(Slip Opinion) OCTOBER TERM, 2010 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 

CULLEN, ACTING WARDEN v. PINHOLSTER 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE NINTH CIRCUIT 

No. 09–1088. Argued November 9, 2010—Decided April 4, 2011 

A California jury convicted respondent Pinholster on two counts of firstdegree murder. At the penalty phase before the same jury, the prosecution produced eight witnesses, who testified about Pinholster’s history of threatening and violent behavior. Pinholster’s trial counsel, 

who unsuccessfully sought to exclude the aggravating evidence on the

ground that the prosecution had not given Pinholster proper notice 

under California law, called only Pinholster’s mother. Counsel did 

not call a psychiatrist, though they had consulted with Dr. Stalberg, 

who had diagnosed Pinholster with antisocial personality disorder. 

The jury recommended the death penalty, and Pinholster was sentenced to death. Pinholster twice sought habeas relief in the California Supreme Court, alleging, inter alia, that his trial counsel had 

failed to adequately investigate and present mitigating evidence during the penalty phase. He introduced additional evidence to support

his claim: school, medical, and legal records; and declarations from 

family members, one of his trial attorneys, and Dr. Woods, a psychiatrist who diagnosed him with bipolar mood disorder and seizure disorders, and who criticized Dr. Stalberg’s report. Each time, the State 

Supreme Court unanimously and summarily denied the claim on the 

merits. Subsequently, a Federal District Court held an evidentiary 

hearing and granted Pinholster federal habeas relief under 28 

U. S. C. §2254. Affirming, the en banc Ninth Circuit considered the

new evidence adduced in the District Court hearing and held that the 

State Supreme Court’s decision “involved an unreasonable application of . . . clearly established Federal law,” §2254(d)(1). 

Held: 

1. Review under §2254(d)(1) is limited to the record that was before

the state court that adjudicated the claim on the merits. Pp. 8–14. 
2 CULLEN v. PINHOLSTER 

Syllabus 

(a) As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), §2254 sets several limits on a federal

court’s power to grant habeas relief to a state prisoner. As relevant 

here, a claim that has been “adjudicated on the merits in State court 

proceedings,” “shall not be granted . . . unless the adjudication” “(1)

resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law,” or “(2) resulted

in a decision that was based on an unreasonable determination of the 

facts in light of the evidence presented in the State court proceeding.” 

§2254(d). This “difficult to meet,” Harrington v. Richter, 562 U. S. 

___, ___, and “ ‘highly deferential standard’ . . . demands that statecourt decisions be given the benefit of the doubt,” Woodford v. Visciotti, 537 U. S. 19, 24. Section 2254(d)(1)’s backward-looking language—“resulted in” and “involved”—requires an examination of the

state-court decision at the time it was made. It follows that the record under review is also limited to the record in existence at that 

same time—i.e., the state-court record. This understanding is compelled by “the broader context of the statute as a whole,” which demonstrates Congress’ intent to channel prisoners’ claims first to state 

courts. Robinson v. Shell Oil Co., 519 U. S. 337, 341. It is also consistent with this Court’s precedents, which emphasize that 

§2254(d)(1) review focuses on what a state court knew and did. See, 

e.g., Lockyer v. Andrade, 538 U. S. 63, 71–72. Moreover, it is consistent with Schriro v. Landrigan, 550 U. S. 465, 474, which explained 

that a federal habeas court is “not required to hold an evidentiary

hearing” when the state-court record “precludes habeas relief” under 

§2254(d)’s limitations. The Ninth Circuit wrongly interpreted Williams v. Taylor, 529 U. S. 420, and Holland v. Jackson, 542 U. S. 649, 

as supporting the contrary view. Pp. 8–12.

(b) This holding does not render superfluous §2254(e)(2)—which 

limits the federal habeas courts’ discretion to take new evidence in an 

evidentiary hearing. At a minimum, §2254(e)(2) still restricts their

discretion in claims that were not adjudicated on the merits in state 

court. Although state prisoners may sometimes submit new evidence

in federal court, AEDPA’s statutory scheme is designed to strongly

discourage them from doing so. Pp. 13–14.

(c) Remand for a properly limited review is inappropriate here,

because the Ninth Circuit ruled, in the alternative, that Pinholster 

merited habeas relief on the state-court record alone. P. 14. 

2. On the record before the state court, Pinholster was not entitled 

to federal habeas relief. Pp. 14‘–31. 

(a) To satisfy §2254(d)(1)’s “unreasonable application” prong, he 

must show that “there was no reasonable basis” for the State Supreme Court’s summary decision. Richter, supra, at ___. Pp. 15–16. 
Cite as: 563 U. S. ____ (2011) 3 

Syllabus 

(b) Strickland v. Washington, 466 U. S. 668, provides the clearly 

established federal law here. To overcome the strong presumption

that counsel has acted competently, id., at 690, a defendant must 

show that counsel failed to act “reasonabl[y] considering all the circumstances,” id., at 688, and must prove the “reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id., at 694. Review here is thus “doubly deferential,” Knowles v. Mirzayance, 556 U. S. ___, ___, requiring 

a “highly deferential” look at counsel’s performance, Strickland, supra, at 689, through §2254(d)’s “deferential lens,” Mirzayance, supra, 

at ___, n. 2. Pp. 16–18. 

(c) Pinholster has not shown that the State Supreme Court’s decision that he could not demonstrate deficient performance by his 

trial counsel necessarily involved an unreasonable application of federal law. Pp. 18–26. 

(1) The state-court record supports the idea that his counsel 

acted strategically to get the prosecution’s aggravation witnesses excluded for lack of notice, and if that failed, to put on his mother as a

mitigation witness. Billing records show that they spent time investigating mitigating evidence. The record also shows that they had an

unsympathetic client who had boasted about his criminal history during the guilt phase, leaving them with limited mitigation strategies.

In addition, when Dr. Stalberg concluded that Pinholster had no significant mental disorder or defect, he was aware of Pinholster’s medical and social history. Given these impediments, it would have been 

a reasonable penalty-phase strategy to focus on evoking sympathy for 

Pinholster’s mother. Pinholster has responded with only a handful of 

post-hoc nondenials by one of his lawyers. Pp. 18–23. 

(2) The Ninth Circuit misapplied Strickland when it drew from 

this Court’s recent cases a “constitutional duty to investigate” and a

principle that it was prima facie ineffective for counsel to abandon an 

investigation based on rudimentary knowledge of Pinholster’s background. Beyond the general requirement of reasonableness, “specific

guidelines are not appropriate” under Strickland. 466 U. S., at 688. 

Nor did the Ninth Circuit properly apply the strong presumption of

competence mandated by Strickland. Pp. 23–26. 

(d) Even if his trial counsel had performed deficiently, Pinholster

also has failed to show that the State Supreme Court must have unreasonably concluded that he was not prejudiced. Pp. 26–31.

(1) To determine “whether there is a reasonable probability

that, absent the errors, the sentencer . . . would have concluded that” 

death was not warranted, Strickland, supra, at 695, the aggravating

evidence is reweighed “against the totality of available mitigating

evidence,” Wiggins v. Smith, 539 U. S. 510, 534. Here, the State pre-
4 CULLEN v. PINHOLSTER 

Syllabus 

sented extensive aggravating evidence at both the guilt and penalty

phases. The mitigating evidence consisted primarily of the penaltyphase testimony of Pinholster’s mother and guilt-phase testimony 

given by his brother. After considering the evidence, the jury returned a sentence of death, which the state trial court found supported overwhelmingly by the weight of the evidence. Pp. 26–29. 

(2) There is no reasonable probability that the additional evidence presented at Pinholster’s state proceedings would have 

changed the verdict. The “new” evidence largely duplicated the mitigation evidence of his mother and brother at trial. To the extent that 

there were new factual allegations or evidence, much of it is of questionable mitigating value. Dr. Woods’ testimony would have opened 

the door to rebuttal by a state expert; and new evidence relating to 

Pinholster’s substance abuse, mental illness, and criminal problems

could lead a jury to conclude that he was beyond rehabilitation. The 

remaining new material in the state habeas record is sparse. Given 

what little additional mitigating evidence Pinholster presented in 

state habeas, the Court cannot say that the State Supreme Court’s 

determination was unreasonable. Pp. 29–30. 

(3) Because this Court did not apply AEDPA deference to the 

question of prejudice in Williams v. Taylor, 529 U. S. 362, and Rompilla v. Beard, 545 U. S. 374, those cases lack the important “doubly

deferential” standard of Strickland and AEDPA, and thus offer no 

guidance with respect to whether a state court has unreasonably determined that prejudice is lacking. Pp. 30–31. 

590 F. 3d 651, reversed. 

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and SCALIA and KENNEDY, JJ., joined in full; in which ALITO, J., 

joined as to all but Part II; in which BREYER, J., joined as to Parts I and 

II; and in which GINSBURG and KAGAN, JJ., joined as to Part II. ALITO, 

J., filed an opinion concurring in part and concurring in the judgment. 

BREYER, J., filed an opinion concurring in part and dissenting in part. 

SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KAGAN, JJ., joined as to Part II. 
_________________ 

_________________ 

Cite as: 563 U. S. ____ (2011) 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, Washington, 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. 09–1088 

VINCENT CULLEN, ACTING WARDEN, PETITIONER 

v. SCOTT LYNN PINHOLSTER 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[April 4, 2011]

 JUSTICE THOMAS delivered the opinion of the Court.* 

Scott Lynn Pinholster and two accomplices broke into a 

house in the middle of the night and brutally beat and 

stabbed to death two men who happened to interrupt the

burglary. A jury convicted Pinholster of first-degree murder, and he was sentenced to death. 

After the California Supreme Court twice unanimously 

denied Pinholster habeas relief, a Federal District Court 

held an evidentiary hearing and granted Pinholster habeas relief under 28 U. S. C. §2254. The District Court 

concluded that Pinholster’s trial counsel had been constitutionally ineffective at the penalty phase of trial. Sitting

en banc, the Court of Appeals for the Ninth Circuit affirmed. Pinholster v. Ayers, 590 F. 3d 651 (2009). Considering the new evidence adduced in the District Court

hearing, the Court of Appeals held that the California 

Supreme Court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal 

law.” §2254(d)(1).

We granted certiorari and now reverse. 

—————— 

*JUSTICE GINSBURG and JUSTICE KAGAN join only Part II. 
2 CULLEN v. PINHOLSTER 

Opinion of the Court 

I 

A 

On the evening of January 8, 1982, Pinholster solicited

Art Corona and Paul David Brown to help him rob Michael Kumar, a local drug dealer. On the way, they

stopped at Lisa Tapar’s house, where Pinholster put his 

buck knife through her front door and scratched a swastika into her car after she refused to talk to him. The 

three men, who were all armed with buck knives, found no 

one at Kumar’s house, broke in, and began ransacking the

home. They came across only a small amount of marijuana before Kumar’s friends, Thomas Johnson and 

Robert Beckett, arrived and shouted that they were calling 

the police.

Pinholster and his accomplices tried to escape through

the rear door, but Johnson blocked their path. Pinholster 

backed Johnson onto the patio, demanding drugs and 

money and repeatedly striking him in the chest. Johnson 

dropped his wallet on the ground and stopped resisting.

Beckett then came around the corner, and Pinholster 

attacked him, too, stabbing him repeatedly in the chest.

Pinholster forced Beckett to the ground, took both men’s 

wallets, and began kicking Beckett in the head. Meanwhile, Brown stabbed Johnson in the chest, “‘bury[ing] his 

knife to the hilt.’” 35 Reporter’s Tr. 4947 (hereinafter Tr.).

Johnson and Beckett died of their wounds. 

Corona drove the three men to Pinholster’s apartment.

While in the car, Pinholster and Brown exulted, “‘We got 

’em, man, we got ’em good.’” Ibid. At the apartment, 

Pinholster washed his knife, and the three split the proceeds of the robbery: $23 and one quarter-ounce of marijuana. Although Pinholster instructed Corona to “lay

low,” Corona turned himself in to the police two weeks 

later. Id., at 4955. Pinholster was arrested shortly thereafter and threatened to kill Corona if he did not keep quiet

about the burglary and murders. Corona later became the 
Cite as: 563 U. S. ____ (2011) 3 

Opinion of the Court 

State’s primary witness. The prosecution brought numerous charges against Pinholster, including two counts of

first-degree murder. 

B 

The California trial court appointed Harry Brainard and

Wilbur Dettmar to defend Pinholster on charges of firstdegree murder, robbery, and burglary. Before their appointment, Pinholster had rejected other attorneys and

insisted on representing himself. During that time, the

State had mailed Pinholster a letter in jail informing him 

that the prosecution planned to offer aggravating evidence

during the penalty phase of trial to support a sentence of

death. 

The guilt phase of the trial began on February 28, 1984. 

Pinholster testified on his own behalf and presented an 

alibi defense. He claimed that he had broken into 

Kumar’s house alone at around 8 p.m. on January 8, 1982,

and had stolen marijuana but denied killing anyone.

Pinholster asserted that later that night around 1 a.m., 

while he was elsewhere, Corona went to Kumar’s house to 

steal more drugs and did not return for three hours. 

Pinholster told the jury that he was a “professional robber,” not a murderer. 43 id., at 6204. He boasted of committing hundreds of robberies over the previous six years

but insisted that he always used a gun, never a knife. The 

jury convicted Pinholster on both counts of first-degree

murder. 

Before the penalty phase, Brainard and Dettmar moved 

to exclude any aggravating evidence on the ground that

the prosecution had failed to provide notice of the evidence 

to be introduced, as required by Cal. Penal Code Ann.

§190.3 (West 2008). At a hearing on April 24, Dettmar

argued that, in reliance on the lack of notice, he was “not

presently prepared to offer anything by way of mitigation.” 

52 Tr. 7250. He acknowledged, however, that the prosecu­
4 CULLEN v. PINHOLSTER 

Opinion of the Court 

tor “possibly ha[d] met the [notice] requirement.” Ibid. 

The trial court asked whether a continuance might be

helpful, but Dettmar declined, explaining that he could 

not think of a mitigation witness other than Pinholster’s 

mother and that additional time would not “make a great 

deal of difference.” Id., at 7257–7258. Three days later,

after hearing testimony, the court found that Pinholster 

had received notice while representing himself and denied

the motion to exclude. 

The penalty phase was held before the same jury that

had convicted Pinholster. The prosecution produced eight 

witnesses, who testified about Pinholster’s history of

threatening and violent behavior, including resisting 

arrest and assaulting police officers, involvement with

juvenile gangs, and a substantial prison disciplinary 

record. Defense counsel called only Pinholster’s mother, 

Burnice Brashear. She gave an account of Pinholster’s

troubled childhood and adolescent years, discussed Pinholster’s siblings, and described Pinholster as “a perfect

gentleman at home.” Id., at 7405. Defense counsel did not 

call a psychiatrist, though they had consulted Dr. John

Stalberg at least six weeks earlier. Dr. Stalberg noted

Pinholster’s “psychopathic personality traits,” diagnosed

him with antisocial personality disorder, and concluded 

that he “was not under the influence of extreme mental or 

emotional disturbance” at the time of the murders. App.

131. 

After 21⁄2 days of deliberation, the jury unanimously

voted for death on each of the two murder counts. On 

mandatory appeal, the California Supreme Court affirmed 

the judgment. People v. Pinholster, 1 Cal. 4th 865, 824 

P. 2d 571 (1992). 

C 

In August 1993, Pinholster filed his first state habeas

petition. Represented by new counsel, Pinholster alleged, 
Cite as: 563 U. S. ____ (2011) 5 

Opinion of the Court 

inter alia, ineffective assistance of counsel at the penalty

phase of his trial. He alleged that Brainard and Dettmar

had failed to adequately investigate and present mitigating evidence, including evidence of mental disorders. 

Pinholster supported this claim with school, medical, and 

legal records, as well as declarations from family members, Brainard, and Dr. George Woods, a psychiatrist who

diagnosed Pinholster with bipolar mood disorder and 

seizure disorders. Dr. Woods criticized Dr. Stalberg’s 

report as incompetent, unreliable, and inaccurate. The 

California Supreme Court unanimously and summarily1 

denied Pinholster’s penalty-phase ineffective-assistance

claim “on the substantive ground that it is without merit.” 

App. to Pet. for Cert. 302. 

Pinholster filed a federal habeas petition in April 1997.

He reiterated his previous allegations about penalty-phase 

ineffective assistance and also added new allegations that

his trial counsel had failed to furnish Dr. Stalberg with

adequate background materials. In support of the new

allegations, Dr. Stalberg provided a declaration stating 

that in 1984, Pinholster’s trial counsel had provided him

with only some police reports and a 1978 probation report.

Dr. Stalberg explained that, had he known about the 

material that had since been gathered by Pinholster’s

habeas counsel, he would have conducted “further inquiry” 

before concluding that Pinholster suffered only from a 

personality disorder. App. to Brief in Opposition 219. He 

noted that Pinholster’s school records showed evidence of 

“some degree of brain damage.” Ibid. Dr. Stalberg did 

not, however, retract his earlier diagnosis. The parties 

stipulated that this declaration had never been submitted 

to the California Supreme Court, and the federal petition 

—————— 

1Although the California Supreme Court initially issued an order 

asking the State to respond, it ultimately withdrew that order as “improvidently issued.” App. to Pet. for Cert. 302. 
6 CULLEN v. PINHOLSTER 

Opinion of the Court 

was held in abeyance to allow Pinholster to go back to 

state court. 

In August 1997, Pinholster filed his second state habeas 

petition, this time including Dr. Stalberg’s declaration and 

requesting judicial notice of the documents previously 

submitted in support of his first state habeas petition. His 

allegations of penalty-phase ineffective assistance of counsel mirrored those in his federal habeas petition. The 

California Supreme Court again unanimously and summarily denied the petition “on the substantive ground that

it is without merit.”2 App. to Pet. for Cert. 300.

Having presented Dr. Stalberg’s declaration to the state

court, Pinholster returned to the District Court. In November 1997, he filed an amended petition for a writ of 

habeas corpus. His allegations of penalty-phase ineffective assistance of counsel were identical to those in his 

second state habeas petition. Both parties moved for

summary judgment and Pinholster also moved, in the

alternative, for an evidentiary hearing.

The District Court concluded that the Antiterrorism and 

Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.

1214, did not apply and granted an evidentiary hearing.

Before the hearing, the State deposed Dr. Stalberg, who

stated that none of the new material he reviewed altered 

his original diagnosis. Dr. Stalberg disagreed with Dr. 

Woods’ conclusion that Pinholster suffers from bipolar

disorder. Pinholster did not call Dr. Stalberg to testify at

the hearing. He presented two new medical experts: Dr. 

Sophia Vinogradov, a psychiatrist who diagnosed Pinholster with organic personality syndrome and ruled out 

antisocial personality disorder, and Dr. Donald Olson, a 

—————— 

2A majority also “[s]eparately and independently” denied several 

claims, including penalty-phase ineffective assistance of counsel, as 

untimely, successive, and barred by res judicata. Id., at 300. The State 

has not argued that these procedural rulings constitute adequate and

independent state grounds that bar federal habeas review. 
Cite as: 563 U. S. ____ (2011) 7 

Opinion of the Court 

pediatric neurologist who suggested that Pinholster suffers from partial epilepsy and brain injury. The State 

called Dr. F. David Rudnick, a psychiatrist who, like Dr. 

Stalberg, diagnosed Pinholster with antisocial personality 

disorder and rejected any diagnosis of bipolar disorder. 

D 

The District Court granted habeas relief. Applying preAEDPA standards, the court granted the habeas petition 

“for inadequacy of counsel by failure to investigate and

present mitigation evidence at the penalty hearing.” App.

to Pet. for Cert. 262. After Woodford v. Garceau, 538 U. S. 

202 (2003), clarified that AEDPA applies to cases like 

Pinholster’s, the court amended its order but did not alter 

its conclusion. Over a dissent, a panel of the Court of 

Appeals for the Ninth Circuit reversed. Pinholster v. 

Ayers, 525 F. 3d 742 (2008).

On rehearing en banc, the Court of Appeals vacated the

panel opinion and affirmed the District Court’s grant of 

habeas relief. The en banc court held that the District 

Court’s evidentiary hearing was not barred by 28 U. S. C.

§2254(e)(2). The court then determined that new evidence 

from the hearing could be considered in assessing whether 

the California Supreme Court’s decision “was contrary to,

or involved an unreasonable application of, clearly established Federal law” under §2254(d)(1). See 590 F. 3d, at 

666 (“Congress did not intend to restrict the inquiry under 

§2254(d)(1) only to the evidence introduced in the state 

habeas court”). Taking the District Court evidence into 

account, the en banc court determined that the California 

Supreme Court unreasonably applied Strickland v. Washington, 466 U. S. 668 (1984), in denying Pinholster’s claim

of penalty-phase ineffective assistance of counsel. 

Three judges dissented and rejected the majority’s

conclusion that the District Court hearing was not barred 

by §2254(e)(2). 590 F. 3d, at 689 (opinion of Kozinski, 
8 CULLEN v. PINHOLSTER 

Opinion of the Court 

C. J.) (characterizing Pinholster’s efforts as “habeas-bysandbagging”). Limiting its review to the state-court

record, the dissent concluded that the California Supreme

Court did not unreasonably apply Strickland. 590 F. 3d, 

at 691–723. 

We granted certiorari to resolve two questions. 560 

U. S. ___ (2010). First, whether review under §2254(d)(1) 

permits consideration of evidence introduced in an evidentiary hearing before the federal habeas court. Second, 

whether the Court of Appeals properly granted Pinholster 

habeas relief on his claim of penalty-phase ineffective 

assistance of counsel. 

II 

We first consider the scope of the record for a 

§2254(d)(1) inquiry. The State argues that review is

limited to the record that was before the state court that 

adjudicated the claim on the merits. Pinholster contends 

that evidence presented to the federal habeas court may

also be considered. We agree with the State. 

A 

As amended by AEDPA, 28 U. S. C. §2254 sets several

limits on the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner. Section 2254(a) permits a federal court to entertain

only those applications alleging that a person is in state 

custody “in violation of the Constitution or laws or treaties

of the United States.” Sections 2254(b) and (c) provide 

that a federal court may not grant such applications

unless, with certain exceptions, the applicant has exhausted state remedies. 

If an application includes a claim that has been “adjudicated on the merits in State court proceedings,” §2254(d),

an additional restriction applies. Under §2254(d), that 

application “shall not be granted with respect to [such a] 
Cite as: 563 U. S. ____ (2011) 9 

Opinion of the Court 

claim . . . unless the adjudication of the claim”: 

“(1) resulted in a decision that was contrary to, or 

involved an unreasonable application of, clearly established Federal law, as determined by the Supreme 

Court of the United States; or 

“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.” 

This is a “difficult to meet,” Harrington v. Richter, 562 

U. S. ___, ___ (2011) (slip op., at 12), and “highly deferential standard for evaluating state-court rulings, which

demands that state-court decisions be given the benefit of 

the doubt,” Woodford v. Visciotti, 537 U. S. 19, 24 (2002) 

(per curiam) (citation and internal quotation marks omitted). The petitioner carries the burden of proof. Id., at 25. 

We now hold that review under §2254(d)(1) is limited to 

the record that was before the state court that adjudicated

the claim on the merits. Section 2254(d)(1) refers, in the

past tense, to a state-court adjudication that “resulted in”

a decision that was contrary to, or “involved” an unreasonable application of, established law. This backwardlooking language requires an examination of the statecourt decision at the time it was made. It follows that the 

record under review is limited to the record in existence at 

that same time⎯i.e., the record before the state court. 

This understanding of the text is compelled by “the

broader context of the statute as a whole,” which demonstrates Congress’ intent to channel prisoners’ claims first

to the state courts. Robinson v. Shell Oil Co., 519 U. S. 

337, 341 (1997). “The federal habeas scheme leaves primary responsibility with the state courts . . . .” Visciotti, 

supra, at 27. Section 2254(b) requires that prisoners must

ordinarily exhaust state remedies before filing for federal 

habeas relief. It would be contrary to that purpose to 

allow a petitioner to overcome an adverse state-court 
10 CULLEN v. PINHOLSTER 

Opinion of the Court 

decision with new evidence introduced in a federal habeas 

court and reviewed by that court in the first instance

effectively de novo. 

Limiting §2254(d)(1) review to the state-court record is

consistent with our precedents interpreting that statutory provision. Our cases emphasize that review under

§2254(d)(1) focuses on what a state court knew and did.

State-court decisions are measured against this Court’s 

precedents as of “the time the state court renders its decision.” Lockyer v. Andrade, 538 U. S. 63, 71–72 (2003). To 

determine whether a particular decision is “contrary to” 

then-established law, a federal court must consider 

whether the decision “applies a rule that contradicts 

[such] law” and how the decision “confronts [the] set of

facts” that were before the state court. Williams v. Taylor, 

529 U. S. 362, 405, 406 (2000) (Terry Williams). If the 

state-court decision “identifies the correct governing legal

principle” in existence at the time, a federal court must

assess whether the decision “unreasonably applies that 

principle to the facts of the prisoner’s case.” Id., at 413. It 

would be strange to ask federal courts to analyze whether 

a state court’s adjudication resulted in a decision that

unreasonably applied federal law to facts not before the 

state court.3 

—————— 

3 JUSTICE SOTOMAYOR argues that there is nothing strange about allowing consideration of new evidence under §2254(d)(1) because, in her

view, it would not be “so different” from some other tasks that courts 

undertake. Post, at 13 (dissenting opinion). What makes the consideration of new evidence strange is not how “different” the task would

be, but rather the notion that a state court can be deemed to have 

unreasonably applied federal law to evidence it did not even know

existed. We cannot comprehend how exactly a state court would have

any control over its application of law to matters beyond its knowledge.

Adopting JUSTICE SOTOMAYOR’s approach would not take seriously

AEDPA’s requirement that federal courts defer to state-court decisions

and would effectively treat the statute as no more than a “ ‘mood’ that 

the Federal Judiciary must respect,” Terry Williams, 529 U. S., at 386 
Cite as: 563 U. S. ____ (2011) 11 

Opinion of the Court 

Our recent decision in Schriro v. Landrigan, 550 U. S. 

465 (2007), is consistent as well with our holding here. We 

explained that “[b]ecause the deferential standards prescribed by §2254 control whether to grant habeas relief, a 

federal court must take into account those standards in 

deciding whether an evidentiary hearing is appropriate.” 

Id., at 474. In practical effect, we went on to note, this 

means that when the state-court record “precludes habeas

relief” under the limitations of §2254(d), a district court is

“not required to hold an evidentiary hearing.” Id., at 474 

(citing with approval the Ninth Circuit’s recognition that

“an evidentiary hearing is not required on issues that can

be resolved by reference to the state court record” (internal 

quotation marks omitted)).

The Court of Appeals wrongly interpreted Williams v. 

Taylor, 529 U. S. 420 (2000) (Michael Williams), as supporting the contrary view. The question there was

whether the lower court had correctly determined that 

§2254(e)(2) barred the petitioner’s request for a federal

evidentiary hearing.4 Michael Williams did not concern 

whether evidence introduced in such a hearing could be

considered under §2254(d)(1). In fact, only one claim at 

issue in that case was even subject to §2254(d); the rest 

had not been adjudicated on the merits in state-court

proceedings. See id., at 429 (“Petitioner did not develop,

or raise, his claims . . . until he filed his federal habeas 

petition”).5 

—————— 

(opinion of Stevens, J.). 4 If a prisoner has “failed to develop the factual basis of a claim in

State court proceedings,” §2254(e)(2) bars a federal court from holding

an evidentiary hearing, unless the applicant meets certain statutory

requirements. 5 JUSTICE SOTOMAYOR’s suggestion that Michael Williams “rejected”

the conclusion here, see post, at 15, is thus quite puzzling. In the 

passage that she quotes, see ibid., the Court merely explains that

§2254(e)(2) should be interpreted in a way that does not preclude a 

state prisoner, who was diligent in state habeas court and who can 
12 CULLEN v. PINHOLSTER 

Opinion of the Court 

If anything, the decision in Michael Williams supports

our holding. The lower court in that case had determined 

that the one claim subject to §2254(d)(1) did not satisfy 

that statutory requirement. In light of that ruling, this

Court concluded that it was “unnecessary to reach the 

question whether §2254(e)(2) would permit a [federal] 

hearing on th[at] claim.” Id., at 444. That conclusion is 

fully consistent with our holding that evidence later introduced in federal court is irrelevant to §2254(d)(1) review. 

The Court of Appeals’ reliance on Holland v. Jackson, 

542 U. S. 649 (2004) (per curiam), was also mistaken. In 

Holland, we initially stated that “whether a state court’s

decision was unreasonable [under §2254(d)(1)] must be

assessed in light of the record the court had before it.” Id., 

at 652. We then went on to assume for the sake of argument what some Courts of Appeals had held⎯that 

§2254(d)(1), despite its mandatory language, simply does 

not apply when a federal habeas court has admitted new 

evidence that supports a claim previously adjudicated in 

state court.6 Id., at 653. There was no reason to decide 

that question because regardless, the hearing should have 

been barred by §2254(e)(2). Today, we reject that assumption and hold that evidence introduced in federal court 

has no bearing on §2254(d)(1) review. If a claim has 

been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of 

§2254(d)(1) on the record that was before that state court.7 

—————— 

satisfy §2254(d), from receiving an evidentiary hearing. 6 In Bradshaw v. Richey, 546 U. S. 74 (2005) (per curiam), on which 

the Court of Appeals also relied, we made the same assumption. Id., at 

79–80 (discussing the State’s “Holland argument”). 7Pinholster and JUSTICE SOTOMAYOR place great weight on the fact

that §2254(d)(2) includes the language “in light of the evidence presented in the State court proceeding,” whereas §2254(d)(1) does not. 

See post, at 6–7. The additional clarity of §2254(d)(2) on this point,

however, does not detract from our view that §2254(d)(1) also is plainly

limited to the state-court record. The omission of clarifying language 
Cite as: 563 U. S. ____ (2011) 13 

Opinion of the Court 

B 

Pinholster’s contention that our holding renders 

§2254(e)(2) superfluous is incorrect. Section 2254(e)(2)

imposes a limitation on the discretion of federal habeas

courts to take new evidence in an evidentiary hearing.

See Landrigan, supra, at 473 (noting that district courts,

under AEDPA, generally retain the discretion to grant an

evidentiary hearing). Like §2254(d)(1), it carries out

“AEDPA’s goal of promoting comity, finality, and federalism by giving state courts the first opportunity to review 

[a] claim, and to correct any constitutional violation in the

first instance.” Jimenez v. Quarterman, 555 U. S. 113, ___ 

(2009) (slip op., at 8) (internal quotation marks omitted).8 

Section 2254(e)(2) continues to have force where 

§2254(d)(1) does not bar federal habeas relief. For example, not all federal habeas claims by state prisoners fall 

within the scope of §2254(d), which applies only to claims

“adjudicated on the merits in State court proceedings.” At 

a minimum, therefore, §2254(e)(2) still restricts the discretion of federal habeas courts to consider new evidence 

when deciding claims that were not adjudicated on the 

merits in state court. See, e.g., Michael Williams, 529 

U. S., at 427–429.9 

Although state prisoners may sometimes submit new 

—————— 

from §2254(d)(1) just as likely reflects Congress’ belief that such language was unnecessary as it does anything else. 8 JUSTICE SOTOMAYOR’s argument that §2254(d)(1) must be read in a 

way that “accommodates” §2254(e)(2), see post, at 9, rests on a fundamental misunderstanding of §2254(e)(2). The focus of that section is 

not on “preserving the opportunity” for hearings, post, at 9, but rather 

on limiting the discretion of federal district courts in holding hearings. 

We see no need in this case to address the proper application of 

§2254(e)(2). See n. 20, infra. But see post, at 12 (suggesting that we

have given §2254(e)(2) “an unnaturally cramped reading”). 9 In all events, of course, the requirements of §§2254(a) through (c) 

remain significant limitations on the power of a federal court to grant

habeas relief. 
14 CULLEN v. PINHOLSTER 

Opinion of the Court 

evidence in federal court, AEDPA’s statutory scheme is 

designed to strongly discourage them from doing so.

Provisions like §§2254(d)(1) and (e)(2) ensure that 

“[f]ederal courts sitting in habeas are not an alternative

forum for trying facts and issues which a prisoner made 

insufficient effort to pursue in state proceedings.” Id., at 

437; see also Richter, 562 U. S., at ___ (slip op., at 13) 

(“Section 2254(d) is part of the basic structure of federal

habeas jurisdiction, designed to confirm that state courts

are the principal forum for asserting constitutional challenges to state convictions”); Wainwright v. Sykes, 433 

U. S. 72, 90 (1977) (“[T]he state trial on the merits [should 

be] the ‘main event,’ so to speak, rather than a ‘tryout on

the road’ for what will later be the determinative federal 

habeas hearing”).10 

C 

Accordingly, we conclude that the Court of Appeals

erred in considering the District Court evidence in its

review under §2254(d)(1). Although we might ordinarily 

remand for a properly limited review, the Court of Appeals 

also ruled, in the alternative, that Pinholster merited 

habeas relief even on the state-court record alone. 590 

F. 3d, at 669. Remand is therefore inappropriate, and we

turn next to a review of the state-court record. 

III 

The Court of Appeals’ alternative holding was also 

erroneous. Pinholster has failed to demonstrate that the 

California Supreme Court unreasonably applied clearly 

established federal law to his penalty-phase ineffective­

—————— 

10Though we do not decide where to draw the line between new 

claims and claims adjudicated on the merits, see n. 11, infra, JUSTICE 

SOTOMAYOR’s hypothetical involving new evidence of withheld exculpatory witness statements, see post, at 9–10, may well present a new 

claim. 
Cite as: 563 U. S. ____ (2011) 15 

Opinion of the Court 

assistance claim on the state-court record. Section 2254(d)

prohibits habeas relief. 

A 

Section 2254(d) applies to Pinholster’s claim because 

that claim was adjudicated on the merits in state-court

proceedings. No party disputes that Pinholster’s federal 

petition alleges an ineffective-assistance-of-counsel claim

that had been included in both of Pinholster’s state habeas 

petitions. The California Supreme Court denied each of

those petitions “on the substantive ground that it is without merit.”11 

Section 2254(d) applies even where there has been a

summary denial. See Richter, 562 U. S., at ___ (slip op., at 

8). In these circumstances, Pinholster can satisfy the

“unreasonable application” prong of §2254(d)(1) only by 

showing that “there was no reasonable basis” for the 

California Supreme Court’s decision. Id., at ___ (slip op., 

at 8). “[A] habeas court must determine what arguments 

or theories . . . could have supporte[d] the state court’s 

decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or 

—————— 

11The State does not contest that the alleged claim was adjudicated

on the merits by the California Supreme Court, but it asserts that some

of the evidence adduced in the federal evidentiary hearing fundamentally changed Pinholster’s claim so as to render it effectively unadjudicated. See Brief for Petitioner 28–31; Reply Brief for Petitioner 4–5; Tr. 

of Oral Arg. 18. Pinholster disagrees and argues that the evidence

adduced in the evidentiary hearing simply supports his alleged claim.

Brief for Respondent 33–37. 

We need not resolve this dispute because, even accepting Pinholster’s 

position, he is not entitled to federal habeas relief. Pinholster has 

failed to show that the California Supreme Court unreasonably applied

clearly established federal law on the record before that court, infra, at 

18–23, 26–30, which brings our analysis to an end. Even if the evidence adduced in the District Court additionally supports his claim, as

Pinholster contends, we are precluded from considering it. See n. 20, 

infra. 
16 CULLEN v. PINHOLSTER 

Opinion of the Court 

theories are inconsistent with the holding in a prior decision of this Court.” Id., at ___ (slip op., at 12). After a 

thorough review of the state-court record,12 we conclude 

that Pinholster has failed to meet that high threshold. 

B 

There is no dispute that the clearly established federal 

law here is Strickland v. Washington. In Strickland, this 

Court made clear that “the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve 

the quality of legal representation . . . [but] simply to 

—————— 

12The parties agree that the state-court record includes both the 

“allegations of [the] habeas corpus petition . . . and . . . ‘any matter of 

record pertaining to the case.’ ” In re Hochberg, 2 Cal. 3d 870, 874, n. 2, 

471 P. 2d 1, 3–4, n. 2 (1970) (quoting Cal. Rule of Court 60), rejected on

another ground by In re Fields, 51 Cal. 3d 1063, 1070, n. 3, 800 P. 2d 

862, 866, n. 3 (1990); see Reply Brief for Petitioner 16–17; Tr. of Oral

Arg. 45. Under California law, the California Supreme Court’s summary denial of a habeas petition on the merits reflects that court’s

determination that “the claims made in th[e] petition do not state a 

prima facie case entitling the petitioner to relief.” In re Clark, 5 

Cal. 4th 750, 770, 855 P. 2d 729, 741–742 (1993). It appears that the

court generally assumes the allegations in the petition to be true, but

does not accept wholly conclusory allegations, People v. Duvall, 9 

Cal. 4th 464, 474, 886 P. 2d 1252, 1258 (1995), and will also “review the 

record of the trial . . . to assess the merits of the petitioner’s claims,” 

Clark, supra, at 770, 855 P. 2d, at 742. 

The specific contents of the state-court record depend on which of the 

two state habeas proceedings is at issue. One amicus curiae suggests 

that both are at issue⎯that is, Pinholster must prove that both California Supreme Court proceedings involved an unreasonable application of law under §2254(d)(1). See Brief for Criminal Justice Legal 

Foundation 26. By contrast, the most favorable approach for Pinholster

would be review of only the second state habeas proceeding, the record

of which includes all of the evidence that Pinholster ever submitted in 

state habeas. We have not previously ruled on how to proceed in these 

circumstances, and we need not do so here. Even taking the approach

most favorable to Pinholster, and reviewing only whether the California 

Supreme Court was objectively unreasonable in the second state 

habeas proceeding, we find that Pinholster has failed to satisfy 

§2254(d)(1). 
Cite as: 563 U. S. ____ (2011) 17 

Opinion of the Court 

ensure that criminal defendants receive a fair trial.” 466 

U. S., at 689. Thus, “[t]he benchmark for judging any 

claim of ineffectiveness must be whether counsel’s conduct 

so undermined the proper functioning of the adversarial 

process that the trial cannot be relied on as having produced a just result.” Id., at 686 (emphasis added). The 

Court acknowledged that “[t]here are countless ways to

provide effective assistance in any given case,” and that

“[e]ven the best criminal defense attorneys would not 

defend a particular client in the same way.” Id., at 689. 

Recognizing the “tempt[ation] for a defendant to secondguess counsel’s assistance after conviction or adverse 

sentence,” ibid., the Court established that counsel should 

be “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment,” id., at 690. To overcome that presumption, a defendant must show that 

counsel failed to act “reasonabl[y] considering all the 

circumstances.” Id., at 688. The Court cautioned that 

“[t]he availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness

challenges.” Id., at 690. 

The Court also required that defendants prove prejudice. Id., at 691–692. “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.” Id., at 694. “A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Ibid. That requires a “substantial,” not just

“conceivable,” likelihood of a different result. Richter, 562 

U. S., at ___ (slip op., at 22).

Our review of the California Supreme Court’s decision is

thus “doubly deferential.” Knowles v. Mirzayance, 556 

U. S. ___, ___ (2009) (slip op., at 11) (citing Yarborough v. 

Gentry, 540 U. S. 1, 5–6 (2003) (per curiam)). We take a 
18 CULLEN v. PINHOLSTER 

Opinion of the Court 

“highly deferential” look at counsel’s performance, Strickland, supra, at 689, through the “deferential lens of 

§2254(d),” Mirzayance, supra, at ___, n. 2 (slip op., at 9, 

n. 2). Pinholster must demonstrate that it was necessarily

unreasonable for the California Supreme Court to conclude: (1) that he had not overcome the strong presumption of competence; and (2) that he had failed to undermine confidence in the jury’s sentence of death. 

C 

1 

Pinholster has not shown that the California Supreme

Court’s decision that he could not demonstrate deficient 

performance by his trial counsel necessarily involved an 

unreasonable application of federal law. In arguing to the 

state court that his counsel performed deficiently, Pinholster contended that they should have pursued and presented additional evidence about: his family members and

their criminal, mental, and substance abuse problems; his

schooling; and his medical and mental health history,

including his epileptic disorder. To support his allegation

that his trial counsel had “no reasonable tactical basis” for 

the approach they took, Pinholster relied on statements 

his counsel made at trial. App. to Brief in Opposition 143.

When arguing the motion to exclude the State’s aggravating evidence at the penalty phase for failure to comply

with Cal. Penal Code Ann. §190.3, Dettmar, one of Pinholster’s counsel, contended that because the State did not 

provide notice, he “[was] not presently prepared to offer 

anything by way of mitigation,” 52 Tr. 7250. In response

to the trial court’s inquiry as to whether a continuance 

might be helpful, Dettmar noted that the only mitigation

witness he could think of was Pinholster’s mother. Additional time, Dettmar stated, would not “make a great deal

of difference.” Id., at 7257–7258. 

We begin with the premise that “under the circum­
Cite as: 563 U. S. ____ (2011) 19 

Opinion of the Court 

stances, the challenged action[s] might be considered

sound trial strategy.” Strickland, supra, at 689 (internal 

quotation marks omitted). The Court of Appeals dissent

described one possible strategy: 

“[Pinholster’s attorneys] were fully aware that they

would have to deal with mitigation sometime during 

the course of the trial, did spend considerable time 

and effort investigating avenues for mitigation[,] and 

made a reasoned professional judgment that the best 

way to serve their client would be to rely on the fact

that they never got [the required §190.3] notice and 

hope the judge would bar the state from putting on

their aggravation witnesses.” 590 F. 3d, at 701–702 

(opinion of Kozinski, C. J.). 

Further, if their motion was denied, counsel were prepared to present only Pinholster’s mother in the penalty 

phase to create sympathy not for Pinholster, but for his 

mother. After all, the “‘family sympathy’” mitigation 

defense was known to the defense bar in California at the 

time and had been used by other attorneys. Id., at 707. 

Rather than displaying neglect, we presume that Dettmar’s arguments were part of this trial strategy. See 

Gentry, supra, at 8 (“[T]here is a strong presumption that 

[counsel took certain actions] for tactical reasons rather 

than through sheer neglect” (citing Strickland, supra, at 

690)).

The state-court record supports the idea that Pinholster’s counsel acted strategically to get the prosecution’s 

aggravation witnesses excluded for lack of notice, and if 

that failed, to put on Pinholster’s mother. Other statements made during the argument regarding the motion to

exclude suggest that defense counsel were trying to take 

advantage of a legal technicality and were not truly surprised. Brainard and Dettmar acknowledged that the 

prosecutor had invited them on numerous occasions to 
20 CULLEN v. PINHOLSTER 

Opinion of the Court 

review Pinholster’s state prison file but argued that such

an invitation did not meet with the “strict demands” of 

§190.3. 52 Tr. 7260. Dettmar admitted that the prosecutor, “being as thorough as she is, possibly ha[d] met the 

requirement.” Id., at 7250. But if so, he wanted her “to 

make that representation to the court.”13 Ibid. 

Timesheets indicate that Pinholster’s trial counsel 

investigated mitigating evidence.14 Long before the guilty

verdict, Dettmar talked with Pinholster’s mother and 

contacted a psychiatrist.15 On February 26, two months

before the penalty phase started, he billed six hours 

for “[p]reparation argument, death penalty phase.” See 

Clerk’s Tr. 864. Brainard, who merely assisted Dettmar 

for the penalty phase, researched epilepsy and also interviewed Pinholster’s mother.16 We know that Brainard 

likely spent additional time, not reflected in these entries, 

preparing Pinholster’s brother, Terry, who provided some 

mitigation testimony about Pinholster’s background dur­

—————— 

13Counsel’s argument was persuasive enough to cause the trial court 

to hold a hearing and take testimony before denying the motion to

exclude. 14Both parties agree that these billing records were before the California Supreme Court. See Tr. of Oral Arg. 45, 48–49. 15See Clerk’s Tr. 798 (entry on Jan. 13 for “phone call to defendant’s 

mother re medical history”); id., at 864 (entries on Feb. 21 for “Penal

Code research on capital punishment”; Feb. 23 for “conference with 

defendant’s mother re childhood problems”; Feb. 25 for “Research on 

Pen. C. 190.3”; and Feb. 29 for “photocopying reports for appointed

expert,” “Preparation of Declaration and Order for appointment of

psychiatrist,” “Preparation order of visitation for investigator,” and 

“Further research on Pen. C. 190.3”). The time records for Dettmar 

unfortunately stop with Mar. 14, so we do not know what he did during

the critical weeks leading up to the penalty phase on May 1. 16See id., at 869 (entries on Feb. 23 for “Conf. with Bernice Brasher,

Pinholster’s mother”; and Feb. 25 for “Research re; epilepsy and conf. 

with nurse”); id., at 1160 (entries on Apr. 11 for “Start prep. for penalty 

phase”; Apr. 25 for “Prep. penalty phase and conf. with Mrs. Brashear”;

and Apr. 26 for “Prep. penalty phase”). 
Cite as: 563 U. S. ____ (2011) 21 

Opinion of the Court 

ing the guilt phase. Infra, at 28. 

The record also shows that Pinholster’s counsel confronted a challenging penalty phase with an unsympathetic client, which limited their feasible mitigation

strategies. By the end of the guilt phase, the jury had

observed Pinholster “glor[y]” in “his criminal disposition” 

and “hundreds of robberies.” Pinholster, 1 Cal. 4th, at 

945, 907, 824 P. 2d, at 611, 584. During his crossexamination, Pinholster laughed or smirked when he told 

the jury that his “occupation” was “a crook,” when he was

asked whether he had threatened a potential witness, and 

when he described thwarting police efforts to recover a

gun he had once used. 44 Tr. 6225. He bragged about 

being a “professional robber.” 43 id., at 6204. To support his defense, Pinholster claimed that he used only 

guns⎯not knives⎯to commit his crimes. But during

cross-examination, Pinholster admitted that he had previously been convicted of using a knife in a kidnaping.

Pinholster also said he was a white supremacist and that

he frequently carved swastikas into other people’s property as “a sideline to robbery.” 44 id., at 6246. 

Trial counsel’s psychiatric expert, Dr. Stalberg, had 

concluded that Pinholster showed no significant signs or 

symptoms of mental disorder or defect other than his

“psychopathic personality traits.” App. 131. Dr. Stalberg

was aware of Pinholster’s hyperactivity as a youngster,

hospitalization at age 14 for incorrigibility, alleged epileptic disorder, and history of drug dependency. Nevertheless, Dr. Stalberg told counsel that Pinholster did not 

appear to suffer from brain damage, was not significantly

intoxicated or impaired on the night in question, and did

not have an impaired ability to appreciate the criminality

of his conduct. 

Given these impediments, it would have been a reasonable penalty-phase strategy to focus on evoking sympathy 

for Pinholster’s mother. In fact, such a family sympathy 
22 CULLEN v. PINHOLSTER 

Opinion of the Court 

defense is precisely how the State understood defense 

counsel’s strategy. The prosecutor carefully opened her

cross-examination of Pinholster’s mother with, “I hope you

understand I don’t enjoy cross-examining a mother of

anybody.” 52 Tr. 7407. And in her closing argument, the

prosecutor attempted to undercut defense counsel’s strategy by pointing out, “Even the most heinous person born, 

even Adolph Hitler[,] probably had a mother who loved 

him.” 53 id., at 7452. 

Pinholster’s only response to this evidence is a series of 

declarations from Brainard submitted with Pinholster’s 

first state habeas petition, seven years after the trial. 

Brainard declares that he has “no recollection” of interviewing any family members (other than Pinholster’s 

mother) regarding penalty-phase testimony, of attempting

to secure Pinholster’s school or medical records, or of 

interviewing any former teachers or counselors. Pet. for 

Writ of Habeas Corpus in No. S004616 (Cal.), Exh. 3.

Brainard also declares that Dettmar was primarily responsible for mental health issues in the case, but he has

“no recollection” of Dettmar ever having secured Pinholster’s medical records. Id., Exh. 2. Dettmar neither confirmed nor denied Brainard’s statements, as he had died 

by the time of the first state habeas petition. 590 F. 3d, at 

700 (Kozinski, C. J., dissenting).

In sum, Brainard and Dettmar made statements suggesting that they were not surprised that the State intended to put on aggravating evidence, billing records

show that they spent time investigating mitigating evidence, and the record demonstrates that they represented 

a psychotic client whose performance at trial hardly endeared him to the jury. Pinholster has responded to this 

evidence with only a handful of post-hoc nondenials by one 

of his lawyers. The California Supreme Court could have

reasonably concluded that Pinholster had failed to rebut 

the presumption of competence mandated by Strickland— 
Cite as: 563 U. S. ____ (2011) 23 

Opinion of the Court 

here, that counsel had adequately performed at the penalty phase of trial. 

2 

The Court of Appeals held that the California Supreme

Court had unreasonably applied Strickland because Pinholster’s attorneys “w[ere] far more deficient than . . . the

attorneys in Terry Williams, Wiggins [v. Smith, 539 U. S. 

510 (2003)], and Rompilla [v. Beard, 545 U. S. 374 (2005)],

where in each case the Supreme Court upheld the petitioner’s ineffective assistance claim.” 590 F. 3d, at 671. 

The court drew from those cases a “constitutional duty to

investigate,” id., at 674, and the principle that “[i]t is

prima facie ineffective assistance for counsel to ‘abandon[ ]

their investigation of [the] petitioner’s background after 

having acquired only rudimentary knowledge of his history from a narrow set of sources,’” ibid. (quoting Wiggins 

v. Smith, 539 U. S. 510, 524–525 (2003)). The court explained that it could not “lightly disregard” a failure to 

introduce evidence of “excruciating life history” or “nightmarish childhood.” 590 F. 3d, at 684 (internal quotation 

marks omitted). 

The Court of Appeals misapplied Strickland and overlooked “the constitutionally protected independence of

counsel and . . . the wide latitude counsel must have in 

making tactical decisions.” 466 U. S., at 689. Beyond the 

general requirement of reasonableness, “specific guidelines are not appropriate.” Id., at 688. “No particular set 

of detailed rules for counsel’s conduct can satisfactorily 

take account of the variety of circumstances faced by

defense counsel or the range of legitimate decisions . . . .” 

Id., at 688–689. Strickland itself rejected the notion that

the same investigation will be required in every case. Id., 

at 691 (“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary” (emphasis added)). It 
24 CULLEN v. PINHOLSTER 

Opinion of the Court 

is “[r]are” that constitutionally competent representation 

will require “any one technique or approach.” Richter, 562 

U. S., at ___ (slip op., at 17). The Court of Appeals erred 

in attributing strict rules to this Court’s recent case law.17 

Nor did the Court of Appeals properly apply the strong

presumption of competence that Strickland mandates. 

The court dismissed the dissent’s application of the presumption as “fabricat[ing] an excuse that the attorneys 

themselves could not conjure up.” 590 F. 3d, at 673. But 

Strickland specifically commands that a court “must

indulge [the] strong presumption” that counsel “made all

significant decisions in the exercise of reasonable professional judgment.” 466 U. S., at 689–690. The Court of 

Appeals was required not simply to “give [the] attorneys 

the benefit of the doubt,” 590 F. 3d, at 673, but to affirmatively entertain the range of possible “reasons Pinholster’s

counsel may have had for proceeding as they did,” id., at 

692 (Kozinski, C. J., dissenting). See also Richter, supra, 

at ___ (slip op., at 20) (“Strickland . . . calls for an inquiry 

into the objective reasonableness of counsel’s performance, 

not counsel’s subjective state of mind”).

JUSTICE SOTOMAYOR questions whether it would have

been a reasonable professional judgment for Pinholster’s

trial counsel to adopt a family-sympathy mitigation defense. Post, at 27. She cites no evidence, however, that 

such an approach would have been inconsistent with the 

standard of professional competence in capital cases that

prevailed in Los Angeles in 1984. Indeed, she does not 

contest that, at the time, the defense bar in California had 

been using that strategy. See supra, at 19; post, at 28, 

n. 21. JUSTICE SOTOMAYOR relies heavily on Wiggins, but 

—————— 

17The Court of Appeals was not necessarily wrong in looking to other 

precedents of this Court for guidance, but “the Strickland test ‘of 

necessity requires a case-by-case examination of the evidence.’ ” Terry 

Williams, 529 U. S. 362, 391 (2000) (quoting Wright v. West, 505 U. S. 

277, 308 (1992) (KENNEDY, J., concurring in judgment)). 
Cite as: 563 U. S. ____ (2011) 25 

Opinion of the Court 

in that case the defendant’s trial counsel specifically acknowledged a standard practice for capital cases in Maryland that was inconsistent with what he had done. 539 

U. S., at 524. 

At bottom, JUSTICE SOTOMAYOR’s view is grounded in 

little more than her own sense of “prudence,” post, at 26 

(internal quotation marks omitted), and what appears to 

be her belief that the only reasonable mitigation strategy

in capital cases is to “help” the jury “understand” the 

defendant, post, at 35. According to JUSTICE SOTOMAYOR, 

that Pinholster was an unsympathetic client “compound[ed], rather than excuse[d], counsel’s deficiency” in

pursuing further evidence “that could explain why Pinholster was the way he was.” Post, at 30. But it certainly can 

be reasonable for attorneys to conclude that creating

sympathy for the defendant’s family is a better idea because the defendant himself is simply unsympathetic. 

JUSTICE SOTOMAYOR’s approach is flatly inconsistent 

with Strickland’s recognition that “[t]here are countless

ways to provide effective assistance in any given case.” 

466 U. S., at 689. There comes a point where a defense 

attorney will reasonably decide that another strategy is in

order, thus “mak[ing] particular investigations unnecessary.” Id., at 691; cf. 590 F. 3d, at 692 (Kozinski, C. J.,

dissenting) (“The current infatuation with ‘humanizing’ 

the defendant as the be-all and end-all of mitigation disregards the possibility that this may be the wrong tactic in

some cases because experienced lawyers conclude that the 

jury simply won’t buy it”). Those decisions are due “a 

heavy measure of deference.” Strickland, supra, at 691. 

The California Supreme Court could have reasonably 

concluded that Pinholster’s counsel made such a reasoned 

decision in this case. 

We have recently reiterated that “‘[s]urmounting Strickland’s high bar is never an easy task.’” Richter, supra, at 

___ (slip op., at 15) (quoting Padilla v. Kentucky, 559 U. S. 
26 CULLEN v. PINHOLSTER 

Opinion of the Court 

___, ___ (2010) (slip op., at 14)). The Strickland standard 

must be applied with “scrupulous care.” Richter, supra, at 

___ (slip op., at 15). The Court of Appeals did not do so

here. 

D 

Even if his trial counsel had performed deficiently, 

Pinholster also has failed to show that the California 

Supreme Court must have unreasonably concluded that 

Pinholster was not prejudiced. “[T]he question is whether

there is a reasonable probability that, absent the errors, 

the sentencer . . . would have concluded that the balance of 

aggravating and mitigating circumstances did not warrant 

death.” Strickland, supra, at 695. We therefore “reweigh

the evidence in aggravation against the totality of available mitigating evidence.” Wiggins, supra, at 534. 

1 

We turn first to the aggravating and mitigating evidence that the sentencing jury considered. See Strickland, 

supra, at 695 (“[A] court hearing an ineffectiveness claim 

must consider the totality of the evidence before the judge

or jury”). Here, the same jury heard both the guilt and

penalty phases and was instructed to consider all the

evidence presented. Cf. Visciotti, 537 U. S., at 25 (noting 

that the state habeas court had correctly considered mitigating evidence introduced during the guilt phase). 

The State presented extensive aggravating evidence. As 

we have already discussed, the jury watched Pinholster

revel in his extensive criminal history. Supra, at 21. 

Then, during the penalty phase, the State presented evidence that Pinholster had threatened to kill the State’s 

lead witness, assaulted a man with a straight razor, and 

kidnaped another person with a knife. The State showed 

that Pinholster had a history of violent outbursts, including striking and threatening a bailiff after a court proceed­
Cite as: 563 U. S. ____ (2011) 27 

Opinion of the Court 

ing at age 17, breaking his wife’s jaw,18 resisting arrest by

faking seizures, and assaulting and spitting on police

officers. The jury also heard about Pinholster’s involvement in juvenile gangs and his substantial disciplinary

record in both county and state jails, where he had threatened, assaulted, and thrown urine at guards, and fought

with other inmates. While in jail, Pinholster had been 

segregated for a time due to his propensity for violence

and placed on a “special disciplinary diet” reserved only 

for the most disruptive inmates. 52 Tr. 7305. 

The mitigating evidence consisted primarily of the 

penalty-phase testimony of Pinholster’s mother, Brashear, 

who gave a detailed account of Pinholster’s troubled childhood and adolescence. Early childhood was quite difficult. 

The family “didn’t have lots of money.” Id., at 7404. 

When he was very young, Pinholster suffered two serious

head injuries, first at age 2 or 3 when he was run over by a 

car, and again at age 4 or 5 when he went through the

windshield during a car accident. When he was 5, Pinholster’s stepfather moved in and was abusive, or nearly so.

Pinholster always struggled in school. He was disruptive in kindergarten and was failing by first grade. He got

in fights and would run out of the classroom. In third 

grade, Pinholster’s teacher suggested that he was more 

than just a “‘disruptive child.’” Id., at 7394. Following

tests at a clinic, Pinholster was sent to a school for educationally handicapped children where his performance

improved.

At age 10, psychiatrists recommended that Pinholster 

be sent to a mental institution, although he did not go.

Pinholster had continued to initiate fights with his brothers and to act like “Robin Hood” around the neighborhood, 

—————— 

18Pinholster’s wife waived her spousal privilege to testify to this fact. 

She acknowledged that her testimony would be used to argue that her

husband should be executed. 
28 CULLEN v. PINHOLSTER 

Opinion of the Court 

“[s]tealing from the rich and giving to the poor.” Id., at 

7395. Brashear had thought then that “[s]omething was 

not working right.” Id., at 7396. 

By age 10 or 11, Pinholster was living in boy’s homes

and juvenile halls. He spent six months when he was 12 

in a state mental institution for emotionally handicapped 

children. By the time he was 18, Pinholster was in county

jail, where he was beaten badly. Brashear suspected that

the beating caused Pinholster’s epilepsy, for which he has

been prescribed medication. After a stint in state prison, 

Pinholster returned home but acted “unusual” and had 

trouble readjusting to life. Id., at 7405. 

Pinholster’s siblings were “basically very good children,” 

although they would get into trouble. Id., at 7401. His 

brother, Terry, had been arrested for drunk driving and

his sister, Tammy, for public intoxication. Tammy also

was arrested for drug possession and was self-destructive 

and “wild.” Ibid. Pinholster’s eldest brother, Alvin, died a 

fugitive from California authorities.19 

In addition to Brashear’s penalty-phase testimony, 

Pinholster had previously presented mitigating evidence 

during the guilt phase from his brother, Terry. Terry 

testified that Pinholster was “more or less in institutions 

all his life,” suffered from epilepsy, and was “more or less” 

drunk on the night of the murders. 42 id., at 6015, 6036. 

After considering this aggravating and mitigating evidence, the jury returned a sentence of death. The state 

—————— 

19 JUSTICE SOTOMAYOR criticizes Brashear’s testimony as “selfinterested,” post, at 31, but the whole premise of the family-sympathy 

defense is the family’s interest. She similarly makes much of the fact

that the prosecutor “belittle[d]” Brashear’s testimony in closing argument. Post, at 33. We fail to see the point. Any diligent prosecutor

would have challenged whatever mitigating evidence the defense had 

put on. And, we would certainly not expect the prosecutor’s closing 

argument to have described the evidence in the light most favorable to

Pinholster. But see ibid., n. 26. 
Cite as: 563 U. S. ____ (2011) 29 

Opinion of the Court 

trial court found that the jury’s determination was “supported overwhelmingly by the weight of the evidence” and 

added that “the factors in aggravation beyond all reasonable doubt outweigh those in mitigation.” Clerk’s Tr. 

1184, 1186. 

2 

There is no reasonable probability that the additional 

evidence Pinholster presented in his state habeas proceedings would have changed the jury’s verdict. The “new” 

evidence largely duplicated the mitigation evidence at

trial. School and medical records basically substantiate

the testimony of Pinholster’s mother and brother. Declarations from Pinholster’s siblings support his mother’s

testimony that his stepfather was abusive and explain

that Pinholster was beaten with fists, belts, and even 

wooden boards. 

To the extent the state habeas record includes new 

factual allegations or evidence, much of it is of questionable mitigating value. If Pinholster had called Dr. Woods 

to testify consistently with his psychiatric report, Pinholster would have opened the door to rebuttal by a state 

expert. See, e.g., Wong v. Belmontes, 558 U. S. ___, ___ 

(2009) (per curiam) (slip op., at 10–12) (taking into account 

that certain mitigating evidence would have exposed the

petitioner to further aggravating evidence). The new 

evidence relating to Pinholster’s family⎯their more serious substance abuse, mental illness, and criminal problems, see post, at 22⎯is also by no means clearly mitigating, as the jury might have concluded that Pinholster was

simply beyond rehabilitation. Cf. Atkins v. Virginia, 536 

U. S. 304, 321 (2002) (recognizing that mitigating evidence

can be a “two-edged sword” that juries might find to show 

future dangerousness).

The remaining new material in the state habeas record

is sparse. We learn that Pinholster’s brother Alvin died of 
30 CULLEN v. PINHOLSTER 

Opinion of the Court 

suicide by drug overdose, and there are passing references 

to Pinholster’s own drug dependency. According to Dr.

Stalberg, Pinholster’s “school records” apparently evidenced “some degree” of brain damage. App. to Brief in

Opposition 219. Mostly, there are just a few new details 

about Pinholster’s childhood. Pinholster apparently 

looked like his biological father, whom his grandparents 

“loathed.” Pet. for Writ of Habeas Corpus in No. S004616 

(Cal.), Exh. 98, p. 1. Accordingly, whenever his grandparents “spanked or disciplined” the kids, Pinholster “always

got the worst of it.” Ibid. Pinholster was mostly unsupervised and “didn’t get much love,” because his mother and 

stepfather were always working and “were more concerned 

with their own lives than the welfare of their kids.” Id., at 

2. Neither parent seemed concerned about Pinholster’s

schooling. Finally, Pinholster’s aunt once saw the children 

mixing flour and water to make something to eat, although “[m]ost meals consisted of canned spaghetti and 

foods of that ilk.” Id., at 1. 

Given what little additional mitigating evidence Pinholster presented in state habeas, we cannot say that the 

California Supreme Court’s determination was unreasonable. Having already heard much of what is included in 

the state habeas record, the jury returned a sentence of 

death. Moreover, some of the new testimony would likely 

have undercut the mitigating value of the testimony by 

Pinholster’s mother. The new material is thus not so 

significant that, even assuming Pinholster’s trial counsel

performed deficiently, it was necessarily unreasonable for 

the California Supreme Court to conclude that Pinholster 

had failed to show a “substantial” likelihood of a different 

sentence. Richter, 562 U. S., at ___ (slip op., at 22) (citing 

Strickland, 466 U. S., at 693). 

3 

As with deficiency, the Court of Appeals found this case 
Cite as: 563 U. S. ____ (2011) 31 

Opinion of the Court 

to be “materially indistinguishable” from Terry Williams 

and Rompilla v. Beard, 545 U. S. 374 (2005). 590 F. 3d, at 

684. But this Court did not apply AEDPA deference to the

question of prejudice in those cases; each of them lack the 

important “doubly deferential” standard of Strickland and 

AEDPA. See Terry Williams, 529 U. S., at 395–397 (reviewing a state-court decision that did not apply the correct legal standard); Rompilla, supra, at 390 (reviewing 

Strickland prejudice de novo because the state-court decision did not reach the question). Those cases therefore 

offer no guidance with respect to whether a state court has 

unreasonably determined that prejudice is lacking. We 

have said time and again that “an unreasonable application of federal law is different from an incorrect application of federal law.” Richter, supra, at ___ (slip op., at 11)

(internal quotation marks omitted). Even if the Court of 

Appeals might have reached a different conclusion as an

initial matter, it was not an unreasonable application of 

our precedent for the California Supreme Court to conclude that Pinholster did not establish prejudice.20 

* * * 

The judgment of the United States Court of Appeals for 

the Ninth Circuit is reversed. 

It is so ordered. 

—————— 

20Because Pinholster has failed to demonstrate that the adjudication 

of his claim based on the state-court record resulted in a decision 

“contrary to” or “involv[ing] an unreasonable application” of federal 

law, a writ of habeas corpus “shall not be granted” and our analysis is

at an end. 28 U. S. C. §2254(d). We are barred from considering the 

evidence Pinholster submitted in the District Court that he contends 

additionally supports his claim. For that reason, we need not decide 

whether §2254(e)(2) prohibited the District Court from holding the 

evidentiary hearing or whether a district court may ever choose to hold 

an evidentiary hearing before it determines that §2254(d) has been

satisfied. 
_________________ 

_________________ 

Cite as: 563 U. S. ____ (2011) 1 

ALITO, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 09–1088 

VINCENT CULLEN, ACTING WARDEN, PETITIONER 

v. SCOTT LYNN PINHOLSTER 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[April 4, 2011]

 JUSTICE ALITO, concurring in part and concurring in the

judgment. 

Although I concur in the Court’s judgment, I agree with

the conclusion reached in Part I of the dissent, namely,

that, when an evidentiary hearing is properly held in 

federal court, review under 28 U. S. C. §2254(d)(1) must 

take into account the evidence admitted at that hearing.

As the dissent points out, refusing to consider the evidence

received in the hearing in federal court gives §2254(e)(2) 

an implausibly narrow scope and will lead either to results

that Congress surely did not intend or to the distortion of 

other provisions of the Antiterrorism and Effective Death 

Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and the law 

on “cause and prejudice.” See post, at 9–12 (opinion of 

SOTOMAYOR, J.).

Under AEDPA evidentiary hearings in federal court 

should be rare. The petitioner generally must have made

a diligent effort to produce in state court the new evidence 

on which he seeks to rely. See §2254(e)(2); Williams v. 

Taylor, 529 U. S. 420, 433–434 (2000). If that requirement

is not satisfied, the petitioner may establish the factual

predicate for a claim in a federal-court hearing only if,

among other things, “the facts underlying the claim would 

be sufficient to establish by clear and convincing evidence

that but for constitutional error, no reasonable factfinder 
2 CULLEN v. PINHOLSTER 

Opinion of ALITO, J. 

would have found the applicant guilty of the underlying 

offense.” §2254(e)(2)(B). 

Even when the petitioner does satisfy the diligence 

standard adopted in Williams v. Taylor, supra, a hearing 

should not be held in federal court unless the new evidence that the petitioner seeks to introduce was not and

could not have been offered in the state-court proceeding. 

Section 2254(e)(2) bars a hearing in certain situations, but

it does not mean that a hearing is allowed in all other

situations. See Schriro v. Landrigan, 550 U. S. 465, 473– 

474 (2007). The whole thrust of AEDPA is essentially to 

reserve federal habeas relief for those cases in which the 

state courts acted unreasonably. See §§2254(d)(1), (2), 

(e)(1). Permitting a petitioner to obtain federal habeas

relief on the basis of evidence that could have been but 

was not offered in state court would upset this scheme. 

In this case, for essentially the reasons set out in the

dissent from the Court of Appeals’ en banc decision, see 

Pinholster v. Ayers, 590 F. 3d 651, 688–691 (CA9 2009) 

(opinion of Kozinski, J.), I would hold that the federalcourt hearing should not have been held because respondent did not diligently present his new evidence to the 

California courts. And I join all but Part II of the opinion 

of the Court, as I agree that the decision of the state court 

represented a reasonable application of clearly established 

Supreme Court precedent in light of the state-court record. 
_________________ 

_________________ 

Cite as: 563 U. S. ____ (2011) 1 

Opinion of BREYER, J. 

SUPREME COURT OF THE UNITED STATES 

No. 09–1088 

VINCENT CULLEN, ACTING WARDEN, PETITIONER 

v. SCOTT LYNN PINHOLSTER 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[April 4, 2011]

 JUSTICE BREYER, concurring in part and dissenting in 

part. 

I join Parts I and II of the Court’s opinion. I do not join

Part III, for I would send this case back to the Court of 

Appeals so that it can apply the legal standards that Part 

II announces to the complex facts of this case. Compare 

ante, at 14–31 (majority opinion), with post, at 17–42 

(SOTOMAYOR, J., dissenting). 

Like the Court, I believe that its understanding of 

28 U. S. C. §2254(d)(1) does not leave AEDPA’s hearing 

section, §2254(e), without work to do. An offender who 

believes he is entitled to habeas relief must first present a

claim (including his evidence) to the state courts. If the 

state courts reject the claim, then a federal habeas court 

may review that rejection on the basis of the materials 

considered by the state court. If the federal habeas court 

finds that the state-court decision fails (d)’s test (or if (d)

does not apply), then an (e) hearing may be needed. 

For example, if the state-court rejection assumed the

habeas petitioner’s facts (deciding that, even if those facts 

were true, federal law was not violated), then (after finding the state court wrong on a (d) ground) an (e) hearing 

might be needed to determine whether the facts alleged

were indeed true. Or if the state-court rejection rested on 

a state ground, which a federal habeas court found inade-
2 CULLEN v. PINHOLSTER 

Opinion of BREYER, J. 

quate, then an (e) hearing might be needed to consider the 

petitioner’s (now unblocked) substantive federal claim. Or 

if the state-court rejection rested on only one of several

related federal grounds (e.g., that counsel’s assistance was 

not “inadequate”), then, if the federal court found that the 

state court’s decision in respect to the ground it decided

violated (d), an (e) hearing might be needed to consider 

other related parts of the whole constitutional claim (e.g., 

whether the counsel’s “inadequate” assistance was also 

prejudicial). There may be other situations in which an (e) 

hearing is needed as well.

In this case, however, we cannot say whether an (e) 

hearing is needed until we know whether the state court, 

in rejecting Pinholster’s claim on the basis presented to

that state court, violated (d). (In my view, the lower

courts’ analysis in respect to this matter is inadequate.) 

There is no role in (d) analysis for a habeas petitioner to

introduce evidence that was not first presented to the 

state courts. But that does not mean that Pinholster is 

without recourse to present new evidence. He can always

return to state court presenting new evidence not previously presented. If the state court again denies relief, he

might be able to return to federal court to make claims

related to the latest rejection, subject to AEDPA’s limitations on successive petitions. See §2244.

I am not trying to predict the future course of these 

proceedings. I point out only that, in my view, AEDPA is 

not designed to take necessary remedies from a habeas

petitioner but to give the State a first opportunity to consider most matters and to insist that federal courts properly respect state-court determinations. 
_________________ 

_________________ 

Cite as: 563 U. S. ____ (2011) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 09–1088 

VINCENT CULLEN, ACTING WARDEN, PETITIONER 

v. SCOTT LYNN PINHOLSTER 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[April 4, 2011]

 JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG 

and JUSTICE KAGAN join as to Part II, dissenting. 

Some habeas petitioners are unable to develop the factual basis of their claims in state court through no fault 

of their own. Congress recognized as much when it enacted the Antiterrorism and Effective Death Penalty Act of 

1996 (AEDPA), 110 Stat. 1214, and permitted therein the 

introduction of new evidence in federal habeas proceedings in certain limited circumstances. See 28 U. S. C. 

§2254(e)(2). Under the Court’s novel interpretation of 

§2254(d)(1), however, federal courts must turn a blind eye 

to new evidence in deciding whether a petitioner has

satisfied §2254(d)(1)’s threshold obstacle to federal habeas

relief—even when it is clear that the petitioner would be 

entitled to relief in light of that evidence. In reading

the statute to “compe[l]” this harsh result, ante, at 9, 

the Court ignores a key textual difference between

§§2254(d)(1) and 2254(d)(2) and discards the previous 

understanding in our precedents that new evidence can, in 

fact, inform the §2254(d)(1) inquiry. I therefore dissent 

from the Court’s first holding. 

I also disagree with the Court that, even if the 

§2254(d)(1) analysis is limited to the state-court record,

respondent Scott Pinholster failed to demonstrate that the

California Supreme Court’s decision denying his ineffec-
2 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

tive-assistance-of-counsel claim was an unreasonable 

application of Strickland v. Washington, 466 U. S. 668 

(1984). There is no reason for the majority to decide 

whether the §2254(d)(1) analysis is limited to the statecourt record because Pinholster satisfied §2254(d)(1) on

either the state- or federal-court record. 

I 

The Court first holds that, in determining whether a

state-court decision is an unreasonable application of 

Supreme Court precedent under §2254(d)(1), “review . . . is 

limited to the record that was before the state court that 

adjudicated the claim on the merits.” Ante, at 9. New 

evidence adduced at a federal evidentiary hearing is

now irrelevant to determining whether a petitioner has

satisfied §2254(d)(1). This holding is unnecessary to promote AEDPA’s purposes, and it is inconsistent with the

provision’s text, the structure of the statute, and our

precedents. 

A 

To understand the significance of the majority’s holding,

it is important to view the issue in context. AEDPA’s 

entire structure—which gives state courts the opportunity

to decide factual and legal questions in the first instance—

ensures that evidentiary hearings in federal habeas proceedings are very rare. See N. King, F. Cheesman, & B.

Ostrom, Final Technical Report: Habeas Litigation in

U. S. District Courts 35–36 (2007) (evidentiary hearings

under AEDPA occur in 0.4 percent of noncapital cases and 

9.5 percent of capital cases). Even absent the new restriction created by today’s holding, AEDPA erects multiple 

hurdles to a state prisoner’s ability to introduce new evidence in a federal habeas proceeding. 

First, “[u]nder the exhaustion requirement, a habeas

petitioner challenging a state conviction must first at-
Cite as: 563 U. S. ____ (2011) 3 

SOTOMAYOR, J., dissenting 

tempt to present his claim in state court.” Harrington v. 

Richter, 562 U. S. ___, ___ (2011) (slip op., at 13); see also

§2254(b)(1)(A). With certain narrow exceptions, federal 

courts cannot consider a claim at all, let alone accept new 

evidence relevant to the claim, if it has not been exhausted 

in state court.1 The exhaustion requirement thus reserves 

to state courts the first opportunity to resolve factual

disputes relevant to a state prisoner’s claim. See 

O’Sullivan v. Boerckel, 526 U. S. 838, 845 (1999). 

Second, the exhaustion requirement is “complement[ed]” 

by the standards set forth in §2254(d). Harrington, 562 

U. S., at ___ (slip op., at 14). Under this provision, a federal court may not grant habeas relief on any “claim that 

was adjudicated on the merits in State court proceedings”

unless the adjudication 

“(1) resulted in a decision that was contrary to, or 

involved an unreasonable application of, clearly established Federal law, as determined by the Supreme 

Court of the United States; or 

“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.” 

These standards “control whether to grant habeas relief.” 

Schriro v. Landrigan, 550 U. S. 465, 474 (2007). Accordingly, we have said, if the factual allegations a petitioner

seeks to prove at an evidentiary hearing would not satisfy 

these standards, there is no reason for a hearing. See id., 

at 481. In such a case, the district court may exercise its

“discretion to deny an evidentiary hearing.” Ibid.; see also 

infra, at 13–14. This approach makes eminent sense: If 

district courts held evidentiary hearings without first 

—————— 

1Relatedly, a state prisoner must, as a general matter, properly exhaust his federal claims in state court to avoid having his claim defaulted on procedural grounds. See Coleman v. Thompson, 501 U. S. 

722, 750 (1991). 
4 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

asking whether the evidence the petitioner seeks to present would satisfy AEDPA’s demanding standards, they

would needlessly prolong federal habeas proceedings. 

Third, even when a petitioner seeks to introduce new 

evidence that would entitle him to relief, AEDPA prohibits

him from doing so, except in a narrow range of cases,

unless he “made a reasonable attempt, in light of the

information available at the time, to investigate and pursue claims in state court.” Williams v. Taylor, 529 U. S. 

420, 435 (2000) (Michael Williams). Thus, §2254(e)(2) 

provides: 

“If the applicant has failed to develop the factual basis

of a claim in State court proceedings, the court shall 

not hold an evidentiary hearing on the claim unless

the applicant shows that—

“(A) the claim relies on—

“(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable; or 

“(ii) a factual predicate that could not have been

previously discovered through the exercise of due diligence; and

“(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence 

that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the

underlying offense.” 

In Michael Williams, we construed the opening clause of 

this provision—which triggers the bar on evidentiary 

hearings—to apply when “there is lack of diligence, or

some greater fault, attributable to the prisoner or the 

prisoner’s counsel.”2 Id., at 432. AEDPA thus bars an 

—————— 

2Section 2254(e)(2) also governs an attempt to obtain relief “based on

new evidence without an evidentiary hearing.” Holland v. Jackson, 542 

U. S. 649, 653 (2004) (per curiam) (emphasis deleted). 
Cite as: 563 U. S. ____ (2011) 5 

SOTOMAYOR, J., dissenting 

evidentiary hearing for a nondiligent petitioner unless the

petitioner can satisfy both §§2254(e)(2)(A) and (B), which 

few petitioners can. Section 2254(e)(2) in this way incentivizes state petitioners to develop the factual basis of 

their claims in state court. 

To the limited extent that federal evidentiary hearings

are available under AEDPA, they ensure that petitioners 

who diligently developed the factual basis of their claims 

in state court, discovered new evidence after the statecourt proceeding, and cannot return to state court retain

the ability to access the Great Writ. See ante, at 2 (ALITO, 

J., concurring in part and concurring in judgment). “When 

Congress codified new rules governing this previously

judicially managed area of law, it did so without losing 

sight of the fact that the ‘writ of habeas corpus plays a

vital role in protecting constitutional rights.’” Holland v. 

Florida, 560 U. S. ___, ___ (2010) (slip op., at 16) (quoting 

Slack v. McDaniel, 529 U. S. 473, 483 (2000)). Allowing a 

petitioner to introduce new evidence at a hearing in the

limited circumstance permitted by §2254(e)(2) does not 

upset the balance that Congress struck in AEDPA between the state and federal courts. By construing

§2254(d)(1) to do the work of other provisions in AEDPA,

the majority has subverted Congress’ careful balance of 

responsibilities. It has also created unnecessarily a brandnew set of procedural complexities that lower courts will

have to confront.3 

B 

The majority’s interpretation of §2254(d)(1) finds no 

support in the provision’s text or the statute’s structure as

a whole. 

1 

Section 2254(d)(1) requires district courts to ask 

—————— 

3See, e.g., nn. 5, 7, and 13, infra. 
6 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

whether a state-court adjudication on the merits “resulted

in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States.” 

Because this provision uses “backward-looking language”—i.e., past-tense verbs—the majority believes that

it limits review to the state-court record. Ante, at 9. But 

both §§2254(d)(1) and 2254(d)(2) use “backward-looking 

language,” and §2254(d)(2)—unlike §2254(d)(1)—expressly 

directs district courts to base their review on “the evidence 

presented in the State court proceeding.” If use of the past 

tense were sufficient to indicate Congress’ intent to restrict analysis to the state-court record, the phrase “in

light of the evidence presented in the State court proceeding” in §2254(d)(2) would be superfluous. The majority’s

construction of §2254(d)(1) fails to give meaning to Congress’ decision to include language referring to the evidence presented to the state court in §2254(d)(2). Cf. 

Bates v. United States, 522 U. S. 23, 29–30 (1997) (“Where 

Congress includes particular language in one section of a 

statute but omits it in another section of the same Act, it 

is generally presumed that Congress acts intentionally 

and purposely in the disparate inclusion or exclusion” 

(internal quotation marks and brackets omitted)).

Ignoring our usual “reluctan[ce] to treat statutory terms

as surplusage in any setting,” TRW Inc. v. Andrews, 534 

U. S. 19, 31 (2001) (internal quotation marks omitted), the 

majority characterizes the phrase appearing in §2254(d)(2) 

as mere “clarifying language,” ante, at 12, n. 7. It speculates that “[t]he omission of clarifying language from

§2254(d)(1) just as likely reflects Congress’ belief that such

language was unnecessary as it does anything else.” Ante, 

at 12–13, n. 7. The argument that this phrase is merely 

“clarifying” might have more force, however, had Congress

included this phrase in §2254(d)(1) but not in §2254(d)(2).

As between the two provisions, §2254(d)(2)—which re-
Cite as: 563 U. S. ____ (2011) 7 

SOTOMAYOR, J., dissenting 

quires review of the state court’s “determination of the 

facts”—more logically depends on the facts presented to

the state court. Because this provision needs less clarification on this point than §2254(d)(1), it is all the more

telling that Congress included this phrase in §2254(d)(2) 

but elected to exclude it from §2254(d)(1).

Unlike my colleagues in the majority, I refuse to assume 

that Congress simply engaged in sloppy drafting. The 

inclusion of this phrase in §2254(d)(2)—coupled with its 

omission from §2254(d)(2)’s partner provision, 

§2254(d)(1)—provides strong reason to think that Congress did not intend for the §2254(d)(1) analysis to be 

limited categorically to “the evidence presented in the

State court proceeding.” 

2 

 The “‘broader context of the statute as a whole,’” ante, 

at 9 (quoting Robinson v. Shell Oil Co., 519 U. S. 337, 341 

(1997)), reinforces this conclusion. In particular, Congress’ decision to include in AEDPA a provision,

§2254(e)(2), that permits federal evidentiary hearings in

certain circumstances provides further evidence that

Congress did not intend to limit the §2254(d)(1) inquiry to

the state-court record in every case. 

We have long recognized that some diligent habeas 

petitioners are unable to develop all of the facts supporting their claims in state court.4 As discussed above, in 

—————— 

4See, e.g., Michael Williams, 529 U. S. 420, 432 (2000) (noting that 

diligent efforts to develop the facts might be “thwarted, for example, by

the conduct of another or by happenstance”); id., at 434 (noting that the 

prosecution might have “concealed the facts” supporting “a claim which

was pursued with diligence”); Townsend v. Sain, 372 U. S. 293, 313 

(1963) (requiring federal courts to grant evidentiary hearings when, 

inter alia, “the fact-finding procedure employed by the state court was 

not adequate to afford a full and fair hearing” or “there is a substantial 

allegation of newly discovered evidence”), overruled in part on other 

grounds by Keeney v. Tamayo-Reyes, 504 U. S. 1, 5 (1992). 
8 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

enacting AEDPA, Congress generally barred evidentiary

hearings for petitioners who did not “exercise diligence in 

pursuing their claims” in state court. Michael Williams, 

529 U. S., at 436; see also §2254(e)(2). Importantly, it did

not impose any express limit on evidentiary hearings for 

petitioners who had been diligent in state court. See id., 

at 436 (“[T]he statute does not equate prisoners who exercise diligence in pursuing their claims with those who do 

not”). For those petitioners, Congress left the decision to

hold a hearing “to the sound discretion of district courts.” 

Landrigan, 550 U. S., at 473. 

Faced with situations in which a diligent petitioner 

offers additional evidence in federal court, the courts of 

appeals have taken two approaches to applying

§2254(d)(1). Some courts have held that when a federal 

court admits new evidence supporting a claim adjudicated

on the merits in state court, §2254(d)(1) does not apply at

all and the federal court may review the claim de novo. 

See ante, at 12; Holland v. Jackson, 542 U. S. 649, 653 

(2004) (per curiam); see, e.g., Winston v. Kelly, 592 F. 3d 

535, 555–556 (CA4 2010). I agree with the majority’s

rejection of this approach. See ante, at 12. It would undermine the comity principles motivating AEDPA to decline to defer to a state-court adjudication of a claim 

because the state court, through no fault of its own, 

lacked all the relevant evidence.5 

—————— 

5Of course, §2254(d)(1) only applies when a state court has adjudicated a claim on the merits. There may be situations in which new 

evidence supporting a claim adjudicated on the merits gives rise to an 

altogether different claim. See, e.g., Reply Brief for Petitioner 10–11

(evidence withheld by the prosecutor relating to one claim may give rise 

to a separate claim under Brady v. Maryland, 373 U. S. 83 (1963)). The 

majority opinion does not foreclose this possibility. 

I assume that the majority does not intend to suggest that review is 

limited to the state-court record when a petitioner’s inability to develop

the facts supporting his claim was the fault of the state court itself. See 

generally Tr. of Oral Arg. in Bell v. Kelly, O. T. 2008, No. 07–1223. 
Cite as: 563 U. S. ____ (2011) 9 

SOTOMAYOR, J., dissenting 

Other courts of appeals, including the court below, have 

struck a more considered balance. These courts have held 

that §2254(d)(1) continues to apply but that new evidence

properly presented in a federal hearing is relevant to the 

reasonableness of the state-court decision. See Pinholster 

v. Ayers, 590 F. 3d 651, 668 (CA9 2009) (en banc) (“If the 

evidence is admissible under Michael Williams or 

§2254(e)(2), and if it does not render the petitioner’s 

claims unexhausted . . . , then it is properly considered in

evaluating whether the legal conclusion reached by the

state habeas court was a reasonable application of Supreme Court law”); accord, Wilson v. Mazzuca, 570 F. 3d 

490, 500 (CA2 2009); Pecoraro v. Walls, 286 F. 3d 439, 443 

(CA7 2002); Valdez v. Cockrell, 274 F. 3d 941, 952 (CA5 

2001). This approach accommodates the competing goals, 

reflected in §§2254(d) and 2254(e)(2), of according deference to reasonable state-court decisions and preserving

the opportunity for diligent petitioners to present evidence 

to the federal court when they were unable to do so in 

state court. 

The majority charts a third, novel course that, so far as I

am aware, no court of appeals has adopted: §2254(d)(1) 

continues to apply when a petitioner has additional evidence that he was unable to present to the state court, but 

the district court cannot consider that evidence in deciding 

whether the petitioner has satisfied §2254(d)(1). The 

problem with this approach is its potential to bar federal 

habeas relief for diligent habeas petitioners who cannot 

present new evidence to a state court.

Consider, for example, a petitioner who diligently attempted in state court to develop the factual basis of a 

claim that prosecutors withheld exculpatory witness 

statements in violation of Brady v. Maryland, 373 U. S. 83 

(1963). The state court denied relief on the ground that 

the withheld evidence then known did not rise to the level 

of materiality required under Brady. Before the time for 
10 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

filing a federal habeas petition has expired, however, a 

state court orders the State to disclose additional documents the petitioner had timely requested under the 

State’s public records Act. The disclosed documents reveal 

that the State withheld other exculpatory witness statements, but state law would not permit the petitioner to 

present the new evidence in a successive petition.6 

Under our precedent, if the petitioner had not presented 

his Brady claim to the state court at all, his claim would 

be deemed defaulted and the petitioner could attempt to

show cause and prejudice to overcome the default. See 

Michael Williams, 529 U. S., at 444; see also n. 1, supra. 

If, however, the new evidence merely bolsters a Brady

claim that was adjudicated on the merits in state court, it

is unclear how the petitioner can obtain federal habeas

relief after today’s holding. What may have been a reasonable decision on the state-court record may no longer 

be reasonable in light of the new evidence. See Kyles v. 

Whitley, 514 U. S. 419, 436 (1995) (materiality of Brady

evidence is viewed “collectively, not item by item”). Because the state court adjudicated the petitioner’s Brady

claim on the merits, §2254(d)(1) would still apply. Yet, 

under the majority’s interpretation of §2254(d)(1), a federal court is now prohibited from considering the new

evidence in determining the reasonableness of the statecourt decision. 

The majority’s interpretation of §2254(d)(1) thus suggests the anomalous result that petitioners with new

claims based on newly obtained evidence can obtain federal habeas relief if they can show cause and prejudice for 

their default but petitioners with newly obtained evidence

supporting a claim adjudicated on the merits in state court 

—————— 

6See, e.g., id., at 37–38 (statement by counsel for the respondent

warden that Virginia law bars all successive habeas applications, even

in cases where the petitioner has new evidence). 
Cite as: 563 U. S. ____ (2011) 11 

SOTOMAYOR, J., dissenting 

cannot obtain federal habeas relief if they cannot first 

satisfy §2254(d)(1) without the new evidence. That the 

majority’s interpretation leads to this anomaly is good 

reason to conclude that its interpretation is wrong. See 

Keeney v. Tamayo-Reyes, 504 U. S. 1, 7–8 (1992) (“[I]t is

. . . irrational to distinguish between failing to properly

assert a federal claim in state court and failing in state 

court to properly develop such a claim”). 

The majority responds to this anomaly by suggesting

that my hypothetical petitioner “may well [have] a new 

claim.”7 Ante, at 14, n. 10. This suggestion is puzzling. 

New evidence does not usually give rise to a new claim; it

merely provides additional proof of a claim already adjudicated on the merits.8 The majority presumably means

to suggest that the petitioner might be able to obtain 

federal-court review of his new evidence if he can show 

cause and prejudice for his failure to present the “new” 

claim to a state court. In that scenario, however, the 

federal court would review the purportedly “new” claim de 

novo. The majority’s approach thus threatens to replace 

deferential review of new evidence under §2254(d)(1) with 

de novo review of new evidence in the form of “new” 

claims.9 Because it is unlikely that Congress intended 

de novo review—the result suggested by the majority’s

opinion—it must have intended for district courts to 

consider newly discovered evidence in conducting the 

§2254(d)(1) analysis. 

—————— 

7The majority declines, however, to provide any guidance to the lower

courts on how to distinguish claims adjudicated on the merits from new 

claims. 8Even if it can fairly be argued that my hypothetical petitioner has a

new claim, the majority fails to explain how a diligent petitioner with

new evidence supporting an existing claim can present his new evidence to a federal court. 9 In this vein, it is the majority’s approach that “would not take seriously AEDPA’s requirement that federal courts defer to state-court 

decisions.” Ante, at 10, n. 3. 
12 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

The majority’s reading of §2254(d)(1) appears ultimately 

to rest on its understanding that state courts must have 

the first opportunity to adjudicate habeas petitioners’ 

claims. See ante, at 9–10 (“It would be contrary to 

[AEDPA’s exhaustion requirement] to allow a petitioner to

overcome an adverse state-court decision with new evidence introduced in a federal habeas court and reviewed 

by that court in the first instance effectively de novo”).10 

JUSTICE BREYER takes the same position. See ante, at 2 

(opinion concurring in part and dissenting in part) 

(AEDPA is designed “to give the State a first opportunity

to consider most matters”). I fully agree that habeas

petitioners must attempt to present evidence to state 

courts in the first instance, as does JUSTICE ALITO, see 

ante, at 2. Where I disagree with the majority is in my

understanding that §2254(e)(2) already accomplishes this 

result. By reading §2254(d)(1) to do the work of 

§2254(e)(2), the majority gives §2254(e)(2) an unnaturally 

cramped reading. As a result, the majority either has 

foreclosed habeas relief for diligent petitioners who,

through no fault of their own, were unable to present 

exculpatory evidence to the state court that adjudicated

their claims or has created a new set of procedural complexities for the lower courts to navigate to ensure the

availability of the Great Writ for diligent petitioners. 

3 

These considerations lead me to agree with the courts of

appeals that have concluded that a federal court should 

assess the reasonableness of a state court’s application of 

clearly established federal law under §2254(d)(1) in light

of evidence properly admitted in a federal evidentiary 

hearing. There is nothing “strange” about this approach. 

—————— 

10Under my reading of §2254(d)(1), of course, the district court would 

review properly admitted new evidence through the deferential lens of 

§2254(d)(1), not de novo. 
Cite as: 563 U. S. ____ (2011) 13 

SOTOMAYOR, J., dissenting 

Ante, at 10. Under §2254(d)(1), federal courts routinely 

engage in analysis that the state court itself might never

have conducted or did not conduct. For example, when a 

state court summarily denies a claim without explanation, 

as the California Supreme Court did here, district courts

must deny habeas relief pursuant to §2254(d)(1) so long as 

“there is any reasonable argument” supporting the denial 

of the petitioner’s claim. Harrington, 562 U. S., at ___ 

(slip op., at 16). We likewise ask whether a state-court 

decision unreasonably applied clearly established federal 

law when the state court issued a reasoned decision but 

failed to cite federal law altogether. See Early v. Packer, 

537 U. S. 3, 8 (2002) (per curiam). Determining whether a

state court could reasonably have denied a petitioner relief 

in light of newly discovered evidence is not so different 

than determining whether there is any reasonable basis

for a state court’s unreasoned decision. 

Admittedly, the text of §2254(d)(1), standing alone, does 

not compel either reading of that provision. But construing §2254(d)(1) to permit consideration of evidence properly introduced in federal court best accords with the text

of §2254(d)(2) and AEDPA’s structure as a whole. By

interpreting §2254(d)(1) to prevent nondiligent petitioners 

from gaming the system—the very purpose of 

§2254(e)(2)—the majority potentially has put habeas relief 

out of reach for diligent petitioners with meritorious 

claims based on new evidence. 

C 

The majority claims that its holding is “consistent” with

our case law. Ante, at 10. Quite the opposite is true: Our

cases reflect our previous understanding that evidence

properly admitted pursuant to §2254(e)(2) is relevant to

the §2254(d)(1) analysis.

In Landrigan, JUSTICE THOMAS, the author of today’s

opinion, confirmed this understanding of the interplay 
14 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

between §§2254(d)(1) and 2254(e)(2). As noted above, we 

admonished district courts to consider whether a petitioner’s allegations, if proved true, would satisfy §2254(d) 

in determining whether to grant a hearing. After highlighting the deference owed to state courts under 

§§2254(d) and 2254(e)(1), we stated: 

“In deciding whether to grant an evidentiary hearing,

a federal court must consider whether such a hearing 

could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the

applicant to federal habeas relief. Because the deferential standards prescribed by §2254 control whether 

to grant habeas relief, a federal court must take into

account those standards in deciding whether an evidentiary hearing is appropriate.” 550 U. S., at 474 (citation omitted). 

By instructing district courts to consider the §2254(d)

standards in deciding whether to grant a hearing, we must

have understood that the evidence admitted at a hearing 

could be considered in the §2254(d)(1) analysis. See Brief 

for American Civil Liberties Union as Amicus Curiae 9 

(“The whole point of Landrigan’s admonition that the 

court must decide whether to hold a hearing with an eye 

on §2254(d)(1) is that some proffers of evidence will not 

justify federal fact-finding in view of §2254(d)(1), but that

other proffers of proof will”).11

 In Michael Williams, the warden argued that 

§2254(e)(2) bars an evidentiary hearing whenever a petitioner was unable to develop the factual record in state 

court, “whether or not through his own fault or neglect.” 

—————— 

11The majority overlooks this aspect of Landrigan. It quotes Landrigan’s observation that “if the record refutes the applicant’s factual

allegations or otherwise precludes habeas relief, a district court is not

required to hold an evidentiary hearing,” 550 U. S., at 474, but that

statement has no bearing on the question decided by the Court today. 
Cite as: 563 U. S. ____ (2011) 15 

SOTOMAYOR, J., dissenting 

529 U. S., at 430. Under the warden’s argument, a petitioner who did not develop the record in state court, whatever the reason, would be barred from presenting evidence

to the federal court. In rejecting that argument, we 

observed: 

“A prisoner who developed his claim in state court and

can prove 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,’ is not barred from obtaining relief by §2254(d)(1). If the opening clause of

§2254(e)(2) covers a request for an evidentiary hearing on a claim which was pursued with diligence but 

remained undeveloped in state court because, for instance, the prosecution concealed the facts, a prisoner

lacking clear and convincing evidence of innocence 

could be barred from a hearing on the claim even if he 

could satisfy §2254(d).” Id., at 434 (citation omitted; 

emphasis added). 

A petitioner in the latter situation would almost certainly

be unable to “satisfy §2254(d)” without introducing the 

concealed facts in federal court. This passage thus reflects

our understanding that, in some circumstances, a petitioner might need an evidentiary hearing in federal court 

to prove the facts necessary to satisfy §2254(d). To avoid 

foreclosing habeas relief for such petitioners, we concluded 

that §2254(e)(2) could not bear the warden’s “harsh reading,” which essentially would have held petitioners strictly

at fault for their inability to develop the facts in state 

court. Ibid. The majority today gives an equally “harsh

reading” to §2254(d)(1) to achieve the result we rejected in 

Michael Williams.12 

—————— 

12 The majority claims that Michael Williams supports its reading of 

§2254(d)(1). With respect to one claim asserted by the petitioner, we

observed that “[t]he Court of Appeals rejected this claim on the merits 
16 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

None of the other cases cited by the majority supports

its result. In Williams v. Taylor, 529 U. S. 362 (2000) 

(Terry Williams), we interpreted §2254(d)(1) to ask 

whether the state-court decision “identifies the correct 

governing legal principle from this Court’s decisions but 

unreasonably applies that principle to the facts of the

prisoner’s case.” Id., at 413. However, we had no reason 

to decide whether the §2254(d)(1) inquiry was limited to

the state-court record, as the District Court did not hold 

an evidentiary hearing in that case. See id., at 372. 

In Holland v. Jackson, we stated that “we have made 

clear that whether a state court’s decision was unreasonable must be assessed in light of the record the court had

before it.” 542 U. S., at 652. In the next sentence, however, we observed that the evidence at issue “could have 

been the subject of an evidentiary hearing by the District 

Court, but only if respondent was not at fault in failing to

develop that evidence in state court.” Id., at 652–653. We 

proceeded to find that the evidence was not properly admitted under §2254(e)(2) before concluding that the Court 

of Appeals had erred in its §2254(d)(1) analysis. Id., at 

653; see also Bradshaw v. Richey, 546 U. S. 74, 79 (2005) 

(per curiam). 

In sum, our cases reflect our recognition that it is sometimes appropriate to consider new evidence in deciding

whether a petitioner can satisfy §2254(d)(1). In reading 

our precedent to require the opposite conclusion, the majority disregards the concerns that motivated our decision 

in Michael Williams: Some petitioners, even if diligent, 

—————— 

under §2254(d)(1), so it is unnecessary to reach the question whether

§2254(e)(2) would permit a hearing on the claim.” 529 U. S., at 444. 

That statement merely reflects the fact that the Court of Appeals had

rejected that claim under §2254(d)(1) without considering whether the 

petitioner was entitled to a hearing because the petitioner had not 

requested a hearing on that claim. See Williams v. Taylor, 189 F. 3d 

421, 425, 428–429 (CA4 1999). 
Cite as: 563 U. S. ____ (2011) 17 

SOTOMAYOR, J., dissenting 

may be unable to develop the factual record in state court

through no fault of their own. We should not interpret

§2254(d)(1) to foreclose these diligent petitioners from

accessing the Great Writ when the state court will not 

consider the new evidence and could not reasonably have

reached the same conclusion with the new evidence before 

it. 

II 

I also disagree with the Court’s conclusion that the 

Court of Appeals erred in holding that Pinholster had 

satisfied §2254(d)(1) on the basis of the state-court 

record.13 

A 

The majority omits critical details relating to the performance of Pinholster’s trial counsel, the mitigating 

evidence they failed to discover, and the history of these

proceedings. I therefore highlight several aspects of the

facts and history of this case. 

—————— 

13 I agree with the majority that the state-court record in this case

consists of “the ‘allegations of [the] habeas corpus petition . . . and . . . 

any matter of record pertaining to the case.’ ” Ante, at 16, n. 12 (quoting In re Hochberg, 2 Cal. 3d 870, 874, n. 2, 471 P. 2d 1, 3–4, n. 2 

(1970); some internal quotation marks omitted). 

The majority does not decide which of the two state-court decisions 

should be reviewed. See ante, at 15, n. 11. One amicus argues that 

Pinholster must prove that both state-court decisions involved an 

unreasonable application of law. See Brief for Criminal Justice Legal 

Foundation as Amicus Curiae 26. This argument is based on amicus’ 

understanding that the California Supreme Court rejected the second

petition as successive and, alternatively, on the merits. The State has 

not argued, however, that the second ruling rests on a procedural

ground. See ante, at 6, n. 2. When a state court denies two petitions on

the merits and the difference between the petitions is that the second

petition contains additional evidence supporting the petitioner’s claim, 

I see no reason why the petitioner must independently show that the 

first decision was unreasonable. 
18 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

1 

After the jury returned a guilty verdict, the court instructed the jury to return six days later for the penalty

phase. This prompted discussion at sidebar regarding 

whether the State had provided notice of its intent to offer 

aggravating evidence. Pinholster’s court-appointed attorney, Wilbur Dettmar, argued that the State should be 

precluded from offering aggravating evidence: 

“I am not presently prepared to offer anything by way

of mitigation. If I was going to proceed on mitigation, 

the people would have the right to rebuttal with or 

without notice. 

“I took the position, since the people had not given 

notice, I had not prepared any evidence by way of mitigation. I would submit it on that basis.” 52 Reporter’s Tr. 7250 (hereinafter Tr.) (emphasis added). 

Undoubtedly anticipating that counsel might need additional time to prepare an adequate mitigation defense, the 

court asked Dettmar whether a continuance would be 

helpful in the event it ruled against him. He declined the 

offer on the spot, stating: “I think we would probably still 

go forward on Monday. Clearly the one person that comes 

to mind is the defendant’s mother. How much beyond that 

I don’t know. I don’t think the pa[ss]age of time would

make a great deal of difference.” Id., at 7257–7258. After 

hearing testimony, the court denied Pinholster’s motion to 

preclude aggravating evidence.

At the penalty phase, defense counsel called only one 

witness: Pinholster’s mother, Burnice Brashear. Brashear 

testified that Pinholster “never really wanted for anything

at home too much” and “had everything normally materialwise that most people have.” Id., at 7395. She said that 

Pinholster was “different” from his siblings, whom she 

characterized as “basically very good children.” Id., at 

7401–7402. Pinholster, she said, had a “friendly” relation-
Cite as: 563 U. S. ____ (2011) 19 

SOTOMAYOR, J., dissenting 

ship with his stepfather, although his stepfather “sometimes would lose his temper” with Pinholster, who “had a 

mind of his own.” Id., at 7392–7393; see also id., at 7293 

(stating that his stepfather was “at times” “abusive or 

near abusive”).

Brashear provided brief testimony regarding Pinholster’s childhood. She described two car accidents—one 

when she ran over him in the driveway and one when he

went through the windshield. Id., at 7389–7391. She 

stated that he started failing school in the first grade and

that the school eventually “sent him to [an] educationally 

handicapped class.” Id., at 7393–7394. When Pinholster 

was 10, a psychologist recommended placing him in a

mental institution, but she “didn’t think he was that far 

gone.” Id., at 7395. A few years later, she testified, he

spent six months in a state hospital for emotionally handicapped children. Id., at 7402. 

According to Brashear, Pinholster had suffered from

epilepsy since age 18, when he was beaten in jail. Id., 

at 7397. She said that her family doctor, Dr. Dubin,

had given him medication to treat the epilepsy. Ibid. 

Brashear also suggested that Pinholster did not have long 

to live, stating that he had “a chip in his head floating 

around” and that “they don’t think—he won’t be here very 

much longer anyway.”14 Ibid. 

In closing argument, the prosecutor ridiculed Brashear’s

testimony. See 53 id., at 7442 (“She said his stepfather

disciplined him. So what? I am sure you have all disciplined your children. I was disciplined myself”); ibid. (“He

was run over by a car when he was three years old. That’s 

very unfortunate. There is no evidence of any brain damage. A lot of children get dropped, fall from their cribs or 

—————— 

14The judge instructed the jury to disregard this testimony upon

motion by the prosecutor, but the prosecutor then discussed the testimony in her closing argument. See infra, at 33–34. 
20 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

whatever”); id., at 7444–7445 (“I submit to you that if this 

defendant truly had epilepsy, . . . a doctor would have been

brought in to tell you that. Medical records, something”).

The prosecutor also highlighted Brashear’s testimony 

about Pinholster’s stable home environment, arguing, “He

came from a good home. You heard that he was not a 

deprived child. Had many things going for him, probably

more than many children.” Id., at 7442. 

Notwithstanding the meager mitigation case presented

by Pinholster’s counsel, it took the jury two days to reach a 

decision to sentence Pinholster to death. His counsel later 

moved to modify the sentence to life imprisonment. In 

denying the motion, the trial judge stated, “The evidence 

which the defense offered concerning the defendant’s

extenuation was merely some testimony from his mother 

that was not persuasive. His mother did not, in the court’s 

opinion, present any evidence which the court would find 

to be a moral justification or extenuation for his conduct.

No witness supplied such evidence.” 54 id., at 7514. 

2 

After his conviction and sentence were affirmed on 

appeal, Pinholster filed a habeas petition in the California 

Supreme Court alleging, among other things, that his

counsel had “unreasonably failed to investigate, prepare 

and present available mitigating evidence during penalty 

phase.” Record ER–103. 

Pinholster’s state-court petition included 121 exhibits. 

In a series of declarations, his trial attorney Harry 

Brainard (who had by then been disbarred) confirmed

what Dettmar had forthrightly told the trial court: 

Brainard and Dettmar neither expected nor prepared to 

present mitigation evidence.15 See id., at ER–333 (“Mr. 

—————— 

15By the time of Pinholster’s state-court habeas petition, Dettmar 

was deceased. 
Cite as: 563 U. S. ____ (2011) 21 

SOTOMAYOR, J., dissenting 

Dettmar and I did not prepare a case in mitigation. We 

felt there would be no penalty phase hearing inasmuch as

we did not receive written notice of evidence in aggravation pursuant to Penal Code §190.3”). Brainard further 

confirmed what was apparent from the mitigation case

they eventually put on: They conducted virtually no mitigation investigation. See id., at ER–182 (“I have no recollection of Mr. Dettmar having secured or reviewed any of 

Scott’s medical records, nor did I see any of Scott’s medical

records. So far as I recollect, neither Mr. Dettmar nor 

myself interviewed any of Scott’s previous medical providers”); id., at ER–183 (“I do not recall interviewing or attempting to interview Scott’s family members or any other

persons regarding penalty phase testimony, except Mrs.

Brashears [sic]”); ibid. (“I have no recollection of seeing or

attempting to secure Scott’s school records, juvenile records, medical records, or records of prior placements”); 

ibid. (“I have no recollection of interviewing or attempting

to interview Scott’s former school teachers, counselors, or 

juvenile officers”).16 

Statements by relatives (none of whom trial counsel had

attempted to interview regarding Pinholster’s background) 

and documentary evidence revealed that the picture of

Pinholster’s family life painted by his mother at trial was

false. Pinholster was “raised in chaos and poverty.” Id., 

at ER–312. A relative remembered seeing the children

mix together flour and water in an attempt to get something to eat. Pinholster’s stepfather beat him several 

times a week, including at least once with a two-by-four 

board. “There was so much violence in [the] home” that

Pinholster’s brother “dreaded coming home each day.” Id., 

at ER–313. Pinholster’s half sister was removed from the 

home as a result of a beating by his stepfather. 

—————— 

16Counsel’s billing records, which were before the California Supreme

Court as part of the trial record, confirmed Brainard’s recollection. 
22 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

Documentary evidence showed, directly contrary to

Brashear’s trial testimony, that Pinholster’s siblings had 

very troubled pasts. Pinholster’s elder brother was arrested for armed burglary, robbery, and forcible rape of a

14-year-old with a deadly weapon. While in custody, he

was diagnosed as “catatonic-like” and “acutely psychotic,

probably suffering some type of schizophrenia.” Id., at 

ER–219, ER–224. He later committed suicide.17 Pinholster’s half sister, a recovering alcoholic, had been made a

ward of the juvenile court for prostitution and forcible

sexual battery on a 14-year-old.

Pinholster’s petition and exhibits described a long history of emotional disturbance and neurological problems.

A former schoolteacher stated that, as a child, Pinholster 

“seemed incapable of relating either to his peers or to

adults,” that “[i]t was even hard to maintain eye contact 

with him,” and that “[h]is hyperactivity was so extreme

that [she] formed the opinion it probably had an organic 

base.” Id., at ER–231. School records revealed that he 

“talk[ed] to self continuously,” had “many grimaces,” 

fought in his sleep, and could “control self for only 1 hour 

per day.” Id., at ER–230, ER–233. He “show[ed] progressive deterioration each semester since Kindergarten.” Id., 

at ER–230. School officials recommended placement in a

school for emotionally handicapped students and referral

to a neurologist. At age nine, he had an abnormal EEG,

revealing “an organic basis for his behavior.” Id., at ER– 

157, ER–234. Just months before the homicides, a doctor 

recommended placement in the Hope Psychiatric Institute, but this did not occur. 

This and other evidence attached to the petition was 

—————— 

17According to Pinholster’s half sister, “The death of our brother Alvin was a severe emotional blow to me and to Scott. I believed Scott’s 

substance abuse (heroin) arose following and as a result of Alvin’s 

death.” Record ER–314. 
Cite as: 563 U. S. ____ (2011) 23 

SOTOMAYOR, J., dissenting 

summarized in a declaration by Dr. George Woods. Dr. 

Woods opined that Pinholster “suffer[ed] from severe and 

long standing seizure disorders,” id., at ER–156, that his 

childhood head traumas “may have been the precipitating 

factors for [his] seizure disorder,” id., at ER–157, and that 

he suffered from bipolar mood disorder. He pointed to

trial testimony that immediately before the burglary on

the night of the homicides, Pinholster announced that he

“‘ha[d] a message from God’”—which Dr. Woods believed 

to reflect “[a]uditory hallucinations” and “severe psychosis.” Id., at ER–169. He concluded that at the time of the 

homicides Pinholster “was suffering from bipolar mood 

disorder with psychotic ideation and was suffering a complex partial seizure.” Id., at ER–170. He also observed 

that Pinholster’s “grossly dysfunctional family, the abuse 

he received as a child, his history of suffering from substantial seizure and mood disorders, his frequently untreated psychiatric and psychological disabilities and his

educational handicaps were relevant circumstances which 

would extenuate the gravity of the crime.” Id., at ER–171. 

On the basis of Pinholster’s submission, the California 

Supreme Court denied Pinholster’s ineffective-assistanceof-counsel claim. 

Pinholster then filed a habeas petition in Federal District Court. He included an additional exhibit: a declaration by Dr. John Stalberg, a psychiatrist who had hastily

examined Pinholster and produced a two-page report in

the middle of the original trial.18 After reviewing the new

material collected by Pinholster’s habeas counsel, Dr. 

Stalberg stated that the available evidence showed a 

—————— 

18Counsel had arranged for Dr. Stalberg to examine Pinholster in the 

middle of his original trial. The only documents they provided to him 

were police reports relating to the case and a 1978 probation report. In 

a two-page report that focused primarily on Pinholster’s mental state at 

the time of the offenses, Dr. Stalberg concluded that Pinholster had

“psychopathic personality traits.” Id., at ER–187. 
24 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

familial history of “severe psychiatric disorders,” “a history 

of seizure disorders of unknown etiology,” “repeated head 

traumas,” “an abnormal EEG,” and “evidence of mental 

disturbance during Mr. Pinholster’s childhood and some

degree of brain damage.” Id., at ER–493. He also opined 

that “there [was] voluminous mitigating evidence which

includes a childhood of physical abuse, emotional neglect,

and a family history of mental illness and criminal behavior.” Id., at ER–494. 

The District Court stayed the federal proceedings while

Pinholster sought state-court review of claims the District

Court deemed unexhausted. Pinholster’s second habeas 

submission to the California Supreme Court included

Stalberg’s declaration. That court summarily denied 

Pinholster’s petition on the merits. 

Pinholster returned to Federal District Court and filed 

an amended petition. After an evidentiary hearing, the 

District Court concluded that Pinholster had demonstrated deficient performance and prejudice under Strickland.19 The Ninth Circuit, sitting en banc, affirmed. 590 

F. 3d 651. 

B 

As the majority notes, Pinholster’s claim arises under 

Strickland v. Washington. “The benchmark for judging

any claim of ineffectiveness [under Strickland] must be

whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot

be relied on as having produced a just result.” 466 U. S., 

—————— 

19The District Court based its decision on the evidence adduced at an 

evidentiary hearing. The District Court did not apply 28 U. S. C. 

§2254(d) because it thought, erroneously, that the California Supreme 

Court had not adjudicated Pinholster’s claim on the merits. App. to

Pet. for Cert. 257. For the reasons I discuss, however, the District 

Court could have concluded that Pinholster had satisfied §2254(d)(1) on

the basis of the state-court record alone. 
Cite as: 563 U. S. ____ (2011) 25 

SOTOMAYOR, J., dissenting 

at 686. To satisfy this benchmark, a defendant must show 

both that “counsel’s performance was deficient” and that

“the deficient performance prejudiced the defense.” Id., at 

687. 

When §2254(d)(1) applies, the question is whether “‘fairminded jurists could disagree’ on the correctness of the 

state court’s decision.” Harrington, 562 U. S., at ___ (slip 

op., at 11) (quoting Yarborough v. Alvarado, 541 U. S. 652, 

664 (2004)). When the state court rejected a Strickland 

claim on the pleadings assuming the allegations to be

true, as here, see ante, at 16, n. 12, the federal court must 

ask whether “there is any reasonable argument” supporting the state court’s conclusion that the petitioner’s allegations did not state a claim, Harrington, 562 U. S., at ___ 

(slip op., at 16). This standard is “difficult,” but not impossible, “to meet.” Id., at ___ (slip op., at 12). This case is 

one in which fairminded jurists could not disagree that the

state court erred. 

C 

Under Strickland, “the defendant must show that counsel’s representation fell below an objective standard of 

reasonableness,” measured according to “prevailing professional norms.” 466 U. S., at 688. We “indulge a strong 

presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance.” Id., at 689. 

When §2254(d) applies, federal-court review is “‘doubly’” 

deferential. Harrington, 562 U. S., at ___ (slip op., at 16) 

(quoting Knowles v. Mirzayance, 556 U. S. ___, ___ (2009) 

(slip op., at 11)). In the present AEDPA posture, “[t]he

question is whether there is any reasonable argument that 

counsel satisfied Strickland’s deferential standard.” Harrington, 562 U. S., at ___ (slip op., at 16). Here, there is 

none. 

The majority surmises that counsel decided on a strategy “to get the prosecution’s aggravation witnesses ex-
26 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

cluded for lack of notice, and if that failed, to put on Pinholster’s mother.” Ante, at 19. This is the sort of “‘post 

hoc rationalization’ for counsel’s decisionmaking that 

contradicts the available evidence of counsel’s actions” 

that courts cannot indulge. Harrington, 562 U. S., at ___ 

(slip op., at 20) (quoting Wiggins v. Smith, 539 U. S. 510, 

526–527 (2003)). The majority’s explanation for counsel’s

conduct contradicts the best available evidence of counsel’s 

actions: Dettmar’s frank, contemporaneous statement to 

the trial judge that he “had not prepared any evidence by 

way of mitigation.” 52 Tr. 7250. The majority’s conjecture

that counsel had in fact prepared a mitigation defense, 

based primarily on isolated entries in counsel’s billing 

records, requires it to assume that Dettmar was lying to

the trial judge.20 

In any event, even if Pinholster’s counsel had a strategic 

reason for their actions, that would not automatically

render their actions reasonable. For example, had counsel 

decided their best option was to move to exclude the aggravating evidence, it would have been unreasonable to

forgo a mitigation investigation on the hope that the motion would be granted. With a client’s life at stake, it 

would “flou[t] prudence,” Rompilla v. Beard, 545 U. S. 374, 

—————— 

20The majority misleadingly cites entries showing that counsel were

preparing Brashear’s penalty phase testimony after counsel learned 

that the State intended to present aggravation evidence. The cited 

entries predating that event show only that counsel conducted about

one day’s worth of investigation—consisting of talking to Brashear and

researching epilepsy—two months before the penalty phase. See 3 

Clerk’s Tr. 798 (1.5-hour phone call to Brashear on Jan. 13); id., at 864, 

869 (3-hour meeting with Brashear regarding “childhood problems” on

Feb. 23); id., at 869 (3.5 hours for “[r]esearch re; epilepsy and conf. with

nurse” on Feb. 25). There is no evidence in the records that counsel 

actually planned to present mitigating evidence. Indeed, their complete

failure to follow up on any of the information they learned in their

minimal investigation only confirms that they were not planning to 

present mitigating evidence. See infra, at 29–31. 
Cite as: 563 U. S. ____ (2011) 27 

SOTOMAYOR, J., dissenting 

389 (2005), for an attorney to rely on the possibility that

the court might preclude aggravating evidence pursuant

to a “legal technicality” without any backup plan in place

in case the court denied the motion, ante, at 19. No reasonable attorney would pursue such a risky strategy. I do 

not understand the majority to suggest otherwise. 

Instead, I understand the majority’s conclusion that 

counsel’s actions were reasonable to rest on its belief that 

they did have a backup plan: a family-sympathy defense. 

In reaching this conclusion, the majority commits the 

same Strickland error that we corrected, applying 

§2254(d)(1), in Wiggins: It holds a purportedly “tactical 

judgment” to be reasonable without assessing “the adequacy of the investigatio[n] supporting [that] judgmen[t],” 

539 U. S., at 521. As we stated in Strickland: 

“[S]trategic choices made after thorough investigation 

of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable

precisely to the extent that reasonable professional 

judgments support the limitations on investigation. 

In other words, counsel has a duty to make reasonable 

investigations or to make a reasonable decision that 

makes particular investigations unnecessary. In any

ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in 

all the circumstances, applying a heavy measure of

deference to counsel’s judgments.” 466 U. S., at 690– 

691. 

We have repeatedly applied this principle since Strickland. See Sears v. Upton, 561 U. S. ___, ___ (2010) (per 

curiam) (slip op., at 9); Porter v. McCollum, 558 U. S. ___, 

___ (2009) (per curiam) (slip op., at 10); Wiggins, 539 U. S., 
28 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

at 527; Terry Williams, 529 U. S., at 396.21 

As these cases make clear, the prevailing professional

norms at the time of Pinholster’s trial required his attorneys to “conduct a thorough investigation of the defendant’s background,” ibid. (citing 1 ABA Standards for 

Criminal Justice 4–4.1, commentary, p. 4–55 (2d ed. 1980) 

(hereinafter ABA Standards)), or “to make a reasonable 

decision that makes particular investigations unnecessary,” Strickland, 466 U. S., at 691.22 “In judging the 

defense’s investigation, as in applying Strickland generally, hindsight is discounted by pegging adequacy to ‘counsel’s perspective at the time’ investigative decisions are

made, and by giving a ‘heavy measure of deference to 

counsel’s judgments.’” Rompilla, 545 U. S., at 381 (quoting Strickland, 466 U. S., at 689, 691; citation omitted). In 

some cases, “reasonably diligent counsel may draw a line 

when they have good reason to think further investigation 

would be a waste.” Rompilla, 545 U. S., at 383; see, e.g., 

Bobby v. Van Hook, 558 U. S. ___, ___ (2009) (per curiam) 

(slip op., at 8); Burger v. Kemp, 483 U. S. 776, 794–795 

(1987). In other cases, however, Strickland requires further investigation. 

—————— 

21 I do not doubt that a decision to present a family-sympathy mitigation defense might be consistent “with the standard of professional 

competence in capital cases that prevailed in Los Angeles in 1984” in 

some cases. Ante, at 24. My point is that even if counsel made a

strategic decision to proceed with such a defense, that decision was

unreasonable because it was based on an unreasonably incomplete

investigation. 22See also 1 ABA Standards 4–4.1, commentary, at 4–55 (“Information concerning the defendant’s background, education, employment 

record, mental and emotional stability, family relationships, and the

like, will be relevant, as will mitigating circumstances surrounding the 

commission of the offense itself”). As we recognized in Strickland, the 

ABA Standards, though not dispositive, “are guides to determining 

what is reasonable.” 466 U. S., at 688; see also Wiggins v. Smith, 539 

U. S. 510, 524 (2003). 
Cite as: 563 U. S. ____ (2011) 29 

SOTOMAYOR, J., dissenting 

Wiggins is illustrative of the competence we have required of counsel in a capital case. There, counsel’s investigation was limited to three sources: psychological 

testing, a presentencing report, and Department of Social 

Services records. 539 U. S., at 523–524. The records 

revealed that the petitioner’s mother was an alcoholic,

that he displayed emotional difficulties in foster care, that 

he was frequently absent from school, and that on one

occasion, his mother left him alone for days without food. 

Id., at 525. In these circumstances, we concluded, “any 

reasonably competent attorney would have realized that 

pursuing these leads was necessary to making an informed choice among possible defenses.” Ibid. Accordingly, we held, the state court’s assumption that counsel’s

investigation was adequate was an unreasonable application of Strickland. 539 U. S., at 528.23 

This case is remarkably similar to Wiggins. As the 

majority reads the record, counsel’s mitigation investigation consisted of talking to Pinholster’s mother, consulting

with Dr. Stalberg, and researching epilepsy.24 Ante, at 20. 

What little information counsel gleaned from this “rudimentary” investigation, Wiggins, 539 U. S., at 524, would 

have led any reasonable attorney “to investigate further,” 

id., at 527. Counsel learned from Pinholster’s mother that 

he attended a class for educationally handicapped children, that a psychologist had recommended placing him in

a mental institution, and that he spent time in a state 

—————— 

23As the majority notes, see ante, at 24–25, Wiggins’ trial counsel

acknowledged that the investigation he conducted was inconsistent

with standard practice in Maryland. See 539 U. S., at 524. We independently concluded, however, that the investigation “was also unreasonable in light of what counsel actually discovered in the . . . records.” 

Id., at 525 (emphasis added). 24The majority also posits that Brainard likely spent time preparing

Pinholster’s brother Terry. However, Terry averred in a declaration 

that Pinholster’s attorneys “never asked [him] any questions relating to

Scott’s background or [their] family history.” Record ER–313. 
30 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

hospital for emotionally handicapped children. They knew

that Pinholster had been diagnosed with epilepsy.

“[A]ny reasonably competent attorney would have realized that pursuing” the leads suggested by this information “was necessary to making an informed choice among 

possible defenses.” Id., at 525; see also Penry v. Lynaugh, 

492 U. S. 302, 319 (1989) (“[E]vidence about the defendant’s background and character is relevant because of the 

belief, long held by this society, that defendants who 

commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, 

may be less culpable than defendants who have no such

excuse” (internal quotation marks omitted)). Yet counsel 

made no effort to obtain the readily available evidence

suggested by the information they learned, such as Pinholster’s schooling or medical records, or to contact 

Pinholster’s school authorities. They did not contact Dr. 

Dubin or the many other health-care providers who had 

treated Pinholster. Put simply, counsel “failed to act while 

potentially powerful mitigating evidence stared them in 

the face.” Bobby, 558 U. S., at ___ (slip op., at 8) (citing 

Wiggins, 539 U. S., at 525). 

The “impediments” facing counsel, ante, at 21, did not 

justify their minimal investigation. It is true that Pinholster was “an unsympathetic client.” Ibid. But this fact 

compounds, rather than excuses, counsel’s deficiency in 

ignoring the glaring avenues of investigation that could 

explain why Pinholster was the way he was. See Sears, 

561 U. S., at ___ (slip op., at 7) (“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”). Nor can Dr. Stalberg’s two-page report,

which was based on a very limited record and focused 

primarily on Pinholster’s mental state at the time of 

the homicides, excuse counsel’s failure to investigate the 
Cite as: 563 U. S. ____ (2011) 31 

SOTOMAYOR, J., dissenting 

broader range of potential mitigating circumstances. 

“The record of the actual sentencing proceedings underscores the unreasonableness of counsel’s conduct by

suggesting that their failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment.” 

Wiggins, 539 U. S., at 526. Dettmar told the trial judge

that he was unprepared to present any mitigation evidence. The mitigation case that counsel eventually put on

can be described, at best, as “halfhearted.” Ibid. Counsel 

made no effort to bolster Brashear’s self-interested testimony with school or medical records, as the prosecutor

effectively emphasized in closing argument. And because 

they did not pursue obvious leads, they failed to recognize 

that Brashear’s testimony painting Pinholster as the bad 

apple in a normal, nondeprived family was false. 

In denying Pinholster’s claim, the California Supreme 

Court necessarily overlooked Strickland’s clearly established admonition that “strategic choices made after less 

than complete investigation are reasonable precisely to 

the extent that reasonable professional judgments support 

the limitations.” 466 U. S., at 690–691. As in Wiggins, in 

light of the information available to Pinholster’s counsel, it 

is plain that “reasonable professional judgments” could not

have supported their woefully inadequate investigation.25 

466 U. S., at 691. Accordingly, the California Supreme 

Court could not reasonably have concluded that Pinholster 

—————— 

25The majority chastises the Court of Appeals for “attributing strict

rules to this Court’s recent case law.” Ante, at 24. I agree that courts 

should not interpret our cases to prescribe strict rules regarding the 

required scope of mitigation investigations. See Rompilla v. Beard, 545 

U. S. 374, 394 (2005) (O’Connor, J., concurring) (noting “our longstanding case-by-case approach to determining whether an attorney’s performance was unconstitutionally deficient under Strickland”). The 

Ninth Circuit, however, did no such thing. It appropriately gave 

thoughtful consideration to the guideposts contained in these cases, 

just as we have previously done. See, e.g., Bobby v. Van Hook, 558 

U. S. ___, ___ (2009) (per curiam) (slip op., at 8). 
32 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

had failed to allege that his counsel’s investigation was

inadequate under Strickland. 

D 

The majority also concludes that the California Supreme

Court could reasonably have concluded that Pinholster did 

not state a claim of prejudice. This conclusion, in light of 

the overwhelming mitigating evidence that was not before

the jury, is wrong. 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.” Id., at 694. When a 

habeas petitioner challenges a death sentence, “the question is whether there is a reasonable probability that, 

absent the errors, the sentencer . . . would have concluded 

that the balance of aggravating and mitigating circumstances did not warrant death.” Id., at 695. This inquiry

requires evaluating “the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding—in reweighing it 

against the evidence in aggravation.” Terry Williams, 529 

U. S., at 397–398. The ultimate question in this case is 

whether, taking into account all the mitigating and aggravating evidence, “there is a reasonable probability that at 

least one juror would have struck a different balance.” 

Wiggins, 539 U. S., at 537; see Cal. Penal Code Ann. 

§190.4(b) (West 2008) (requiring a unanimous jury verdict 

to impose a death sentence). 

1 

Like the majority, I first consider the aggravating and

mitigating evidence presented at trial. By virtue of its

verdict in the guilt phase, the jury had already concluded 

that Pinholster had stabbed and killed the victims. As the 

majority states, the jury saw Pinholster “revel” in his

history of burglaries during the guilt phase. Ante, at 26. 
Cite as: 563 U. S. ____ (2011) 33 

SOTOMAYOR, J., dissenting 

The jury heard evidence of Pinholster’s violent tendencies: 

He had kidnapped someone with a knife, cut a person in 

the arm with a razor, and had a history of hitting and

kicking people. He threatened to kill the State’s lead 

witness. And he had an extensive disciplinary record in 

jail.

Brashear offered brief testimony that was apparently

intended to be mitigating. See supra, at 19–20; see also 

ante, at 27–28.26 However, as the prosecutor argued,

Brashear was not a neutral witness. See 53 Tr. 7441 (“A 

mother clearly loves her son, ladies and gentlemen.

Clearly not the most unbiased witness in the world”).

Notwithstanding Brashear’s obvious self-interest, counsel 

failed to offer readily available, objective evidence that

would have substantiated and expanded on her testimony.

Their failure to do so allowed the prosecutor to belittle her 

testimony in closing argument. See supra, at 19–20. And 

Brashear’s statement that Pinholster would not be alive 

much longer because he had “a chip in his head floating

around,” 52 Tr. 7397, could only have undermined her 

credibility, as the prosecutor urged, see 53 id., at 7447 

(“Does she want you to believe sometime before he got to 

—————— 

26The majority mischaracterizes several aspects of Brashear’s testimony. Although Brashear testified that the family “didn’t have lots of

money,” she followed up that comment by stating that Pinholster did

not bring friends to the house because “it was too nice a house.” 52 Tr. 

7404. The prosecutor did not understand Brashear to have testified 

that Pinholster’s childhood was deprived. See 53 id., at 7442 (“You 

heard that he was not a deprived child”). Nor did the California Supreme Court on direct appeal. People v. Pinholster, 1 Cal. 4th 865, 910, 

824 P. 2d 571, 587 (1992). 

Brashear did testify that Pinholster’s stepfather tried to “discipline” 

him and that he was “at times” “abusive or near abusive.” 52 Tr. 7392– 

7393. She suggested, however, that Pinholster deserved the “discipline” he received. See, e.g., id., at 7392 (“Scott was always—he had a 

mind of his own”). It is unlikely the jury understood Brashear to be

suggesting that her husband routinely beat Pinholster. The prosecutor 

did not come away with this understanding. See 53 id., at 7442. 
34 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

country jail some doctor looked in a crystal ball and

said, ‘In three years you are going to die’? That’s ridiculous”). The trial judge was thoroughly unimpressed with

Brashear’s testimony. See supra, at 20. 

Moreover, the evidence presented in Pinholster’s statecourt petition revealed that Brashear distorted facts in her

testimony in ways that undermined Pinholster’s mitigation case. As in Sears, 561 U. S., at ___ (slip op., at 3), the

prosecutor used Brashear’s testimony that Pinholster 

came from a good family against him. See 53 Tr. 7442. 

In sum, counsel presented little in the way of mitigating

evidence, and the prosecutor effectively used their halfhearted attempt to present a mitigation case to advocate

for the death penalty. The jury nonetheless took two days

to reach a decision to impose a death sentence. 

2 

The additional mitigating evidence presented to the

California Supreme Court “adds up to a mitigation case

that bears no relation” to Brashear’s unsubstantiated 

testimony. Rompilla, 545 U. S., at 393. 

Assuming the evidence presented to the California 

Supreme Court to be true, as that court was required to

do, the new mitigating evidence presented to that court

would have shown that Pinholster was raised in “chaos 

and poverty.” Record ER–312. The family home was filled

with violence. Pinholster’s siblings had extremely troubled pasts. There was substantial evidence of “mental 

disturbance during Mr. Pinholster’s childhood and some

degree of brain damage.” Id., at ER–493. 

Dr. Woods concluded that Pinholster’s aggressive conduct resulted from bipolar mood disorder. Just months 

before the murders, a doctor had recommended that Pinholster be sent to a psychiatric institute. Dr. Woods also 

explained that Pinholster’s bizarre behavior before the

murders reflected “[a]uditory hallucinations” and “severe 
Cite as: 563 U. S. ____ (2011) 35 

SOTOMAYOR, J., dissenting 

psychosis.” Id., at ER–169. The available records confirmed that Pinholster suffered from longstanding seizure 

disorders, which may have been caused by his childhood 

head injuries.

On this record, I do not see how it can be said that “[t]he

‘new’ evidence largely duplicated the mitigation evidence 

at trial.” Ante, at 29; see Arizona v. Fulminante, 499 U. S. 

279, 298–299 (1991) (evidence is not “merely cumulative” 

if it corroborates other evidence that is “unbelievable” on 

its own). Brashear’s self-interested testimony was not 

confirmed with objective evidence, as the prosecutor highlighted. The new evidence would have “destroyed the

[relatively] benign conception of [Pinholster’s] upbringing”

presented by his mother. Rompilla, 545 U. S., at 391. The 

jury heard no testimony at all that Pinholster likely suffered from brain damage or bipolar mood disorder, and 

counsel offered no evidence to help the jury understand 

the likely effect of Pinholster’s head injuries or his bizarre

behavior on the night of the homicides. The jury heard no 

testimony recounting the substantial evidence of Pinholster’s likely neurological problems. And it heard no medical evidence that Pinholster suffered from epilepsy.

The majority responds that “much” of Pinholster’s new 

mitigating evidence “is of questionable mitigating value.” 

Ante, at 29. By presenting psychiatric testimony, it contends, “Pinholster would have opened the door to rebuttal 

by a state expert.” Ibid. But, because the California 

Supreme Court denied Pinholster’s petition on the pleadings, it had no reason to know what a state expert might 

have said. Moreover, given the record evidence, it is reasonably probable that at least one juror would have credited his expert. In any event, even if a rebuttal expert 

testified that Pinholster suffered from antisocial personality disorder, this would hardly have come as a surprise to 

the jury. See ante, at 22 (describing Pinholster as a “psychotic client whose performance at trial hardly endeared 
36 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

him to the jury”). It is for this reason that it was especially important for counsel to present the available evidence to help the jury understand Pinholster. See Sears, 

561 U. S., at ___ (slip op., at 6–7). 

Had counsel conducted an adequate investigation, the

judge and jury would have heard credible evidence showing that Pinholster’s criminal acts and aggressive tendencies were “attributable to a disadvantaged background, or

to emotional and mental problems.” Penry, 492 U. S., at 

319 (internal quotation marks omitted). They would have

learned that Pinholster had the “‘kind of troubled history 

we have declared relevant to assessing a defendant’s 

moral culpability.’” Porter, 558 U. S., at ___ (slip op., at 12) 

(quoting Wiggins, 539 U. S., at 535). Applying Strickland, 

we have repeatedly found “a reasonable probability,” 466

U. S., at 694, that the sentencer would have reached a 

different result had counsel presented similar evidence.

See, e.g., Porter, 558 U. S., at ___ (slip op., at 12–13) (evidence of the defendant’s childhood history of physical

abuse, brain abnormality, limited schooling, and heroic

military service); Rompilla, 545 U. S., at 392 (evidence of 

severe abuse and neglect as a child, as well as brain

damage); Wiggins, 539 U. S., at 535 (evidence of the defendant’s “severe privation and abuse” as a child, homelessness, and “diminished mental capacities”); Terry 

Williams, 529 U. S., at 398 (evidence of childhood 

mistreatment and neglect, head injuries, possible organic 

mental impairments, and borderline mental retardation).

The majority does not dispute the similarity between

this case and the cited cases. However, it criticizes the 

Court of Appeals for relying on Rompilla and Terry Williams on the ground that we reviewed the prejudice question de novo in those cases. See ante, at 31. I do not read 

Terry Williams to review the prejudice question de novo.27 

—————— 

27 Terry Williams held that the state court’s decision was “unreason-
Cite as: 563 U. S. ____ (2011) 37 

SOTOMAYOR, J., dissenting 

More fundamentally, however, I cannot agree with the

premise that “[t]hose cases . . . offer no guidance with

respect to whether a state court has unreasonably determined that prejudice is lacking.” Ante, at 31 (emphasis 

deleted). In each of these cases, we did not purport to

create new law; we simply applied the same clearly established precedent, Strickland, to a different set of facts. 

Because these cases illuminate the kinds of mitigation 

evidence that suffice to establish prejudice under Strickland, they provide useful, but not dispositive, guidance for 

courts to consider when determining whether a state court 

has unreasonably applied Strickland. 

In many cases, a state court presented with additional

mitigation evidence will reasonably conclude that there is

no “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Strickland, 466 U. S., at 694. This is not such 

a case. Admittedly, Pinholster unjustifiably stabbed and 

killed two people, and his history of violent outbursts and 

burglaries surely did not endear him to the jury. But the 

homicides did not appear premeditated. And the State’s 

aggravation case was no stronger than in Rompilla and 

Terry Williams. See 545 U. S., at 378, 383 (the defendant 

committed murder by torture and had a significant history 

of violent felonies, including a rape); 529 U. S., at 418

(Rehnquist, C. J., concurring in part and dissenting in

part) (the defendant had a lifetime of crime, and after the 

murder he “savagely beat an elderly woman,” set a home

on fire, and stabbed a man (internal quotation marks 

omitted)). Even on the trial record, it took the jury two 

days to decide on a penalty. The contrast between the “not 

—————— 

able in at least two respects”: (1) It applied the wrong legal standard,

see 529 U. S., at 397, and (2) it “failed to accord appropriate weight to 

the body of mitigation evidence available to trial counsel,” id., at 398.

We did not purport to conduct de novo review. 
38 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

persuasive” mitigation case put on by Pinholster’s counsel,

54 Tr. 7514, and the substantial mitigation evidence at

their fingertips was stark. Given these considerations, it 

is not a foregone conclusion, as the majority deems it, that

a juror familiar with his troubled background and psychiatric issues would have reached the same conclusion 

regarding Pinholster’s culpability. Fairminded jurists

could not doubt that, on the record before the California 

Supreme Court, “there [was] a reasonable probability that

at least one juror would have struck a different balance.” 

Wiggins, 539 U. S., at 537. 

III 

The state-court record on its own was more than adequate to support the Court of Appeals’ conclusion that the 

California Supreme Court could not reasonably have 

rejected Pinholster’s Strickland claim. The additional 

evidence presented in the federal evidentiary hearing only 

confirms that conclusion. 

A 

At the hearing, Pinholster offered many of the same

documents that were before the state habeas court. He 

also offered his trial attorneys’ billing records, which were 

before the state habeas court as part of the trial record. Of 

the seven lay witnesses who testified at the hearing, six 

had previously executed declarations in support of Pinholster’s state-court petition. (The seventh, Pinholster’s

uncle, provided testimony cumulative of other testimony.)

Two experts testified on Pinholster’s behalf; neither had 

presented declarations to the state habeas court. The first 

was Dr. Donald Olson, assistant professor of neurology 

and neurological sciences and director of the Pediatric

Epilepsy Program at Stanford University Medical Center. 

It appears that Pinholster retained Dr. Olson to rebut the

testimony of the expert disclosed by the State in the fed-
Cite as: 563 U. S. ____ (2011) 39 

SOTOMAYOR, J., dissenting 

eral proceeding. See Decl. of Michael D. Abzug in Support 

of Stipulated Ex Parte Application to Continue Evidentiary Hearing and Discovery Cut-Off and to Substitute

Counsel in Pinholster v. Calderon, No. CV 95–6240–GLT 

(CD Cal.), p. 2. Relying in part on Pinholster’s abnormal 

EEG, Dr. Olson opined that Pinholster’s childhood accidents “likely result[ed] in brain injury” and that these

injuries “conferred a risk of epilepsy.” Record ER–699 to 

ER–700. He concluded that it was reasonably probable 

that Pinholster had suffered from partial epilepsy since at 

least 1968 and had suffered from brain injury since at 

least 1964. Id., at ER–701. 

Pinholster’s second expert was Dr. Sophia Vinogradov,

associate professor of psychiatry at the University of 

California, San Francisco. Dr. Vinogradov’s testimony 

was based on essentially the same facts as Dr. Woods’ and 

Dr. Stalberg’s state-court declarations. She highlighted

Pinholster’s childhood head traumas, history of epilepsy,

abusive and neglected upbringing, history of substance 

abuse, and bizarre behavior on the night of the homicides.

She opined that his aggressive behavior resulted from 

childhood head traumas: 

“All data indicates that there were severe effects of 

the two serious head injuries sustained at age 2 and

age 3, with evidence for behavioral changes related to 

dysfunction of frontal cortex: severe attentional and 

learning problems in childhood, hyperactivity, aggressivity, impulsivity, social-emotional impairment, seizure disorder, and explosive dyscontrol.” Id., at ER– 

731. 

She also opined that, right before the homicides, Pinholster was in an “apparently hallucinatory state [that] was

likely the result of his intoxication with multiple substances.” Id., at ER–707 

The State presented two experts: Dr. Stalberg, the 
40 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

psychiatrist who had examined Pinholster in the middle of

trial,28 and Dr. David Rudnick. Although Dr. Stalberg

maintained that Pinholster suffered from antisocial personality disorder, which was his original diagnosis in the

middle of trial, he again emphasized that there was “voluminous” and “compelling” mitigation evidence that had 

not previously been made available to him or presented to

the jury. Id., at ER–926, ER–953. He stated that conversations with Pinholster’s family revealed that he and his

siblings were “raised like animals, wild animals,” id., at 

ER–948, and he opined that Pinholster’s upbringing was a

risk factor for antisocial personality disorder. See ibid. 

(Pinholster’s upbringing “would speak volumes, looking at

it from a mitigation point of view”). And he agreed that

the mitigation evidence presented at trial was “profoundly

misleading.” Id., at ER–966. Dr. Rudnick testified that 

Pinholster suffered from antisocial personality disorder. 

The State also introduced into evidence the 1978 probation report that Pinholster’s counsel had in their possession at the time of his trial. The report demonstrated that

counsel were aware that Pinholster was in classes for 

educationally handicapped children, that he was committed to a state hospital for emotionally handicapped children, and that he suffered two “severe head injuries.” Id., 

at SER–243. 

B 

Much of the evidence presented at the federal hearing 

—————— 

28Before the hearing, Dr. Stalberg had opined that Pinholster was

“substantially impaired by a bipolar mood disorder operating synergistically with intoxication and a seizure disorder at the time the crime 

was committed.” Record ER–587. At a prehearing deposition, however,

Dr. Stalberg revised his opinion and stated that he continued to believe

that Pinholster suffered from psychopathic personality traits. After the 

deposition, Pinholster elected to proceed with a different expert, presumably in light of Dr. Stalberg’s unexpected change in position. The 

State then retained Dr. Stalberg as its own expert. 
Cite as: 563 U. S. ____ (2011) 41 

SOTOMAYOR, J., dissenting 

was duplicative of the evidence submitted to the California 

Supreme Court. The additional evidence presented at the

hearing only confirmed that the California Supreme Court 

could not reasonably have rejected Pinholster’s claim.29 

For example, the probation report presented by the

State confirmed that counsel had in their possession information that would have led any reasonable attorney “to

investigate further.” Wiggins, 539 U. S., at 527. Counsel 

nevertheless took no action to investigate these leads. 

Pinholster’s experts opined that his childhood head 

traumas likely resulted in brain injury and conferred a

risk of epilepsy. Although the State presented testimony

that Pinholster had antisocial personality disorder, it was 

not clear error for the District Court to conclude that 

jurors could have credited Pinholster’s experts. Even the 

—————— 

29The State argues that the District Court was not entitled to rely on 

the evidence adduced at the hearing because Pinholster was not diligent in developing his claims in state court and the hearing was therefore barred by 28 U. S. C. §2254(e)(2). This argument is somewhat 

imprecise. Pinholster’s allegations in his amended federal petition 

were “identical” to the allegations he presented to the California 

Supreme Court, ante, at 6, and he diligently requested a hearing in 

state court. The State presumably means to argue that Pinholster’s 

new expert testimony changed “the factual basis” of his claim such that, 

by the time of the evidentiary hearing, he no longer satisfied 

§2254(e)(2). However, at oral argument, the State suggested that

Pinholster was presenting an altogether new claim in the federal court. 

See Tr. of Oral Arg. 18. If that is the case, §2254(d)(1) does not apply at

all, and the State should be arguing lack of exhaustion or procedural 

default. I do not understand Pinholster to have presented a new claim 

to the District Court. 

In any event, Pinholster satisfied §2254(e)(2) in this case. He made 

“a reasonable attempt, in light of the information available at the time, 

to investigate and pursue claims in state court.” Michael Williams, 529 

U. S., at 435. His experts relied on the very same facts and evidence. I 

cannot read §2254(e)(2) to impose a strict requirement that petitioners 

must use the same experts they presented to the state court. This rule 

would result in numerous practical problems, for example in the case of

the unanticipated death of an expert. 
42 CULLEN v. PINHOLSTER 

SOTOMAYOR, J., dissenting 

State’s own expert, Dr. Stalberg, testified to the “voluminous” mitigation evidence in Pinholster’s case. Record ER–

926. 

In sum, the evidence confirmed what was already apparent from the state-court record: Pinholster’s counsel 

failed to conduct an adequate mitigation investigation,

and there was a reasonable probability that at least one

juror confronted with the “voluminous” mitigating evidence counsel should have discovered would have voted to 

spare Pinholster’s life. Ibid. Accordingly, whether on the 

basis of the state- or federal-court record, the courts below 

correctly concluded that Pinholster had shown that the 

California Supreme Court’s decision reflected an unreasonable application of Strickland.30 

* * * 

I cannot agree with either aspect of the Court’s ruling. I 

fear the consequences of the Court’s novel interpretation 

of §2254(d)(1) for diligent state habeas petitioners with 

compelling evidence supporting their claims who were 

unable, through no fault of their own, to present that

evidence to the state court that adjudicated their claims. 

And the Court’s conclusion that the California Supreme 

Court reasonably denied Pinholster’s ineffectiveassistance-of-counsel claim overlooks counsel’s failure to 

investigate obvious avenues of mitigation and the contrast 

between the woefully inadequate mitigation case they 

presented and the evidence they should and would have

discovered. I respectfully dissent. 

—————— 

30The State’s challenge in this Court is limited to the questions

whether the Federal District Court was entitled to consider the additional evidence in the §2254(d)(1) analysis and whether Pinholster 

satisfied §2254(d)(1) on the basis of the state-court record. It has not 

challenged the District Court’s ultimate conclusion that Pinholster had 

proved that he was “in custody in violation of the Constitution or laws 

or treaties of the United States.” §2254(a).