Matthew REEVES v. ALABAMA., 138 S. Ct. 22

As Porter and Wiggins illustrate, trial counsel's testimony is not sufficient to find adequate performance when the full record rebuts the reasonableness of the proffered justification. It cannot be, then, that such testimony is necessary in every case. Where counsel does not testify but the defendant offers other record evidence, a court can simply presume that counsel would have justified his actions as tactical decisions and then consider whether the record rebuts the reasonableness of that justification.

Not only is the imposition of a per se rule requiring testimonial evidence from counsel inconsistent with our precedent, it is also at odds with the Court's observation in Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), that ineffective-assistance claims need not always be brought on collateral review because "[t]here may be cases in which trial counsel's ineffectiveness is so apparent from the record that appellate counsel will consider it advisable to raise the issue on direct appeal" or an appellate court will address the deficiencies sua sponte . Id., at 508, 123 S.Ct. 1690.

As a challenge on direct appeal is made without any further factual development, Massaro necessarily recognized that an ineffective-assistance-of-counsel claim can be proved even absent counsel's testimony. Lastly, that courts have a duty to look to the whole record when considering whether a defendant has met his burden makes good practical sense. There are many reasons why counsel may be unable or unwilling to testify about his reasoning, including death, illness, or memory loss. Such circumstances should not in and of themselves defeat an ineffective-assistance claim.

B Alabama rightly does not attempt to defend the Court of Criminal Appeals' rule on its merits. Instead, the State asserts that Reeves misreads the decision below. The Court of Criminal Appeals, it maintains, did not hold that trial counsel's testimony is required to prove an ineffective-assistance claim. Brief in Opposition 14.

Rather, in the State's view, the court "made the sound decision that Reeves failed to prove his ineffective assistance of counsel claims" because he "failed to present any evidence, including the testimony of trial counsel, to prove that his attorney's strategic decisions were unreasonable." Id., at 16. That position, however, is belied by the record before the court and the decision's express language and analysis.

Reeves presented ample evidence in support of his claim that his counsel's performance was deficient, but the court never considered or explained why, in light of that evidence, his counsel's strategic decisions were reasonable. It rested its decision solely on the fact that Reeves had not called his counsel to testify at the postconviction hearing.

In the course of explaining the requirement that a defendant must overcome the strong presumption that counsel acted reasonably with "evidence to the contrary," 226 So.3d 711, 747 (emphasis in original), the decision below plainly stated, with emphasis, that " 'to overcome the strong presumption of effectiveness, a Rule 32 petitioner must, at his evidentiary hearing, question trial counsel regarding his or her actions and reasoning, ' " id., at 748 (quoting Stallworth, 171 So.3d, at 92 ).

That pronouncement was followed by citations to other Alabama Court of Criminal Appeals cases with explanatory parentheticals noting that those decisions had held "that a petitioner failed to meet his burden of overcoming the presumption that counsel were effective because the petitioner failed to question ... counsel regarding their reasoning. " 226 So.3d 711, 748 (citing Broadnax v. State, 130 So.3d 1232, 1255-1256 (2013) ; Whitson v. State, 109 So.3d 665, 676 (2012) ; Brooks v. State, 929 So.2d 491, 497 (2005) ; McGahee v. State, 885 So.2d 191, 221-222 (2003) ). This was not mere stock language.

The appellate court unquestionably applied this requirement to Reeves' claims. At the outset of its analysis, it announced that "Reeves's failure to call his attorneys to testify is fatal to his claims of ineffective assistance of counsel." 226 So.3d 711, 749. As described above, the court explained that "because Reeves failed to call his counsel to testify, the record [was] silent" as to his counsel's reasons and actions, and the presumption of effective assistance therefore could not be rebutted. Id., at 750 - 751, 751 - 752.

In total, the court emphasized that Reeves did not call his counsel to testify at five different points in the opinion. Id., at 721 - 722, 746 - 747, 748 - 749, 750 - 751, 751 - 752. Unlike the whole-record analysis undertaken in Wiggins and Porter, the Alabama Court of Criminal Appeals never considered whether the other, non-counsel-testimony evidence before it could rebut the presumption of reasonable professional assistance. Its failure to do so is baffling given that there was ample such evidence in the record below, all of which Reeves pointed the court to in his brief. See Brief for Appellant in No.

CR-13-1504, pp. 58-82. For instance, the Court of Criminal Appeals had before it trial counsel's two motions for the appointment and funding of Dr. Goff, in which they explained why his assistance and testimony would be critical to the case; the representations made by Reeves' counsel during the pretrial hearing on the rehearing motion; and the trial court's order granting the request. From those motions and representations, the court knew that trial counsel had in their possession voluminous materials bearing on Reeves' intellectual impairments. The court further knew from the record and Dr.

Goff's testimony at the Rule 32 hearing that, despite the appointment order and funding, Reeves' counsel never contacted him and never obtained any other intellectual disability evaluation in preparation for trial. The court also knew from Dr. Ronan's affidavit that the first time Reeves' counsel spoke with her was shortly before she took the stand and that she had not conducted a penalty-stage evaluation, evaluated Reeves for intellectual disability, or administered a complete IQ test.

Moreover, it knew that a capital sentencing evaluation would have involved different components and been more extensive, and that Reeves' attorneys were informed as to such differences. The court, too, knew that Dr. Salekin had presented significant mitigation evidence at the Rule 32 hearing that was not set forth in any testimony during the sentencing-phase hearing. The Alabama Court of Criminal Appeals was not free to ignore this evidence simply because Reeves did not call his counsel to testify at the postconviction hearing.

On this point, Strickland could not be more clear: "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.

The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." 466 U.S., at 690, 104 S.Ct. 2052. Reeves identified the omissions of his counsel that he alleged were constitutionally deficient.

He presented evidence of what his counsel knew, which included several red flags indicating intellectual disability; what his counsel believed to be necessary for his defense, which included funding for an expert to evaluate him for intellectual disability; what his counsel did, which included repeatedly asking for and securing such funding; and what his counsel did not do, which included failing to then use that funding to hire such an expert and failing to present evidence of intellectual disability as mitigation. In so doing, Reeves upheld his end of the evidentiary bargain.

The Alabama Court of Criminal Appeals, on the other hand, did not. It never explained, in light of the substantial record before it, why the choices Reeves' counsel made were reasonable. Strickland and its progeny demand more. In light of the constitutional error below, I would grant the petition for writ of certiorari, reverse, and remand so that the Court of Criminal Appeals could explain why, given the full factual record, Reeves' counsel's choices constituted reasonable performance. Instead, the Court has cleared the way for Reeves' execution. That is a result with which I cannot agree.

I respectfully dissent from the denial of certiorari.