus as morally culpable.
In contrast, if measured against “the totality of the availa-
ble mitigation evidence,” Williams, 529 U. S., at 397, the
State’s aggravating evidence would have appeared dramat-
ically different, while the defense’s case in mitigation would
have gone from counterproductive to compelling. Given
that sea change, I find it clear that the “tidal wave,” 7 Ha-
beas Tr. 101, of “available mitigating evidence, taken as a
whole, ‘might well have influenced the jury’s appraisal’ of
[Andrus’] moral culpability,” Wiggins, 539 U. S., at 538(quoting Williams, 529 U. S., at 398). Because there is a
reasonable probability that “at least one juror would have
struck a different balance,” Wiggins, 539 U. S., at 537, I
would summarily reverse.
III
I dissent with full recognition that summary reversal is
“a rare disposition, usually reserved by this Court for situ-
ations in which the law is settled and stable, the facts are
——————
9 After trial, once Andrus was in a safe environment and was no longer
being prescribed clinically “inappropriate” medications, habeas evidence
indicated that he had “virtually no record of misconduct” in prison. 7
Habeas Tr. 51. Andrus now produces visual art and poetry, see
https://www.terenceandrus.com, and published an essay reflecting on
this Court’s prior decision in his case, see T. Andrus, Reflection on An-
drus v. Texas, 134 Harv. L. Rev. Forum 78 (2020). Although the sentenc-
ing jury would not have known of these facts, they are not inconsequen-
tial: They underscore the force of Andrus’ mental-health mitigation
evidence and demonstrate his potential for moral redemption, a potential
that the jury was never given an opportunity to see.
24 ANDRUS v. TEXAS
SOTOMAYOR, J., dissenting
not in dispute, and the decision below is clearly in error.”
Schweiker v. Hansen, 450 U. S. 785, 791 (1981) (Marshall,
J., dissenting). Rightly so. This Court must exercise its
certiorari jurisdiction and apply its resources in a manner
that entrusts the lower courts with the diligent and proper
resolution of individual cases.
Even so, summary dispositions remain appropriate in
truly extraordinary cases involving categories of errors that
strike at the heart of our legal system. Cf., e.g., City and
County of San Francisco v. Sheehan, 575 U. S. 600, 611, n. 3
(2015) (explaining that error correction is warranted where
an issue has particular “importance . . . ‘to society as a
whole’ ”). This is certainly true in capital cases like this one,
where the life-or-death stakes engender a special “need for
reliability in the determination that death is the appropri-
ate punishment in a specific case.” Woodson v. North Car-
olina, 428 U. S. 280, 305 (1976) (plurality opinion).
Summary correction is particularly necessary where, as
here, a lower court clearly and directly contravenes this
Court’s settled precedent. See, e.g., Bosse v. Oklahoma, 580
U. S. 1 (2016) (per curiam). That is all the more so when
this Court remands and the subsequent lower court opin-
ion, “when taken as a whole and when read in the light both
of our prior opinion and the . . . record, rests upon analysis
too much of which too closely resembles what we previously
found improper.” Moore, 586 U. S., at ___ (slip op., at 10).
Such defiance of vertical stare decisis, if allowed to stand,
substantially erodes confidence in the functioning of the le-
gal system.
That is precisely what this Court permits today. As I
have explained, and as the dissenting judges below warned,
the Court of Criminal Appeals’ opinion on remand cannot
be reconciled with this Court’s prior opinion, let alone with
the habeas record. In fact, the Texas court repeatedly indi-
cated its disdain for this Court’s conclusions. At bottom,
Cite as: 596 U. S. ____ (2022) 25
SOTOMAYOR, J., dissenting
were the Texas court’s characterizations of the record cor-
rect, this Court hardly could have found deficient perfor-
mance. These errors are especially damaging because they
bear on the right to effective assistance of counsel, the very
“foundation for our adversary system,” Martinez v. Ryan,
566 U. S. 1, 12 (2012), in a capital case where the stakes
could not be higher. If summary reversal is ever warranted,
it is warranted here.
This Court’s failure to act does not mark the end of the
road for Andrus. He still may seek federal habeas review
of the Court of Criminal Appeals’ ultimate denial of relief,
a denial that plainly “was contrary to, or involved an unrea-
sonable application of, clearly established” precedents of
this Court. 28 U. S. C. §2254(d)(1). The Court’s refusal to-
day to exercise its discretionary certiorari jurisdiction must
not be misinterpreted to foreclose such relief. Nevertheless,
the Court’s refusal is lamentable. In view of the egregious
nature of the errors below, the overwhelming record evi-
dence, the unparalleled stakes for Andrus, and the im-
portance of protecting and enforcing vertical stare decisis, I
would not leave such errors unresolved, and I respectfully
dissent.