Per Curiam

Cite as: 586 U. S. ____ (2019) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

DONNIE CLEVELAND LANCE v. ERIC SELLERS, 

WARDEN 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 

No. 17–1382. Decided January 7, 2019 

The petition for a writ of certiorari is denied. 

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG and 

JUSTICE KAGAN join, dissenting from denial of certiorari. 

Before deciding that petitioner Donnie Cleveland Lance

should die as punishment for two murders he committed, 

a jury heard no evidence whatsoever to counterbalance the 

State’s case for the death penalty. Lance’s counsel bore 

responsibility for the one-sidedness of the sentencing

proceedings; he inexcusably failed even to look into, much 

less to put on, a case for sparing Lance’s life. And we have 

since learned that Lance suffers from significant cognitive

impairments that the jury could have weighed in assessing his moral culpability. In other words, there is a 

meaningful case to be made for sparing Lance’s life, but— 

because he lacked access to constitutionally adequate

counsel—he has never had a chance to present it.

The Georgia Supreme Court concluded that this state of 

affairs was constitutionally tolerable because, in its view,

Lance’s untold story stood no chance of persuading even a 

single juror to favor life without parole over a death sentence. The U. S. Court of Appeals for the Eleventh Circuit

held that its conclusion was not unreasonable. I cannot 

agree. Our precedents clearly establish that Lance was 

prejudiced by his inability to inform the jury about his

impairments. I therefore would grant Lance’s petition for 

review and summarily reverse. 
 

Per Curiam

2 LANCE v. SELLERS 

SOTOMAYOR, J., dissenting 

I 

A 

The facts of Lance’s crimes—murdering his ex-wife, 

Sabrina “Joy” Lance, and her boyfriend, Dwight “Butch”

Wood, Jr., in 1997—admittedly inspire little sympathy. 

Lance went to Butch’s home, kicked in the front door, shot 

Butch with a shotgun, then bludgeoned Joy to death with

the gun. According to a fellow inmate, he later bragged 

about the killings. Lance also had an extensive prior

history of domestic violence against Joy.1 

Due to his counsel’s ineffectiveness, however, those facts 

were all the jurors ever learned about Lance; they heard

no evidence why his life was worth sparing. Lance was 

represented during both the guilt and penalty phases of 

his trial by a solo practitioner who became convinced of 

Lance’s innocence—and his own ability to prove it—early 

in the representation. He thus prepared exclusively for 

the guilt-or-innocence phase of the trial. Counsel did not 

even broach the subject of possible penalty-phase evidence 

with Lance or his family, because he did not want them

“thinking that [he] might be thinking in terms of losing

the case.” App. to Pet. for Cert. 232. So when the jury

found Lance guilty and the question became whether 

Lance should be put to death,2 Lance’s counsel had no 

evidence whatsoever to present. 

—————— 

1Lance previously had kidnapped Joy, electrocuted her, beaten her, 

strangled her, and threatened her with various other harms. He also 

repeatedly had threatened to kill her if she left him or became involved

with Butch. Four years earlier, Lance and a friend took a shotgun to 

Butch’s home and kicked in the door, but fled when a child inside spoke

to them. 2The jury found that two aggravating circumstances supported 

Lance’s eligibility for the death penalty: that he committed a double 

murder and that Joy’s killing was “outrageously or wantonly vile,

horrible, or inhuman.” App. to Pet. for Cert. 74; Lance v. State, 275 Ga. 

11, 23, 560 S. E. 2d 663, 677 (2002); see also Ga. Code Ann. §§17–10– 

30(b)(2), (b)(7) (Supp. 2018). 
Per Curiam

Cite as: 586 U. S. ____ (2019) 3 

SOTOMAYOR, J., dissenting 

The State did. It called six witnesses, including the 

victims’ relatives, to explain why Lance deserved to die. 

The State’s closing argument emphasized Lance’s history 

of violence against Joy, the brutality of her killing, and 

Lance’s apparent lack of remorse. The State urged the

jury to perceive Lance as “‘cold and calculating’” and 

repeatedly asked “‘what kind of person’” would do these 

things. 1 App. in No. 16–15008 (CA11), pt. 1, pp. 68, 75, 

77. Lance’s counsel, by contrast, made no opening statement and presented no mitigating evidence. By his own

admission, he “had nothing to put on.” App. to Pet. for 

Cert. 273. His closing argument merely urged the jury to 

consider Lance’s family and to resist the temptation to 

exact vengeance. About Lance, counsel said only that he 

was “‘kind of a quiet person and a country boy’” who 

“‘doesn’t talk a lot.’” 1 App. in No. 16–15008, pt. 1, at 85. 

The jury sentenced Lance to death. 

B 

In 2003, Lance filed a petition for postconviction relief in

state court, asserting that his trial counsel’s failure to 

investigate or present any mitigating evidence was ineffective assistance of counsel. Essentially, he argued that

there was a meaningful case to be made for sparing his

life, and that his counsel had forfeited his chance to do so 

through inattention.

The evidence showed that counsel could have found 

possible cognitive problems had he looked into Lance’s 

personal history. That history included repeated serious

head traumas caused by multiple car crashes, alcoholism, 

and—most seriously—Lance’s once being shot in the head 

by unknown assailants while lying on his couch.3 In the 

—————— 

3 In addition to the history discussed by the court, Lance also ingested

gasoline as a small child, was trampled by a horse as a teenager, and 

once was overcome by fumes while working to clean the interior of an 

oil tanker truck. 1 App. in No. 16–15008, pt. 2, pp. 202–203. 
 

 

Per Curiam

4 LANCE v. SELLERS 

SOTOMAYOR, J., dissenting 

aftermath of the shooting, Lance had “terrible headaches,”

“dizziness,” “difficulty working,” and “became even more 

quiet than he had before.” App. to Pet. for Cert. 171–172. 

The court found that any reasonable defense attorney

would have had Lance’s mental health evaluated and, in 

so doing, uncovered “significant mitigating evidence for 

the jury to consider.” Id., at 174. 

Four mental health professionals testified at an evidentiary hearing.4 They agreed on many points. First, Lance 

had permanent damage to his brain’s frontal lobe. Second, 

his IQ placed him in the borderline range for intellectual 

disability. Third, his symptoms warranted a diagnosis of 

clinical dementia. The experts differed somewhat, however,

over the extent and practical consequences of Lance’s

brain damage. Primarily, the experts seemed to disagree

about the extent to which Lance’s brain damage affected 

his impulse control.5 

The Superior Court granted Lance’s habeas petition and 

vacated his death sentence, holding that trial counsel’s

failure to investigate and present evidence of Lance’s 

mental condition was deficient performance, and that his

failure prejudiced Lance. The missing evidence could have 

—————— 

4Lance put on Thomas Hyde, an expert in behavioral neurology; Ricardo Weinstein, an expert in neuropsychology; and David Pickar, an 

expert in psychiatry and clinical neuroscience. The State called Daniel 

Martell, an expert in neuropsychology. (A fifth expert’s unsworn report 

was ruled inadmissible by the Georgia Supreme Court. See Hall v. 

Lance, 286 Ga. 365, 371, n. 1, 687 S. E. 2d 809, 815, n. 1 (2010).) 5Hyde, Weinstein, and Pickar opined that the type and extent of 

damage reflected in Lance’s test results would adversely affect his 

ability to suppress impulsive behavior. Weinstein and Hyde added that

the damage could impair Lance’s ability to conform his conduct to the 

law, and Hyde noted that the effects of Lance’s impairments would be 

most acute in moments of emotional stress. Martell, in contrast, saw 

no direct evidence of impulse-control difficulties and opined that 

Lance’s brain damage would not “ ‘prevent him’ ” from conforming his 

conduct to the law. 1 App. in No. 16–15008, pt. 3, at 170. 
Per Curiam

Cite as: 586 U. S. ____ (2019) 5 

SOTOMAYOR, J., dissenting 

prompted a different sentence, the court explained, because it went directly to the key issue before the jury: the

assessment of Lance’s character, culpability, and worth. 

The Georgia Supreme Court, however, reversed and 

reinstated Lance’s death sentence. Hall v. Lance, 286 Ga. 

365, 687 S. E. 2d 809 (2010). It agreed that counsel’s

performance was deficient but held that Lance suffered no 

prejudice. As relevant here, it held that even if the jury 

had considered at trial all the neuropsychological evidence 

adduced at the postconviction hearing, there was no reasonable probability that Lance’s sentence would have 

changed.6 In the Georgia Supreme Court’s view, the new

evidence was only “somewhat mitigating” because it

showed only “subtle neurological impairments,” which 

would necessarily have been outweighed by Lance’s prior 

threats and violence toward the victims, the nature of the 

crime, and Lance’s statements and demeanor in its aftermath. Id., at 373, 687 S. E. 2d, at 815–816. 

C 

Lance sought a federal writ of habeas corpus. The U. S. 

District Court for the Northern District of Georgia denied

the petition but granted a certificate of appealability. 

Under the deferential review provisions of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U. S. C. 

§2254(d), the U. S. Court of Appeals for the Eleventh

Circuit affirmed, holding that the Georgia Supreme 

Court’s conclusion that the absence of the postconviction

mental health evidence caused Lance no prejudice “was 

not unreasonable.” Lance v. Warden, 706 Fed. Appx. 565,

573 (2017). 

—————— 

6As an alternative ground for finding no prejudice, the Georgia Supreme Court also hypothesized that even an adequate investigation

would not have uncovered the evidence that Lance presented at the 

postconviction hearing. That conclusion is not implicated by Lance’s 

petition because the Court of Appeals did not address it. 
 

Per Curiam

6 LANCE v. SELLERS 

SOTOMAYOR, J., dissenting 

II 

To prevail on a Sixth Amendment ineffective-assistanceof-counsel claim, a defendant must show both that his 

counsel’s performance was deficient and that his counsel’s

errors caused him prejudice. In assessing deficiency, a 

court asks whether defense “counsel’s representation fell

below an objective standard of reasonableness.” Strickland v. Washington, 466 U. S. 668, 688 (1984). To establish prejudice, a 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, as here, a petitioner seeks

federal habeas review of a state court’s rejection of his

ineffective-assistance-of-counsel claim, he can prevail only 

if the decision was “contrary to, or involved an unreasonable application of,” Strickland and its progeny, or rested

“on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 28 

U. S. C. §2254(d).

Because the Supreme Court of Georgia mischaracterized 

or omitted key facts and improperly weighed the evidence, 

I agree with Lance that its decision was an objectively 

“unreasonable application of ” our precedents. §2254(d)(1); 

see Wiggins v. Smith, 539 U. S. 510, 528 (2003). I would 

therefore grant the petition and summarily reverse. 

A 

With regard to Strickland’s performance prong, the

Georgia Supreme Court determined that trial counsel’s

failure to investigate possible mitigation was deficient. 

See Lance, 286 Ga., at 368, 687 S. E. 2d, at 812–813. That 

is plainly correct. Counsel in a death penalty case has an

obligation at the very least to consider possible penaltyphase defenses. See Wiggins, 539 U. S., at 521–522. By

his own admission, counsel here did not. Without any

inquiry into what penalty-phase evidence he might be 
Per Curiam

Cite as: 586 U. S. ____ (2019) 7 

SOTOMAYOR, J., dissenting 

forgoing, he succumbed to tunnel vision—and as a consequence left Lance defenseless. Because nothing here

“obviate[d] the need for defense counsel to conduct some 

sort of mitigation investigation,” Lance has satisfied 

Strickland’s deficient-performance requirement. Porter v. 

McCollum, 558 U. S. 30, 40 (2009) (per curiam); see also 

Rompilla v. Beard, 545 U. S. 374, 381 (2005); Wiggins, 539 

U. S., at 534. 

B 

Turning to the prejudice prong, the Court of Appeals 

was wrong to conclude that Lance suffered no clearly 

established prejudice from his inability to make his case. 

Georgia law permits a death sentence only upon a unanimous jury recommendation, so Lance needed only to show

“a reasonable probability that at least one juror would 

have struck a different balance” between the aggravating 

and the mitigating factors had he or she considered the

missing evidence. Wiggins, 539 U. S., at 537; see Ga. Code 

Ann. §§17–10–31(a), (c).7 The trial court, upon hearing

Lance’s proffered mitigation evidence, concluded that it 

was “extremely important for the jury to consider” and 

thus that its absence was prejudicial. App. to Pet. for 

Cert. 174. Under any reasonable application of Strickland 

and its progeny, that conclusion was correct. See 28 

U. S. C. §2254(d); Wiggins, 539 U. S., at 528. 

To determine whether a defendant reasonably might

have been spared a death sentence but for his counsel’s 

deficiency, courts take into account “the totality of the 

—————— 

7 In Georgia, “a sentence of death shall not be imposed unless the jury

verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed.” Ga. 

Code Ann. §17–10–31(a). “If the jury is unable to reach a unanimous 

verdict as to sentence, the judge shall dismiss the jury and shall impose

a sentence of either life imprisonment or imprisonment for life without 

parole.” §17–10–31(c). 
 

 

 

Per Curiam

8 LANCE v. SELLERS 

SOTOMAYOR, J., dissenting 

available mitigation evidence—both that adduced at trial, 

and the evidence adduced in the habeas proceeding,” then

“reweigh it against the evidence in aggravation.” Williams 

v. Taylor, 529 U. S. 362, 397–398 (2000). “We do not 

require a defendant to show that counsel’s deficient conduct more likely than not altered the outcome of his penalty 

proceeding, but rather that he establish a probability

sufficient to undermine confidence in that outcome.” 

Porter, 558 U. S., at 44 (internal quotation marks and 

alteration omitted).

The jurors who sentenced Lance determined whether he

would live or die “knowing hardly anything about him 

other than the facts of his crimes.” Id., at 33. They heard

nothing “that would humanize [Lance] or allow them to

accurately gauge his moral culpability.” Id., at 41. Yet if 

counsel had performed his duties, the jurors would have

heard that Lance’s brain endured physical trauma 

throughout his life, resulting in frontal lobe damage and 

dementia. The jury further would have heard that Lance’s 

IQ placed him within the borderline range for intellectual 

disability. The jury also would have heard that Lance’s

cognitive deficits could affect his impulse control and

capacity to conform his behavior to the law, especially at 

moments of emotional distress. Taken together, those 

facts—with their accompanying explanatory potential to 

humanize Lance, or at least to render less incomprehensible his conduct—were significant mitigating evidence. See 

id., at 36, 42–43 (noting the potentially mitigating effect of 

evidence that the defendant “suffered from brain damage

that could manifest in impulsive, violent behavior” and 

was “substantially impaired in his ability to conform his

conduct to the law”).

To be sure, the evidence before the jury—the brutality of

Joy’s death, Lance’s past violence toward her, and Lance’s

conduct thereafter—could have supported a death sentence. See Ga. Code Ann. §§17–10–30(b), 17–10–31(a). 
Per Curiam

Cite as: 586 U. S. ____ (2019) 9 

SOTOMAYOR, J., dissenting 

But there is a stark contrast between no mitigation evidence whatsoever and the significant neuropsychological 

evidence that adequate counsel could have introduced as a 

potential counterweight. Lance’s unintroduced case for 

leniency, even if not airtight, “adds up to a mitigation case 

that bears no relation to the few naked pleas for mercy

actually put before the jury.” Rompilla, 545 U. S., at 393; 

see also Williams, 529 U. S., at 398. Our precedents thus

clearly establish Lance’s right to a new sentencing at 

which a jury can, for the first time, weigh the evidence 

both for and against death. 

The Georgia Supreme Court reached its contrary conclusion only by unreasonably disregarding or minimizing 

Lance’s evidence. The state court acknowledged that 

experts would testify that “‘significant damage’” to 

Lance’s frontal lobe compromised his ability “‘to conform 

his conduct to the requirements of the law.’” Lance, 286 

Ga., at 370–371, 687 S. E. 2d, at 814. It failed, however, to 

allow for the possibility that the jury might credit that

evidence. This Court previously has cautioned against

prematurely resolving disputes or unreasonably discounting mitigating evidence in this context. See Porter, 558 

U. S., at 43 (“While the State’s experts identified perceived 

problems with the tests [showing brain damage and cognitive defects] and the conclusions [the defense expert] drew

from them, it was not reasonable to discount entirely the

effect that [the defense expert’s] testimony might have had

on the jury”). We should do so again here.

Further, the Georgia Supreme Court relied on characterizations of Lance’s evidence that cannot be squared

with the record, which “further highlights the unreasonableness of ” the Georgia Supreme Court’s decision. Wiggins, 539 U. S., at 528; see 28 U. S. C. §2254(d)(2). With 

regard to Lance’s frontal lobe damage, the Georgia Supreme Court appears to have credited the testimony of the 

State’s expert over Lance’s experts’ testimony, treating as 
 

 

 

Per Curiam

10 LANCE v. SELLERS 

SOTOMAYOR, J., dissenting 

definitive Martell’s assertion that “Lance’s symptoms were

so subtle that a typical court-ordered evaluation might not 

have given any indication of problems.” Lance, 286 Ga., at 

372, 687 S. E. 2d, at 815; see also id., at 373, 687 S. E. 2d, 

at 816. Yet the other experts concluded that Lance’s 

impairments and resulting behavioral distortions were

“serious” and “significant.”8 E.g., 1 App. in No. 16–15008, 

pt. 3, at 92; 2 id., at 10. The Georgia Supreme Court also

unreasonably dismissed the experts’ consensus that Lance 

was in the borderline range for intellectual disability,9 

and never mentioned—much less discussed the significance of—Lance’s dementia diagnosis.

These errors, taken together, make clear that the Georgia Supreme Court applied our Strickland precedents in

an objectively unreasonable manner. The mental impairment evidence reasonably could have affected at least one 

juror’s assessment of whether Lance deserved to die for 

his crimes, and Lance should have been given a chance to

make the case for his life. The Georgia Supreme Court’s

conclusion that it would be futile to allow him to do so was 

unreasonable. 

—————— 

8Moreover, it is unclear even that Martell’s milder characterizations 

genuinely contradicted the other experts’ testimony. Unlike the other 

experts, Martell seems at least sometimes to have been characterizing

Lance’s impairments “relative to his overall borderline [intellectually 

disabled] baseline,” 1 App. in No. 16–15008, pt. 3, at 151, not relative to

the average person or to the level at which Lance might have functioned absent his head traumas. Compare 2 id., at 34 (Weinstein: 

specific test results “vastly excee[d] the threshold for impairment” and 

“indicate significant organic impairment of the frontal lobe”), with 2 id., 

at 152 (Martell: results on the same test were “at a level expected for 

[Lance’s] IQ” or “showed mild impairment”). 9See Lance, 286 Ga., at 372, 687 S. E. 2d, at 815 (describing Lance as 

merely “in the lower range of normal intelligence”). But see, e.g., 1 

App. in No. 16–15008, pt. 3, at 135 (Martell, describing Lance’s intellectual functioning as “in the borderline range,” which is “lower than low

average”). 
Per Curiam

Cite as: 586 U. S. ____ (2019) 11 

SOTOMAYOR, J., dissenting 

III 

Absent this Court’s intervention, Lance may well be

executed without any adequately informed jury having 

decided his fate. Because the Court’s refusal to intervene 

permits an egregious breakdown of basic procedural

safeguards to go unremedied, I respectfully dissent.