Knowles v. Mirzayance

(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KNOWLES, WARDEN v. MIRZAYANCE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 07–1315. Argued January 13, 2009—Decided March 24, 2009
Respondent Mirzayance entered pleas of not guilty and not guilty by
reason of insanity (NGI) at his state-court murder trial. During the
guilt phase, he sought to avoid a conviction for first-degree murder
and instead obtain a second-degree murder verdict by presenting
medical testimony that he was insane at the time of the crime and
was, therefore, incapable of the necessary premeditation or delibera
tion. The jury nevertheless convicted him of first-degree murder. Af
ter the trial’s NGI phase was scheduled, Mirzayance accepted his
counsel’s recommendation to abandon the insanity plea. Counsel be
lieved that a defense verdict was unlikely because the jury had just
rejected medical testimony similar to that which would be presented
to establish the NGI defense. Moreover, although counsel had
planned to supplement the medical evidence with testimony by Mir
zayance’s parents as to their son’s mental illness, the parents refused
to testify at the last moment. Following his conviction, Mirzayance
alleged in state postconviction proceedings that his attorney’s rec
ommendation to withdraw the NGI plea constituted ineffective assis
tance of counsel under Strickland v. Washington, 466 U. S. 668. The
trial court denied relief, and the California Court of Appeal affirmed.
Mirzayance then applied for federal habeas relief, which the Dis
trict Court denied. The Ninth Circuit reversed, ordering an eviden
tiary hearing on counsel’s recommendation to withdraw the NGI
plea. During the hearing, the Magistrate Judge made extensive fact
findings, including, inter alia, that the NGI phase medical evidence
essentially would have duplicated the evidence the jury rejected in
the guilt phase; that counsel doubted the likelihood of prevailing on
the NGI claim because the jury’s finding of first-degree murder as a
practical matter would cripple Mirzayance’s chances of convincing
2 KNOWLES v. MIRZAYANCE
Syllabus
the jury that he nevertheless was incapable of understanding the na
ture and quality of his act and of distinguishing right from wrong;
that Mirzayance’s parents were not simply reluctant, but had effec
tively refused, to testify; that counsel had made a carefully reasoned
decision not to proceed with the NGI plea after weighing his options
and discussing the matter with experienced co-counsel; but that
counsel’s performance was nevertheless deficient because Mirzayance
had “nothing to lose” by going forward with the NGI phase of the
trial. The Magistrate Judge also found prejudice and recommended
habeas relief. The District Court accepted the recommendation and
granted the writ. The Court of Appeals affirmed, ruling, among other
things, that counsel’s performance had been deficient because Mir
zayance’s parents had not refused, but had merely expressed reluc
tance to testify, and because competent counsel would have at
tempted to persuade them to testify, which Mirzayance’s counsel
admittedly did not. The court essentially concluded that competent
counsel would have pursued the insanity defense because counsel
had nothing to lose by putting on the only defense available. In addi
tion, the court found prejudice because, in the court’s view, there was
a reasonable probability the jury would have found Mirzayance in
sane had counsel pursued the NGI phase. The Ninth Circuit con
cluded that federal habeas relief was authorized under 28 U. S. C.
§2254(d)(1) because the California Court of Appeal had “unreason
abl[y] appli[ed] clearly established Federal law.”
Held: Whether the state-court decision is reviewed under §2254(d)(1)’s
standard or de novo, Mirzayance has failed to establish that his coun
sel’s performance was ineffective. Pp. 8–16.
(a) The State Court of Appeal’s denial of Mirzayance’s ineffective
assistance claim did not violate clearly established federal law. The
Ninth Circuit reached a contrary result based largely on its applica
tion of an improper review standard—it blamed counsel for abandon
ing the NGI claim because there was “nothing to lose” by pursuing it.
But it is not “an unreasonable application of clearly established Fed
eral law” for a state court to decline to apply a specific legal rule that
has not been squarely established by this Court. See, e.g., Wright v.
Van Patten, 552 U. S. ___, ___. Absent anything akin to the “nothing
to lose” standard in this Court’s precedent, habeas relief could have
been granted under §2254(d)(1) only if the state-court decision in this
case had unreasonably applied Strickland’s more general standard
for ineffective-assistance claims, whereby a defendant must show
both deficient performance by counsel and prejudice, 466 U. S., at
687. The question “is not whether a federal court believes the state
court’s determination” under Strickland “was incorrect but whether
[it] was unreasonable—a substantially higher threshold.” Schriro v.
Cite as: 556 U. S. ____ (2009) 3
Syllabus
Landrigan, 550 U. S. 465, 473. And, because Strickland’s is a gen
eral standard, a state court has even more latitude to reasonably de
termine that a defendant has not satisfied that standard. Under the
doubly deferential judicial review that applies to a Strickland claim
evaluated under the §2254(d)(1) standard, Mirzayance’s ineffective
assistance claim fails. It was not unreasonable for the state court to
conclude that counsel’s performance was not deficient when he coun
seled Mirzayance to abandon a claim that stood almost no chance of
success. Pp. 8–11.
(b) Even if Mirzayance’s ineffective-assistance claim were eligible
for de novo review, it would still fail because he has not shown inef
fective assistance at all. Mirzayance can establish neither the defi
cient performance nor the prejudice required by Strickland. As to
performance, he has not shown “that counsel’s representation fell be
low an objective standard of reasonableness.” 466 U. S., at 687–688.
Rather, counsel merely recommended the withdrawal of what he rea
sonably believed was a claim doomed because similar medical testi
mony had already been rejected and the parents’ testimony, which he
believed to be his strongest evidence, would not be available. The
Ninth Circuit’s position that competent counsel might have per
suaded the reluctant parents to testify is in tension with the Magis
trate Judge’s contrary findings and applies a more demanding stan
dard than Strickland prescribes. The failure to show ineffective
assistance is also confirmed by the Magistrate Judge’s finding that
counsel’s decision was essentially an informed one “made after thor
ough investigation of law and facts relevant to plausible options,” and
was therefore “virtually unchallengeable.” Id., at 690. The Ninth
Circuit’s insistence that counsel was required to assert the only de
fense available, even one almost certain to lose, is not supported by
any “prevailing professional norms” of which the Court is aware. See
id., at 688. Nor has Mirzayance demonstrated that he suffered
prejudice, which requires a showing of “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” See id., at 694. In fact, it was highly im
probable that the jury, having just rejected testimony about Mir
zayance’s mental condition in the guilt phase, would have reached a
different result based on similar evidence at the NGI phase. Pp. 11–
16.
Reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, KENNEDY, BREYER, and ALITO, JJ., joined, and in
which SCALIA, SOUTER, and GINSBURG, JJ., joined as to all but Part II.
Cite as: 556 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–1315
_________________
MICHAEL A. KNOWLES, WARDEN, PETITIONER
v. ALEXANDRE MIRZAYANCE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 24, 2009]
JUSTICE THOMAS delivered the opinion of the Court.*
A federal court may grant a habeas corpus application
arising from a state-court adjudication on the merits if the
state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States.” 28 U. S. C. §2254(d)(1). In this case, respondent
Alexandre Mirzayance claimed ineffective assistance of
counsel because his attorney recommended withdrawing
his insanity defense. The California courts rejected this
claim on state postconviction review. We must decide
whether this decision was contrary to or an unreasonable
application of clearly established federal law. We hold
that it was not. Whether reviewed under the standard of
review set forth in §2254(d)(1) or de novo, Mirzayance
failed to establish that his counsel’s performance was
ineffective, see Strickland v. Washington, 466 U. S. 668(1984).
——————
* JUSTICE SCALIA, JUSTICE SOUTER, and JUSTICE GINSBURG join all but
Part II of this opinion.
2 KNOWLES v. MIRZAYANCE
Opinion of the Court
I
Mirzayance confessed that he stabbed his 19-year-old
cousin nine times with a hunting knife and then shot her
four times. At trial, he entered pleas of not guilty and not
guilty by reason of insanity (NGI). Under California law,
when both of these pleas are entered, the court must hold
a bifurcated trial, with guilt determined during the first
phase and the viability of the defendant’s NGI plea during
the second. Cal. Penal Code Ann. §1026(a) (West 1985).
During the guilt phase of Mirzayance’s trial, he sought to
avoid a conviction for first-degree murder by obtaining a
verdict on the lesser included offense of second-degree
murder. To that end, he presented medical testimony that
he was insane at the time of the crime and was, therefore,
incapable of the premeditation or deliberation necessary
for a first-degree murder conviction. The jury neverthe
less convicted Mirzayance of first-degree murder.
The trial judge set the NGI phase to begin the day after
the conviction was entered but, on the advice of counsel,
Mirzayance abandoned his NGI plea before it commenced.
He would have borne the burden of proving his insanity
during the NGI phase to the same jury that had just con
victed him of first-degree murder. Counsel had planned to
meet that burden by presenting medical testimony similar
to that presented in the guilt phase, including evidence
that Mirzayance was insane and incapable of premeditat
ing or deliberating. Because the jury rejected similar
evidence at the guilt phase (where the State bore the
burden of proof), counsel believed a defense verdict at the
NGI phase (where the burden was on the defendant) was
unlikely. He planned, though, to have Mirzayance’s par
ents testify and thus provide an emotional account of
Mirzayance’s struggles with mental illness to supplement
the medical evidence of insanity. But on the morning that
the NGI phase was set to begin, Mirzayance’s parents
refused to testify. After consulting with co-counsel, coun
Cite as: 556 U. S. ____ (2009) 3
Opinion of the Court
sel advised Mirzayance that he should withdraw the NGI
plea. Mirzayance accepted the advice.
After he was sentenced, Mirzayance challenged his
conviction in state postconviction proceedings. Among
other allegations, he claimed that counsel’s recommenda
tion to withdraw the NGI plea constituted ineffective
assistance of counsel under Strickland. The California
trial court denied the petition and the California Court of
Appeal affirmed without offering any reason for its rejec
tion of this particular ineffective assistance claim. People
v. Mirzayance, Nos. B116856, B124764 (Mar. 31, 1999),
App. to Pet. for Cert. 165–167, 200–201 (hereinafter App.).
Mirzayance then filed an application for federal habeas
relief under 28 U. S. C. §2254, which the District Court
denied without an evidentiary hearing. The Court of
Appeals reversed the District Court and ordered an evi
dentiary hearing on counsel’s recommendation to with
draw the NGI plea. Mirzayance v. Hickman, 66 Fed.
Appx. 676, 679–681 (CA9 2003). During that evidentiary
hearing, a Magistrate Judge made factual findings that
the District Court later adopted. Post-Remand Report and
Recommendation of United States Magistrate Judge in
No. CV 00–01388 DT (RZ) (CD Cal.), App. 38, 68; Mir
zayance v. Knowles, No. CV 00–1388 DT (RZ) (CD Cal.,
Nov. 15, 2004), id., at 35–36.
According to the Magistrate Judge, counsel’s strategy
for the two-part trial was to seek a second-degree murder
verdict in the first stage and to seek an NGI verdict in the
second stage. This strategy faltered when the jury instead
convicted Mirzayance of first-degree murder. In the cir
cumstances of this case, the medical evidence that Mir
zayance planned to adduce at the NGI phase essentially
would have duplicated evidence that the jury had neces
sarily rejected in the guilt phase. First-degree murder in
California includes any killing that is “willful, deliberate,
and premeditated.” Cal. Penal Code Ann. §189 (West
4 KNOWLES v. MIRZAYANCE
Opinion of the Court
1999). To prove NGI, a defendant must show that he was
incapable of knowing or understanding the nature of his
act or of distinguishing right from wrong at the time of the
offense. See People v. Lawley, 27 Cal. 4th 102, 170, 38
P. 3d 461, 508 (2002). Highlighting this potential contra
diction, the trial judge instructed the jury during the guilt
phase that “[t]he word ‘deliberate,’ ” as required for a first
degree murder conviction, “means formed or arrived at or
determined upon as a result of careful thought and weigh
ing of considerations for and against the proposed course
of action.” App. 48–49.
When the jury found Mirzayance guilty of first-degree
murder, counsel doubted the likelihood of prevailing on
the NGI claim. According to the Magistrate Judge:
“The defense suspected that a jury’s finding, beyond a
reasonable doubt, that [Mirzayance] had ‘deliberated’
and ‘premeditated’ his killing of [the victim] as a prac
tical matter would cripple [Mirzayance’s] chances of
convincing the jury later, during the sanity phase,
that [Mirzayance] nevertheless ‘was incapable of
knowing or understanding the nature and quality of
his . . . act and of distinguishing right from wrong at
the time of the commission of the offense,’ Cal. Penal
Code §25(b), . . . .
. . . . .
“Any remaining chance of securing an NGI verdict . . .
now depended (in [counsel’s] view) on presenting some
‘emotional [im]pact’ testimony by [Mirzayance’s] par
ents, which [counsel] had viewed as key even if
the defense had secured a second-degree murder ver
dict at the guilt phase.” Id., at 50–51 (emphasis in
original; capitalization omitted).
But, as the Magistrate Judge found, on the morning
that the NGI phase was set to begin, Mirzayance’s parents
effectively refused to testify:
Cite as: 556 U. S. ____ (2009) 5
Opinion of the Court
“[T]he parents at least expressed clear reluctance to
testify, which, in context, conveyed the same sense as
a refusal.” Id., at 72 (emphasis in original).
Although the parties disputed this point, the parents’ later
actions supported the Magistrate Judge’s finding that the
parents’ reluctance to testify amounted to refusal:
“Corroborating the Court’s finding that [Mir
zayance’s] parents indicated a strong disinclination to
testify at the NGI phase are the facts that (1) they did
not testify later at his sentencing hearing, and (2) the
reason for their choosing not to do so . . . is that . . . [it]
would have been ‘too emotional’ for them. . . . If weeks
after the guilty verdict and the withdrawal of their
son’s NGI plea, [Mirzayance’s] parents’ emotions still
prevented them from testifying at the sentencing
hearing, then surely those emotional obstacles to their
testifying in the NGI phase would have been at least
as potent, and probably more so.” Id., at 73 (emphasis
in original).
The Magistrate Judge found that counsel made a care
fully reasoned decision not to go forward with the NGI
plea:
“[Counsel] carefully weighed his options before mak
ing his decision final; he did not make it rashly. . . .
[Counsel’s] strategy at the NGI phase . . . depended
entirely on the heartfelt participation of [Mir
zayance’s] parents as witnesses. . . . Moreover, [coun
sel] knew that, although he had experts lined up to
testify, their testimony had significant weak
nesses. . . . [Counsel’s] NGI-phase strategy became
impossible to attempt once [Mirzayance’s] parents . . .
expressed . . . their reluctance to [testify] . . . . All
[counsel] was left with were four experts, all of whom
reached a conclusion—that [Mirzayance] did not pre
6 KNOWLES v. MIRZAYANCE
Opinion of the Court
meditate and deliberate his crime—that the same jury
about to hear the NGI evidence already had rejected
under a beyond-a-reasonable-doubt standard of proof.
The experts were subject to other impeachment as
well. . . . [Counsel] discussed the situation with his
experienced co-counsel . . . who concurred in [coun
sel’s] proposal that he recommend to [Mirzayance] the
withdrawal of the NGI plea.” Id., at 69–71.
Based on these factual findings, the Magistrate Judge
stated that, in his view, counsel’s performance was not
deficient.
Despite this determination, the Magistrate Judge con
cluded that the court was bound by the Court of Appeals’
remand order to determine only whether “ ‘there were
tactical reasons for abandoning the insanity defense.’ ” Id.,
at 98 (quoting Hickman, 66 Fed. Appx., at 680). Even
though the Magistrate Judge thought that counsel was
reasonable in recommending that a very weak claim be
dropped, the Magistrate Judge understood the remand
order to mean that counsel’s performance was deficient if
withdrawing the NGI plea would achieve no tactical ad
vantage. The Magistrate Judge found that “[Mirzayance]
had nothing to lose” by going forward with the NGI phase
of the trial, App. 100, and thus held, under the remand
order, that counsel’s performance was deficient, ibid. As
to prejudice, the Magistrate Judge concluded the court
was similarly bound by the remand order because the
Court of Appeals described the NGI defense as remaining
“ ‘viable and strong.’ ” Id., at 98 (quoting Hickman, supra,
at 681). Accordingly, the Magistrate Judge found preju
dice and recommended granting the writ of habeas corpus.
The District Court accepted this recommendation and
granted the writ.
The Court of Appeals affirmed. Mirzayance v. Knowles,
175 Fed. Appx. 142, 143 (CA9 2006). It first stated that
Cite as: 556 U. S. ____ (2009) 7
Opinion of the Court
the lower court had misunderstood its remand order,
which it described as requiring an examination of “coun
sel’s reason for abandoning the insanity defense,” rather
than as mandating that the District Court must find
deficient performance if it found counsel had “nothing to
lose” by pursuing the insanity defense. Ibid.; App. 98–99.
Nonetheless, the Court of Appeals affirmed the finding of
deficient performance. According to the court, Mir
zayance’s “parents did not refuse, but merely expressed
reluctance to testify.” Knowles, 175 Fed. Appx., at 144.
And because they may have been willing, “[c]ompetent
counsel would have attempted to persuade them to testify,
which counsel here admits he did not.” Ibid.1 The Court
of Appeals also “disagree[d] that counsel’s decision was
carefully weighed and not made rashly.” Ibid.
Furthermore, even though it had suggested that the
District Court unnecessarily evaluated counsel’s strategy
under a “nothing to lose” standard, the Court of Appeals
affirmed the District Court in large part because Mir
zayance’s “counsel did not make a true tactical choice”
based on its view that counsel had nothing to gain by
dropping the NGI defense. Ibid. The court held that
“[r]easonably effective assistance would put on the only
defense available, especially in a case such as this where
there was significant potential for success.” Id., at 145
(internal quotation marks omitted). The Court of Appeals
also found prejudice because, in its view, “[i]f counsel had
——————
1 At best, the Court of Appeals’ characterization of counsel’s efforts to
persuade the parents to testify is misleading. According to the Magis
trate Judge, counsel testified that he did attempt to persuade the
parents to testify but that their response “ ‘was kind of flat, and I had
no influence over them.’ ” App. 54 (quoting testimony from evidentiary
hearing). In his efforts to convince the parents to testify, counsel told
them that Mirzayance “had no chance of securing an NGI verdict
without the ‘emotional quality from nonprofessional witnesses’ that Mr.
and Mrs. Mirzayance’s testimony could provide; and ‘that they were
abandoning their son.’ ” Id., at 53–54 (same).
8 KNOWLES v. MIRZAYANCE
Opinion of the Court
pursued the insanity phase of the trial, there is a reason
able probability . . . that the jury would have found Mir
zayance insane.” Ibid.
We granted the petition for writ of certiorari, vacated
the Court of Appeals’ opinion, and remanded for further
consideration in light of Carey v. Musladin, 549 U. S. 70(2006), which held that a state court had not “ ‘unreason
abl[y] appli[ed] clearly established Federal law’ ” when it
declined to apply our precedent concerning state
sponsored courtroom practices to a case involving specta
tor conduct at trial, id., at 76–77. Knowles v. Mirzayance,
549 U. S. 1199 (2007). On remand, the Court of Appeals
concluded that its decision was unaffected by Musladin
and again affirmed the District Court’s grant of habeas
corpus. App. 4. The Court of Appeals reiterated the same
analysis on which it had relied prior to this Court’s re
mand, again finding that the California court had unrea
sonably applied clearly established federal law because
defense counsel’s failure to pursue the insanity defense
constituted deficient performance as it “secured . . . [n]o
actual tactical advantage.” Id., at 8. We granted certio
rari, 554 U. S. ___ (2008).
II
Under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U. S. C. §2254(d)(1), a federal
court may not grant a state prisoner’s habeas application
unless the relevant state-court decision “was contrary to,
or involved an unreasonable application of, clearly estab
lished Federal law, as determined by the Supreme Court
of the United States.”2 Here, the relevant state-court
——————
2 Before the Court of Appeals, Mirzayance contended that the stan
dard of review set forth in §2254(d)(1) should not apply to his case. See
Brief for Appellee in No. 04–57102 (CA9), pp. 28–29, 33. Before this
Court, however, Mirzayance contends that the Court of Appeals cor
rectly applied §2254(d) to his claim. See Brief for Respondent 27, 32.
Cite as: 556 U. S. ____ (2009) 9
Opinion of the Court
decision is the California Court of Appeal’s decision deny
ing state habeas relief.
We conclude that the state court’s decision to deny
Mirzayance’s ineffective-assistance-of-counsel claim did
not violate clearly established federal law. The Court of
Appeals reached a contrary result based, in large measure,
on its application of an improper standard of review—it
blamed counsel for abandoning the NGI claim because
there was nothing to lose by pursuing it.3 But this Court
has held on numerous occasions that it is not “ ‘an unrea
sonable application of clearly established Federal law’ ” for
a state court to decline to apply a specific legal rule that
——————
Mirzayance did question whether the California Court of Appeal’s
denial of his claim should receive as much deference as the “prototypi
cal” state-court adjudication “involv[ing] both a reasoned, written
opinion and an adequate development of the factual record in support
of the claims.” Id., at 33. Mirzayance thus contends that “the usual
§2254(d) deferential approach must be modified and adapted” in
evaluating his claim. Id., at 34. Nonetheless, because Mirzayance has
not argued that §2254(d) is entirely inapplicable to his claim or that the
state court failed to reach an adjudication on the merits, we initially
evaluate his claim through the deferential lens of §2254(d). See United
States v. International Business Machines Corp., 517 U. S. 843, 855,
n. 3 (1996) (finding that party abandoned issue by failing to address it
in the party’s brief on the merits); Posters ‘N’ Things, Ltd. v. United
States, 511 U. S. 513, 527 (1994) (same).
In addition, we do not decide whether the Court of Appeals was
correct in finding that an evidentiary hearing on Mirzayance’s claim
was required. See Mirzayance v. Hickman, 66 Fed. Appx. 676, 679–681
(CA9 2003). Mirzayance’s ineffective-assistance-of-counsel claim fails
even under the facts presented at the evidentiary hearing.
3 Although the Court of Appeals implicitly disavowed the “nothing to
lose” standard applied by the District Court and Magistrate Judge, see
App. 5; Mirzayance v. Knowles, 175 Fed. Appx. 142, 143 (CA9 2006), it
nevertheless concluded that “[n]o actual tactical advantage was to be
gained” by counsel’s withdrawal of the insanity defense, App. 8;
Knowles, supra, at 144. Finding that counsel is deficient by abandon
ing a defense where there is nothing to gain from that abandonment is
equivalent to finding that counsel is deficient by declining to pursue a
strategy where there is nothing to lose from pursuit of that strategy.
10 KNOWLES v. MIRZAYANCE
Opinion of the Court
has not been squarely established by this Court. See
Wright v. Van Patten, 552 U. S. ___, ___ (2008) (slip op., at
5–6 (per curiam); Schriro v. Landrigan, 550 U. S. 465, 478
(2007); Musladin, supra, at 76–77. This Court has never
established anything akin to the Court of Appeals’ “noth
ing to lose” standard for evaluating Strickland claims.
Indeed, Mirzayance himself acknowledges that a “nothing
to lose” rule is “unrecognized by this Court.” Brief for
Respondent 28. And the Court of Appeals did not cite any
Supreme Court decision establishing a “nothing to lose”
standard in any of its three opinions in this case. See App.
3–12; Knowles, 175 Fed. Appx. 142; Hickman, 66 Fed.
Appx. 676.
With no Supreme Court precedent establishing a “noth
ing to lose” standard for ineffective-assistance-of-counsel
claims, habeas relief cannot be granted pursuant to
§2254(d)(1) based on such a standard. Instead, such relief
may be granted only if the state-court decision unreasona
bly applied the more general standard for ineffective
assistance-of-counsel claims established by Strickland, in
which this Court held that a defendant must show both
deficient performance and prejudice in order to prove that
he has received ineffective assistance of counsel, 466 U. S.,
at 687. Indeed, this Court has repeatedly applied that
standard to evaluate ineffective-assistance-of-counsel
claims where there is no other Supreme Court precedent
directly on point. See, e.g., Van Patten, supra, at ___ (slip
op., at 5) (evaluating claim under Strickland where no
Supreme Court precedent established that any other
standard applied to the “novel factual context” before the
Court); Schriro, supra, at 478 (evaluating claim under
general Strickland standard where no Supreme Court
precedent addressed the particular “situation in which a
client interferes with counsel’s efforts to present mitigat
ing evidence to a sentencing court”).
The question “is not whether a federal court believes the
Cite as: 556 U. S. ____ (2009) 11
Opinion of the Court
state court’s determination” under the Strickland stan
dard “was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Schriro,
supra, at 473. And, because the Strickland standard is a
general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied
that standard. See Yarborough v. Alvarado, 541 U. S.
652, 664 (2004) (“[E]valuating whether a rule applica-
tion was unreasonable requires considering the rule’s
specificity. The more general the rule, the more lee-
way courts have in reaching outcomes in case-by-case
determinations”).
Under the doubly deferential judicial review that ap
plies to a Strickland claim evaluated under the
§2254(d)(1) standard, see Yarborough v. Gentry, 540 U. S.
1, 5–6 (2003) (per curiam), Mirzayance’s ineffective
assistance claim fails. It was not unreasonable for the
state court to conclude that his defense counsel’s perform
ance was not deficient when he counseled Mirzayance to
abandon a claim that stood almost no chance of success.
As explained more fully below, this Court has never re
quired defense counsel to pursue every claim or defense,
regardless of its merit, viability, or realistic chance for
success. See also infra, at 14–15.
III
Even if Mirzayance’s ineffective-assistance-of-counsel
claim were eligible for de novo review, it would still fail.
Strickland requires a defendant to establish deficient
performance and prejudice. 466 U. S., at 687. Mirzayance
can establish neither.
Mirzayance has not shown “that counsel’s representa
tion fell below an objective standard of reasonableness.”
Id., at 687–688. “The proper measure of attorney per
formance remains simply reasonableness under prevailing
professional norms.” Id., at 688. “Judicial scrutiny of
12 KNOWLES v. MIRZAYANCE
Opinion of the Court
counsel’s performance must be highly deferential,” and “a
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable profes
sional assistance.” Id., at 689. “[S]trategic choices made
after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” Id., at
690.
Here, Mirzayance has not shown that his counsel vio
lated these standards. Rather, his counsel merely recom
mended the withdrawal of what he reasonably believed
was a claim doomed to fail. The jury had already rejected
medical testimony about Mirzayance’s mental state in the
guilt phase, during which the State carried its burden of
proving guilt beyond a reasonable doubt. The Magistrate
Judge explained this point:
“All [counsel] was left with were four experts, all of
whom reached a conclusion—that [Mirzayance] did
not premeditate and deliberate his crime—that the
same jury about to hear the NGI evidence already had
rejected under a beyond-a-reasonable-doubt standard
of proof. The experts were subject to other impeach
ment as well.” App. 71.
In fact, the Magistrate Judge found that counsel “convinc
ingly detailed ways in which [the experts] could have been
impeached, for overlooking or minimizing facts which
showcased [Mirzayance’s] clearly goal-directed behavior.”
Id., at 70.
In the NGI phase, the burden would have switched to
Mirzayance to prove insanity by a preponderance of the
evidence. Mirzayance’s counsel reasonably believed that
there was almost no chance that the same jury would have
reached a different result when considering similar evi
dence, especially with Mirzayance bearing the burden of
proof. Furthermore, counsel knew he would have had to
present this defense without the benefit of the parents’
Cite as: 556 U. S. ____ (2009) 13
Opinion of the Court
testimony, which he believed to be his strongest evidence.
See ibid. (“[Counsel’s] strategy at the NGI phase had been
to appeal to the jury in one or both of two ways that de
pended entirely on the heartfelt participation of [Mir
zayance’s] parents as witnesses”). Counsel reasonably
concluded that this defense was almost certain to lose.
The Court of Appeals took the position that the situation
was not quite so dire because the parents “merely ex
pressed reluctance to testify.” Id., at 7; Knowles, 175 Fed.
Appx., at 144. It explained that “[c]ompetent counsel
would have attempted to persuade them to testify.” App.
7; Knowles, supra, at 144. But that holding is in tension
with the Magistrate Judge’s findings and applies a more
demanding standard than Strickland prescribes. The
Magistrate Judge noted that the parents “conveyed the
same sense as a refusal.” App. 72. Indeed, the Magistrate
Judge found that the parents “did not testify later at
[Mirzayance’s] sentencing hearing” because it “would have
been ‘too emotional’ for them.” Id., at 73 (quoting testi
mony from evidentiary hearing). Competence does not
require an attorney to browbeat a reluctant witness into
testifying, especially when the facts suggest that no
amount of persuasion would have succeeded. Counsel’s
acceptance of the parents’ “convey[ance] [of] . . . a refusal,”
id., at 72, does not rise to the high bar for deficient per
formance set by Strickland.
Mirzayance’s failure to show ineffective assistance of
counsel is confirmed by the Magistrate Judge’s finding
that “[counsel] carefully weighed his options before mak
ing his decision final; he did not make it rashly.” App. 69.
The Magistrate Judge explained all of the factors that
counsel considered—many of which are discussed above—
and noted that counsel “discussed the situation with his
experienced co-counsel” before making it. Id., at 71. In
making this finding, the Magistrate Judge identified
counsel’s decision as essentially an informed decision
14 KNOWLES v. MIRZAYANCE
Opinion of the Court
“made after thorough investigation of law and facts rele
vant to plausible options.” Strickland, 466 U. S., at 690.
As we stated in Strickland, such a decision is “virtually
unchallengeable.” Ibid.Without even referring to the Magistrate Judge’s find
ing, the Court of Appeals “disagree[d] that counsel’s deci
sion was carefully weighed and not made rashly.” App. 7;
Knowles, supra, at 144. In its view, “counsel acted on his
subjective feelings of hopelessness without even consider
ing the potential benefit to be gained in persisting with
the plea.” App. 8; Knowles, supra, at 144–145. But courts
of appeals may not set aside a district court’s factual
findings unless those findings are clearly erroneous. Fed.
Rule Civ. Proc. 52(a); Anderson v. Bessemer City, 470 U. S.
564, 573–574 (1985). Here, the Court of Appeals failed
even to mention the clearly-erroneous standard, let alone
apply it, before effectively overturning the lower court’s
factual findings related to counsel’s behavior.
In light of the Magistrate Judge’s factual findings, the
state court’s rejection of Mirzayance’s ineffective
assistance-of-counsel claim was consistent with Strick
land. The Court of Appeals insisted, however, that
“ ‘[r]easonably effective assistance’ required here that
counsel assert the only defense available . . . .” App. 8; see
also Knowles, supra, at 145. But we are aware of no “pre
vailing professional norms” that prevent counsel from
recommending that a plea be withdrawn when it is almost
certain to lose. See Strickland, supra, at 688. And in this
case, counsel did not give up “the only defense available.”
Counsel put on a defense to first-degree murder during the
guilt phase. Counsel also defended his client at the sen
tencing phase.4 The law does not require counsel to raise
——————
4 Mirzayance has no complaints about the sentencing phase since he
received the lowest possible sentence for his first-degree murder convic
tion. California authorizes three possible sentences for murder: death,
Cite as: 556 U. S. ____ (2009) 15
Opinion of the Court
every available nonfrivolous defense. See Jones v. Barnes,
463 U. S. 745, 751 (1983); cf. Wiggins v. Smith, 539 U. S.
510, 533 (2003) (explaining, in case involving similar issue
of counsel’s responsibility to present mitigating evidence
at sentencing, that “Strickland does not require counsel to
investigate every conceivable line of mitigating evidence
no matter how unlikely the effort would be to assist the
defendant . . . [or even to] present mitigating evidence at
sentencing in every case”). Counsel also is not required to
have a tactical reason—above and beyond a reasonable
appraisal of a claim’s dismal prospects for success—for
recommending that a weak claim be dropped altogether.
Mirzayance has thus failed to demonstrate that his coun
sel’s performance was deficient.
In addition, Mirzayance has not demonstrated that he
suffered prejudice from his counsel’s performance. See
Strickland, 466 U. S., at 691 (“An error by counsel, even if
professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error
had no effect on the judgment”). To establish prejudice,
“[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to under
mine confidence in the outcome.” Id., at 694. To prevail
on his ineffective-assistance claim, Mirzayance must show,
therefore, that there is a “reasonable probability” that he
would have prevailed on his insanity defense had he pur
sued it. This Mirzayance cannot do. It was highly im
probable that a jury, which had just rejected testimony
about Mirzayance’s mental condition when the State bore
the burden of proof, would have reached a different result
——————
life imprisonment without parole, and imprisonment for 25 years to life.
Cal. Penal Code Ann. §190(a) (West 1999). Mirzayance was sentenced
to 25 years to life plus 4 years for a weapons enhancement.
16 KNOWLES v. MIRZAYANCE
Opinion of the Court
when Mirzayance presented similar evidence at the NGI
phase. See supra, at 12–13.
IV
Mirzayance has not shown that the state court’s conclu
sion that there was no ineffective assistance of counsel
“was contrary to, or involved an unreasonable application
of, clearly established Federal law” under §2254. In fact,
he has not shown ineffective assistance at all. The judg
ment of the Court of Appeals is reversed, and the case is
remanded with instructions to deny the petition.
It is so ordered.