1 (Slip Opin i o n) OCTOBER T ERM, 20 08 Sy llabu s N O TE : Wh er e it i s feas ibl e , a s yllab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s yll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

# SUPREME CO URT O FTHE UNI TED STATES
Sy llabu s 

### KN OWLE S , WARDE N v . MIRZAY ANC E CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 07–1 31 5. Ar g u ed Janu a r y13, 2009 —Dec ided M a r c h24, 2009 Res p ondentMirza y a n ce e n t e red plea s of notgu ilt y a n d notgu ilt y b y

r e asonof in san i ty(NG I ) at h i s stat e-court m u rdert r ia l. D u rin gt h e g u i l tp h a s e , h es o u gh tt oav o i da conv ict i on for fi rs t

- degree m u rder and instead o b tain a second-degr ee murder verdi c t by presenting medic a l test i m onythat he was ins a ne a tthe ti me of the c r i me and was, therefore , incapable of the necessary premeditation or delibera

tion. Thej u ryneve rtheles s convicte d him of first-degree murder. Af

t e r t h e t r ia l’s NGI pha s e wa s s c heduled, Mirza y a n cea ccept ed his couns el’s reco mmenda t ion to ab a n don the ins a nity plea

. Couns el b e lieved that a defense verdict was un likely because the jury had just r ejec t ed medic a l tes t imonys i mil a rto that whic h would b epr esented to establi s h the NGI defense. Moreo v er, a l t h ough couns el ha d planned to supplement the medical evidence with testi m ony by Mir

zay a n c e’ s par e n t s as to th eirson ’ s men t al i lln ess, th e par e n t s r e fu sed to testifyat t h e last mome nt. Following his c o nv ic tion, M i r z ay anc e alleged in st a t e postconviction pr oceedings that his attorney’s re c ommendat ion to withdr aw the NGI pl ea c o nstituted ine ffec t iv e assi s tance of counsel under St ricklandv. Wash ington , 466 U. S. 668. Th e trial court denied relief, and the Ca lifornia Court of Appeal affirmed.

M i r z ay an c ethenapplied forfeder a l h abe as r e lief, wh ic hth e Dis

tr ic t Cour t denied. The Ninth Cir c u it re versed, orderi ng an eviden

t i a r y hea r ingon cou n s e l’s reco mmendation to withdr aw the NGI plea. Duri ng the hearing, th e Magi strate Judge made extensive fact

findings, including, in t e ra l ia, that the N G I phase medical evidence es s e ntia lly would have duplica t ed th e evi d ence the jury rejected in the guilt phase; that counse ldoub ted the likelihood of prevailing on the NGI c l aim bec a use the jur y ’ s fi nding o f first-degree murder as a pra c t i ca l m a t t er would c r ipple Mirza y a n ce’s cha n ces of convin cing2 KNOWLES v. MIRZAYANCE Sy llabu s the j u ry tha t he nevertheles s wa s inca pab l e of unders t a n ding the na

tu r ean d qu al ityof h i s ac t an d of dis t in g u ish i n gr i gh t fr om wr ong ; t h a tMirza y a n ce’s pa rent s w e re nots i m p ly relu ct a n t , b u tha d effec

tiv e lyr e fused, to te stify ; tha tc o unsel had made a carefully reasoned decision not to proceedwith the NG Ipleaa f ter weighi ng his options and disc uss i ngthe ma tterwith ex per i enc e d c o -c ounsel; but tha t couns el’s perfo r ma nce wa s n e verthe les s deficientb e ca us e Mirza y a n ce ha d “nothing to los e ” b ygoing fo rwar d with the NG I phase of the trial. The Ma gistrate Judge also found prej udice a n d recommended hab e a s relief. The Dis t rictCourta ccept ed t h e recom m e nda t ion a n d granted the writ. The Court of Appe als aff i r m ed, r u lin g , amon goth e r thing s , that counsel’ s per f or manc e had been deficient because Mir

za ya nce’s pa rents ha d not refus e d, b u th a d m e rely exp r es s e d reluc

ta nce to tes t ify, a n d b e ca us e competent couns el wo uld have a t

temptedto p e r s uade them to test ify , whic h M i r z ay a n c e ’ s c o unsel admi ttedlydi d not. The c o ur t essentia llyc o nc luded that c o mpete n t couns el wouldhave purs ue d the ins a nity defens e b e ca us e couns el had nothing to lose byputtingon th e only defense available. In addi

tion, the courtfound prej udice b e ca us e, in the court’s vie w, there was a r e ason ab le pr obabil i tyth e ju r ywou l d h av efou n d Mir z ay an c ein

s a ne ha d couns el purs ued the NGI pha s e. The NinthCircuit con

c l u d ed th at feder a l h abea s r e lief was au t h or ized u n d er 28 U. S. C. §225 4(d)(1) be c a u s e th e Cal i for n ia Cou r t of Appeal h a d“u n r eason abl[y] appli[ed] clearly est abl ished Federal law.” Held: Wh eth e r th e sta t e-c o u r t dec i sionis r e v i ewed un der§2254(d)( 1 )’ s

standard or denovo , Mirza y a n ce ha s fa iled to es tab l is h tha this coun sel’ s per f or man c e w a s in effec t iv e. Pp. 8–1 6. (a) Th e State Cou r t of Appe al’ s den i alof M i r z ay an c e ’ s in effec t iv e ass i st an c ec l aim did n o t v i olate c l ear l yestabli s h e d feder a l law. Th e Nint hCircuitrea c hed acon t ra ry res u ltb a s ed la rgely on it s a p plica

tionof animpr operr e v i ew s t an dar d—it bl amed c o u n s el foraban don

ing the NGI claim because there was “n othing to los e ” b ypurs uin git. But it is not “a n unrea s o nab l e a pplica t ion of clea rly es tab l is hed Fed

eral law” for a state court to decline to a ppl y a specific legal rule tha t ha s not b een s q ua rely es tab l is hed b ythis Court. S ee, e. g., Wri ghtv. Van Patten , 552 U. S. ___, _ __. Absent an ything akin to the “nothing to lose” st and a r din this Cour t’ s pr ec edent, h abeas r e lie f c o u l d h av e beengr an ted u n d er§2254(d)(1) on lyif th e sta t e-c o u r t dec i sioninth i s ca s eha d unr ea s o nably a p plied Strick lan d’s m o re ge ne ra l s t a n da r d for ineffe ct ive-a s s i s t a n ce cl a i m s , whereby a defendant must show both deficient performance by couns el and prejudice, 466 U. S., at 687. Th e qu estion“is n o t wh eth e ra feder a l c o u r t believ e s th e state court’s determina t ion” under Strick land “w a s incorrectb u twhet her [it] was u n r ea son able— a subst a ntia lly higher threshol d.” Schrirov.3 Cite as: 55 6 U

. S. ____ (2009) Sy llabu s Landriga n , 550 U. S. 46 5, 4 73. An d, bec a u s e Strick land’s is agen er al st an dar d , a s t ate c o u r t h a s ev enmor elati tu de to r e ason ab lyde

ter m ine that adefendant ha s not s a ti sfiedthat stand a r d

. Underthe doubly defere ntial judicial review that a pplies to a Strick landcla i m ev alu a ted u n d erth e §2254(d)(1) stan dar d , M i r z ay anc e ’ sin effec t iv e ass i st an c ec l aim fail s. It was n o t u n r eason able forth e state c o u r t t o concludetha tcouns el’s perfo r ma nce wa s n o t deficient when heco un seled M i r z ay an c eto aban dona c l aim th atstood almo st n oc h anc eof su c c e ss. Pp. 8–11.

(b ) Even if Mirza y a n ce’s ine ffect ive-a s s i s t a n ce cla i mwe re eligib le for den o v o re view, it wo uld still fa il beca use he has no t shown inef

fect ive a s s i s t ance a ta ll. Mirza y a n ce ca n es t ab l is h neit her t h e defi

cient perform a nce nor the prejudice required by Stri c k land. A s t o performa nce, he ha s not s h own “tha tcouns el’s repres enta tion fell b e low anobjec t iv e stan dar dof r e ason ablen ess.” 466 U. S., at 687– 688

. Ra t h er, cou n s e l m e rely re co m m e nded th e with dr awal of wh at h er e a son ably believ e d was a c l a i m doomedbec a u s e s i mil a r medic a l tes t i

mony ha d a l re a dy b een rej e c t ed a n d the pa rents ’ tes t imony, whic h he believ e d to be h i s str o n g estev iden c e , wou l d n o t be av ailable. Th e Ninth Cir c u it’ s pos i tion that c o mpe t entc o unsel migh t hav eper suaded the r e l u c t ant par e nts to tes t ifyis in tension wit hthe M a gi s tr ate Ju dg e’ s c o n t r a r yfin d i n g s an d appli e s a mor ede man d in gstan

dard than St rick land pres cribes. The failure to show ineffective ass i st an c eis also c o n f ir me d byth e M a g i str a te Ju dg e’ s fin d in gth at counsel’s decis i on was essential l y an informed one “mad eafter thor

ough investigation of law an d facts relevant to pl ausible options,” an d was therefore “virtuallyun cha llengeab l e.” Id., at 690. Th e Nin th Circuit ’s ins i st ence t h a tcou n s e l wa s req u ired t oa s s e rt t h e only de

fense availabl e, even one al most ce rtain t olose, is not supported by any “prevailing professional norms” of whi c h the Court i s aware. See id., at 688. Norh a s M i r z ay an c edemon s tr ated th ath esu ffer e d pr eju d ic e, wh i c hr e qu ir es a s h owin gof “a r e ason ab le pr o babi lity th at, b u tfor couns el’s unprofes s i ona lerro rs, the result of the proceeding would haveb een different.” S ee id. , at 694. In fac t , it wa s h i gh ly im

pr obable th a tth e ju r y , h av i n gju st r ejec t ed testi m on yabou tM i r za ya nce’s menta lcondition in the guilt ph a s e, would have rea c hed a differ e n tr e su lt b a sedonsi m ilarev iden c eat th e NGI ph ase. P p . 11– 16. Revers ed a n d rem a nded.

T HOMAS , J., d e livered the opinion of the Court, in whi c h R OBERTS , C. J., and S TEVENS , K ENNED Y , B REYER , an d ALITO , JJ., joined, and in whichS CALIA , S OUTER , and G IN SB U R G , JJ., join ed as to al l bu t Par tII._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt
NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts
. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

# SUPREME CO URT O FTHE UNI TED STATES
No. 07–1 31 5 

### MICHA E L A. KN OWL E S, WAR D EN, PE TIT I ONER v. ALEXAN DRE MIRZ AYAN CE ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE NINT H CIRCUIT [M ar c h24, 2009] 

### J USTICE 

### T HOMA S

### delivered the opinion of the C o urt.* A federal court may grant a habeas corpus application arising from a state-court adjudi cation on the merits if the state court’s decision “was contr a ry to, or involved an unreasonab le application of, clea rly established Federal law, as determined by the Supreme Court o f the Unite d States.” 28 U. S. C. §2 254(d)(1). In this case, respondent Alexandre Mirzayance claimed ineffective assistance of counsel bec ause his at torney recommended withdra w in g his insan i ty defense. The Ca lifornia courts rejected this claim on state postconviction review. We must decide whether this decision was contrar yto or an unreasonable application of clearly establishedfederal la w. We hol d that it was not. Whether reviewed under the standard of review set forth in §2 254(d)(1) or de novo , Mirzayance failed to establish that his counsel’s performance wa s ineffective, see Strickl a ndv. Was h ington , 466 U. S. 668 (1984).

——————

* J US TI CE S CAL IA , J US TI CE S OU T E R , and J US TI CE G IN SB U R Gjoin all but Part II of this opinion.2 KNOWLES v. MIRZAYANCE Opinion of theCourt 

### I Mirzayance confessed that he stabbed his 1 9 -year-ol d cousin nine times with a hunting knife and then shot h e r four times. At trial, he entered pleas of not gu ilty and not guilty by reason of ins anity (NGI). Under Ca lifornia law, when both of these pleas are entered, the court must hold a bifurcated trial, with guilt determined during the first phase and the viability of the defendant’s NGI plea during the second. Cal. Pena l Code Ann. §1026(a) (West 1985)

. During the guilt phase of Mirzaya n ce’s trial, he sought t o avoid a conviction for f i rst-degree murder by obtaining a verdict on the lesser included offense of se cond-degree murder. To that end, he presented medical testimony that he was insane at the time of the crime and was, therefore, incapable o f the premeditatio n or deliberation necessary for a first-degree murder conviction. The jury neverthe

less convicted Mirzaya n ce of first-degree murder. The trial ju dge set the NGI phase to begin the day af te r the convicti on was entered but, on the advice of counsel, Mirzayance abandoned his NGI pl ea before it commenced. He would have borne the burden of proving his insan i ty during the NGI phase to the same jurythat h a d just con

victed him of first-degree murder. Counsel ha d planned to meet that burden by presenting medical testimony simil a r to that presented in th e guilt ph ase, includi n g evidence that Mirza y ance was i n sane and incapable of premeditat

ing or deliberating. Because the jury reje cted similar evidence at the guilt phase (where the State bore the burden of proof), counsel belie ved a defense verdict atth e NGI phase (where the burden was on the def e ndant) wa s unlikely. He planned, though, to have Mirz ayance’s par

ents testify and thus provide a nemotiona l account of Mirzayance ’ s struggles with mental illnes s to supplement the medical evidence of insanity. But on the morning th at the NGI phase was set to begin, Mirzayan ce’s parents refused to t e stify. Afte r cons ulting withco-c ounsel, coun

-3 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### sel advised Mirzayance that he should withdraw the NGI plea. Mirzayance accep t ed the advi ce. After he was sentenced, Mirzayance cha llenged his conviction in state po stconviction proceedin gs. Amon g other alleg a tions, he c l aimed that counsel’s recommenda

tion to wit h draw the NGI pl ea constitute d ineffectiv e assistance of counsel under Strickland

. The Californi a trial court denied the petition and the California Court of Appeal affirmed witho u t offeri ng any reason for its rejec

tion of this particularineffective assistance claim. Peopl e v. Mirzayance , Nos. B116856, B124764 (Mar. 31, 1999), App. to Pet. for Cert. 165–167, 200–201 (hereinafter App. ). Mirzayance then filed an applica t ion for federal habeas relief under 28 U. S. C. §2254, which the District Co urt denied without an evidentiary hearing. The Court o f Appeals re versed the DistrictCo urt andor dered an e vi

dentiary h e aring on counsel’s recommendation to with

draw the NGI plea. Mirzayance v. Hickm a n , 66 Fed. Appx. 676, 679–681 (CA9 2003). During that evidentiar y hearing, a Magistrate Judge ma de factual findings th at the DistrictCourt later adop ted. Post-Remand Report and Recommendation of United States Magistrate Judge in No. CV 00–01388 DT (RZ) (CD Cal.), App. 38, 68; Mi r zayancev. Knowles , No. CV 00–1388 DT (RZ) (CD Cal

. , Nov. 15, 2004), id. , at 35–36. Accordin g t o the Magistrate Judg e , counsel’s strategy for the two-part trial was to seek a second-degree murder verdict in t h e first stage and to seek an NGI verdict in t h e second stage. This strategy faltered when the jury instead convicted Mirzayance of first-degree murder. In the c i r cumstances of this case, the medical evidence that Mir

zayance pla nned to adduce at the NGI phas e essentially would have duplicated evidence that the jury had neces

sarily rejected in the gu ilt phase. First-degre e murder in California includes any killing that is “willful, deliberate, and premeditated.” Cal. Penal Code Ann. §189 (West4 KNOWLES v. MIRZAYANCE Opinion of theCourt 

### 1999). To prove NGI, a defend ant must show that he was incapable of knowing or understa n ding the nature of his act or of distinguishing right from wrong at the time of the offense. See Peoplev. Lawley , 2 7 Cal. 4th 102, 170, 38 P. 3d 461, 508 (2002). Highlighti n g this potential contra

diction, the trial judge instructed t h e jury during the guilt phase that “[t]he word ‘deliberate,’ ” as required for a first

degree murder convicti on, “means formed or arrived at or determined upon as a r e sult of careful thought and weigh

ing of considerations f o r and against the proposed course of action.” App. 48–49. When the jury found Mirzayance guilty of fi rst-degree murder, counsel doub ted the likelihood of prevailing on the NGI cla i m. Accordi n g to the Magistrate J u dge: “The defens e suspectedthat a jury’s finding, b e yond a reasonable doubt, that [Mirzayan c e] had ‘deliberated’ and ‘premeditated’ his killing of [the victim] as a prac

tical matte r would cri pple [Mirzayance’s] ch ances of convincing the jur yla ter, durin gthe sanityphase, that [Mirzayance] nevertheless ‘was incapable of knowing or understanding the nature and quality of his .

. . act and of distinguishing right from wrong a t the time of the commission of the offense,’ Cal. Penal Code §25(b), . . . .

. . . . . “Any remaining chance of securing an NGI ve rdict .

. . now depended (in [counsel’s] view) on presenting some ‘emotional [im]pact’ tes t imony by[M irzayance ’ s] par ents , which [counsel] had viewed as k e y even if the defense hadsecured a second-degree mur d er ver dict at the guilt phase.” Id. , at 5 0–51 (emphasis in original; capitalization omitted). But, as th e Magistrate Judge f o und, on the morning that the NGI phase was set to begin, Mirzayance’s pare nts effectively r e fused to testify:5 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### “[T]he pare nts at least expressed clear reluctanceto testify, whi c h, in context, conveye dthe same sense as a refusal.” Id. , at 72 (emphasis in original). Although t h e parties disputed this point, the parents’ lat e r actions supported the Magistrate Judge’s finding that the parents’ rel u ctance to t e stify amounted to refusal: “Corroborat i ng the Court’s fin d ing that[Mir

zayance’s] parents indicated a strong disinclination to testify at th e NGI phase are the facts that (1) they did not testify l a ter at his sentencing hearing, and (2) the reason for their choosing not to do so . . . is th at . . . [it] would have been ‘too e m otional’ fo r them.

. . . If week s after the g u ilty ver d ic t andthe withdra w alof their son’s NGI plea, [Mirzayance’s] parents’ emotions still prevented them from testifying at the sentencing hearing, then surely those emoti o n a l obstacles to their testifying in the NGI phase would have been at least as potent, and probably more so.” Id. , at 73 (emphasis in original). The Magistrate Judge found that counsel ma de a care

fully reasoned decision not to go forward with the NGI plea: “[Counsel] carefully weighe d his options bef o re mak

ing his dec i sion f i nal; he did not make it rashly.

. . . [Counsel’s] strategy at the NGI phase .

. . depended entirely on the heartfelt par t icipation of [Mir

zayance’s] parents as witnesses. .

. . Moreover, [coun

sel] knew that, although he had experts lined up to testify, th eir testimony had significant weak

nesses. . . . [Counsel’s] NGI-pha s e strategy became impossible to attempt once [Mirzayance’s] par e nts .
. . expressed .

. . their reluctance to [testify]

. . . . All [counsel] was left withwere four experts, all of whom reached a conclusion—t hat [Mirza yance] did not pre

-6 KNOWLES v. MIRZAYANCE Opinion of theCourt 

### meditate and deliberate his crime—that the sa me jury about to hear the NGI evidence a l ready had rejected under a be yond-a-reasonable-doub t standard of proof. The expert s were subject to oth e r impeachment as well.

. . . [Counsel] dis c ussed the situation with hi s experienced co-counsel .

. . who concurred in [coun

sel’s] proposal that he recommend to [Mirzayance] the withdrawal of the NGI plea.” Id. , a t69–71. Based on th ese factual findings, the Magistrate Judge stated that, in his view, counsel’s performa nce was no t deficient. Despite this determination, the Magistrate Judge con

cluded that the court was bound by the Cou rt of Appea l s’ remand order to det e rmine only whether“ ‘there were tactical rea s ons for abandoning the insanity defense.’ ” Id. , at 98 (quoting Hickm a n , 66 Fed. Appx., at 680). Even though the Magistrat e Judge thought thatcounsel was reasonable in recommending that a very weak claim be dropped, the Magistrate Judge understood the remand order to mean that counsel’s performance wa s deficient if withdra w in g the NGI plea would achieve no tactical ad

vantage. The Magistrate Judge found that “[Mirzayance] had nothing to lose” by going forward with the NGI pha s e of the trial, App. 100, and thus h e ld, under the reman d order, that counsel’s performance was deficient, ibid

. As to prejudic e, the Magistrate Judge concluded the cour t was simila rly bound by the remand order because th e Court of Ap peals described th e NGI defense a s remainin g “ ‘viable and strong.’ ” Id. , at 98(q uoting Hick man , supra , at 681). Accordingly, the Magistrate Judge found preju

dice and recommended granting th e writ of ha beas corpus. The Distri ct Court a ccepted thi s recommendation and granted the writ. The Court of Appeals affirmed. Mirzayance v. Knowles , 175 Fed. Appx. 142, 1 43 (CA9 20 06). It firs t stated th at7 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### the lower court had misunderstood its remand orde r, which it described as requiring a nexamination of “coun

sel’s reasonfor abandoning the in sanity defense,” rather than as m andating that the Di strict Court must find deficient performance if it found counsel had“nothing to lose” by pursuing the insanity defense. Ibid

. ; App. 98–99. Nonetheles s, the Court of Appeals affirmed the finding of deficient performance. Accordin g to the court, Mir

zayance’s “parents did not re fuse, but merely expresse d reluctance to testify.” Knowles, 175 Fed. Appx., at 14 4. And because they may have be en willing, “[c]ompete nt counsel would have at tempted to persuade them to testify, which counsel here admits he didnot.” Ibid. 1 

### The Court of Appeals also “disa gree[d] that counsel’s decision w a s carefully weighed and not made rashly.” Ibid

. Furthermore, even th ough it had suggested that the District Co urt unnece ssarily ev aluated coun sel’s strategy under a “nothing to lose” standard, the Court of Appeals affirmed th e District Court in large part because Mir

zayance’s “ c ounsel did not make a true tactical choice” based on its view tha tcounsel had nothing to gain b y dropping the NGI defense. Ibi d

. The court held that “[r]easonably effective assistance would put on the only defense available, especially in a case such as this where there was significant potential for success.” Id., at 145 (internal quotation marks omitted). The Court of Appeals also found prejudice b e cause, in its view, “[i]f counsel had

——————

1 At be st, th e C o u r t of Appea l s’ c h ar ac terization of counsel ’s efforts to per s uade the par e nts to tes t ifyis mis l ead i ng . Acc o r d ingto the M a gi s tr ate Judg e, c o unsel testifi e d that he did attemp t to per s uade the par e nts to tes t ifybut that t h eirr e sponse “ ‘ w as kin dof flat, an d I h a d no influence o v er them.’ ” App. 54 (quotingtest imony from evidentiary hea r ing). I n his efforts to c o nvincethe p a rents to tes t ify, couns el tol d t h emt h a tMirza y a n ce “h a dno cha n ce of s e curing a nNGI verdic t without the ‘ e motionalqual i t yfr om n o n p r o fession alw i t n esses’ th a tM r . a n d Mrs . Mir z a y a n ce’s t e s t im ony could provide; a n d ‘ t ha tt h ey were aban don i n gth eirson . ’ ” I d

. , at 53 –5 4 (sam e).8 KNOWLES v. MIRZAYANCE Opinion of theCourt 

### pursued the insanity phase of the trial, ther e is a reason able probab ility . . . th at the jury would have found Mir

zayance insane.” Ibid

. We granted the petition for writ of certiorari, vacated the Court of Appeals’ opinion, and remanded for furth er consideration in light of Careyv. Musladin , 549 U. S. 7 0 (2006), which held that a state court had not “ ‘unreason

abl[y] appli[ed] clearly establish e d Federal l a w’ ” when it declined to apply our precedent concerning state

sponsored courtroom p r actices to a case involving spect a tor conduct at trial, id. , at 76–77. Knowlesv. Mirzayance , 549 U. S. 1 199 (2007). On remand, the Court of Appeals concluded that its decision was unaffected by Musladin and again affirmed th e District Court’s gra n t of habeas corpus. Ap p. 4. The C o urt of App e als reiterated the sam e analysis onwhich it had relied p r ior to this Court’s re

mand, agai n finding that the Cal i fornia court had unre a sonably applied clearly establish e d federal law because defense counsel’s failure to pursue the ins anity defense constituteddeficient p e rformance as it “sec ured .

. . [n ]o actual tacti cal advanta g e.” Id. , at 8. We granted certio

rari, 554 U. S. ___ (200 8). II Under the Antiterroris mandEffective DeathPenalty Act of 199 6 (AEDPA), 28 U. S. C. §2254(d)(1), a federal court may not grant astate prisoner’s habeas application unless the relevant state-court d e cision “was contrary to, or involved an unreasonable application of, clearly estab

lished Federal law, as determined by the Supreme Court of the United States.” 2 

### Here, the relevant state-court

——————

2 Before t h e Courtof Appea l s , Mirza y a n cecont ended t h a tt h e s t a n dar dof r e v i ew set for t hin§2 254(d)( 1 ) sh ou ld n o t applyto h i s c a se. Se e Br ief forAppellee inNo. 04–57 10 2 (CA 9 ), pp. 28– 29, 3 3

. Befor eth i s Court , howev e r, Mirza y a n c econt ends t h a tt h e Court of Appea l s cor r e c t lyapplied§22 54(d) to h i s c l a i m. See Br ief forResp on den t27, 32.9 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### decision is the California Court of Appeal’s decision den y ing state habeas relief. We conclude that th e state court’s decision to deny Mirzayance ’ s ineffective-assistance-of-counsel claim did not violate clearly established federal law. The Court of Appeals rea c hed a contrary result based, in large measure, on its application of a nim proper standard of review—it blamed cou n sel for ab andoning the NGI claim because there was n o thing to lose by pursu i ng it. 3

### Butthis Cour t has held onnumerous occasions that it is not “ ‘an unre a sonable application of clearly established Federal law’ ” fo r a state court to decline to appl y a specific l e gal rule that

—————— Mirza y a n ce di d q u es tion whet her the California Co urt of Appeal ’ s denia lof his cla i m s h ould receive a s m u ch deference a s t h e “ p rot o t y pi

c a l” sta t e-c o ur t adjudic a tio n“inv olv [ing] both a r e asoned, wr itten opinion and a nadequate de velopment of the fa ct ua l record in s u pport of the claims.” Id. , at 33. M i r z ay an c ethu s c o n t en ds th at “th e u s u a l §225 4(d) defe r e n t ial appr o a c hmu st be modifiedan d adap ted” i n eva l ua ting his cla i m. Id. , at 34

. Nonet h eles s , b e ca us e Mirza y a n ce h a s n o t ar g u ed that §2 254( d) is en tir e lyin applic able to h i s c l aim orth a tt h e sta t e c o ur t failed to r e ac h a nadjudi cation on themerits, we initially eva l ua te his cla i m through the deferentia l lens of §2 2 5 4 ( d). S e e United Statesv. In t e r n at ion a l Busin e ssM a ch in esCor p . , 517 U. S. 843, 8 5 5 , n . 3 (1996) (fi n d in gth at par t yaban don e d issu e byfail i n gto addr ess it in the par t y ’ sbr ief on the mer i ts); Poste rs ‘N’ T h in gs, Ltd. v. United States , 511 U. S. 513, 52 7 (19 94) (sa m e).

In addition, we do notdecide whethe r the Court of Appeal s was c o r r e c tinfindin gth at anev iden tiar yhear in gon M i rzay an c e ’ s c l aim was required. See Mirzayance v. Hi ckman , 66 Fed. Appx. 676, 679 –68 1 (CA9 20 03). M i r z ay an c e ’ s in effec t iv e-ass i stan c e -of-c ou n s el c l aim fai l s even under the facts presented at the evidentiary hearing. 3 Althoughthe Cour t of Appe als i m plic i t lydisav o wed the “nothingto los e ” st a n da rd a pplied b yt h e Dis t rictCourta n d Ma gis t ra t eJ u dge, s ee App. 5; Mirzayancev. Knowles , 175 Fed. Appx . 142, 1 4 3 (CA9 20 06), it n e v e r t h e less c o n c lu ded th at “[n] o ac tu alt a c t ic al adv a n t ag e was to be g a in ed” bycou n s el’ s with dr awal of the insanity defense, App. 8; Knowles , su pra , at 144. Fi n d in gth at c o u n s el is defic i en t byaban do n ing a defense where the r e is nothing to g a in fr om that abandonment i s eq uiva lent to finding tha tc o uns el isdeficient by declining to pursue a str a tegywhere ther e is nothingto lose fr om pur s uit of that str a tegy .10 KNOWLES v. MIRZAYANCE Opinion of theCourt 

### has not been squarely established by this Court. See Wri ghtv. Va nP a tt e n , 552 U. S. ___, ___ (2008) (slip op., a t 5–6 (per cu riam) ; Sch r iro v. Land rigan , 550 U. S. 465, 478 (2007); Musladin , sup r a , at 76–77

. This Cou rt has neve r established anythinga k in to the Court of Ap peals’ “noth

ing to lose” standard for evalua ting Strickland claims. Indeed, Mirzayance hi mself acknowledges tha ta “nothin g to lose” rule is “unrecognize d by this Court.” Brief for Respondent 28. And the Court of Appeals did not cite any Supreme Court decision establish i ng a “nothing to lose” standard in any of its three opinions in this case. See App. 3–12; Knowles , 175 Fed. Appx. 142; Hick man , 66 Fed. Appx. 676. With no Supreme Court precedent establishin ga “noth

ing to lose”standard for ine ffective-assistance-of-counsel claims, habeas relief cannot b e granted pursuant to §2254(d)(1) based on su ch a standard. Instead, such relief may be gra n ted only if the state-court decision unreasona

bly applied the more general s t andardfor ineffectiv e assistance-of-counsel claims estab lished by Strickl a nd , in which this Court held that a defendant must show both deficient performance and prejud ice in order to prove that he has received ineffective a ssistan ce of counsel, 466 U. S. , at 687. Indeed, this Court has repeatedly applied that standard to evaluate ineffective-assistance-of-counsel claims where there is no other Supreme Court precedent directly on point. See, e.g. , Van Patten , sup r a , at ___ (slip op., at 5) (evaluating claim under Strickl a n dwhere no Supreme Court precedent established th at any other standard a pplied to th e “novel fac t ual contex t” before th e Court); Schr iro , sup r a , at 478 (evaluating claim under general Stricklandstandard whe r e no Supreme Court precedent addressed the particular “situation in which a client interferes with counsel ’s efforts to present mitigat

ing evidence to a sentencing court” )

. The question “is not wh ether a federal court believes the11 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### state court’s determination” under the Stri ckland sta n dard “was i n correct bu t whet her that determination was unreasonab le—a substantially higher threshold.” Sch r iro , supra , a t4 73. And, b e cause the Stri ckland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarboroughv. Alvarado , 541 U. S. 652, 664 ( 2004) (“[E]valuating whether a rule application was unreasonab le require s considering the rule’s specificity. The more general the rule, the more leeway courts have in r e aching outcomes in case-by-cas e determinations”). Under the doubly deferential judicial review that ap

plies to a Strickla ndclaimevaluated under the §2254(d)(1) standard, see Yarboroughv. Gentry , 540 U. S. 1, 5–6 (2 003) (per curiam) , Mirzayance ’ s ineffective

assistance claim fails. It was n o t unreasonable for t h e state court to conclude that his defense counsel’s perform

ance was not deficient when he c o unseled M i rzayance to abandon a claim that stood almost no chance of success. As explained more fully belo w, this Court has never re

quired defense counsel to purs ue every claim or defens e, regardless of its merit, viability, or realistic chance fo r success. See also infra, at 14–15. III Even if M i rzayance’s ine ffective-assistance-of-counsel claim were eligible for de novo review, it would still fai l

. Stri ckland requires a defendant to establish deficient performance and prejudice. 466 U. S., at 687. Mirzayance can establis h neither. Mirzayance has not s h own “tha tcounsel’s representa

tion fell b e low an objective standard of reasonableness. ” Id. , at 687–688. “The proper measure of a ttorney per

formance remains simp ly reasonab leness under prevailing professionalnorms.” Id ., at 688. “Judicial scrutiny of12 KNOWLES v. MIRZAYANCE Opinion of theCourt 

### counsel’s performance must be highly deferential,” and “a court must indulge a strong presumption th at counsel’s conduct falls within the wide range of reasonable profes

sional a ssis t ance.” Id. , at 689. “[ S]tra tegic choices mad e after thorough investigation of la w and facts relevant to plausible options are virtually u n challengeable.” Id. , a t 690. Here, Mirzayance has not shownthat his counsel vio

lated these standards. Rather, hi s counsel merely recom

mended the withdrawal of whathe reas on ably believed was a claim doomed to fail. The jury had alre ady rejecte d medical tes t imony about Mirzaya n ce’s mental state inthe guilt phase, during wh ich the Sta t e carried i t s burden of proving guilt beyond a reasonable doubt. Th e Magistrate Judge explained this point: “All [counsel] was left with were four experts, all of whom reached a conc lusion—that [Mirzaya nce] did not premeditate and delib erate his crime—that the same jury a b out to hear the N G I evidence already ha d rejected under a beyond-a-reasonable-doubt standard of proof. The experts were subject to other impeach

ment as well.” App. 71. In fact, the Magistrate Judge found thatcoun sel “convinc

ingly detailed ways in which [the experts] could have been impeached, for overlooking or minimizing facts whi c h showcased [Mirzayance’s] clea rly goal-directed behavior.” Id. , at 70. In the NGI phase, the burden wo uld have switched to Mirzayance to prove insanity by a preponderance of the evidence. Mirzayance ’ s counsel reasonably believed that there was almost no ch ance that the same jurywould have reached a different re sult when considering similar evi

dence, especially with Mirzayance bearing th e burden of proof. Furthermore, counsel knew he would have had to present thi s defense without th e benefit of the paren t s’13 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### testimony, which he b e lieved to be his strongest evidence. See ibid. (“[Counsel’s] s trategy at the NGI phase had been to appeal to the jury in one or both of two ways that de

pended entirely on the heartfeltparticipati on of [Mir

zayance’s] parents as witnesses”). Counsel reasonably concluded t hat this defense was almost certain to lose. The Court of Appeals tookthe position that the situation was not quite so dire because the parent s “merely ex

pressed reluctance to t e stify.” Id., at 7; Knowles, 175 Fed. Appx., a t 144. It explained that “[c]om petent counsel would have attempted to persuade them to te stify.” App

. 7; Knowles , supr a , at 1 44. But th at holding i s in tension with the M a gistrate J u dge’s findi n gs and ap plies a more demanding standard than Strickland prescribes. The Magistrate Judge noted thatthe parents “c onveyed th e same sense as a refusal.” App. 72. Indeed, the Magistrate Judge found that the parents “did not tes t ify later a t [Mirzayance’s] sentencing hear ing” because it“would have been ‘too e m otional’ fo r them.” Id

. , at 73 (q uoting testi

mony from evidentiary hearin g). Competence does n o t require an attorney to browbeat a reluctantwitness into testifying, especially when the facts sugg est that no amount of persuasion would have succeeded. Counsel’s acceptance of the pare nts’ “convey[ance] [of] .

. . a refusal,” id., at 72, does not rise to the hi gh barfor deficient per

formance set by Strickl a nd

. Mirzayance ’ s failure t o show in effective assistance of counsel is confirmed by the Magistrate Ju dge’s finding that “[coun sel] carefully we ighed his options before ma k

ing his decision final; h e did not make it rashly.” App. 69

. The Magistrate Judge explained all of the factors th at counsel con s idered—many of which are discussed above— and noted that counse l“discussed the situati o n with his experienced co-counsel” before making it. Id. , at 71. I n making thi s finding, the Magistrate Judge identified counsel’s decision as essentially an informed decision14 KNOWLES v. MIRZAYANCE Opinion of theCourt 

### “made after thorough investigation of law and facts rele

vant to pla u sible options.” S t ri ckland , 466 U. S., at 69 0. As we stat ed in Strickland , such a decision is “virtuall y unchallengeable.” Ibid

. Without even referring to the M a gistrate J u dge’s find

ing, the Court of Appeals “disagree[d] that counsel’s deci

sion was carefully weighed and not made ras h ly.” Ap p. 7; Knowles , s upra , at 144. Inits view, “counsel acted on his subjective feelings of h o pelessn ess without even consider

ing the potential benefit to be gained in persisting with the plea.” App. 8; Knowles , sup ra , at 144–145

. But courts of appeals may not set aside a districtco urt’s fa ctu al findings unless those fi ndings are clearly erro neous. Fed. Rule Civ. Proc. 52(a); Andersonv. Bess eme r C i ty , 470 U. S. 564, 573–574 (1985). Here, the Court of Appeals failed even to mention the clearly-erroneous standard, let alo n e apply it, b e fore effectively overt u rning the lower cour t’s factual findings related to counsel’s behavior. In light of the Magistrate Judge’s factual findings, th e state court’s rejecti on of Mirzayance’s ineffective

assistance-of-counsel claim was consistent with S t ri ck

land

. The Court of Appeals insisted, however, tha t
“ ‘[r]easonably effective assistance’ required here tha t counsel ass e rt the only defense av ailable .

. . . ” App. 8; see also Knowles , supr a , at 145. But we are aware of no “pre

vailing professional n o rms” that prevent counsel from recommending that a plea be withdrawn whe nit is almost certain to lose. See Strickland , su pra , at 688. And inthis case, counsel did not give up “the only defense available. ” Counsel put on a defense to first-degree murde rduring th e guilt phase. Counsel also defended his client at the sen

tencing pha s e. 4 

### The law does not require counsel to raise

——————

4 Mirza y a n ce h a s no compla ints ab o ut the s e ntencing ph a s e s i nce he received t h elo wes tpos s ib l e s e nt ence forhi s firs t

- degree m u rder convi c tion. California authorizes three po ssible sen t en c e s for mu r d er : death,15 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### every available nonfriv o lous def e n s e. See Jo nesv. Ba rnes , 463 U. S. 7 45, 751 (1983); cf. Wi g

g insv. Smi t h , 539 U. S. 510, 533 (2 003) (explaining, in cas e involving similar is su e of counsel’s responsibility to present mitigati ng evidenc e at sentencing, that “ S t ricklanddo es not require counsel t o investigate every conceivable lin eof mitigating evidence no matter how unlikely the effo rtwould be to assist th e defendant .

. . [or even to] present mitigating evidence at sentencing in every cas e ”). Counsel also is notrequired to have a ta ctical reason—above and beyond a reasonable appraisal of a claim’s dismal prospects for success—for recommending that a weak cl aim be dropped altogether. Mirzayance has thus failed to demonstrate that his coun

sel’s performance was deficient. In addition, Mirzayance has not demonstrated that he suffered prejudice from his coun sel’s performance. Se e Stri ckland , 466 U. S., a t691 (“An e rror b ycou n sel, even if professionally unreasonable, does not warrant settin g aside the j u dgment of a criminalproceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he defendant mus tshow tha tthere is a reasonable probability that, but for counsel’s unprofessi onal errors , the result o f the procee ding would have been different. A reasonable probability is a probab i lity sufficient to under

mine confidence in the outcome.” Id. , at 694

. To prevail on his ineff e ctive-assistance claim, Mirzayance must show, therefore, that there is a “reasonable probability” that he would have prevailed on his insan i ty defense had he pur

sued it. T h is Mirzayance cannot do. It w a s highly im

probable that a jury, which had just rejecte d testimony about Mirzayance’s mental cond ition when the State bo re the burden of proof, would have reached a different result

—————— life imprisonm e nt without parole, and imprisonment for 25 years to life

. Cal. Pen a l Code An n . §190( a) (West 19 99 ). M i r z ay an c ewas sen t en c e d to 25 y e ar s to life plu s 4 y e ar s fora weapons en h a n c ement.16 KNOWLES v. MIRZAYANCE Opinion of theCourt 

### when Mirzayance pre s ented simi lar evidence at the NGI phase. See supra , at 12 –13. IV Mirzayance has not sh own that th e state court’s conclu

sion that there was no ineffective assistanc e of counsel “was contra ry to, or involved an u n reasonable application of, clearly established Federal law” un der § 2254. In fa ct, he has not shown ineffective assistance at all

. The ju dg

ment of the Court of Appeals is reversed, and the case is remanded with instru ctions to deny the petit i on. It is so orde red.