Jefferson S. Dunn, Commissioner, Alabama Department of Corrections v. Matthew Reeves

On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit

No. 20–1084. Decided July 2, 2021

Per Curiam.

 Willie Johnson towed Matthew Reeves’ broken-down car back to the city after finding Reeves stranded on an Alabama dirt road. In payment for this act of kindness, Reeves murdered Johnson, stole his money, and mocked his dying spasms. Years after being convicted of murder and sentenced to death, Reeves sought state postconviction relief, arguing that his trial counsel should have hired an expert to develop sentencing-phase mitigation evidence of intellectual disability. But despite having the burden to rebut the strong presumption that his attorneys made a legitimate strategic choice, Reeves did not call any of them to testify. The Alabama Court of Criminal Appeals denied relief, stressing that lack of evidence about counsel’s decisions impeded Reeves’ efforts to prove that they acted unreasonably. Reeves v. State, 226 So. 3d 711, 750–751 (2016).

 On federal habeas review, the Eleventh Circuit held that this analysis was not only wrong, but indefensible. In an unpublished, per curiam opinion that drew heavily on a dissent from denial of certiorari, the Eleventh Circuit reinterpreted the Alabama court’s lengthy opinion as imposing a simple per se prohibition on relief in all cases where a prisoner fails to question his counsel. Reeves v. Commissioner, Ala. Dept. of Corrections, 836 Fed. Appx. 733, 744–747 (2020). It was the Eleventh Circuit, however, that went astray in its “readiness to attribute error.” Woodford v. Visciotti, 537 U. S. 19, 24 (2002) (per curiam). Federal habeas courts must defer to reasonable state-court decisions, 28 U. S. C. §2254(d), and the Alabama court’s treatment of the spotty record in this case was consistent with this Court’s recognition that “the absence of evidence cannot overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” Burt v. Titlow, 571 U. S. 12, 23 (2013) (internal quotation marks and brackets omitted).

 In November 1996, Reeves and some friends decided to “go out looking for some robberies. ” Reeves, 226 So. 3d, at 719 (internal quotation marks omitted). The group’s initial target was a drug dealer in a nearby town, but their car broke down and left them stranded on the side of the road. A few hours later, however, Johnson happened to drive by in his truck and offered to tow the disabled vehicle to Reeves’ house.

 After they arrived, Reeves, who was riding in the bed of the truck, stuck a shotgun through the rear window of the cab and shot Johnson in the neck. As Johnson sat slumped in the driver’s seat “bleeding heavily and making gagging noises,” Reeves directed the rest of the group to “go through Johnson’s pockets to get his money.” Id., at 720 (internal quotation marks omitted). Throughout the rest of the day, Reeves repeatedly “brag[ged] about having shot Johnson,” boasting that the murder “would earn him a ‘teardrop,’ a gang tattoo acquired for killing someone.” Ibid. (internal quotation marks omitted). And at a party that night, Reeves invented a dance in which he “pretend[ed] to pump a shotgun” and “jerk[ed] his body around in a manner mocking the way that Willie Johnson had died.” Ibid. (brackets and internal quotation marks omitted).

 Alabama charged Reeves with murder and appointed counsel for him. His attorneys took several steps to develop mitigating evidence, including exploring the possibility that Reeves was intellectually disabled. For example, they obtained extensive records of Reeves’ educational, medical, and correctional history. Counsel also requested funding to hire a neuropsychologist, Dr. John Goff, to evaluate Reeves and prepare mitigation evidence. And when the trial court initially rejected that request, counsel successfully sought reconsideration.

 After the court granted funding, Reeves’ attorneys managed to acquire additional mental-health records from the State, including documents related to a pretrial competency evaluation that featured a partial administration of an IQ test.1 The totality of the evidence reflected that Reeves had a troubled childhood, suffered from numerous behavioral difficulties, and was within the “borderline” range of intelligence. While in school—before being expelled for violence and misbehavior—he had been referred to special services for emotional conflict and behavioral issues. But Reeves’ records also showed that he had previously been denied special educational services for intellectual disability. Counsel also learned that Reeves had attended classes and earned certificates in welding, masonry, and automotive mechanics. And the psychologist who initially evaluated Reeves later opined that he was not intellectually disabled.

 At some point before trial, Reeves’ attorneys apparently elected to pursue other mitigation strategies instead of hiring Dr. Goff. The record does not reveal the exact reason for this decision—likely because Reeves did not ask them to testify. The record does show, however, that counsel presented a holistic mitigation case. For example, counsel called several witnesses at sentencing—including Reeves’ mother and the psychologist who performed the competency evaluation—and elicited testimony about Reeves’ turbulent childhood, neglectful family, and educational difficulties. The jury, however, recommended a death sentence.

 Reeves later sought postconviction relief in state court, alleging almost 20 theories of error. Relevant here, he asserted that he was categorically exempt from execution by reason of intellectual disability, see Atkins v. Virginia, 536 U. S. 304 (2002), or at the very least that counsel should have hired Dr. Goff to develop mitigation along those lines for use at sentencing, see Porter v. McCollum, 558 U. S. 30 (2009) (per curiam). At a 2-day hearing in state court, Reeves called two experts, including Dr. Goff. The doctor concluded that Reeves was intellectually disabled, explaining that the so-called Flynn Effect—a controversial theory involving the inflation of IQ scores over time—required adjusting Reeves’ score downward into the 60s.2 Dr. Goff also cited a number of behavioral assessments that supposedly showed Reeves’ shortcomings in adaptive functioning. For its part, the State offered the expert testimony of Dr. King, who administered his own evaluation and concluded that Reeves was not intellectually disabled. In fact, Dr. King pointed out that Reeves had a leadership role in a drug-dealing group and earned as much as $2,000 a week.

 Despite Reeves’ focus on his attorney’s performance, he did not give them the opportunity to explain their actions. Although all three of his lawyers apparently were alive and available, Reeves did not call them to testify.

 The trial court denied relief, and the Alabama Court of Criminal Appeals affirmed. First, it agreed that Reeves had failed to prove that he was actually intellectually disabled and thus exempt from execution. Reeves, 226 So. 3d, at 744. The court specifically addressed Dr. Goff ’s reliance on the Flynn Effect, reiterating that this approach “has not been accepted as scientifically valid by all courts” and was “not settled in the psychological community.” Id., at 739 (internal quotation marks omitted). In fact, even Dr. Goff had “admitted that he did not use the ‘Flynn Effect’ for over 20 years after it was first discovered.” Ibid.

 Second, the court rejected Reeves’ claim that counsel should have hired an expert to develop mitigating evidence of intellectual disability. Stressing that an attorney’s decision not to hire an expert is “typically [a] strategic decisio[n]” that will “not constitute per se deficient performance,” the court looked to the record to assess the “reasoning behind counsel’s actions.” Id., at 750, 751 (internal quotation marks omitted). In this case, the court observed, “the record [was] silent as to th[ose] reasons” “because Reeves failed to call his counsel to testify.” Id., at 751 (internal quotation marks omitted). Hence, he could not overcome the “presumption of effectiveness” that courts must afford to trial counsel. Ibid. (internal quotation marks omitted).

  Reeves sought certiorari, which we denied over a dissent. Reeves v. Alabama, 583 U. S. ___ (2017) (opinion of Sotomayor, J.). The dissent acknowledged that the “absence of counsel’s testimony may make it more difficult for a defendant to meet his burden” of proving deficient performance, but still would have reversed and remanded because it understood the Alabama court to have applied “a categorical rule that counsel must testify in order for a petitioner to succeed on a federal constitutional ineffective- assistance-of-counsel claim.” Id., at ___, ___ (slip op., at 2, 9). Although the dissent cited no decision in which this Court reprimanded a state court for taking that approach, it reasoned that such a rule was contrary to decisions in which this Court had “found deficient performance despite [attorney] testimony, based on a review of the full record.” Id., at ___ (slip op., at 9).3

 Reeves next sought federal habeas review. The District Court denied relief, but the Eleventh Circuit reversed in part. Like every court before it, the Eleventh Circuit first rejected Reeves’ claim that he was intellectually disabled. 836 Fed. Appx., at 741. But, it held that his lawyers were constitutionally deficient for not developing more evidence of intellectual disability and that this failure might have changed the outcome of the trial.

 In reaching that result, the Eleventh Circuit explained that it owed no deference to the “unreasonable” decision of the Alabama court. §2254(d). Quoting at length from the earlier dissent from denial of certiorari, the panel reasoned that “a per se rule that the petitioner must present counsel’s testimony” was clearly contrary to federal law. Id., at 744–747. And, to demonstrate that the Alabama court had applied such a rule, the Eleventh Circuit excised a single statement from a lengthy block quote: “ ‘[T]o overcome the strong presumption of effectiveness, a [state] petitioner must, at his evidentiary hearing, question trial counsel regarding his actions and reasoning.’ ” Id., at 744 (emphasis deleted). The Eleventh Circuit then reasoned that the state court surely must have imposed this “categorical rule” because its opinion also said that Reeves’ “ ‘failure to call his attorneys to testify was fatal to his claims.’ ” Ibid. (emphasis deleted; brackets omitted). But that quote was not quite complete; the original sentence reads, “In this case, Reeves’s failure to call his attorneys to testify is fatal to his claims of ineffective assistance of counsel.” Reeves, 226 So. 3d, at 749 (emphasis added).

 This case presents a simple question: Did the Alabama court violate clearly established federal law when it rejected Reeves’ claim that his attorneys should have hired an expert?

 In answering this question, we owe deference to both Reeves’ counsel and the state court. As to counsel, we have often explained that strategic decisions—including whether to hire an expert—are entitled to a “strong presumption” of reasonableness. Harrington v. Richter, 562 U. S. 86, 104 (2011). Defense lawyers have “limited” time and resources, and so must choose from among “ ‘countless’ ” strategic options. Id., at 106–107. Such decisions are particularly difficult because certain tactics carry the risk of “harm[ing] the defense” by undermining credibility with the jury or distracting from more important issues. Id., at 108.

 The burden of rebutting this presumption “rests squarely on the defendant,” and “[i]t should go without saying that the absence of evidence cannot overcome [it].” Titlow, 571 U. S., at 22–23. In fact, even if there is reason to think that counsel’s conduct “was far from exemplary,” a court still may not grant relief if “[t]he record does not reveal” that counsel took an approach that no competent lawyer would have chosen. Id., at 23–24.

 This analysis is “doubly deferential” when, as here, a state court has decided that counsel performed adequately. Id., at 15 (internal quotation marks omitted); see also Sexton v. Beaudreaux, 585 U. S. ___, ___–___ (2018) (per curiam) (slip op., at 7–8) (deference is “near its apex” in such cases). A federal court may grant habeas relief only if a state court violated “clearly established Federal law, as determined by the Supreme Court of the United States.” §2254(d)(1) (emphasis added). This “wide latitude” means that federal courts can correct only “extreme malfunctions in the state criminal justice syste[m].” Richter, 562 U. S., at 102, 106 (internal quotation marks omitted). And in reviewing the work of their peers, federal judges must begin with the “presumption that state courts know and follow the law.” Woodford, 537 U. S., at 24. Or, in more concrete terms, a federal court may grant relief only if every “ ‘fairminded juris[t]’ ” would agree that every reasonable lawyer would have made a different decision. Richter, 562 U. S., at 101.

 A straightforward application of these principles reveals the extent of the Eleventh Circuit’s error. We start, as we must, with the case as it came to the Alabama court. Reeves had filed a 100-plus-page brief alleging manifold errors, including several theories of ineffective assistance of counsel. Reeves, 226 So. 3d, at 749–750, and n. 16. Many of these attacked basic strategic choices, including his current argument that counsel should have hired Dr. Goff to develop additional evidence of intellectual disability. Yet, despite Reeves’ determination to find fault with his lawyers, he offered no testimony or other evidence from them.

 That omission was particularly significant given the “range of possible reasons [Reeves’] counsel may have had for proceeding as they did.” Cullen v. Pinholster, 563 U. S. 170, 196 (2011) (internal quotation marks omitted). This is not a case in which a lawyer “failed to uncover and present any evidence of [Reeves’] mental health or mental impairment, [or] his family background.” Porter, 558 U. S., at 40 (emphasis added). Counsel’s initial enthusiasm to collect Reeves’ records and obtain funding hardly indicates professional neglect and disinterest.

 Rather, we simply do not know what information and considerations emerged as counsel reviewed the case and refined their strategy. The attorneys may very well have pored over the voluminous evidence in their possession— including those obtained after their funding request—and identified several reasons that a jury was unlikely to be persuaded by a claim of intellectual disability. After all, although Reeves’ records suggested that his intelligence was below average, they also indicated that he was not intellectually disabled. E.g., 226 So. 3d, at 729. Counsel might also have been concerned about the evidence of Reeves’ history of violence, criminal past, and behavior problems, ibid., and concluded that presenting these characteristics alongside a full-throated intellectual-disability argument would have convinced the jury that Reeves “was simply beyond rehabilitation,” Pinholster, 563 U. S., at 201. Or, counsel may have uncovered additional evidence confirming their concerns about an intellectual-disability strategy. Perhaps Reeves informed them, as he later did Dr. King, that he was savvy enough to earn thousands of dollars a week in a drug- dealing operation where he had a leadership role. 226 So. 3d, at 736.

 Or, counsel may well have further investigated Dr. Goff and decided that his debatable methodologies would undermine credibility with a local jury—possibly a prescient choice given that every single court to consider the issue has rejected Reeves’ claim of intellectual disability. In fact, around the time that counsel were formulating their trial strategy, Dr. Goff was already performing questionable evaluations. See, e.g., King v. Apfel, 2000 WL 284217, *2 (SD Ala., Feb. 29, 2000) (Dr. Goff ’s 1996 evaluation of a Social Security claimant was “unsupported by the medical evidence,” and “everything else in the record [was] counter to [his] extreme findings” (emphasis added)); Small v. Apfel, 2000 WL 1844727, *3, n. 5 (SD Ala., Oct. 17, 2000) (“[Dr.] Goff ’s [1998] conclusions regarding deficits in adaptive behavior are not only mere guesses . . . but also suffer from a lack of support in the record”). It is not unreasonable for a lawyer to be concerned about overreaching.

 Simply put, if the attorneys had been given the chance to testify, they might have pointed to information justifying the strategic decision to devote their time and efforts elsewhere. Yet, Reeves—possibly pursuing a strategy of his own—declined to put that testimonial evidence before the Alabama court. So given that the Alabama court was entitled to reject Reeves’ claim if trial counsel had any “possible reaso[n] . . . for proceeding as they did,” Pinholster, 563 U. S., at 196 (internal quotation marks omitted), it surely was not obliged to accept Reeves’ blanket assertion on an incomplete evidentiary record that “[n]o reasonable strategy could support counsel’s failure,” ECF Doc. 23–29, at 81.

 Rather than defer to this commonsense analysis, the Eleventh Circuit took a path that we have long foreclosed: “mischaracterization of the state-court opinion.” Woodford, 537 U. S., at 22. As explained above, the Alabama court reasonably concluded that the incomplete evidentiary record—which was notably “silent as to the reasons trial counsel . . . chose not to hire Dr. Goff or another neuropsychologist”—doomed Reeves’ belated efforts to second-guess his attorneys. Reeves, 226 So. 3d, at 751. The Eleventh Circuit, however, recharacterized this case-specific analysis as a “categorical rule” that any prisoner will always lose if he fails to call and question “trial counsel regarding his or her actions and reasoning.” 836 Fed. Appx., at 744 (emphasis deleted; internal quotation marks omitted).

 We think it clear from context that the Alabama court did not apply a blanket rule, but rather determined that the facts of this case did not merit relief. As an initial matter, the Alabama court twice recognized that there can be instances of “per se deficient performance.” Reeves, 226 So. 3d, at 750–751. It simply concluded that here, counsel’s choice regarding experts involved a strategic decision entitled to a presumption of reasonableness. Ibid. Moreover, other portions of the opinion’s lengthy recitation of the law (which the Eleventh Circuit omitted) belie a categorical approach. In particular, the court twice said that it would consider “ ‘all the circumstances’ ” of the case, and it qualified its supposedly categorical rule by explaining that “counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.” Id., at 744, 747 (emphasis added; some internal quotation marks omitted).

 Other parts of the opinion yield the same interpretation. For example, the court devoted almost nine pages to discussing ineffective assistance of counsel. That would have been a curious choice for a “busy state cour[t]” if a single sentence applying a per se rule could have sufficed. Johnson v. Williams, 568 U. S. 289, 298 (2013) (state courts need not even “discuss separately every single claim”). Within that lengthy discussion, the court individually mentioned many of Reeves’ specific theories, including his current intellectual-disability argument. Moreover, that the court in a footnote summarily rejected different ineffective- assistance-of-counsel claims for procedural reasons further weighs against imputing a per se rule for the theories that the court discussed in the body of its opinion. Reeves, 226 So. 3d, at 749–750, n. 16.

 Even more important, the actual analysis of the claim at issue here reflects a case-specific approach. The court did not merely say, as the Eleventh Circuit wrongly suggested, that Reeves’ “ ‘failure to call his attorneys to testify was fatal to his claims.’ ” 836 Fed. Appx., at 744 (brackets omitted). Rather, the opinion prefaced this quote with an important qualifier—“In this case.” Reeves, 226 So. 3d, at 749 (emphasis added). And sure enough, the court proceeded to explain why Reeves could not prevail “in this case”—because “the record [was] silent as to the reasoning behind counsel’s actions.” Id., at 751 (internal quotation marks omitted). To be sure, the record in this particular case happened to be deficient “because Reeves failed to call his counsel to testify.” Ibid. But, this unremarkable observation of cause and effect in light of the facts before the court was hardly an absolute bar in every case where other record evidence might fill in the details. And, it certainly was not contrary to clearly established law given that this Court and the Eleventh Circuit have made the same observation that a silent record cannot discharge a prisoner’s burden. E.g., Titlow, 571 U. S., at 15, 22–24; Grayson v. Thompson, 257 F. 3d 1194, 1218 (CA11 2001) (noting that “the record [was] silent as to why trial counsel did not pursue a motion to suppress the evidence,” and that “habeas counsel did not inquire as to trial counsel’s reasons for not raising such a claim”).4

*  *  *
 For the foregoing reasons, we grant the petition for a writ of certiorari, reverse the judgment of the Court of Appeals, and remand the case for proceedings consistent with this opinion.

It is so ordered.

Justice Breyer dissents.

1 Around the same time, one of Reeves’ attorneys withdrew from the case, explaining that Reeves “ha[d] been combative, argumentative[,] and ha[d] totally refused to assist [the attorney] in any manner.” Electronic Case Filing in No. 1:17–cv–00061 (SD Ala.) (ECF), Doc. 23–1, pp. 3, 78. Another attorney replaced him.

2 According to some proponents of this theory, the Flynn Effect posits that IQ scores increase “by approximately 0.3 points per year,” which in turn “requires that the IQ test be ‘normed’ periodically so that the mean score on the test stays the same” and “that 0.3 points be deducted from [a] full-scale IQ score achieved on an IQ test for each year since the test was last normed.” Reeves v. State, 226 So. 3d 711, 730 (Ala. Crim. App. 2016).

3 We note that this dissent—unlike the Eleventh Circuit—considered the case before it entered the exceedingly deferential posture of federal habeas review. Moreover, the dissent did not conclude that Reeves was entitled to relief on the merits of his claim, but instead would have “remand[ed] so that the [Alabama court] could explain why, given the full factual record, Reeves’ counsel’s choices constituted reasonable performance.” 583 U. S., at ___ (slip op., at 14).

4 Today’s dissent suggests that a more recent decision—State v. M.D.D., ___ So. 3d ___, 2020 WL 6110694 (Ala. Crim. App., Oct. 16, 2020)—illustrates that Alabama courts understand Reeves to announce a per se rule. Post, at 6–9, and n. 4 (opinion of Sotomayor, J.). But that case does the exact opposite. In M.D.D., the petitioner alleged that his attorney should have called a medical expert at trial, yet he did not have the attorney testify at the postconviction hearing. 2020 WL 6110694, *5–*6. The Alabama court denied relief after examining the evidence and identifying a “sound, strategic reason for not calling [the expert] to testify.” Id., at *8 (discussing a possible downside to having the expert testify); see also id., at *9 (explaining, in the alternative, why the petitioner suffered no prejudice). Notably, the court did so after citing Reeves and quoting the same language that the dissent claims represents a per se rule. Compare id., at *7–*8 (“[A] Rule 32 petitioner must, at his evidentiary hearing, question trial counsel regarding his or her actions and reasoning. . . . In this case, the failure to have trial counsel testify is fatal to [the petitioner’s] claims of ineffective assistance of counsel” (emphasis deleted; internal quotation marks omitted)), with post, at 1, 5. Again, it would have been strange for a busy Alabama court to devote pages to rejecting a claim if a categorical bar would have sufficed.