(ORDER LIST: 561 U.S.) 

TUESDAY, JUNE 29, 2010 

APPEAL -- SUMMARY DISPOSITION 

09-1287 REPUBLICAN NAT. COMM., ET AL. V. FEC, ET AL.

 The judgment is affirmed. Justice Scalia, Justice Kennedy, 

and Justice Thomas would note probable jurisdiction and set the 

case for oral argument. 

CERTIORARI -- SUMMARY DISPOSITIONS 

08-1497 NRA OF AMERICA, INC., ET AL. V. CHICAGO, IL, ET AL.

 The Court reversed the judgment below in McDonald v. 

Chicago, 561 U.S. ___ (2010). Therefore, the petition for a 

writ of certiorari is granted, and the case is remanded to the 

United States Court of Appeals for the Seventh Circuit for 

further proceedings. 

08-1509 CLASSEN IMMUNOTHERAPIES, INC. V. BIOGEN IDEC, ET AL.

 The petition for a writ of certiorari is granted. The 

judgment is vacated, and the case is remanded to the United 

States Court of Appeals for the Federal Circuit for further 

consideration in light of Bilski v. Kappos, 561 U.S. ___ 

(2010). 

08-1592 MALONEY, JAMES M. V. RICE, KATHLEEN A.

 The petition for a writ of certiorari is granted. The 

judgment is vacated, and the case is remanded to the United 

States Court of Appeals for the Second Circuit for further 

consideration in light of McDonald v. Chicago, 561 U.S. ___ 

(2010). Justice Sotomayor took no part in the consideration or 

1 
decision of this petition. 

09-167 ) SCRUSHY, RICHARD V. UNITED STATES

 ) 

09-182 ) SIEGELMAN, DON E. V. UNITED STATES 

The petitions for writs of certiorari are granted. The 

judgment is vacated, and the cases are remanded to the United 

States Court of Appeals for the Eleventh Circuit for further 

consideration in light of Skilling v. United States, 561 U.S. 

___ (2010). 

09-490 MAYO COLLABORATIVE SVCS., ET AL. V. PROMETHEUS LABORATORIES

 The petition for a writ of certiorari is granted. The 

judgment is vacated, and the case is remanded to the United 

States Court of Appeals for the Federal Circuit for further 

consideration in light of Bilski v. Kappos, 561 U.S. ___ 

(2010). 

09-929 HARGROVE, JACK L. V. UNITED STATES

 The petition for a writ of certiorari is granted. The 

judgment is vacated, and the case is remanded to the United 

States Court of Appeals for the Seventh Circuit for further 

consideration in light of Skilling v. United States, 561 U.S. 

___ (2010). 

09-1035 HEREIMI, IMAD S. V. UNITED STATES

 The petition for a writ of certiorari is granted. The 

judgment is vacated, and the case is remanded to the United 

States Court of Appeals for the Ninth Circuit for further 

consideration in light of Skilling v. United States, 561 U.S. 

___ (2010). 

2 
09-6425 ) RICHARDS, PAUL, ET AL. V. UNITED STATES

 ) 

09-6516 ) HARRIS, PAULA V. UNITED STATES

 The motions of petitioners for leave to proceed in forma

 pauperis and the petitions for writs of certiorari are granted. 

The judgment is vacated, and the cases are remanded to the United 

States Court of Appeals for the Ninth Circuit for further 

consideration in light of Skilling v. United States, 561 U.S. 

___ (2010). 

09-7560 REDZIC, MUSTAFA V. UNITED STATES

 The motion of petitioner for leave to proceed in forma

 pauperis and the petition for a writ of certiorari are granted. 

The judgment is vacated, and the case is remanded to the United 

States Court of Appeals for the Eighth Circuit for further 

consideration in light of Skilling v. United States, 561 U.S. 

___ (2010). 

CERTIORARI GRANTED 

09-291 THOMPSON, ERIC L. V. NORTH AMERICAN STAINLESS, LP

 The petition for a writ of certiorari is granted. 

CERTIORARI DENIED 

08-1501 FERGUSON, LEWIS, ET AL. V. PATENT AND TRADEMARK OFFICE 

09-9365 WALLACE, HENRY L. V. BRANKER, WARDEN 

The petitions for writs of certiorari are denied. 

09-34 PFIZER INC. V. ABDULLAHI, RABI, ET AL.

 The motion of Washington Legal Foundation, et al. for leave 

to file a brief as amici curiae is granted. The petition for a 

writ of certiorari is denied. The Chief Justice and Justice 

Sotomayor took no part in the consideration or decision of this 

motion and this petition. 

3 
ALLOTMENT ORDER 

It is ordered that the following allotment be made of The Chief Justice and 

the Associate Justices of this Court among the circuits, pursuant to Title 

28, United States Code, Section 42 and that such allotment be entered of 

record, effective June 29, 2010. 

For the District of Columbia Circuit, John G. Roberts, Jr., Chief Justice, 

For the First Circuit, Stephen Breyer, Associate Justice, 

For the Second Circuit, Ruth Bader Ginsburg, Associate Justice, 

For the Third Circuit, Samuel A. Alito, Jr., Associate Justice, 

For the Fourth Circuit, John G. Roberts, Jr., Chief Justice, 

For the Fifth Circuit, Antonin Scalia, Associate Justice, 

For the Sixth Circuit, Clarence Thomas, Associate Justice, 

For the Seventh Circuit, Stephen Breyer, Associate Justice, 

For the Eighth Circuit, Samuel A. Alito, Jr., Associate Justice, 

For the Ninth Circuit, Anthony M. Kennedy, Associate Justice, 

For the Tenth Circuit, Sonia Sotomayor, Associate Justice, 

For the Eleventh Circuit, Clarence Thomas, Associate Justice, 

For the Federal Circuit, John G. Roberts, Jr., Chief Justice. 

4 
Cite as: 561 U. S. ____ (2010) 1 

Per Curiam 

SUPREME COURT OF THE UNITED STATES 

DEMARCUS ALI SEARS v. STEPHEN UPTON, 

WARDEN 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME 

COURT OF GEORGIA

No. 09–8854. Decided June 29, 2010 

PER CURIAM. 

According to an expert who testified during state postconviction relief, petitioner Demarcus A. Sears performs at 

or below the bottom first percentile in several measures of 

cognitive functioning and reasoning. The cause of this 

abnormality appears to be significant frontal lobe brain 

damage Sears suffered as a child, as well as drug and 

alcohol abuse in his teens. But because—in the words of 

the state trial court—his counsel conducted a penalty

phase investigation that was “on its face . . . constitutionally inadequate,” App. to Pet. for Cert. 27B, evidence

relating to Sears’ cognitive impairments and childhood 

difficulties was not brought to light at the time he was 

sentenced to death. 

After finding constitutionally deficient attorney performance under the framework we set forth in Strickland 

v. Washington, 466 U. S. 668 (1984), the state postconviction court found itself unable to assess whether counsel’s 

inadequate investigation might have prejudiced Sears.

App. to Pet. for Cert. 29B–30B. Because Sears’ counsel 

did present some mitigation evidence during Sears’ penalty phase—but not the significant mitigation evidence a

constitutionally adequate investigation would have uncovered—the state court determined it could not speculate as 

to what the effect of additional evidence would have been. 

Id., at 30B. Accordingly, it denied Sears postconviction

relief. Id., at 34B. Thereafter, the Supreme Court of

Georgia summarily denied review of his claims. Id., at 1A. 
2 SEARS v. UPTON 

Per Curiam 

For the reasons that follow, it is plain from the face of 

the state court’s opinion that it failed to apply the correct

prejudice inquiry we have established for evaluating 

Sears’ Sixth Amendment claim. We therefore grant the

petition for writ of certiorari, vacate the judgment, and 

remand for further proceedings not inconsistent with this 

opinion.1 

I 

In 1993, a Georgia jury convicted Sears of armed robbery and kidnaping with bodily injury (which also resulted 

in death), a capital crime under state law. See Ga. Code 

Ann. §16–5–40(d)(4) (2006).2 During the penalty phase of 

Sears’ capital trial, his counsel presented evidence describing his childhood as stable, loving, and essentially without 

incident. Seven witnesses offered testimony along the 

following lines: Sears came from a middle-class background; his actions shocked and dismayed his relatives; 

and a death sentence, the jury was told, would devastate

the family. See Pet. for Cert. 6–7. Counsel’s mitigation 

—————— 

1Although this is a state-court decision, it resolved a federal issue on

exclusively federal-law grounds. We therefore have jurisdiction. 28 

U. S. C. §1257; see also Padilla v. Kentucky, 559 U. S. ___ (2010) 

(reviewing state postconviction decision raising Sixth Amendment 

question). 2Sears was sentenced to death for the Kentucky murder of a woman 

whom he and an accomplice kidnaped in Georgia. Under Georgia law, 

a jury may “impose a death sentence for the offense of kidnapping with 

bodily injury on the ground that the offense of kidnapping with bodily 

injury was committed while the offender was engaged in the commission of the capital felon[y] of murder . . . .” Potts v. State, 261 Ga. 716, 

720, 410 S. E. 2d 89, 93 (1991). So long as “the murder . . . [is] sufficiently a part of the same criminal transaction,” it may count as a

“statutory aggravating circumstanc[e] of the offense of kidnapping with 

bodily injury.” Ibid., 410 S. E. 2d, at 94. Sears has raised a categorical

Eighth Amendment challenge to the constitutionality of his death 

sentence for a kidnaping offense, which we decline to reach. And any

jurisdictional or constitutional issue with respect to Georgia’s ability to

execute Sears for a murder occurring in Kentucky is not before us. 
Cite as: 561 U. S. ____ (2010) 3 

Per Curiam 

theory, it seems, was calculated to portray the adverse 

impact of Sears’ execution on his family and loved ones. 

20 Record 5181. But the strategy backfired. The prosecutor ultimately used the evidence of Sears’ purportedly

stable and advantaged upbringing against him during the

State’s closing argument. With Sears, the prosecutor told

the jury, “[w]e don’t have a deprived child from an inner

city; a person who[m] society has turned its back on at an

early age. But, yet, we have a person, privileged in every 

way, who has rejected every opportunity that was afforded

him.” Pet. for Cert. 7 (quoting trial transcript; internal

quotation marks omitted). 

The mitigation evidence that emerged during the state

postconviction evidentiary hearing, however, demonstrates that Sears was far from “privileged in every way.”

Sears’ home life, while filled with material comfort, was 

anything but tranquil: His parents had a physically abusive relationship, Exh. 26, 6 Record 1676 (Affidavit of

Demetrius A. Sears), and divorced when Sears was young,

Exh. 22, id., at 1654 (Affidavit of Virginia Sears Graves); 

he suffered sexual abuse at the hands of an adolescent 

male cousin, Exh. 26, id., at 1681–1682; his mother’s 

“favorite word for referring to her sons was ‘little mother 

fuckers,’” Exh. 3, 2 Record 265 (Affidavit of Richard G.

Dudley, Jr., MD); and his father was “verbally abusive,” 

Exh. 37, 6 Record 1746–1747 (Affidavit of Carol BecciYoungs),3 and disciplined Sears with age-inappropriate 

—————— 

3 In the particular instance recounted in this affidavit, Sears’ art 

teacher stated that his father “berate[d] [him] in front of” the school

principal and her during a parent-teacher conference. Exh. 37, 6 Record 

1746. The event was significant: “I’ll never forget the way he bullied

him,” the art teacher explained, “Mr. Sears was so verbally abusive and

made such a scene, that it made everyone in the room uncomfortable.” 

Ibid. The art teacher had “never been in a conference where a parent 

severely criticized a child in the presence of his teachers and meant it,

as Mr. Sears did.” Id., at 1747. 
4 SEARS v. UPTON 

Per Curiam 

military-style drills, Exh. 3, 2 Record 263–264; Exh. 19, 6

Record 1622 (Affidavit of Frank Sears); Exh. 22, id., at 

1651; Exh. 28, id., at 1694 (Affidavit of Kenneth Burns, 

Sr.). Sears struggled in school, demonstrating substantial 

behavior problems from a very young age. For example, 

Sears repeated the second grade, Exh. 6, 3 Record 500–

501, and was referred to a local health center for evaluation at age nine, Exh. 7, id., at 503, 504, 508. By the time 

Sears reached high school, he was “described as severely

learning disabled and as severely behaviorally handicapped.” Exh. A to Exh. 1, 2 Record 174–176 (Affidavit of 

Tony L. Strickland, M. S., Ph. D.).

Environmental factors aside, and more significantly,

evidence produced during the state postconviction relief

process also revealed that Sears suffered “significant 

frontal lobe abnormalities.” Exh. 1, id., at 147. Two different psychological experts testified that Sears had substantial deficits in mental cognition and reasoning—i.e., 

“problems with planning, sequencing and impulse control,” 

ibid.—as a result of several serious head injuries he suffered as a child, as well as drug and alcohol abuse. See 1 

Record 37–40 (Testimony of Dr. Strickland); id., at 95–96 

(Testimony of Dr. Dudley). Regardless of the cause of his

brain damage, his scores on at least two standardized 

assessment tests placed him at or below the first percentile in several categories of cognitive function, “making

him among the most impaired individuals in the population in terms of ability to suppress competing impulses

and conform behavior only to relevant stimuli.” Exh. 1, 2 

Record 148; see also 1 Record 37. The assessment also 

revealed that Sears’ “ability to organize his choices, assign 

them relative weight and select among them in a deliberate way is grossly impaired.” Exh. 1, 2 Record 149. From 

an etiological standpoint, one expert explained that Sears’ 

“history is replete with multiple head trauma, substance 

abuse and traumatic experiences of the type expected” to 
Cite as: 561 U. S. ____ (2010) 5 

Per Curiam 

lead to these significant impairments. Id., at 150; see also 

1 Record 44. 

Whatever concern the dissent has about some of the 

sources relied upon by Sears’ experts—informal personal 

accounts, see post, at 5–7 (opinion of SCALIA, J.)—it does

not undermine the well-credentialed expert’s assessment,4 

based on between 12 and 16 hours of interviews, testing,

and observations, see 1 Record 32, that Sears suffers from 

substantial cognitive impairment. Sears performed dismally on several of the forensic tests administered to him 

to assess his frontal lobe functioning. On the Stroop Word

Interference Test, which measures response inhibition, id., 

at 36–37, 99.6% of those individuals in his cohort (which

accounts for age, education, and background) performed

better than he did. Ibid. On the Trail-Making B test,

which also measures frontal lobe functioning, id., at 37– 

38, Sears performed at the first (and lowest) percentile. 

Id., at 38. Based on these results, the expert’s first-hand 

observations, and an extensive review of Sears’ personal 

history, the expert’s opinion was unequivocal: There is 

“clear and compelling evidence” that Sears has “pronounced frontal lobe pathology.”5 Id., at 68. 

—————— 

4Dr. Strickland, a psychologist, is the director of a mild head injury 

clinic and the Sports Concussion Institute at Centinella Freeman 

Medical Center in Los Angeles. 1 Record 30. He is an associate professor of psychiatry in residence at the University of California at Los

Angeles and directs a memory disorder and cerebral palsy clinic for 

that university’s department of neuroscience. Id., at 30–31. The State 

had no objection to his being tendered as an expert in neuropsychology. 

Id., at 31. 

5During a colloquy with the court, Dr. Strickland further explained: 

“THE COURT: But by taking some history of head injuries, coupled 

with the results of the tests that you’ve given, you can comfortably

conclude that the results of the tests that you’ve given were a consequence of frontal lobe head injuries? 

“THE WITNESS: Absolutely. And, moreover, Your Honor, the 

patient has a lesion on the front of his head, which is something I can

observe.” Id., at 78. 
6 SEARS v. UPTON 

Per Curiam 

Further, the fact that Sears’ brother is a convicted drug

dealer and user, and introduced Sears to a life of crime, 6 

Record 1683–1686, actually would have been consistent

with a mitigation theory portraying Sears as an individual

with diminished judgment and reasoning skills, who may 

have desired to follow in the footsteps of an older brother 

who had shut him out of his life. Post, at 6. And the fact 

that some of such evidence may have been “hearsay” does

not necessarily undermine its value—or its admissibility—

for penalty phase purposes.6 Post, at 5, n. 3. 

Finally, the fact that along with this new mitigation

evidence there was also some adverse evidence is unsurprising, post, at 7, given that counsel’s initial mitigation 

investigation was constitutionally inadequate. Competent

counsel should have been able to turn some of the adverse 

evidence into a positive—perhaps in support of a cognitive 

deficiency mitigation theory. In particular, evidence of

Sears’ grandiose self-conception and evidence of his magical thinking, ibid., were features, in another wellcredentialed expert’s view,7 of a “profound personality 

—————— 

6Like Georgia’s “necessity exception” to its hearsay rules, see Ga. 

Code Ann. §24–3–1(b) (2006), we have also recognized that reliable 

hearsay evidence that is relevant to a capital defendant’s mitigation

defense should not be excluded by rote application of a state hearsay 

rule. See Green v. Georgia, 442 U. S. 95, 97 (1979) (per curiam) (“Regardless of whether the proffered testimony comes within Georgia’s 

hearsay rule, under the facts of this case its exclusion constituted a 

violation of the Due Process Clause . . . . The excluded testimony was 

highly relevant to a critical issue in the punishment phase of the trial”); 

see also Chambers v. Mississippi, 410 U. S. 284, 302 (1973) (“In these

circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied

mechanistically to defeat the ends of justice”). We take no view on 

whether the evidence at issue would satisfy the considerations we set

forth in Green, or would be otherwise admissible under Georgia law. 7Dr. Dudley, a psychiatrist, completed his internship and residency 

at Northwestern University Medical Center, and has been board

certified in psychiatry by the American Board of Psychiatry and Neu-
Cite as: 561 U. S. ____ (2010) 7 

Per Curiam 

disorder.” 1 Record 104. This evidence might not have

made Sears any more likable to the jury, but it might well

have helped the jury understand Sears, and his horrendous acts—especially in light of his purportedly stable

upbringing.

Because they failed to conduct an adequate mitigation

investigation, none of this evidence was known to Sears’ 

trial counsel. It emerged only during state postconviction 

relief. 

II 

Unsurprisingly, the state postconviction trial court 

concluded that Sears had demonstrated his counsel’s 

penalty phase investigation was constitutionally deficient.

See Strickland, 466 U. S., at 688 (explaining that first 

inquiry when evaluating Sixth Amendment ineffectiveness 

claim is whether counsel’s representation “fell below an

objective standard of reasonableness”). In its view, the 

cursory nature of counsel’s investigation into mitigation 

evidence—“limited to one day or less, talking to witnesses

selected by [Sears’] mother”—was “on its face . . . constitutionally inadequate.” App. to Pet. for Cert. 27B. 

What is surprising, however, is the court’s analysis

regarding whether counsel’s facially inadequate mitigation 

investigation prejudiced Sears. See Strickland, supra, at 

694. Although the court appears to have stated the proper

prejudice standard,8 it did not correctly conceptualize how

that standard applies to the circumstances of this case. 

—————— 

rology for more than 35 years. 1 Record 91–92. The State also had no 

objection to his being tendered as an expert in psychiatry. Id., at 93. 8The court asked whether “there is a reasonable likelihood that the 

outcome of his trial would have been different if his counsel had done 

more investigation.” App. to Pet. for Cert. 29B–30B; see Strickland, 

466 U. S., at 694 (“The 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 undermine confidence in the outcome”). 
8 SEARS v. UPTON 

Per Curiam 

Because Sears’ counsel did present some mitigation evidence during his penalty phase, the court concluded that 

“[t]his case cannot be fairly compared with those where

little or no mitigation evidence is presented and where a

reasonable prediction of outcome can be made.” App. to

Pet. for Cert. 30B. The court explained that “it is impossible to know what effect [a different mitigation theory] 

would have had on [the jury].” Ibid. “Because counsel put 

forth a reasonable theory with supporting evidence,” the 

court reasoned, “[Sears] . . . failed to meet his burden of 

proving that there is a reasonable likelihood that the 

outcome at trial would have been different if a different 

mitigation theory had been advanced.”9 Ibid. 

There are two errors in the state court’s analysis of 

Sears’ Sixth Amendment claim. First, the court curtailed 

a more probing prejudice inquiry because it placed undue 

reliance on the assumed reasonableness of counsel’s mitigation theory. The court’s determination that counsel had 

conducted a constitutionally deficient mitigation investigation, should have, at the very least, called into question 

the reasonableness of this theory. Cf. Wiggins v. Smith, 

539 U. S. 510, 522 (2003) (explaining that “counsel’s failure to uncover and present voluminous mitigating evidence at sentencing could not be justified as a tactical

decision . . . because counsel had not ‘fulfill[ed] their obli-

—————— 

9Channeling powers of telepathy, JUSTICE SCALIA asserts that what 

the trial court actually decided in this case is that “Sears’ trial counsel 

presented a reasonable mitigation theory and offered evidence sufficient to support it, so the prejudice inquiry was more difficult—so

difficult that Sears could not make the requisite showing.” Post, at 4. 

Such a highly favorable reading of the trial court’s analysis would be

far more convincing had the trial court engaged with the evidence as

JUSTICE SCALIA does. But it offered no such analysis in its opinion; 

indeed, it appears the court did not even conduct any real analysis, 

explaining that it was “impossible to know what effect” the evidence 

might have had on the jury. App. to Pet. for Cert. 30B (emphasis 

added). 
Cite as: 561 U. S. ____ (2010) 9 

Per Curiam 

gation to conduct a thorough investigation of the defendant’s background’” (quoting Williams v. Taylor, 529 U. S. 

362, 396 (2000); alteration in original)). And, more to the 

point, that a theory might be reasonable, in the abstract,

does not obviate the need to analyze whether counsel’s 

failure to conduct an adequate mitigation investigation 

before arriving at this particular theory prejudiced Sears.

The “reasonableness” of counsel’s theory was, at this stage 

in the inquiry, beside the point: Sears might be prejudiced

by his counsel’s failures, whether his haphazard choice 

was reasonable or not.

 JUSTICE SCALIA chides the Court for concluding that the

trial court assumed, rather than found, that counsel’s 

mitigation theory was a reasonable one. Post, at 2. But 

our point is that any finding with respect to the reasonableness of the mitigation theory counsel utilized—in this 

case, family impact—is in tension with the trial court’s 

unambiguous finding that counsel’s investigation was

itself so unreasonable as to be facially unconstitutional.

This point is plain in Williams: We rejected any suggestion 

that a decision to focus on one potentially reasonable trial 

strategy—in that case, petitioner’s voluntary confession—

was “justified by a tactical decision” when “counsel did not

fulfill their obligation to conduct a thorough investigation 

of the defendant’s background.” 529 U. S., at 396. A 

“tactical decision” is a precursor to concluding that counsel has developed a “reasonable” mitigation theory in a 

particular case.10 

—————— 

10Moreover, the reasonableness of the theory is not relevant when 

evaluating the impact of evidence that would have been available and

likely introduced, had counsel completed a constitutionally adequate

investigation before settling on a particular mitigation theory. This 

point was also plain in Williams: “Whether or not . . . omissions [in the

investigation] were sufficiently prejudicial to have affected the outcome

of sentencing,” they may nevertheless demonstrate deficiency. 529 

U. S., at 396. The one inquiry, deficient mitigation investigation, is 
10 SEARS v. UPTON 

Per Curiam 

Second, and more fundamentally, the court failed to

apply the proper prejudice inquiry. We have never limited 

the prejudice inquiry under Strickland to cases in which 

there was only “little or no mitigation evidence” presented, 

App. to Pet. for Cert. 30B. True, we have considered cases 

involving such circumstances,11 and we have explained

that there is no prejudice when the new mitigating evidence “would barely have altered the sentencing profile

presented” to the decisionmaker, Strickland, supra, at 

700. But we also have found deficiency and prejudice in 

other cases in which counsel presented what could be

described as a superficially reasonable mitigation theory 

during the penalty phase. E.g., Williams, supra, at 398 

(remorse and cooperation with police); Rompilla v. Beard, 

545 U. S. 374, 378 (2005) (residual doubt). We did so most 

recently in Porter v. McCollum, 558 U. S. ___, ___ (2009) 

(per curiam) (slip op., at 3), where counsel at trial had 

attempted to blame his client’s bad acts on his drunkenness, and had failed to discover significant mitigation

evidence relating to his client’s heroic military service and 

substantial mental health difficulties that came to light 

only during postconviction relief, id., at ___ (slip op., at

11–12). Not only did we find prejudice in Porter, but— 

bound by deference owed under 28 U. S. C. §2254(d)(1)—

we also concluded the state court had unreasonably applied Strickland’s prejudice prong when it analyzed Porter’s claim. Porter, supra, at ___ (slip op., at 13).

We certainly have never held that counsel’s effort to 

present some mitigation evidence should foreclose an

inquiry into whether a facially deficient mitigation investigation might have prejudiced the defendant. To the 

contrary, we have consistently explained that the Strick-

—————— 

distinct from the second, whether there was prejudice as a result. 11See, e.g., Wiggins v. Smith, 539 U. S. 510, 515–516 (2003); Strickland v. Washington, 466 U. S. 668, 700 (1984). 
Cite as: 561 U. S. ____ (2010) 11 

Per Curiam 

land inquiry requires precisely the type of probing and 

fact-specific analysis that the state trial court failed to

undertake below.12 In the Williams decision, for instance, 

we categorically rejected the type of truncated prejudice

inquiry undertaken by the state court in this case. 529 

U. S., at 397–398. And, in Porter, we recently explained: 

“To assess [the] probability [of a different outcome

under Strickland], we consider the totality of the 

available mitigation evidence—both that adduced at 

trial, and the evidence adduced in the habeas proceeding—and reweig[h] it against the evidence in aggravation.” 558 U. S., at ____ (slip op., at 11) (internal quotation marks omitted; third alteration in original). 

That same standard applies—and will necessarily require 

a court to “speculate” as to the effect of the new evidence—

regardless of how much or how little mitigation evidence

was presented during the initial penalty phase. Indeed, it 

is exactly this kind of probing inquiry that JUSTICE SCALIA 

now undertakes, post, at 4–8, and that the trial court 

failed to do. In all circumstances, this is the proper prejudice standard for evaluating a claim of ineffective representation in the context of a penalty phase mitigation

investigation. 

—————— 

12Whether it did so implicitly is far from apparent, notwithstanding 

JUSTICE SCALIA’s suggestion to the contrary. See post, at 3–4. The trial 

court stated that the record was “largely silent” on “what [evidence]

would have been shown if [additional mitigating evidence] had been

sought.” App. to Pet. for Cert. 28B. This is a curious assertion in light 

of the 22 volumes of evidentiary hearing transcripts and submissions in

the record, which spell out the findings discussed above. It also undermines any suggestion that the court did, in fact, do the reweighing 

JUSTICE SCALIA believes it undertook; it is plain the record is not 

“largely silent.” And it also undermines any suggestion that the court 

simply discounted the value of the testimony; had it made any such

finding, the court could have easily stated, instead, that the record

evidence was unpersuasive. 
12 SEARS v. UPTON 

Per Curiam

III 

A proper analysis of prejudice under Strickland would 

have taken into account the newly uncovered evidence of 

Sears’ “significant” mental and psychological impairments, 

along with the mitigation evidence introduced during

Sears’ penalty phase trial, to assess whether there is a

reasonable probability that Sears would have received a 

different sentence after a constitutionally sufficient mitigation investigation. See Porter, supra, at ___ (slip op., at 

11); Williams, supra, at 397–398; Strickland, supra, at 

694. It is for the state court—and not for either this Court 

or even JUSTICE SCALIA—to undertake this reweighing in

the first instance. 

Accordingly, the petition for certiorari and the motion 

for leave to proceed in forma pauperis are granted. The

judgment below is vacated, and the case is remanded for 

further proceedings not inconsistent with this opinion. 

It is so ordered. 

THE CHIEF JUSTICE and JUSTICE ALITO would deny the 

petition for a writ of certiorari. 
Cite as: 561 U. S. ____ (2010) 1 

SCALIA, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

DEMARCUS ALI SEARS v. STEPHEN UPTON, 

WARDEN 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME 

COURT OF GEORGIA

No. 09–8854. Decided June 29, 2010 

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,

dissenting. 

The Court concludes, ante, at 7–12, that the Superior 

Court of Butts County, Georgia, made errors of law in

applying the prejudice inquiry for ineffective-assistance-ofcounsel claims under Strickland v. Washington, 466 U. S. 

668 (1984). In my view there was no error of law, and the

Court today remands for the state court to do what it has

already done: find no reasonable likelihood that the mitigation evidence the Court details in its opinion would have

persuaded a jury to change its mind about the death sentence for this brutal rape-murder.

The state habeas court responsibly executed the first 

step in the Strickland analysis, finding that the investigation of mitigation evidence by Sears’ trial counsel was 

deficient performance. The issue here is the second step: 

whether Sears was prejudiced by that deficiency. As the 

Court acknowledges, ante, at 7, the state habeas court 

correctly stated the prejudice standard under Strickland: 

The defendant has the burden to establish “a reasonable 

probability that, but for counsel’s deficient performance, 

the result of the proceeding would have been different.” 

App. to Pet. for Cert. 24B–25B (citing 466 U. S., at 688, 

694). “When applied to the sentencing phase of death

penalty trials,” that means “a reasonable probability that, 

absent [counsel’s] errors, the sentencer would have concluded that the balance of the aggravating and mitigating

circumstances did not warrant death.” App. to Pet. for 
2 SEARS v. UPTON 

SCALIA, J., dissenting 

Cert. 25B–26B. 

The Court today concludes that there were two errors in

the application of that proper standard. First, it reasons 

that the court erroneously “curtailed a more probing 

prejudice inquiry because it placed undue reliance on the 

assumed reasonableness of counsel’s mitigation theory” at

trial. Ante, at 8. That argument is flawed on several 

levels. To begin with, the state habeas court did not assume trial counsel’s mitigation theory was reasonable; it 

found that it was. It said: “[A]lthough counsel failed to

investigate thoroughly, they did develop a reasonable

mitigation theory with evidence to support it.” App. to 

Pet. for Cert. 30B. After interviews of roughly a dozen

potential mitigation witnesses, who, with the exception of 

Sears’ father, gave positive accounts of Sears and his

family, see 7 Record 2025, 2051–2052; 8 id., at 2129, 

2291–2344, Sears’ trial counsel developed a mitigation 

theory that Sears came from a good family and had a solid 

middle-class upbringing; that his offense was completely 

out of character; that he cooperated with police; and that

sentencing Sears to death would devastate his family and 

friends, see id., at 2124–2125; 19 id., at 4861–4862, 4916– 

4917, 4954–4955; 20 id., at 5181. To support that approach his attorneys called seven witnesses, including

Sears’ mother, four family friends, and his high school

guidance counselor. See Pet. for Cert. 6–7 (citing trial 

transcript pages between 2375 and 2451). The state habeas court did not declare that this mitigation theory 

“might be reasonable, in the abstract,” as the Court puts

it, ante, at 8. Rather, it concluded that counsel “put forth

a reasonable theory with supporting evidence.” App. to 

Pet. for Cert. 30B. 

The Court’s argument is also flawed because the habeas

court’s reasonableness finding did not cause it to “curtai[l]”

its prejudice inquiry, or lead to the conclusion that it could 

“obviate the need to analyze” whether pursuing a different 
Cite as: 561 U. S. ____ (2010) 3 

SCALIA, J., dissenting 

mitigation theory would have made a difference. Ante, at 

9. The reasonableness finding merely meant that the

prejudice determination had to be made by asking, not

whether the jury’s mind would probably have been 

changed by hearing Sears’ new mitigation theory instead 

of hearing no mitigation theory at all; but rather whether 

it would probably have been changed by substituting

Sears’ new mitigation theory for the reasonable mitigation 

theory that was presented and rejected.1 After hearing all 

the witnesses and other evidence Sears presented before 

it, the state court concluded that “it is just not possible to

know what effect a different mitigation theory would have 

had.” App. to Pet. for Cert. 30B (emphasis added).2 

The second, “and more fundamenta[l],” legal error the 

Court alleges, ante, at 10–11, is really encased within the

first. The Court claims that the state habeas court “limited the prejudice inquiry under Strickland to cases in 

which there was only ‘little or no mitigation evidence’ 

presented.” Id., at 10 (quoting App. to Pet. for Cert. 30B).

The court erred, we are told, by determining that “present[ation of] some mitigation evidence should foreclose an

inquiry into whether” Sears was prejudiced. Ibid. That is 

not a fair reading of the opinion. The state court did not 

hold that a defendant could never suffer prejudice whenever his counsel provided any mitigation evidence. 

Rather, it stated that “[t]his case cannot be fairly com-

—————— 

1The Court contends, ante, at 9, that there was a “tension” between 

the state court’s conclusion that the investigation was deficient and its 

conclusion that the mitigation theory presented to the jury was reasonable. This terribly misreads the state court’s opinion. It did not say (as 

the Court’s point assumes) that counsel’s using the mitigation theory 

they did was reasonable; it said that the theory itself was reasonable, 

making it hard to say whether a different theory would have persuaded 

the jury. This presents no conceivable “tension.” 2On the fair reading we owe the state court, its opinion provides no 

basis for inferring that it failed to “engag[e] with the evidence” and “did

not even conduct any real analysis.” Ante, at 8, n. 8. 
4 SEARS v. UPTON 

SCALIA, J., dissenting 

pared with those where little or no mitigation evidence is 

presented and where a reasonable prediction of outcome 

can be made.” App. to Pet. for Cert. 30B (emphasis 

added). That is absolutely correct. This case is not like 

the prejudice cases on which the Court relies, where it 

could readily be said that the overlooked mitigation theory 

would have made a much deeper impression on the jury 

than the utterly unsupported theory (or absence of any 

theory) offered at trial. See Porter v. McCollum, 558 U. S. 

___, ___ (2009) (per curiam) (slip op., at 12); Rompilla v. 

Beard, 545 U. S. 374, 378, 393 (2005); Wiggins v. Smith, 

539 U. S. 510, 515, 537 (2003); Williams v. Taylor, 529 

U. S. 362, 369 (2000). Sears’ trial counsel presented a

reasonable mitigation theory and offered evidence sufficient to support it, so the prejudice inquiry was more

difficult—so difficult that Sears could not make the requisite showing. Clearly referring to the evidence in this

particular case, the court said: 

“Although here, the Petitioner can argue that a prior 

appeal shows the difficulty one juror was having 

reaching the same verdict as the others, it is just not

possible to know what effect a different mitigation 

theory would have had on her, just as it is impossible 

to know what effect it would have had on other jurors.” App. to Pet. for Cert. 30B. 

Since the habeas court made no legal error en route to 

its Strickland conclusion, the only basis for reversing the 

judgment here would be disagreement with the conclusion

itself: that Sears had not established that his new mitigation theory would probably have caused the jury to impose

a life sentence instead of death. 

The Court makes no attempt to contradict that conclusion. Doing so would require a fact-intensive inquiry into 

the 22-volume record to measure the persuasiveness of the 

evidence supporting Sears’ new mitigation theory—an 
Cite as: 561 U. S. ____ (2010) 5 

SCALIA, J., dissenting 

inquiry the Court purports to disavow, ante, at 12, but 

nonetheless tendentiously undertakes, ante, at 3–6. The 

reader might think the state habeas court’s conclusion

highly questionable from the Court’s account, which recites as solid all the evidence supporting Sears’ new mitigation theory, see ante, at 3–7. It is far from solid. Some 

is likely inadmissible as unreliable hearsay under Georgia

law, see Gissendaner v. State, 272 Ga. 704, 714, 532 S. E. 

2d 677, 688–689 (2000); Gulley v. State, 271 Ga. 337, 347, 

519 S. E. 2d 655, 664 (1999)—such as much of the evidence for the uncorroborated second-hand claim that 

Sears “suffered sexual abuse at the hands of an adolescent 

male cousin,” ante, at 3.3 Other evidence a competent

attorney would likely not have placed before the jury—

such as all the testimony about Sears’ childhood from his

brother Demetrius, an admitted drug dealer and drug

user, 6 Record 1682–1684, 1695, 1752, and a convicted 

felon (for bank fraud, wire fraud, identity theft, and cocaine trafficking), id., at 1687. No juror would have been

impressed by such a character witness. 

Some of the evidence is incredible, such as the psychiatrist’s assertion that Sears had “substantial deficits in 

mental cognition and reasoning . . . as a result of serious 

—————— 

3The Court’s reliance on Green v. Georgia, 442 U. S. 95, 97 (1979) 

(per curiam), ante, at 6, n. 6, to suggest that this unreliable hearsay

would be admissible for sentencing purposes is entirely misplaced. In 

Green, we held it violated constitutional due process to exclude testimony regarding a co-conspirator’s confession that he alone committed

the capital murder with which the defendant was charged. Our holding

depended on “th[e] unique circumstances” of the case: the testimony to

be used at sentencing was “highly relevant” and “substantial[ly]”

reliable as a statement against penal interest made to a close friend; it

was corroborated by “ample” evidence and was used by the State to

obtain a conviction in a separate trial against the co-conspirator. 442 

U. S., at 97. Here there are no such circumstances. The testimony is

uncorroborated second-hand reporting from self-interested witnesses

that is unreliable and therefore likely inadmissible. 
6 SEARS v. UPTON 

SCALIA, J., dissenting 

head injuries he suffered as a child,” ante, at 4. The serious head injuries consisted of Sears’ hitting his head at a 

roller-skating rink sometime early in elementary school,

1 Record 76; 2 id., at 225, running into an end table as a 

child, 6 id., at 1651, and getting hit with a golf club sometime later in elementary school, 1 id., at 79; 2 id., at 225.4 

(The last of these major injuries might not have been 

introduced anyway, since that would have provided the 

prosecution an opportunity to refute both the extent of the 

injury and the mercy-worthiness of Sears, by introducing

into evidence Sears’ boast that when he was 11 or 12 he 

“beat the s*** out of” someone after he was hit on the head 

with a golf club, 8 id., at 2195.) Likewise incredible was 

the assertion that Demetrius “introduced Sears to a life of 

crime,” ante, at 6. According to testimony on which the

Court relies, Demetrius would “never let [Sears] hang

around” with him and his drug-dealing friends. 6 Record 

1685–1686. 

A jury also would have discredited the psychiatric testimony of Dr. Strickland that “[f]rom an etiological standpoint . . . Sears’ ‘history is replete with multiple head

trauma, substance abuse and traumatic experiences of the 

type expected’ to lead to these significant [mental] impairments,” ante, at 4–5 (quoting 2 id., at 150). As already

noted, the evidence of brain-damaging trauma is nonexistent. The psychiatric testimony of Dr. Dudley relied upon 

the self-interested reporting of Sears himself and the 

—————— 

4There is an unsubstantiated claim from Sears himself, 8 Record 

2195, that when he was a teenager he was hit with a “hatchet” above 

his right eye. Of course, that is the same place where he collided with 

an end table, 6 id., at 1651, leaving the “lesion”—better known as a 

scar—on his head that Dr. Strickland noted, ante, at 5–6, n. 5 (quoting 

1 Record 78). There is no corroborating evidence for this event: no

medical records, 1 id., at 77, no other apparent scars, 2 id., at 245; 6 id., 

at 1651, and, tellingly, no family or friends to confirm what surely

would have been memorable had it happened. 
Cite as: 561 U. S. ____ (2010) 7 

SCALIA, J., dissenting 

testimony of his less-than-trustworthy brother, Demetrius, 

see, e.g., 1 Record 122, 133. And then there are the unfavorable parts of Dr. Dudley’s testimony: Sears is a “narcissis[t],” id., at 135, with a “grandiose” opinion of himself, 

id., at 98–99; 2 id., at 246. Dr. Dudley’s affidavit portrays

Sears as arrogant and self-centered, id., at 246, 247, and 

notes what he termed Sears’ “fantastical” boasting of his 

first sexual experience with a woman at the age of six and

his other “innumerable sexual experiences,” 1 id., at 98– 

99, 100; 2 id., at 246–247. It is hard to see how it could be 

thought probable that Sears’ so-called “magical thinking,”

1 id., at 84, would have helped his plea for leniency, see 

ante, at 6–7. It seems to me more likely the jury would 

conclude that Sears’ “profoun[d] personality disorder,”

1 Record 104, made him exactly the kind of person who 

would commit heinous crimes in the future. 

And some of the evidence the Court recounts is so utterly unlikely to affect a jury’s determination that this

brutal murder deserved death that its recitation is just

plain hilarious. For example, the claim that Sears’ father

“was ‘verbally abusive,’” ante, at 3, resting on nothing 

more than an art teacher’s recollection that Sears’ father 

“severely criticized” him—“and meant it”!—at a conference 

with the principal concerning his son’s poor academic 

performance, 6 Record 1747; the claim that his father 

“disciplined Sears with age-inappropriate military-style 

drills,” ante, at 3–4, which consisted of positively VonSteubenesque acts such as dousing the kid with cold water 

when he refused to get up for school, and making him run 

extra laps after sports practices, 6 Record 1622; and the

claim that his mother’s “‘favorite word’”—actually three 

words—to refer to her sons was scatological, ante, at 3 

(quoting 2 Record 265).

While the Court takes pain to describe all the elements

of Sears’ new mitigation theory, down to the silliest, it

does not trouble to describe the brutal circumstances of 
8 SEARS v. UPTON 

SCALIA, J., dissenting 

the crime—which are at least just as relevant to assessing 

whether the different mitigation theory would probably 

have altered the sentence. But the jury heard all about 

them. See Sears v. State, 268 Ga. 759, 759–760, 493 S. E. 

2d 180, 182 (1997). They heard Sears’ confession that he

kidnaped, raped, and murdered Gloria Wilbur, a 59-year 

old wife and mother. Sears, carrying a briefcase containing various instruments of mayhem—brass knuckles, 

knives, and handcuffs—and his accomplice, Phillip Williams, were surveying a supermarket parking lot on a 

Sunday evening in October 1990, looking for a car to steal

to drive back home to Ohio from Georgia. As the victim 

was putting her groceries in the trunk of her car, Sears

approached, punched her in the face with his brass knuckles, shoved her into the car, and drove to pick up Williams. 

Sears then handcuffed her and pulled her into the backseat as Williams drove. After they passed into Tennessee, 

Sears raped her. Later in the evening, after they had

crossed into Kentucky, Sears told Williams to stop the car. 

Sears forced her, still handcuffed, into the woods by the 

side of the highway as she begged for her life. After 

throwing her on the ground, he stabbed her in the neck. 

In his confession he showed no regret or remorse for his 

heinous crimes.5 

I do not know how anyone could disagree with the habeas court’s conclusion that it is impossible to say that 

substituting the “deprived-childhood-cum-brain-damage”

defense for the “good-middle-class-kid-who-made-amistake” defense would probably have produced a different verdict. I respectfully dissent. 

—————— 

5The jury also heard from several corrections officers who testified

that while Sears was incarcerated awaiting trial and sentencing, he 

racked up dozens of disciplinary infractions, including assaults on other

inmates. “ ‘Predatory,’ ” “ ‘[i]ncorrigible,’ ” and incapable of reform was 

how they described him. 10 id., at 2951–2957; 19 id., at 4868.