Jefferson v. Upton , 130 S. Ct. 2217 ( 2010 )

Cite as: 560 U. S. ____ (2010) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
LAWRENCE JOSEPH JEFFERSON v. STEPHEN
UPTON, WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 09–8852. Decided May 24, 2010
PER CURIAM.
Petitioner Lawrence Jefferson, who has been sentenced
to death, claimed in both state and federal courts that his
lawyers were constitutionally inadequate because they
failed to investigate a traumatic head injury that he suf
fered as a child. The state court rejected that claim after
making a finding that the attorneys were advised by an
expert that such investigation was unnecessary. Under
the governing federal statute, that factual finding is pre
sumed correct unless any one of eight exceptions applies.
See 28 U. S. C. §§2254(d)(1)–(8) (1994 ed.). But the Court
of Appeals considered only one of those exceptions (specifi
cally §2254(d)(8)). And on that basis, it considered itself
“duty-bound” to accept the state court’s finding, and re
jected Jefferson’s claim. Because the Court of Appeals did
not fully consider several remaining potentially applicable
exceptions, we vacate its judgment and remand.
I
When Jefferson was a child, he “suffered a serious in
jury to his head.” Jefferson v. Terry, 490 F. Supp. 2d 1261,
1326 (ND Ga. 2007); see id., at 1320 (quoting Jefferson’s
mother’s testimony that “a car ran over the top of his
head” when he was two years old). The accident left his
skull swollen and misshapen and his forehead visibly
scarred. Jefferson v. Hall, 570 F. 3d 1283, 1311, 1315, n. 4
(CA11 2009) (Carnes, J., dissenting). During the District
Court proceedings below, uncontroverted experts testified
2 JEFFERSON v. UPTON
Per Curiam
that, as a result of his head injury, Jefferson has “perma
nent brain damage” that “causes abnormal behavior” over
which he “has no or substantially limited control.” 490
F. Supp. 2d, at 1321–1322. According to these experts,
Jefferson’s condition causes “ ‘emotional dullness,’ ” “ ‘rest
less or aggressive characteristics,’ ” “ ‘impulsiveness,’ ”
“ ‘temper outbursts,’ ” “ ‘markedly diminished impulse
control,’ ” “ ‘impaired social judgment,’ ” and “ ‘transient
outbursts of rage which are totally inconsistent with his
normal behavioral pattern.’ ” Id., at 1322, 1327.
The experts further testified that Jefferson’s “ ‘severe
cognitive disabilities’ ” “ ‘profoundly alter’ ” his “ ‘ability to
plan and coordinate his actions, to be aware of the conse
quences of his behavior, and to engage in premeditated or
intentional acts.’ ” Id., at 1327. But they testified he is
neither psychotic nor retarded. Id., at 1319. Thus, they
said, to a lay observer or even to a professional psycholo
gist, Jefferson does not outwardly appear mentally im
paired. Indeed, according to the experts, “ ‘the behavior
that may result from’ ” his condition “ ‘could, without the
administration of proper testing, be mistaken for voli
tional.’ ” Id., at 1322.
Jefferson faced a death sentence for killing his co
worker while the two men were fishing. Id., at 1271–1272.
Prior to trial, he was examined by a psychologist named
Dr. Gary Dudley, who prepared a formal report in which
he concluded that Jefferson’s mental deficiencies do not
impair “ ‘his judgment or decision-making capacity.’ ” 570
F. 3d, at 1294 (quoting report). But Dr. Dudley’s report
included a caveat: “ ‘One possibility that could not be
explored because of [Jefferson’s] incarceration has to do
with the sequelae,’ ” i.e., pathologies, related to a “ ‘head
injury experienced during childhood.’ ” Ibid. “ ‘In my
opinion,’ ” he wrote, “ ‘it would be worthwhile to conduct
neuropsychological evaluation of this individual to rule out
an organic etiology,’ ” i.e., to rule out brain damage. Ibid.Cite as: 560 U. S. ____ (2010) 3
Per Curiam
Although “it is undisputed that the testing” Dr. Dudley
recommended “could have easily been performed,” 490
F. Supp. 2d, at 1322, and that Jefferson’s attorneys pos
sessed police reports and hospital records recounting his
head injury, id., at 1323, the attorneys did not have Jef
ferson tested. At sentencing, they presented only testi
mony from two prison guards, who stated that Jefferson
was an unproblematic inmate, and from three members of
Jefferson’s family, who testified that he is a “responsible,
generous, gentle, and kind” person and “a good father.”
570 F. 3d, at 1290–1291. And while Jefferson’s mother
briefly mentioned the car accident, “she was not ques
tioned and did not offer any testimony regarding the
impact, if any, that the accident had on him.” Id., at 1291.
Thus, “[a]s far as the jury knew, Jefferson did not suffer
from brain damage or neurological impairment; he had no
organic disorders”; and “his emotional stability, impulse
control, and judgment were perfectly normal.” Id., at 1311(Carnes, J., dissenting).
Jefferson sought habeas relief in state court, arguing
that his two trial attorneys unreasonably failed to pursue
brain-damage testing. In response, the trial attorneys
testified that they did not pursue such testing because,
after delivering his formal written report, Dr. Dudley later
told them that further investigation “ ‘may be a waste of
time because the rest of [his] report’ ” had “ ‘said that
[Jefferson] was non psychotic.’ ” 570 F. 3d, at 1295 (quot
ing testimony). Dr. Dudley did not testify in person at the
hearing, but he submitted a sworn affidavit denying that
he had ever made such statements. He said “it had al
ways been his expert opinion ‘that neuropsychological
testing was necessary’ ” and that when he wrote as much
in his formal report “he ‘meant it.’ ” Id., at 1312 (Carnes,
J., dissenting) (quoting affidavit). He added, “ ‘I never,
before or after that report, suggested to [Jefferson’s attor
neys] that such an evaluation was not necessary or that it
4 JEFFERSON v. UPTON
Per Curiam
would not be worthwhile.’ ” Ibid.; cf. Pet. for Cert. 17,
n. 12.
Jefferson contends, and the State has not disputed, that
after the hearing concluded the state-court judge con
tacted the attorneys for the State ex parte. And in a pri
vate conversation that included neither Jefferson nor his
attorneys, the judge asked the State’s attorneys to draft
the opinion of the court. See id., at 3, 12. According to
Jefferson, no such request was made of him, nor was he
informed of the request made to opposing counsel. Id., at
12, n. 8, 13; see also Jefferson v. Zant, 263 Ga. 316, 431
S. E. 2d 110, 111 (1993) (“Jefferson contends [the order]
amounts to no more and no less than a reply brief to which
[he] has not had a chance to respond”).
The attorneys for the State prepared an opinion finding
that “Dr. Dudley led [Jefferson’s trial attorneys] to believe
that further investigation would simply be a waste of time
because Petitioner [i]s not psychotic.” Jefferson v. Zant,
Civ. Action No. 87–V–1241 (Super. Ct. Butts Cty., Ga.,
Oct. 7, 1992), p. 16, App. 4 to Pet. for Cert. 16 (hereinafter
State Order); see also id., at 37. The opinion “specifically
credits the testimony of [the trial attorneys] with regard to
their efforts to investigate Petitioner’s mental condition.”
Id., at 18; see also id., at 36. And relying on these find
ings, it concludes that Jefferson’s attorneys “made a rea
sonable investigation into [his] mental health” and were
thus not ineffective. Id., at 37.
Notably, as the Georgia Supreme Court acknowledged,
the State’s opinion discusses statements purportedly made
on Jefferson’s behalf by a witness “who did not testify” or
participate in the proceedings. 263 Ga., at 318, 431 S. E.
2d, at 112; see State Order 24–25. Nonetheless, the opin
ion “was adopted verbatim by the [state] court.” 263 Ga.,
at 316, 431 S. E. 2d, at 111. And while the State Supreme
Court recognized that we have “ ‘criticized’ ” such a prac
tice, it affirmed the judgment. Id., at 317, 320, 431 S. E.
Cite as: 560 U. S. ____ (2010) 5
Per Curiam
2d, at 112, 114 (quoting Anderson v. Bessemer City, 470
U. S. 564, 572 (1985)).
II
Jefferson next sought federal habeas relief in the Dis
trict Court. In his opening brief, he argued that “there is
no reason under principles of comity or otherwise to give
any deference to the findings of the State Habeas Corpus
Court.” Brief for Petitioner in No. 1:96–CV–989–CC (ND
Ga.), Doc. 105, p. 4, and n. 1 (hereinafter District Court
Brief). In support of that argument, he claimed that the
state court “merely signed an order drafted by the State
without revision of a single word,” even though the order
“described witnesses who never testified.” Ibid. And he
said that such a process “rais[es] serious doubts as to
whether [the judge] even read, much less carefully consid
ered, the proposed order submitted by the State.” Ibid.The District Court ruled in Jefferson’s favor. It noted
that under the relevant statute “factual findings of state
courts are presumed to be correct unless one of . . . eight
enumerated exceptions . . . applies.” 490 F. Supp. 2d, at
1280; see also id., at 1280, n. 5 (listing the exceptions).
And it acknowledged “the state habeas corpus court’s
failure to explain the basis” for its credibility findings. Id.,
at 1324, n. 17. But it accepted Jefferson’s claim of ineffec
tive assistance of counsel without disturbing the state
court’s factual findings because it believed he should
prevail even accepting those findings as true. Id., at
1324–1325.
On appeal, Jefferson defended the District Court’s judg
ment primarily on its own terms. But he also argued that
the state court’s factfinding was “dubious at best” in light
of the process that court employed, and that the Court of
Appeals therefore “should harbor serious doubts about the
findings of fact and credibility determinations in the state
court record.” Brief for Petitioner/Appellee in No. 07–
6 JEFFERSON v. UPTON
Per Curiam
12502 (CA11), pp. 31–32, n. 10 (hereinafter Appeals Brief).
A divided Court of Appeals panel reversed, and Jeffer
son filed this petition for certiorari asking us to review his
claim of ineffective assistance of counsel. And, in so doing,
he challenges—as he did in the State Supreme Court, the
District Court, and the Court of Appeals—“the fact find
ings of the state court,” given what he describes as the
deficient procedure employed by that court while reviewing
his claim. Pet. for Cert. 11–13, 17, n. 12, 18, n. 13 (re
counting “ ‘reason[s] to doubt’ ” the state court’s findings).
Cf. Lebron v. National Railroad Passenger Corporation,
513 U. S. 374, 379 (1995) (stating standard for preserving
an issue for review in this Court).
III
This habeas application was filed prior to the enactment
of the Antiterrorism and Effective Death Penalty Act of
1996 and is therefore governed by federal habeas law as it
existed prior to that point. Lindh v. Murphy, 521 U. S.
320, 326–336 (1997). In 1963, we set forth the “appropri
ate standard” to be applied by a “federal court in habeas
corpus” when “the facts” pertinent to a habeas application
“are in dispute.” Townsend v. Sain, 372 U. S. 293, 312.
We held that when “the habeas applicant was afforded a
full and fair hearing by the state court resulting in reliable
findings” the district court “ordinarily should . . . accept
the facts as found” by the state-court judge. Id., at 318.
However, “if the habeas applicant did not receive a full
and fair evidentiary hearing in a state court, either at the
time of the trial or in a collateral proceeding,” we held that
the federal court “must hold an evidentiary hearing” to
resolve any facts that “are in dispute.” Id., at 312. We
further “explain[ed] the controlling criteria” by enumerat
ing six circumstances in which such an evidentiary hear
ing would be required:
“(1) the merits of the factual dispute were not resolved
Cite as: 560 U. S. ____ (2010) 7
Per Curiam
in the state hearing; (2) the state factual determina
tion is not fairly supported by the record as a whole;
(3) the fact-finding procedure employed by the state
court was not adequate to afford a full and fair hear
ing; (4) there is a substantial allegation of newly dis
covered evidence; (5) the material facts were not ade
quately developed at the state-court hearing; or (6) for
any reason it appears that the state trier of fact did not
afford the habeas applicant a full and fair fact hear
ing.” Id., at 313 (emphasis added).
Three years later, in 1966, Congress enacted an
amendment to the federal habeas statute that “was an
almost verbatim codification of the standards delineated
in Townsend v. Sain.” Miller v. Fenton, 474 U. S. 104, 111
(1985). That codification read in relevant part as follows:
“In any proceeding instituted in a Federal court by
an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court,
a determination . . . of a factual issue, made by a State
court of competent jurisdiction . . . , shall be presumed
to be correct, unless the applicant shall establish or
it shall otherwise appear, or the respondent shall
admit—
“(1) that the merits of the factual dispute were not
resolved in the State court hearing;
“(2) that the factfinding procedure employed by the
State court was not adequate to afford a full and fair
hearing;
“(3) that the material facts were not adequately de
veloped at the State court hearing;
“(4) that the State court lacked jurisdiction of the
subject matter or over the person of the applicant in
the State court proceeding;
“(5) that the applicant was an indigent and the
State court, in deprivation of his constitutional right,
8 JEFFERSON v. UPTON
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failed to appoint counsel to represent him in the State
court proceeding;
“(6) that the applicant did not receive a full, fair,
and adequate hearing in the State court proceeding; or
“(7) that the applicant was otherwise denied due
process of law in the State court proceeding;
“(8) or unless . . . the Federal court on a considera
tion of [the relevant] part of the record as a whole con
cludes that such factual determination is not fairly
supported by the record.” §2254(d) (emphasis added).
As is clear from the statutory text quoted above, and as
the District Court correctly stated, if any “one of the eight
enumerated exceptions . . . applies” then “the state court’s
factfinding is not presumed correct.” 490 F. Supp. 2d, at
1280; accord, Miller, supra, at 105 (“Under 28 U. S. C.
§2254(d), state-court findings of fact ‘shall be presumed to
be correct’ in a federal habeas corpus proceeding unless
one of eight enumerated exceptions applies”); see also 1 R.
Hertz & J. Liebman, Federal Habeas Corpus Practice and
Procedure §20.2c, pp. 915–918 (5th ed. 2005).
Jefferson has consistently argued that the federal courts
“should harbor serious doubts about” and should not “give
any deference to” the “findings of fact and credibility
determinations” made by the state habeas court because
those findings were drafted exclusively by the attorneys
for the State pursuant to an ex parte request from the
state-court judge, who made no such request of Jefferson,
failed to notify Jefferson of the request made to opposing
counsel, and adopted the State’s proposed opinion verba
tim even though it recounted evidence from a nonexistent
witness. See, e.g., Appeals Brief 32, n. 10; District Court
Brief 4, n. 1; Pet. for Cert. 12. These are arguments that
the state court’s process was deficient. In other words,
they are arguments that Jefferson “did not receive a full
and fair evidentiary hearing in . . . state court.” Town
Cite as: 560 U. S. ____ (2010) 9
Per Curiam
send, supra, at 312. Or, to use the statutory language,
they are arguments that the state court’s “factfinding
procedure,” “hearing,” and “proceeding” were not “full,
fair, and adequate.” §§2254(d)(2), (6), (7).
But the Court of Appeals did not consider the state
court’s process when it applied the statutory presumption
of correctness. Instead, it invoked Circuit precedent that
applied only paragraph (8) of §2254(d), which, codifying
the second Townsend exception, 372 U. S., at 313, lifts the
presumption of correctness for findings that are “not fairly
supported by the record.” See 570 F. 3d, at 1300 (quoting
Jackson v. Herring, 42 F. 3d 1350, 1366 (CA11 1995), in
turn quoting 28 U. S. C. §2254(d)(8)). And even though
the Court of Appeals “recognize[d]” that Jefferson had
argued that the state court’s process had produced factual
findings that were “ ‘dubious at best,’ ” and that federal
courts should therefore “ ‘harbor serious doubts about’ ” the
state court’s “ ‘findings of fact and credibility,’ ” the Court
of Appeals nonetheless held that the state court’s findings
are “ ‘entitled to a presumption of correctness’ ” that it was
“duty-bound” to apply. 570 F. 3d, at 1304, n. 8 (quoting
Appeals Brief 32, n. 10). The Court of Appeals explicitly
stated that it considered itself “duty-bound” to defer to the
state court’s findings because “Jefferson has not argued
that any of the state courts’ factual findings were ‘not
fairly supported by the record,’ ” a direct reference to
§2254(d)(8) and to the second Townsend exception. 570
F. 3d, at 1304, n. 8 (emphasis added). And it then con
cluded: “Based on these factual findings of the state ha
beas courts—all of which are fairly supported by the re
cord—we believe that Jefferson’s counsel were reasonable
in deciding not to pursue neuropsychological testing.” Id.,
at 1304 (emphasis added).
In our view, the Court of Appeals did not properly con
sider the legal status of the state court’s factual findings.
Under Townsend, as codified by the governing statute, a
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federal court is not “duty-bound” to accept any and all
state-court findings that are “fairly supported by the
record.” Those words come from §2254(d)(8), which is only
one of eight enumerated exceptions to the presumption of
correctness. But there are seven others, see §§2254(d)(1)–
(7), none of which the Court of Appeals considered when
addressing Jefferson’s claim. To be sure, we have previ
ously stated in cases applying §2254(d)(8) that “a federal
court” may not overturn a state court’s factual conclusion
“unless the conclusion is not ‘fairly supported by the re
cord.’ ” Parker v. Dugger, 498 U. S. 308, 320 (1991) (grant
ing federal habeas relief after rejecting state court’s find
ing under §2254(d)(8)); see also Demosthenes v. Baal, 495
U. S. 731 (1990) (per curiam) (applying §2254(d)(8)); cf.
post, at 10 (SCALIA, J., dissenting). But in those cases
there was no suggestion that any other provisions enu
merated in §2254(d) were at issue. That is not the case
here. In treating §2254(d)(8) as the exclusive statutory
exception, and by failing to address Jefferson’s argument
that the state court’s procedures deprived its findings of
deference, the Court of Appeals applied the statute and
our precedents incorrectly.
Although we have stated that a court’s “verbatim adop
tion of findings of fact prepared by prevailing parties”
should be treated as findings of the court, we have also
criticized that practice. Anderson, 470 U. S., at 572. And
we have not considered the lawfulness of, nor the applica
tion of the habeas statute to, the use of such a practice
where (1) a judge solicits the proposed findings ex parte,
(2) does not provide the opposing party an opportunity to
criticize the findings or to submit his own, or (3) adopts
findings that contain internal evidence suggesting that
the judge may not have read them. Cf. id., at 568; Ga.
Code of Judicial Conduct, Canon 3(A)(4) (1993) (prohibit
ing ex parte judicial communications).
We decline to determine in the first instance whether
Cite as: 560 U. S. ____ (2010) 11
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any of the exceptions enumerated in §§2254(d)(1)–(8)
apply in this case, see, e.g., Cutter v. Wilkinson, 544 U. S.
709, 718, n. 7 (2005), especially given that the facts sur
rounding the state habeas court’s process are undeveloped.
Respondent has conceded that it drafted the state court’s
final order at that court’s request and that the order was
adopted verbatim, 263 Ga., at 317, 431 S. E. 2d, at 111,
and has not disputed in this Court that the state court
solicited the order “ex parte and without prior notice” and
“did not seek a proposed order from Petitioner,” Pet. for
Cert. 12, and n. 8. But the precise nature of what tran
spired during the state-court proceedings is not fully
known. See 263 Ga. at 316–317, 431 S. E. 2d, at 111(noting dispute as to whether Jefferson “had a chance to
respond” to the final order); see also Pet. for Cert. 13.
Accordingly, we believe it necessary for the lower courts
to determine on remand whether the state court’s factual
findings warrant a presumption of correctness, and to
conduct any further proceedings as may be appropriate in
light of their resolution of that issue. See Townsend,
supra, at 313–319; Keeney v. Tamayo-Reyes, 504 U. S. 1(1992). In so holding, we express no opinion as to whether
Jefferson’s Sixth Amendment rights were violated assum
ing the state court’s factual findings to be true.
* * *
The petition for a writ of certiorari and motion to pro
ceed in forma pauperis are granted. The judgment of the
Court of Appeals is vacated, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Cite as: 560 U. S. ____ (2010) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
LAWRENCE JOSEPH JEFFERSON v. STEPHEN
UPTON, WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 09–8852. Decided May 24, 2010
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
dissenting.
The question presented by Jefferson’s petition for writ of
certiorari is whether his trial attorneys rendered ineffec
tive assistance of counsel when they declined to pursue
further investigation of Jefferson’s childhood head injury.
In my view the Court should either answer that question
or (as I would prefer) deny the petition. Instead, it sum
marily vacates the judgment of the Court of Appeals on an
altogether different ground that was neither raised nor
passed upon below and that is not fairly included within
the sole question presented. To make matters worse, the
Court conjures up an “error” with respect to that ground
by misquoting and mischaracterizing the Court of Appeals’
opinion, ante, at 9–10, and by overlooking relevant author
ity from this Court. I respectfully dissent.
I
A
The prior version of 28 U. S. C. §2254(d) (1994 ed.)
applicable in this case provided that in federal habeas
proceedings the factual determinations of a state court
“shall be presumed to be correct,” unless the applicant
proves, the respondent admits, or a federal court deter
mines that one of eight exceptions set forth in §2254(d)(1)–
(8) applies. The Court concludes that the Eleventh Circuit
2 JEFFERSON v. UPTON
SCALIA, J., dissenting
misapplied that provision and our precedents by treating
one of those exceptions, §2254(d)(8), “as the exclusive
statutory exception” to the presumption of correctness,
and by failing to address whether §2254(d)(2), (6), or (7)
might also bar application of that presumption.1 Ante, at
10.
The Court’s opinion, however, is the first anyone (in
cluding Jefferson) has heard of this argument. Jefferson’s
briefs below contain no discussion or even citation of sub
section (d)—let alone of paragraphs (2), (6), or (7)—and the
courts below understandably never passed upon the appli
cation of those provisions. Under our longstanding prac
tice, that should be the end of the matter. See, e.g., Penn
sylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212–
213 (1998).
But the Court insists, ante, at 5–6, 8–9, that if we squint
at them long enough we can see in Jefferson’s briefs below
a challenge to the state court’s fact-finding process cogni
zable under §2254(d)(2), (6), and (7). But the handful of
isolated, vague statements it musters (buried in hundreds
of pages of briefs) show no such thing. The Court’s only
evidence that Jefferson presented the point to the District
Court, ante, at 5, 8, consists of a single sentence of text
(and an accompanying two-sentence footnote) in the “Prior
Proceedings” section of his 180-page brief. Final Eviden
tiary Brief and Proposed Findings of Fact and Conclusions
——————
1 These
four exceptions in 28 U. S. C. §2254(d) (1994 ed.) were:
“(2) that the factfinding procedure employed by the State court was
not adequate to afford a full and fair hearing;
. . . . .
“(6) that the applicant did not receive a full, fair, and adequate
hearing in the State court proceeding; or
“(7) that the applicant was otherwise denied due process of law in the
State court proceeding;
“(8) or unless . . . the Federal court on a consideration of [the rele
vant] part of the record as a whole concludes that such factual determi
nation is not fairly supported by the record . . . .”
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SCALIA, J., dissenting
of Law, Record in No. 1:96–CV–989–CC (ND Ga.), Doc.
105 (hereinafter District Court Brief). The sentence is: “In
entering the State Habeas Corpus Order Judge Newton
merely signed an order drafted by the State without revi
sion of a single word.” Id., at 4. The footnote adds:
“[T]he order signed by Judge Newton described wit
nesses who never testified, raising serious doubt as to
whether he even read, much less carefully considered,
the proposed order submitted by the State. In this
circumstance, there is no reason under principles of
comity or otherwise to give any deference to the find
ings of the State Habeas Court, because there was ap
parently no serious consideration or deliberation of
the factual and legal issues raised.” Ibid., n. 1.
This passing suggestion that deference would be unwar
ranted is, to put it mildly, an elliptical way to argue that
the state fact-finding procedure was inadequate,
§2254(d)(2), that Jefferson was denied a full, fair, and
adequate hearing, §2254(d)(6), or that Jefferson was de
nied due process of law, §2254(d)(7). And it only appeared,
I emphasize again, in the “Prior Proceedings” section of
the brief. The argument section of Jefferson’s District
Court Brief, consisting of 164 pages and containing sepa
rate assignments of error from III to XLIV (44), makes no
mention of the ground upon which the Court today relies.
And the assignment of error that is the basis for the ques
tion presented in Jefferson’s petition, VI, id., at 47–80, did
not dispute the state courts’ factual findings under
§2254(d), but only challenged the state courts’ legal con
clusion that his attorneys’ failure to conduct a fuller inves
tigation into the head injury he suffered as a child was not
deficient performance under Strickland v. Washington,
466 U. S. 668 (1984).
Jefferson also did not raise the point in the Eleventh
Circuit. His brief to that court acknowledged that the
4 JEFFERSON v. UPTON
SCALIA, J., dissenting
state courts’ “[f]indings of fact and credibility determina
tions are reviewed for clear error.” Brief for Peti
tioner/Appellee, No. 07–12502, pp. 16–17 (hereinafter
Appeals Brief). It declared that “The District Court Cor
rectly Deferred to the Fact Findings of the State Court” in
adjudicating his ineffective-assistance-of-counsel claim.
Id., at 21 (capitalization and boldface type deleted); see
also id., at 29, and n. 7, 31. And it conceded that with
respect to the ineffective-assistance claim, “[t]he relevant
facts are not in dispute.” Id., at 24. Jefferson did charac
terize the state habeas court’s factual findings as gener
ally “dubious” and suggested there were “serious doubts”
about them, id., at 32, n. 10. But not once did he argue
that the dubiousness of the findings was the consequence
of a failure to meet the requirements of §2254(d)(2), (6), or
(7)—or even more generally that the findings should not
be presumed correct under §2254(d). Instead, he pressed
the same argument he made in the District Court: Even if
the state courts’ factual findings were correct, his trial
attorneys rendered ineffective assistance in deciding to
forgo further investigation of his childhood head injury.
Id., at 31–33, 50–51.
Nor did the courts below pass upon the argument the
Court now addresses. The District Court did not dispute
the state courts’ factual findings. Jefferson v. Terry, 490
F. Supp. 2d 1261, 1319–1320 (ND Ga. 2007). It accepted
those findings as true, including the state habeas court’s
credibility findings, id., at 1323–1324, and n. 17, but held
“as a matter of law” that it was objectively unreasonable
for Jefferson’s attorneys “not to investigate” further into
the effect, if any, of the accident on Jefferson’s mental
capacity and health, id., at 1324. Concluding that Jeffer
son was thereby prejudiced, the court ordered a new sen
tencing hearing. Id., at 1328.
The Court of Appeals disagreed with that determination
and reversed, holding that his trial attorneys’ performance
Cite as: 560 U. S. ____ (2010) 5
SCALIA, J., dissenting
was not objectively unreasonable under Strickland. Jef
ferson v. Hall, 570 F. 3d 1283, 1301–1309 (CA11 2009).
That court correctly stated the applicable framework
under §2254(d):
“Pre-AEDPA, questions of law and mixed questions
of law and fact resolved by state habeas courts are re
viewed de novo, while the state courts’ factual findings
are ‘subject to the presumption of correctness.’
Freund v. Butterworth, 165 F. 3d 839, 861 (11th Cir.
1999). Although these findings may be disregarded if,
for example, they are not ‘fairly supported by the re
cord,’ Jackson v. Herring, 42 F. 3d 1350, 1366 (11th
Cir. 1995) (quoting 28 U. S. C. §2254(d)(8)), this Court
has construed the ‘presumption of correctness’ stan
dard to be the same as the ‘clear error’ standard of
review.” Id., at 1300 (emphasis added; footnote
omitted).
Confronted with no argument that §2254(d)(1)–(7) applied
or that it must disregard the state courts’ factual findings,
the Court of Appeals understandably did not pass upon
those questions.
The Court of Appeals did consider the record on its own,
as required by §2254(d)(8), to determine whether the state
courts’ factual determinations were fairly supported by the
record. Id., at 1303–1304, and n. 8. In doing so, the court
“specifically note[d] that neither Jefferson nor the district
court questioned the state court’s factual finding that [the
defense’s psychiatric expert] led [one of Jefferson’s attor
ney’s] to believe that further investigation would simply
be a waste of time, . . . despite [his attorney’s] testimony
that [the expert] told him it ‘may’ be a waste of time.” Id.,
at 1303, n. 8. It added that Jefferson did not “point to any
particular finding that was clearly erroneous,” id., at 1304,
n. 8—applying the same standard Jefferson had proposed
in his brief, see supra, at 3. Even the dissent agreed that
6 JEFFERSON v. UPTON
SCALIA, J., dissenting
the court was “obliged to accept” the state courts’ credibil
ity determination, despite the “reasons to doubt it.” 570
F. 3d, at 1312 (opinion of Carnes, J.). The dissent did not
cite §2254(d)(2), (6), or (7), but instead focused on the
same question of constitutional law that occupied Jeffer
son’s briefs, the District Court’s opinion, and the major
ity’s opinion: whether, accepting the factual findings and
credibility determination of the state courts as true, Jef
ferson’s attorneys rendered ineffective assistance of coun
sel. That is only the question that occupied the courts and
the parties below.
B
It is bad enough that the Court decides an issue not
raised or resolved in the lower courts. It is much worse
that it decides an issue Jefferson has not even asked us to
address. Under this Court’s Rule 14.1(a), “[o]nly the
questions set forth in the petition, or fairly included
therein, will be considered by the Court.” We apply that
rule in all but “the most exceptional cases, where reasons
of urgency or of economy suggest the need to address the
unpresented question under consideration.” Yee v. Escon
dido, 503 U. S. 519, 535 (1992) (citation and internal
quotation marks omitted).
Jefferson’s petition for writ of certiorari presents a
single question:
“[W]hether the majority opinion, in affording trial
counsel’s decision to limit the scope of investigation in
a death penalty case ‘higher-than-strong presumption
of reasonableness’ [sic] conflicts with this Court’s
precedent as announced in Williams v. Taylor, 529
U. S. 362 (2000), Wiggins v. Smith, 539 U. S. 510(2003), Rompilla v. Beard, 545 U. S. 374 (2005), and
Porter v. McCollum, 130 S. Ct. 447 (2009).” Pet. for
Cert. i.
Cite as: 560 U. S. ____ (2010) 7
SCALIA, J., dissenting
This is a straightforward request for error correction on a
constitutional claim in light of those four decisions, and
neither the request nor those cases have anything to do
with the pre-AEDPA version of §2254(d). Nor does that
question necessarily encompass whether the Court of
Appeals misapplied that version of §2254(d) in determin
ing the deference due to the state courts’ factual findings.
The statutory question may be “related to,” and “perhaps
complementary to the one petitioner presented,” but it is
not “fairly included therein.” Yee, supra, at 537 (internal
quotation marks omitted).
As for the body of Jefferson’s petition: Far from invoking
§2254(d)’s exceptions to the presumption of correctness to
support the Sixth Amendment claim, the petition does not
even mention subsection (d), let alone paragraphs (2), (6),
or (7). There is no argument, anywhere in the section
entitled “Reasons for Granting the Writ,” that the state
courts’ factual findings are not entitled to a presumption
of correctness.
The Court claims, ante, at 6, that Jefferson sufficiently
presented the statutory issue by his characterizations of
the state courts’ factual findings in the “Statement of the
Case” section of his petition, see Pet. for Cert. 11–13, 17,
n. 12, 18, n. 13. Even if that were so, “ ‘the fact that [peti
tioner] discussed this issue in the text of [his] petition for
certiorari does not bring it before us. Rule 14.1(a) requires
that a subsidiary question be fairly included in the ques
tion presented for our review.’ ” Wood v. Allen, 558 U. S.
___, ___ (2010) (slip op., at 13) (quoting Izumi Seimitsu
Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S.
27, 31, n. 5 (1993) (per curiam)). But in any event, the
cited passages do not remotely present the statutory issue.
They contain no argument that §2254(d)’s presumption is
inapplicable because of §2254(d)(2), (6), or (7), but merely
describe the proceedings below, see Pet. for Cert. 11–13,
and assert that there might be reasons to doubt the state
8 JEFFERSON v. UPTON
SCALIA, J., dissenting
court findings (but for the §2254(d) presumption), see id.,
at 17, n. 12, 18, n. 13.
“The premise of our adversarial system is that appellate
courts do not sit as self-directed boards of legal inquiry
and research, but essentially as arbiters of legal questions
presented and argued by the parties before them.” Car
ducci v. Regan, 714 F. 2d 171, 177 (CADC 1983) (opinion
of Scalia, J.). Our refusal to abide by standard rules of
appellate practice is unfair to the Eleventh Circuit, whose
judgment the Court vacates, and especially to the respon
dent here, who suffers a loss in this Court without ever
having an opportunity to address the merits of the statu
tory question the Court decides.
II
The Court’s approach would be objectionable even if it
were correct that the Court of Appeals went astray. But
it is not. The Court of Appeals did not treat §2254(d)(8)
as “the exclusive statutory exception” to the presumption
of correctness. Ante, at 10. It is true that the major
ity’s opinion—as well as the dissent’s—discussed only
§2254(d)(8). But that is because only §2254(d)(8), and
not §2254(d)(2), (6), or (7), was ever brought to the
court’s attention. On the fair reading we owe the Elev
enth Circuit’s opinion, there simply was no error in its
application of §2254(d).
The Court asserts, however, that the Eleventh Circuit
ignored the other seven paragraphs in §2254(d) when it
“invoked Circuit precedent that applied only paragraph (8)
of §2254(d).” Ante, at 9. It did nothing of the sort. The
Court of Appeals said that a state court’s factual findings
“may be disregarded if, for example, they are not ‘fairly
supported by the record,’ Jackson v. Herring, 42 F. 3d
1350, 1366 (11th Cir. 1995) (quoting 28 U. S. C.
§2254(d)(8)).” 570 F. 3d, at 1300 (emphasis added). The
Court of Appeals thus expressly acknowledged that
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SCALIA, J., dissenting
§2254(d)(8) was but one example of the grounds for disre
garding a state court’s factual findings. And the Circuit
precedent it cited, Jackson v. Herring, similarly did not
imply, much less hold, that §2254(d)(8) provided the only
grounds for setting aside a state court’s factual findings
under §2254(d). See 42 F. 3d, at 1366.
Next, the Court states:
“And even though the Court of Appeals ‘recognize[d]’
that Jefferson had argued that the state court’s proc
ess had produced factual findings that were ‘ “dubious
at best,” ’ and that federal courts should therefore
‘ “harbor serious doubts about” ’ the state court’s
‘ “findings of fact and credibility,” ’ the Court of Ap
peals nonetheless held that the state court’s findings
are ‘ “entitled to a presumption of correctness” ’ that it
was ‘ “duty-bound” ’ to apply. 570 F. 3d, at 1304, n. 8(quoting Appeals Brief 32, n. 10).” Ante, at 9.
Again, the Court has plucked isolated language from here
and there in the Court of Appeals’ opinion, to produce a
reading which suggests that the Court of Appeals agreed
with, or at least did not contest, Jefferson’s claim of “seri
ous doubts.” That is not so. In the first paragraph of
footnote eight of its opinion, the panel reasoned that it was
“duty-bound to accept” the state courts’ factual findings
because it concluded they “are clear, unambiguous, and
fairly supported by the record.” 570 F. 3d, at 1303–1304,
n. 8. That language precedes the panel’s analysis—in the
second paragraph of footnote eight—regarding Jefferson’s
statements that the findings were “dubious” and raised
“serious doubts.” The Court omits the panel’s actual
explanation for declining to credit Jefferson’s general
characterization of the quality of the record, which is:
“Jefferson does not point to any particular factual finding
that was clearly erroneous, and Jefferson even says in the
argument section of his brief that, ‘[t]he relevant facts are
10 JEFFERSON v. UPTON
SCALIA, J., dissenting
not in dispute.’ ” Id., at 1304, n. 8.
By the way, even if the Court of Appeals had carelessly
described application of the pre-AEDPA version of
§2254(d) in the manner which the Court suggests, that
would have been no worse than what we have done. For
example, in Demosthenes v. Baal, 495 U. S. 731, 735
(1990) (per curiam), we stated that a federal court may not
overturn a state habeas court’s factual determinations
“unless it concludes that they are not ‘fairly supported by
the record.’ See 28 U. S. C. §2254(d)(8).” And in Parker v.
Dugger, 498 U. S. 308, 320 (1991), we explained that a
federal habeas court “is not to overturn a factual conclu
sion of a state court, including a state appellate court,
unless the conclusion is not ‘fairly supported by the
record.’ ”2
* * *
Generally speaking, we have no power to set aside the
duly entered judgment of a lower federal court unless we
find it to have been in error. More specifically, except
where there has been an intervening legal development
(such as a subsequently announced opinion of ours) that
——————
2 The Court attempts to distinguish these two cases on the ground
that they contained “no suggestion that any other provisions enumer
ated in §2254(d) were at issue,” whereas “[t]hat is not the case here.”
Ante, at 10. That is simply not so. As already noted, there was no
“suggestion” here (let alone an actual argument) that paragraphs (2),
(6), or (7) were in issue. And if the Court means no more than that
petitioner here made some process-type noises, the same was true—and
indeed more true—of Parker and Demosthenes. In Parker, we stated
the “crux of [petitioner’s] contentions” was that the state courts “fail[ed]
to treat adequately” the evidence he presented. 498 U. S., at 313. In
Demosthenes, the Ninth Circuit had said that the state court’s process
for determining whether the capital inmate was competent was defi
cient because “ ‘a full evidentiary hearing on competence should have
been held.’ ” 495 U. S., at 736 (quoting Order in Baal v. Godinez, No.
90–15716 (CA9, June 2, 1990), p. 5).
Cite as: 560 U. S. ____ (2010) 11
SCALIA, J., dissenting
might alter the judgment below, we cannot grant a peti
tion for certiorari, vacate the judgment below, and remand
the case (GVR) simply to obtain a re-do. Webster v.
Cooper, 558 U. S. ___, ___ (2009) (SCALIA, J., dissenting)
(slip op., at 3). Yet today the Court vacates the judgment
of the Eleventh Circuit on the basis of an error that court
did not commit, with respect to a statutory issue that had
never previously been raised, and remands for more ex
tensive consideration of a new argument that might affect
the judgment. Under the taxonomy of our increasingly
unprincipled GVR practice, this creature is of the same
genus as the “Summary Remand for a More Extensive
Opinion than Petitioner Requested” (SRMEOPR). Id., at
___ (slip op., at 4). But it is a distinctly odious species,
deserving of its own name: Summary Remand to Ponder a
Point Raised Neither Here nor Below (SRPPRNHB).