BELL, WARDEN v. CONE

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685 OCTOBER TERM, 2001
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BELL, WARDEN v. CONE
certiorari to the united states court of appeals for
the sixth circuit
No. 01–400. Argued March 25, 2002—Decided May 28, 2002
Respondent was tried in a Tennessee court for the murder of an elderly
couple, whose killings culminated a 2-day crime rampage in which re-
spondent also committed robbery and shot a police officer and another
citizen. At his trial, the prosecution adduced overwhelming evidence
that respondent perpetrated the crimes and killed the couple in a brutal
and callous fashion. His defense that he was not guilty by reason of
insanity due to substance abuse and posttraumatic stress disorders re-
lated to his Vietnam military service was supported by expert testimony
about his drug use and by his mother’s testimony that he returned from
Vietnam a changed person. The jury found him guilty on all charges.
The next day, during opening statements at the sentencing hearing for
the murders, the prosecution said that it would prove four aggravating
factors warranting the death penalty, and the defense called the jury’s
attention to the mitigating evidence already before it. Defense counsel
cross-examined prosecution witnesses, but called no witnesses. After
the junior prosecutor gave a low-key closing, defense counsel waived
final argument, which prevented the lead prosecutor, by all accounts an
extremely effective advocate, from arguing in rebuttal. The jury found
four aggravating factors and no mitigating circumstances, which, under
Tennessee law, required a death sentence. The State Supreme Court
affirmed. After a hearing in which respondent’s trial counsel testified,
the State Criminal Court denied his petition for postconviction relief,
rejecting his contention that his counsel rendered ineffective assistance
during the sentencing phase by failing to present mitigating evidence
and waiving final argument. In affirming, the State Court of Criminal
Appeals found counsel’s performance within the permissible range of
competency under the attorney-performance standard of Strickland v.
Washington, 466 U. S. 668. Subsequently, the Federal District Court
denied respondent’s federal habeas petition, ruling that he did not meet
28 U. S. C. § 2254(d)(1)’s requirement that a state decision be “contrary
to,” or involve “an unreasonable application of, clearly established Fed-
eral law.” The Sixth Circuit reversed with respect to the sentence,
finding that respondent suffered a Sixth Amendment violation for which
prejudice should be presumed under United States v. Cronic, 466 U. S.
648, because his counsel, by not asking for mercy after the prosecutor’s

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final argument, did not subject the State’s death penalty call to meaning-
ful adversarial testing; and that the state court’s adjudication of re-
spondent’s claim was therefore an unreasonable application of the clearly
established law announced in Strickland.
Held: Respondent’s claim was governed by Strickland, and the state
court’s decision neither was “contrary to,” nor involved “an unreason-
able application of, clearly established Federal law” under § 2254(d)(1).
Pp. 693–702.
(a) Section 2254(d)(1)’s “contrary to” and “unreasonable application”
clauses have independent meaning. A federal habeas court may grant
relief under the former clause if the state court applies a rule different
from the governing law set forth in this Court’s cases, or if it decides a
case differently than this Court has done on a set of materially indistin-
guishable facts. Williams v. Taylor, 529 U. S. 362, 405–406. The fed-
eral court may grant relief under the latter clause if the state court
correctly identifies the governing legal principle from this Court’s deci-
sions but unreasonably applies it in the particular case. Id., at 407–410.
Such application must be objectively unreasonable, which is different
from incorrect. To satisfy Strickland’s two-part test for evaluating
claims that counsel performed so incompetently that a defendant’s sen-
tence or conviction should be reversed, the defendant must prove that
counsel’s representation fell below an objective reasonableness standard
and that there is a reasonable probability that, but for counsel’s un-
professional error, the proceeding’s result would have been different.
In Cronic, this Court identified three situations in which it is possible
to presume prejudice to the defense. Respondent argues that his claim
fits within the exception for cases where “counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing,” 466
U. S., at 659 (emphasis added), because his counsel failed to mount a case
for life imprisonment after the prosecution introduced evidence in the
sentencing hearing and gave a closing statement. Under Cronic,
the attorney’s failure to test the prosecutor’s case must be complete.
Here, respondent argues not that his counsel failed to oppose the prose-
cution throughout the sentencing proceeding, but that he failed to do so
at specific points. The challenged aspects of counsel’s performance—
failing to adduce mitigating evidence and waiving closing argument—
are plainly of the same ilk as other specific attorney errors subject to
Strickland’s performance and prejudice components. See, e. g., Darden
v. Wainwright, 477 U. S. 168, 184. Because the state court correctly
identified Strickland’s principles as those governing the analysis of
respondent’s claim, there is no merit in his contention that the state

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court’s adjudication was contrary to this Court’s clearly established
law. Pp. 693–698.
(b) Nor was the state court’s decision “an unreasonable application”
of Strickland. Strickland requires a defendant to overcome the “pre-
sumption that . . . the challenged action ‘might be considered sound trial
strategy.’ ” 466 U. S., at 689. Section 2254(d)(1) requires respondent
to do more, i. e., show that the state court applied Strickland to his case
in an objectively unreasonable manner. This he cannot do. Counsel
was faced with the onerous task of defending a client who had com-
mitted a brutal and senseless crime and who, despite a relatively normal
upbringing, had become a drug addict and robber. Counsel reasonably
could have concluded that the substance of the medical experts’ tes-
timony during the guilt phase was still fresh to the jury during the
sentencing phase, and that respondent’s mother had not made a good
witness at the guilt stage and should not be subjected to further cross-
examination. Respondent’s sister refused to testify, and counsel had
sound tactical reasons for not calling respondent himself. Counsel also
feared that the prosecution might elicit information about respondent’s
criminal history from other witnesses that he could have called, and that
testimony about respondent’s normal youth might cut the other way
in the jury’s eyes. Counsel’s final-argument options were to make a
closing argument and reprise for the jury the primary mitigating
evidence, plead for his client’s life, and impress upon the jury other,
less significant facts, knowing that it would give the persuasive lead
prosecutor the chance to depict his client as a heartless killer just be-
fore the jurors began deliberation; or to prevent the lead prosecutor
from arguing by waiving his own summation and relying on the jurors’
familiarity with the case and his opening plea for life made just a
few hours before. Neither option so clearly outweighs the other that
it was objectively unreasonable for the state court to deem his choice
a tactical decision about which competent lawyers might disagree.
Pp. 698–702.
243 F. 3d 961, reversed and remanded.
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-
nor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ.,
joined. Stevens, J., filed a dissenting opinion, post, p. 702.
Michael E. Moore, Solicitor General of Tennessee, argued
the cause for petitioner. With him on the briefs were Gor-
don W. Smith, Associate Solicitor General, and Jennifer L.
Smith, Assistant Attorney General.

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Lisa Schiavo Blatt argued the cause for the United States
as amicus curiae urging reversal. With her on the brief
were Solicitor General Olson, Assistant Attorney General
Chertoff, and Deputy Solicitor General Dreeben.
Robert L. Hutton, by appointment of the Court, 534 U. S.
1111, argued the cause for respondent.*
Chief Justice Rehnquist delivered the opinion of the
Court.
The Tennessee Court of Appeals rejected respondent’s
claim that his counsel rendered ineffective assistance during
his sentencing hearing under principles announced in Strick-
land v. Washington, 466 U. S. 668 (1984). The Court of Ap-
peals for the Sixth Circuit concluded that United States v.
Cronic, 466 U. S. 648 (1984), should have controlled the state
court’s analysis and granted him a conditional writ of habeas
corpus. We hold that respondent’s claim was governed by
Strickland, and that the state court’s decision neither was
*Briefs of amicus curiae urging reversal were filed for the State of
Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, David
M. Gormley, State Solicitor, and Matthew Hellman, Assistant Attorney
General, and by the Attorneys General for their respective jurisdictions
as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Bill Lock-
yer of California, M. Jane Brady of Delaware, Robert A. Butterworth of
Florida, Steve Carter of Indiana, Richard P. Ieyoub of Louisiana, J. Joseph
Curran, Jr., of Maryland, Jeremiah W. (Jay) Nixon of Missouri, Mike
McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa
of Nevada, David Samson of New Jersey, W. A. Drew Edmondson of
Oklahoma, Hardy Myers of Oregon, Mark Barnett of South Dakota, John
Cornyn of Texas, Mark L. Shurtleff of Utah, Iver A. Stridiron of the
Virgin Islands, Jerry Kilgore of Virginia, Christine O. Gregoire of Wash-
ington, and Hoke MacMillan of Wyoming; and for the Criminal Justice
Legal Foundation by Kent S. Scheidegger.
Walter Dellinger, Pamela Harris, and David M. Porter filed a brief for
the National Association of Criminal Defense Lawyers as amicus curiae
urging affirmance.
Larry W. Yackle and Steven R. Shapiro filed a brief for the American
Civil Liberties Union et al. as amicus curiae.

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“contrary to,” nor involved “an unreasonable application
of, clearly established Federal law” under the provisions of
28 U. S. C. § 2254(d)(1).
I
In 1982, respondent was convicted of, and sentenced
to death for, the murder of an elderly couple in Memphis,
Tennessee. The killings culminated a 2-day crime rampage
that began when respondent robbed a Memphis jewelry
store of approximately $112,000 in merchandise on a Satur-
day in August 1980. Shortly after the 12:45 p.m. robbery, a
police officer in an unmarked vehicle spotted respondent
driving at a normal speed and began to follow him. After
a few blocks, respondent accelerated, prompting a high-speed
chase through midtown Memphis and into a residen-
tial neighborhood where respondent abandoned his vehicle.
Attempting to flee, respondent shot an officer who tried to
apprehend him, shot a citizen who confronted him, and, at
gunpoint, demanded that another hand over his car keys.
As a police helicopter hovered overhead, respondent tried to
shoot the fleeing car owner, but was frustrated because his
gun was out of ammunition.
Throughout the afternoon and into the next morning, re-
spondent managed to elude detection as police combed the
surrounding area. In the meantime, officers inventorying
his car found an array of illegal and prescription drugs, the
stolen merchandise, and more than $2,400 in cash. Respond-
ent reappeared early Sunday morning when he drew a gun
on an elderly resident who refused to let him in to use her
telephone. Later that afternoon, respondent broke into the
home of Shipley and Cleopatra Todd, aged 93 and 79 years
old, and killed them by repeatedly beating them about the
head with a blunt instrument. He moved their bodies so
that they would not be visible from the front and rear doors
and ransacked the first floor of their home. After shaving
his beard, respondent traveled to Florida. He was arrested

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there for robbing a drugstore in Pompano Beach. He ad-
mitted killing the Todds and shooting the police officer.
A Tennessee grand jury charged respondent with two
counts of first-degree murder in the perpetration of a bur-
glary in connection with the Todds’ deaths, three counts of
assault with intent to murder in connection with the shoot-
ings and attempted shooting of the car owner, and one count
of robbery with a deadly weapon for the jewelry store theft.
At a jury trial in the Criminal Court of Shelby County, the
prosecution adduced overwhelming physical and testimonial
evidence showing that respondent perpetrated the crimes
and that he killed the Todds in a brutal and callous fashion.
The defense conceded that respondent committed most of
the acts in question, but sought to prove that he was not
guilty by reason of insanity. A clinical psychologist testified
that respondent suffered from substance abuse and posttrau-
matic stress disorders related to his military service in Viet-
nam. A neuropharmacologist recounted at length respond-
ent’s history of illicit drug use, which began after he joined
the Army and escalated to the point where he was daily con-
suming “rather horrific” quantities. Tr. 1722–1763. That
drug use, according to the expert, caused chronic ampheta-
mine psychosis, hallucinations, and ongoing paranoia, which
affected respondent’s mental capacity and ability to obey the
law. Defense counsel also called respondent’s mother, who
spoke of her son coming back from Vietnam in 1969 a
changed person, his honorable discharge from service, his
graduation with honors from college, and the deaths of his
father and fiance´ e while he was in prison from 1972–1979
for robbery. Although respondent did not take the stand,
defense counsel was able to elicit through other testimony
that he had expressed remorse for the killings. Rejecting
his insanity defense, the jury found him guilty on all charges.
Punishment for the first-degree murder counts was fixed
in a separate sentencing hearing that took place the next day
and lasted about three hours. Under then-applicable Ten-

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nessee law, a death sentence was required if the jury found
unanimously that the State proved beyond a reasonable
doubt the existence of at least one statutory aggravating
circumstance that was not outweighed by any mitigating
circumstance. Tenn. Code Ann. § 39–2–203 (1982). In mak-
ing these determinations, the jury could (and was instructed
that it could) consider evidence from both the guilt and pun-
ishment phases. Ibid.; Tr. 2219.
During its opening statement, the State said it would
prove four aggravating factors: that (1) respondent had
previously been convicted of one or more felonies involving
the use or threat of violence to a person; (2) he knowingly
created a great risk of death to two or more persons other
than the victim during the act of murder; (3) the murder was
especially heinous, atrocious, or cruel; and (4) the murder
was committed for the purpose of avoiding lawful arrest.
In his opening statement, defense counsel called the jury’s
attention to the mitigating evidence already before them.
He suggested that respondent was under the influence of ex-
treme mental disturbance or duress, that he was an addict
whose drug and other problems stemmed from the stress of
his military service, and that he felt remorse. Counsel
urged the jury that there was a good reason for preserving
his client’s life if one looked at “the whole man.” App. 26.
He asked for mercy, calling it a blessing that would raise
them above the State to the level of God.
The prosecution then called a records custodian and fin-
gerprint examiner to establish that respondent had three
armed robbery convictions and two officers who said they
tried unsuccessfully to arrest respondent for armed robbery
after the jewelry store heist. Through cross-examination of
the records custodian, respondent’s attorney brought out
that his client had been awarded the Bronze Star in Vietnam.
After defense counsel successfully objected to the State’s
proffer of photos of the Todds’ decomposing bodies, both
sides rested. The junior prosecuting attorney on the case

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gave what the state courts described as a “low-key” closing.1
Defense counsel waived final argument, preventing the lead
prosecutor, who by all accounts was an extremely effective
advocate, from arguing in rebuttal. The jury found in both
murder cases four aggravating factors and no mitigating
circumstances substantial enough to outweigh them. The
Tennessee Supreme Court affirmed respondent’s convictions
and sentence on appeal, State v. Cone, 665 S. W. 2d 87, and
we denied certiorari, 467 U. S. 1210 (1984).
Respondent then petitioned for state postconviction relief,
contending that his counsel rendered ineffective assistance
during the sentencing phase by failing to present mitigating
evidence and by waiving final argument. After a hearing in
which respondent’s trial counsel testified, a division of the
Tennessee Criminal Court rejected this contention. The
Tennessee Court of Criminal Appeals affirmed. Cone v.
State, 747 S. W. 2d 353 (1987). The appellate court reviewed
counsel’s explanations for his decisions concerning the calling
of witnesses and the waiving of final argument. Id., at 356–
357. Describing counsel’s representation as “very conscien-
tious,” the court concluded that his performance was within
the permissible range of competency, citing Baxter v. Rose,
523 S. W. 2d 930 (Tenn. 1975), a decision the Tennessee Su-
preme Court deems to have announced the same attorney
performance standard as Strickland v. Washington, 466
U. S. 668 (1984). See, e. g., State v. Burns, 6 S. W. 3d 453,
461 (1999). The court also expressed its view that respond-
ent received the death penalty based on the law and facts,
not on the shortcomings of counsel. 747 S. W. 2d, at 357–
358. The Tennessee Supreme Court denied respondent
permission to appeal, and we denied further review, Cone v.
Tennessee, 488 U. S. 871 (1988).
In 1997, after his second application for state postconvic-
tion relief was dismissed, respondent sought a federal writ
1 See Cone v. State, 747 S. W. 2d 353, 357 (Tenn. Crim. App. 1987).

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of habeas corpus under 28 U. S. C. § 2254 as amended by the
Antiterrorism and Effective Death Penalty Act of 1996. His
petition alleged numerous grounds for relief including in-
effective assistance at the sentencing phase. The District
Court ruled that respondent did not meet § 2254(d)’s require-
ments and denied the petition.
The Court of Appeals affirmed the refusal to issue a writ
with respect to respondent’s conviction, but reversed with
respect to his sentence. 243 F. 3d 961, 979 (CA6 2001). It
held that respondent suffered a Sixth Amendment violation
for which prejudice should be presumed under United States
v. Cronic, 466 U. S. 648 (1984), because his counsel, by not
asking for mercy after the prosecutor’s final argument, did
not subject the State’s call for the death penalty to meaning-
ful adversarial testing. 243 F. 3d, at 979. The state court’s
adjudication of respondent’s Sixth Amendment claim, in the
Court of Appeals’ analysis, was therefore an unreasonable
application of the clearly established law announced in
Strickland. 243 F. 3d, at 979. We granted certiorari, 534
U. S. 1064 (2001), and now reverse the Court of Appeals.
II
The Antiterrorism and Effective Death Penalty Act of
1996 modified a federal habeas court’s role in reviewing state
prisoner applications in order to prevent federal habeas
“retrials” and to ensure that state-court convictions are
given effect to the extent possible under law. See Williams
v. Taylor, 529 U. S. 362, 403–404 (2000). To these ends,
§ 2254(d)(1) provides:
“(d) An application for a writ of habeas corpus on be-
half of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—
“(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly estab-

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lished Federal law, as determined by the Supreme Court
of the United States.” 2
As we stated in Williams, § 2254(d)(1)’s “contrary to” and
“unreasonable application” clauses have independent mean-
ing. 529 U. S., at 404–405. A federal habeas court may
issue the writ under the “contrary to” clause if the state
court applies a rule different from the governing law set
forth in our cases, or if it decides a case differently than we
have done on a set of materially indistinguishable facts. Id.,
at 405–406. The court may grant relief under the “unrea-
sonable application” clause if the state court correctly identi-
fies the governing legal principle from our decisions but un-
reasonably applies it to the facts of the particular case. Id.,
at 407–408. The focus of the latter inquiry is on whether
the state court’s application of clearly established federal law
is objectively unreasonable, and we stressed in Williams
that an unreasonable application is different from an incor-
rect one. Id., at 409–410. See also id., at 411 (a federal
habeas court may not issue a writ under the unreasonable
application clause “simply because that court concludes in
its independent judgment that the relevant state-court deci-
sion applied clearly established federal law erroneously or
incorrectly”).
Petitioner contends that the Court of Appeals exceeded its
statutory authority to grant relief under § 2254(d)(1) because
the decision of the Tennessee courts was neither contrary to
nor an unreasonable application of the clearly established law
of Strickland. Respondent counters that he is entitled to
relief under § 2254(d)(1)’s “contrary to” clause because the
state court applied the wrong legal rule. In his view,
Cronic, not Strickland, governs the analysis of his claim that
2 Justice Stevens’ dissent does not cite this statutory provision gov-
erning respondent’s ability to obtain federal habeas relief, much less
explain how his claim meets its standards.

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his counsel rendered ineffective assistance at the sentencing
hearing. We address this issue first.
In Strickland, which was decided the same day as Cronic,
we announced a two-part test for evaluating claims that a
defendant’s counsel performed so incompetently in his or her
representation of a defendant that the defendant’s sentence
or conviction should be reversed. We reasoned that there
would be a sufficient indication that counsel’s assistance was
defective enough to undermine confidence in a proceeding’s
result if the defendant proved two things: first, that counsel’s
“representation fell below an objective standard of reason-
ableness,” 466 U. S., at 688; and second, that “there is a rea-
sonable probability that, but for counsel’s unprofessional er-
rors, the result of the proceeding would have been different,”
id., at 694. Without proof of both deficient performance and
prejudice to the defense, we concluded, it could not be said
that the sentence or conviction “resulted from a breakdown
in the adversary process that rendered the result of the pro-
ceeding unreliable,” id., at 687, and the sentence or convic-
tion should stand.
In Cronic, we considered whether the Court of Appeals
was correct in reversing a defendant’s conviction under the
Sixth Amendment without inquiring into counsel’s actual
performance or requiring the defendant to show the effect it
had on the trial. 466 U. S., at 650, 658. We determined that
the court had erred and remanded to allow the claim to be
considered under Strickland’s test. 466 U. S., at 666–667,
and n. 41. In the course of deciding this question, we iden-
tified three situations implicating the right to counsel that
involved circumstances “so likely to prejudice the accused
that the cost of litigating their effect in a particular case is
unjustified.” Id., at 658–659.
First and “[m]ost obvious” was the “complete denial of
counsel.” Id., at 659. A trial would be presumptively un-
fair, we said, where the accused is denied the presence of
counsel at “a critical stage,” id., at 659, 662, a phrase we used

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in Hamilton v. Alabama, 368 U. S. 52, 54 (1961), and White
v. Maryland, 373 U. S. 59, 60 (1963) (per curiam), to denote
a step of a criminal proceeding, such as arraignment, that
held significant consequences for the accused.3 Second, we
posited that a similar presumption was warranted if “counsel
entirely fails to subject the prosecution’s case to meaningful
adversarial testing.” Cronic, supra, at 659. Finally, we
said that in cases like Powell v. Alabama, 287 U. S. 45 (1932),
where counsel is called upon to render assistance under
circumstances where competent counsel very likely could
not, the defendant need not show that the proceedings were
affected. Cronic, supra, at 659–662.
Respondent argues that his claim fits within the second
exception identified in Cronic because his counsel failed to
“mount some case for life” after the prosecution introduced
evidence in the sentencing hearing and gave a closing state-
ment. Brief for Respondent 26. We disagree. When we
3 In a footnote, we also cited other cases besides Hamilton v. Alabama
and White v. Maryland where we found a Sixth Amendment error without
requiring a showing of prejudice. Each involved criminal defendants who
had actually or constructively been denied counsel by government action.
See United States v. Cronic, 466 U. S. 648, 659, n. 25 (1984) (citing Geders
v. United States, 425 U. S. 80, 91 (1976) (order preventing defendant from
consulting his counsel “about anything” during a 17-hour overnight recess
impinged upon his Sixth Amendment right to the assistance of counsel);
Herring v. New York, 422 U. S. 853, 865 (1975) (trial judge’s order denying
counsel the opportunity to make a summation at close of bench trial denied
defendant assistance of counsel); Brooks v. Tennessee, 406 U. S. 605, 612–
613 (1972) (law requiring defendant to testify first at trial or not at all
deprived accused of “the ‘guiding hand of counsel’ in the timing of this
critical element of his defense,” i. e., when and whether to take the stand);
Ferguson v. Georgia, 365 U. S. 570, 596 (1961) (statute retaining common-
law incompetency rule for criminal defendants, which denied the accused
the right to have his counsel question him to elicit his statements before
the jury, was inconsistent with Fourteenth Amendment); Williams v. Kai-
ser, 323 U. S. 471 (1945) (allegation that petitioner requested counsel but
did not receive one at the time he was convicted and sentenced stated case
for denial of due process)).

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spoke in Cronic of the possibility of presuming prejudice
based on an attorney’s failure to test the prosecutor’s case,
we indicated that the attorney’s failure must be complete.
We said “if counsel entirely fails to subject the prosecution’s
case to meaningful adversarial testing.” Cronic, supra, at
659 (emphasis added). Here, respondent’s argument is not
that his counsel failed to oppose the prosecution throughout
the sentencing proceeding as a whole, but that his counsel
failed to do so at specific points. For purposes of distin-
guishing between the rule of Strickland and that of Cronic,
this difference is not of degree but of kind.4
The aspects of counsel’s performance challenged by re-
spondent—the failure to adduce mitigating evidence and the
waiver of closing argument—are plainly of the same ilk as
other specific attorney errors we have held subject to Strick-
4 In concluding that Cronic applies to respondent’s ineffective-assistance
claim, the dissent relies in part on inferences it draws from evidence that
his attorney sought treatment for a mental illness four years after re-
spondent’s trial. See post, at 715–716 (opinion of Stevens, J.). While
the dissent admits that counsel’s mental health problems “may have onset
after [respondent’s] trial,” it speculates that counsel’s mental health prob-
lems began earlier based on its “complete reading of the trial transcript
and an assessment of [counsel’s] actions at trial.” Post, at 716. But, as
the dissent concedes, respondent did not present any evidence regarding
his counsel’s mental health in the state-court proceedings. Before us, re-
spondent does not argue that we could consider his attorney’s medical
records obtained in the federal habeas proceedings in assessing his Sixth
Amendment claim, nor does he suggest that his counsel suffered from men-
tal health problems at the time of his trial. Furthermore, any implication
that trial counsel was impaired during his representation is contradicted
by the testimony of the two experts called during the state postconviction
hearing. Both had extensive experience in prosecuting and defending
criminal cases and were familiar with trial counsel’s abilities. Wayne Em-
mons said that counsel was “not only fully capable, but one of the most
conscientious lawyers [he] knew.” State Postconviction Tr. 73. And Ste-
phen Shankman said he considered respondent’s counsel “to be one of the
finest practitioners in [the] community in the area of criminal defense
work,” id., at 182, and “an extremely experienced lawyer” whom he would
be “hardpressed to second guess,” id., at 190.

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land’s performance and prejudice components. In Darden
v. Wainwright, 477 U. S. 168, 184 (1986), for example, we
evaluated under Strickland a claim that counsel was ineffec-
tive for failing to put on any mitigating evidence at a capital
sentencing hearing. In Burger v. Kemp, 483 U. S. 776, 788
(1987), we did the same when presented with a challenge to
counsel’s decision at a capital sentencing hearing not to offer
any mitigating evidence at all.
We hold, therefore, that the state court correctly identified
the principles announced in Strickland as those governing
the analysis of respondent’s claim. Consequently, we find
no merit in respondent’s contention that the state court’s
adjudication was contrary to our clearly established law.
Cf. Williams, 529 U. S., at 405 (“The word ‘contrary’ is com-
monly understood to mean ‘diametrically different,’ ‘opposite
in character or nature,’ or ‘mutually opposed’ ” (quoting Web-
ster’s Third New International Dictionary 495 (1976))).
III
The remaining issue, then, is whether respondent can ob-
tain relief on the ground that the state court’s adjudication
of his claim involved an “unreasonable application” of Strick-
land. In Strickland we said that “[j]udicial scrutiny of a
counsel’s performance must be highly deferential” and that
“every effort [must] be made to eliminate the distorting ef-
fects of hindsight, to reconstruct the circumstances of coun-
sel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” 466 U. S., at 689. Thus,
even when a court is presented with an ineffective-assistance
claim not subject to § 2254(d)(1) deference, a defendant must
overcome the “presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strat-
egy.’ ” Ibid. (quoting Michel v. Louisiana, 350 U. S. 91,
101 (1955)).
For respondent to succeed, however, he must do more than
show that he would have satisfied Strickland’s test if his

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Opinion of the Court
claim were being analyzed in the first instance, because
under § 2254(d)(1), it is not enough to convince a federal ha-
beas court that, in its independent judgment, the state-court
decision applied Strickland incorrectly. See Williams,
supra, at 411. Rather, he must show that the Tennessee
Court of Appeals applied Strickland to the facts of his case
in an objectively unreasonable manner. This, we conclude,
he cannot do.
Respondent’s counsel was faced with the formidable task
of defending a client who had committed a horribly brutal
and senseless crime against two elderly persons in their
home. He had just the day before shot a police officer and
an unarmed civilian, attempted to shoot another person, and
committed a robbery. The State had near conclusive proof
of guilt on the murder charges as well as extensive evidence
demonstrating the cruelty of the killings. Making the sit-
uation more onerous were the facts that respondent, de-
spite his high intelligence and relatively normal upbringing,
had turned into a drug addict and had a history of robbery
convictions.
Because the defense’s theory at the guilt phase was not
guilty by reason of insanity, counsel was able to put be-
fore the jury extensive testimony about what he believed
to be the most compelling mitigating evidence in the case—
evidence regarding the change his client underwent after
serving in Vietnam; his drug dependency, which apparently
drove him to commit the robbery in the first place; and
its effects. Before the state courts, respondent faulted his
counsel for not recalling his medical experts during the
sentencing hearing. But we think counsel reasonably could
have concluded that the substance of their testimony was
still fresh to the jury. Each had taken the stand not long
before, and counsel focused on their testimony in his guilt
phase closing argument, which took place the day before the
sentencing hearing was held. Respondent’s suggestion that
the jury could not fully consider the mental health proof as

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700 BELL v. CONE
Opinion of the Court
potentially mitigating because it was adduced during the
guilt phase finds no support in the record. Defense counsel
advised the jury that the testimony of the experts estab-
lished the existence of mitigating circumstances, and the
trial court specifically instructed the jury that evidence of a
mental disease or defect insufficient to establish a criminal
defense could be considered in mitigation. Tr. 2221.
Respondent also assigned error in his counsel’s decision
not to recall his mother. While counsel recognized that re-
spondent’s mother could have provided further information
about respondent’s childhood and spoken of her love for him,
he concluded that she had not made a good witness at the
guilt stage, and he did not wish to subject her to further
cross-examination. Respondent advances no argument that
would call his attorney’s assessment into question.
In his trial preparations, counsel investigated the possibil-
ity of calling other witnesses. He thought respondent’s sis-
ter, who was closest to him, might make a good witness, but
she did not want to testify. And even if she had agreed,
putting her on the stand would have allowed the prosecutor
to question her about the fact that respondent called her
from the Todds’ house just after the killings. After consult-
ing with his client, counsel opted not to call respondent him-
self as a witness. And we think counsel had sound tactical
reasons for deciding against it. Respondent said he was
very angry with the prosecutor and thought he might lash
out if pressed on cross-examination, which could have only
alienated him in the eyes of the jury. There was also the
possibility of calling other witnesses from his childhood or
days in the Army. But counsel feared that the prosecution
might elicit information about respondent’s criminal history.5
5 Respondent cites Cozzolino v. State, 584 S. W. 2d 765 (Tenn. 1979), to
argue that calling additional witnesses would not have opened the door to
evidence about his prior bad acts. We need not express any view as to
Tennessee law on this issue except to point out that Cozzolino does not
state such a broad, categorical rule. Cozzolino held that a trial court

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Opinion of the Court
He further feared that testimony about respondent’s normal
youth might, in the jury’s eyes, cut the other way.
Respondent also focuses on counsel’s decision to waive
final argument. He points out that counsel could have ex-
plained the significance of his Bronze Star decoration and
argues that his counsel’s failure to advocate for life in closing
necessarily left the jury with the impression that he de-
served to die. The Court of Appeals “reject[ed] out of hand”
the idea that waiving summation could ever be considered
sound trial strategy. 243 F. 3d, at 979. In this case, we
think at the very least that the state court’s contrary assess-
ment was not “unreasonable.” After respondent’s counsel
gave his opening statement discussing the mitigating evi-
dence before them and urging that they choose life for his
client, the prosecution did not put on any particularly dra-
matic or impressive testimony. The State’s witnesses testi-
fied rather briefly about the undisputed facts that respondent
had prior convictions and was evading arrest.
When the junior prosecutor delivered a very matter-of-
fact closing that did not dwell on any of the brutal aspects of
the crime, counsel was faced with a choice. He could make a
closing argument and reprise for the jury, perhaps in greater
detail than his opening, the primary mitigating evidence con-
cerning his client’s drug dependency and posttraumatic
stress from Vietnam. And he could plead again for life for
his client and impress upon the jurors the importance of
what he believed were less significant facts, such as the
Bronze Star decoration or his client’s expression of remorse.
But he knew that if he took this opportunity, he would give
the lead prosecutor, who all agreed was very persuasive, the
erred in admitting evidence that the defendant committed crimes after
the murder because that evidence was not relevant to any aggravating
factors or mitigating factors raised by the defense. Id., at 767–768. In
this case, at a minimum, any evidence about respondent’s prior robbery
convictions would have been relevant because the State relied on those
convictions to prove an aggravating circumstance.

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702 BELL v. CONE
Stevens, J., dissenting
chance to depict his client as a heartless killer just before
the jurors began deliberation. Alternatively, counsel could
prevent the lead prosecutor from arguing by waiving his
own summation and relying on the jurors’ familiarity with
the case and his opening plea for life made just a few hours
before. Neither option, it seems to us, so clearly outweighs
the other that it was objectively unreasonable for the Ten-
nessee Court of Appeals to deem counsel’s choice to waive
argument a tactical decision about which competent lawyers
might disagree.
We cautioned in Strickland that a court must indulge a
“strong presumption” that counsel’s conduct falls within the
wide range of reasonable professional assistance because it
is all too easy to conclude that a particular act or omission
of counsel was unreasonable in the harsh light of hindsight.
466 U. S., at 689. Given the choices available to respondent’s
counsel and the reasons we have identified, we cannot say
that the state court’s application of Strickland’s attorney-
performance standard was objectively unreasonable. The
judgment of the Court of Appeals is therefore reversed, and
the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Stevens, dissenting.
In my judgment, the Court of Appeals correctly concluded
that during the penalty phase of respondent’s capital murder
trial, his counsel “entirely fail[ed] to subject the prosecution’s
case to meaningful adversarial testing.” United States v.
Cronic, 466 U. S. 648, 659 (1984). Counsel’s shortcomings
included a failure to interview witnesses who could have
provided mitigating evidence; a failure to introduce avail-
able mitigating evidence; and the failure to make any clos-
ing argument or plea for his client’s life at the conclusion of
the penalty phase. Furthermore, respondent’s counsel was,
subsequent to trial, diagnosed with a mental illness that ren-

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Stevens, J., dissenting
dered him unqualified to practice law, and that apparently
led to his suicide. See App. 88–89. These circumstances
“justify a presumption that respondent’s conviction was in-
sufficiently reliable to satisfy the Constitution.” Cronic, 466
U. S., at 662.
I
Certain facts about respondent, Gary Cone, are not in dis-
pute. Cone was a “gentle child,” of exceptional intelligence,
with an outstanding academic record in high school. App.
62–63. His father was an officer in the United States Army
and a firm disciplinarian. He apparently enjoyed a loving
relationship with his older brother and with both of his sis-
ters. At age 8 or 9, however, Cone witnessed the drowning
of his older brother. In 1966, at age 18, Cone enlisted in the
Army and was sent to Germany. He was eventually trans-
ferred to Vietnam, where he served as a supply clerk until
1969. His service in Vietnam involved, among other things,
transporting corpses and performing long hours of guard
duty. He was awarded the Bronze Star, and he received an
honorable discharge.
After returning to the States, Cone graduated from col-
lege and, although accepted into law school for August/
September 1980, never enrolled. According to Cone, he
began to use drugs—mainly amphetamines—while in Viet-
nam, in order to perform extended guard duties, and he con-
tinued to do so after his discharge from the Army. In an
apparent effort to fund this growing drug habit, he com-
mitted robberies, and, in 1972, after college, he was convicted
of armed robbery and incarcerated in Oklahoma until 1979.
While he was in prison, his father died and his fiance´ e, whom
he met while in college, was raped and murdered. After his
release from prison, he kept in touch with his mother (who
lived in Arkansas) and his sister (who lived in Chicago), but
did not stay in one place. The lack of evidence of gainful
employment post-1979, coupled with evidence of travels to

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704 BELL v. CONE
Stevens, J., dissenting
Florida and Hawaii, suggests that Cone supported himself
and his drug habit by criminal activity.
The Court has fairly described the facts of respondent’s
crime. Ante, at 689–690. However, in order to understand
both why Cronic applies in the present case, and how counsel
completely failed respondent at the penalty phase, I describe
the events at trial in more detail. In his opening statement
at the guilt phase of the trial, respondent’s counsel, John
Dice, admitted to the jury that Cone had committed the
crimes for which he was charged, but explained that he was
not guilty by reason of insanity—a condition brought on by
excessive drug use that resulted from “Vietnam Veterans
Syndrome.” See, e. g., Tr. 956–957.1 Dice explained to the
jury that Cone’s time in Vietnam had transformed him, lead-
ing to his insanity, and Dice promised several witnesses in
aid of this insanity defense, including Cone’s sister Susan,
Cone’s mother, and his two aunts, all of whom would “testify
about the Gary Cone that they knew,” id., at 953, that is, the
1 Dice claims credit for developing this defense, but these claims are
unsubstantiated and appear exaggerated from Dice’s testimony. See
State Postconviction Tr. 92. Nonetheless, such a defense was in its early
stages at the time of respondent’s 1982 trial, and has become more widely
asserted. See generally Levin, Defense of the Vietnam Veteran with
Post-Traumatic Stress Disorder, 46 Am. Jur. Trials 441 (1993 and Supp.
2001). Furthermore, as of 1980, the American Psychiatric Association
began formally to recognize posttraumatic stress disorder (PTSD), which
can derive from disturbing war experiences. See American Psychiatric
Assn., Diagnostic and Statistical Manual of Mental Disorders 463–468 (rev.
4th ed. 2000).
The PTSD from which respondent allegedly suffered would sensibly
have been used by Dice as mitigation in the penalty phase. See Levin,
46 Am. Jur. Trials § 37. However, its viability as the guilt phase defense
in this case was unlikely at best, because insanity in this context applies
when “[t]he veteran who believes he is again in combat . . . attacks one
whom he believes to be an enemy soldier.” Davidson, Note, Post-
Traumatic Stress Disorder: A Controversial Defense for Veterans of a
Controversial War, 29 Wm. & Mary L. Rev. 415, 424 (1988). Cone was
not in combat and his crime did not fit this description.

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Stevens, J., dissenting
pre-Vietnam Cone. Dice also advised the jury that he would
prove that the victim’s sister had written a letter of forgive-
ness to Cone’s mother—“one of the most loving letters I’ve
ever read in my life,” in Dice’s words. Id., at 965–966.2
Despite these promises, after the State’s affirmative case
in the guilt phase, Dice presented only three witnesses in
support of the insanity defense: Cone’s mother testified about
his behavior after his return from Vietnam, but the court
largely precluded her from discussing Cone’s pre-Vietnam
life; a clinical psychologist testified about posttraumatic
stress resulting from Cone’s Vietnam service; and a neuro-
pharmacologist testified about Cone’s drug use and its ef-
fects. Through these witnesses, Dice attempted to paint a
picture of a normal person who fell victim to “amphetamine
psychosis” and became a “junkie of such unbelievable propor-
tions that it would have been impossible for him to form any
intent.” Id., at 957. Cone was not a witness at the guilt
phase, though he did take the stand outside the presence of
the jury to waive his right to testify.
In its rebuttal case, the State adduced the testimony of
Aileen Blankman, whom Cone visited in Florida approxi-
mately one day after the murders. She testified that re-
spondent neither used drugs while visiting her, nor appeared
to have recently used drugs, thereby calling into question
his claim of drug addiction. According to Dice’s co-counsel,
Blankman’s testimony “utterly destroyed our defense. We
were totally unprepared for that.” State Postconviction
Tr. 42. Dice knew of Blankman’s contact with Cone after
the murders, and was “absolutely” aware that Blankman was
2 This letter’s mitigating effect would have been significant. It read, in
part: “Even tho I am still in shock over the tragic death of my dear brother
and his wife, I want you to know that you and your family have my prayers
and deepest sympathy. I am also praying for Gary. We know he must
have been out of his mind to have done the things he did. May God
forgive him.” Record, Exh. 29. See Tr. 1280–1281 (referencing letter,
marked as Exhibit 29, which was never submitted to the jury).

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a possible prosecution witness, but Dice failed to interview
her before the trial. Id., at 138.3 In guilt phase rebuttal,
the State also introduced its own medical experts to chal-
lenge the defense experts’ testimony concerning Cone’s
alleged insanity. Although the State’s experts questioned
Cone’s claim of Vietnam Veterans Syndrome, their testimony
focused on Cone’s failure to satisfy the insanity standard.
See Tr. 1957, 1983. It took less than two hours for the jury
to return a guilty verdict on all counts.
Dice’s stated attitude toward the penalty phase must
frame our consideration of the constitutional standard appli-
cable to this case. Once his “Vietnam Veterans Syndrome”
defense was rejected in the guilt phase, it appears that Dice
approached the penalty phase with a sense of hopelessness
because his “basic tactic was to try to convince the jury that
Gary Cone was insane at the time of the commission of these
acts, and the jury rejected that.” State Postconviction
Tr. 109. Dice perceived that the guilt phase evidence con-
cerning Cone’s mental health “made absolutely no difference
to the jury,” id., at 159, and that the jurors “weren’t buy-
ing any of it,” id., at 156, even though that evidence had
been introduced to the jury through the lens of the insanity
defense, not as mitigation for the death penalty.4 Dice’s co-
3 With respect to this failure, Dice explained: “So, we could have inter-
viewed her, but we didn’t. I don’t know, maybe she was devastating and
maybe she wasn’t, but let’s say that we had interviewed her, you know,
what would it have changed? If she’d come up here and she’d testified,
she would have testified the same way I assume.” State Postconviction
Tr. 140.
4 It is true that the jury was instructed to consider mitigation from the
guilt phase, and also true that Dice’s brief penalty phase opening refer-
enced the mental health evidence from the guilt phase, ante, at 691, but
the jury’s whole view of that testimony was influenced by its relation to
the debunked insanity defense. Although the State’s experts may have
been successful in undermining Cone’s claim to insanity, they did not
necessarily undermine the potential mitigating effect of Cone’s mental
health evidence.

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Stevens, J., dissenting
counsel echoed the sentiment that death was a foregone con-
clusion: “I don’t recall too much on any discussion, really,
about the penalty stage, mainly because my own feeling
about the case law as it was then, and I guess as it still is, is
that when a jury is [Witherspooned] in,5 it’s a fixed jury.
They’re going to find a death penalty. . . . It was almost a
hopeless feeling that the way the problem was going to be
solved was through the Court of Appeals, not through any
jury verdict.” Id., at 39. Indeed, Dice expressed this hope-
lessness even before the trial began; he testified that he told
Cone’s mother “the first day I met her, that if [the prosecu-
tor] does not elect to offer life in this case, your boy is going
to the chair and there’s not going to be a darn thing . . . I’m
going to be able to do to stop it except to maybe screw up
the prosecution.” Id., at 108. Moreover, Dice’s testimony
in state postconviction reveals his “radical” view of the pen-
alty phase. Id., at 122. When asked if the purpose of the
penalty phase was to “individualize the defendant,” Dice re-
plied “[t]hat’s your view of it as a lawyer, not mine,” id., at
124, and when asked why a capital proceeding is bifurcated,
Dice replied “God only knows,” id., at 125.6 His co-counsel’s
postconviction testimony confirms Dice’s misguided views.
Discussing the penalty phase, co-counsel stated: “I don’t be-
lieve I understood the separate nature of it. I don’t believe
that I understood the necessity . . . of perhaps producing
5 Her comments refer to Witherspoon v. Illinois, 391 U. S. 510, 518
(1968) (finding no general constitutional bar to a State’s “exclusion of ju-
rors opposed to capital punishment,” i. e., “death-qualification” of a jury,
because of no proof that such a bar “results in an unrepresentative jury
on the issue of guilt or substantially increases the risk of conviction”).
6 Dice’s comments concerning the penalty phase are not only erroneous
in content, but inappropriate in tone. For example, when asked about
capital sentencing, he rejected the notion that the Constitution requires
an individualized death penalty decision: “The reason’s political as far as
I’m concerned. The method is insanity . . . . I don’t care whether it’s
legal or not. When you kill people who kill people to show that killing
people is wrong, it’s insane.” State Postconviction Tr. 124.

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708 BELL v. CONE
Stevens, J., dissenting
more evidence in mitigating circumstances, in that phase
also.” Id., at 49.
The parties agree that Dice did four things in the penalty
phase. See Brief for Respondent 36. First, he made a brief
opening argument in the penalty phase asking for mercy.
Second, in this opening, he referenced the evidence concern-
ing Vietnam Veterans Syndrome that had been presented in
the guilt phase. Third, he brought out on cross-examination
of the State’s witness who presented court records of re-
spondent’s prior convictions that Cone had been awarded the
Bronze Star in Vietnam, though he did not explain the sig-
nificance of that decoration to the jury because he made no
closing remarks after the cross-examination. And, fourth,
outside of the jury’s presence, he successfully objected to
the State’s introduction of two photographs of the murder
victims. Aside from doing these things, however, Dice
did nothing before or during the penalty phase—he did not
interview witnesses aside from those relevant to the guilt
phase; he did not present testimony relevant to mitigation
from the witnesses who were available; and he made no plea
for Cone’s life or closing remarks after the State’s case.
Dice conceded that he did not interview various people
from Cone’s past, such as his high school teachers and class-
mates, who could have testified that Cone was a good person
who did not engage in criminal behavior pre-Vietnam. Dice
agreed that such witnesses would likely have been avail-
able if Dice had, in his words, “been stupid enough to put
them on.” State Postconviction Tr. 104. Apparently, Dice
did not interview these individuals in preparation for the
penalty phase, because he assumed that the State’s cross-
examination of those witnesses would emphasize the serious-
ness of Cone’s post-Vietnam criminal behavior. Id., at 104–
105, 137. Dice’s reasoning is doubtful to say the least
because, regardless of the state of Tennessee law, see ante,
at 696, n. 3, these post-Vietnam crimes were already known
to the jury through the State’s penalty phase evidence of

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Stevens, J., dissenting
respondent’s prior convictions. Further, it is hard to imag-
ine how evidence of Cone’s post-Vietnam behavior would
change their assessments—indeed, Dice’s whole case was
that Cone had changed.7
Dice also failed to present to the jury mitigation evidence
that he did have on hand. He admitted that other wit-
nesses—including those whose testimony he promised to the
jury in the guilt phase opening, such as Cone’s mother, sister,
and aunts—had been interviewed and were available to tes-
tify at the penalty phase. Dice had ready access to other
mitigation evidence as well: testimony from Cone himself (in
which he could have, among other things, expressed remorse
and discussed his brother’s drowning and his fiance´ e’s mur-
der), the letter of forgiveness from the victim’s sister, the
Bronze Star, and the medical experts. Dice’s post hoc rea-
sons for not putting on these additional witnesses and evi-
dence are puzzling, but appear to rest largely on his incorrect
assumption that the guilt phase record already included
“what little mitigating circumstances we had,” State Post-
conviction Tr. 133, and his fear of the prosecutor, “who by all
accounts was an extremely effective advocate,” ante, at 692;
see, e. g., State Postconviction Tr. 105, 107–108, 123, 136, 137.
7 The Court’s brief descriptions of Dice’s reasoning for his choices, see
ante, at 699–702, gives this reasoning more legitimacy than it merits.
Only by reading Dice’s lengthy answers from the postconviction hearing
is it clear how confused and misguided Dice was. For example, with re-
spect to the supposed damage that these mitigation witnesses could do,
Dice speaks in generalities about unsubstantiated fears: “Picture this sce-
nario. You’ve got them on the stand; once you’ve put on this trial for life,
as we call it, you and I, and the burden is what now? It’s only preponder-
ance of the evidence. Comes now the skilled prosecutor, Mr. Strother,
over there, and says, oh, he was a good student in high school; right? And
Vietnam affected his mind; right? What about all the robberies he
pulled? They have him in prison in Oklahoma. I mean, he was in prison
once. Did you know about those things? And how about this and that,
you know, and other things Mr. Cone told me about? ” State Postconvic-
tion Tr. 104–105.

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Although the guilt phase evidence included information
about Cone’s post-Vietnam behavior, it told the jury little
about Cone’s earlier life.8 During the guilt phase, Dice had
a difficult enough time convincing the court to allow him to
present evidence of respondent’s post-Vietnam behavior and
drug addiction as an insanity defense, that he did not seri-
ously attempt to introduce evidence of respondent’s child-
hood. However, such evidence would have been permissible
mitigation in the penalty phase. This evidence would have
revealed Cone to be “a quiet, studious child,” with “abso-
lutely no suggestion of any behavioral disturbance, even in
adolescence.” App. 93. Indeed, his mother could have de-
scribed him as a “perfect” child, ibid., and she “absolutely”
wanted to testify at the penalty hearing to make a plea for
Cone’s life, but Dice “wouldn’t put her on even if she’d
wanted to,” because he “did not feel that she did well on the
stand,” and because of “the cross-examination skills of the
District Attorney involved.” State Postconviction Tr. 97–
98, 193. Dice’s claim that she had not made a good witness
at the guilt phase, see ante, at 700, is contradicted by the
transcript of her straightforward trial testimony, Tr. 1631–
1656, and his desire not to subject her to cross-examination
is surely an insufficient reason, absent more, to prevent her
from asking the jury to spare her son’s life.
Dice also did not call as witnesses in mitigation either of
Cone’s sisters or his aunt, all of whom were promised in
Dice’s opening statement. Dice’s statement that Cone’s sis-
ter Sue “did not want to testify,” ante, at 700, is contradicted
by his opening statement. And his fear that she might have
been questioned “about the fact that [Cone] called her from
the [victims’] house just after the killings,” ibid., is un-
founded: Evidence of this call was already in the record, and
further reference to the call could do no conceivable addi-
tional harm to Cone’s case. Indeed, Dice’s justification for
8 Cf. Levin, 46 Am. Jur. Trials § 37 (“Counsel needs to clearly draw the
contrast in the client from before and after Vietnam”).

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not calling Sue merely illustrates Dice’s extraordinary fear
of his adversaries. Dice’s explanation for his failure to call
Cone’s other sister, Rita, is even more unsatisfying: “I think
that we had a letter exchange or a phone call. My tactics
do not necessarily involve putting the family on down here
because, again, . . . I thought that we were in a position
which we should say was tenuous from the outset.” State
Postconviction Tr. 136. His failure to call Cone’s aunt is un-
explained. His failure to offer into evidence the letter writ-
ten by the victim’s sister, offering her prayers for Cone, is
also unexplained. See n. 2, supra.
Dice did not put Cone on the stand during the penalty
phase, forfeiting the opportunity for him to express the
remorse he apparently felt, see Tr. 1675. Dice testified
that he discussed with Cone the possibility of testifying,
but opted not to call him at the penalty phase because of
fear that respondent might “lash out if pressed on cross-
examination.” Ante, at 700. He also claimed that Cone
made the decision not to testify at the penalty phase because
Cone feared the prosecutor. In Dice’s words, Cone “realized
that [the prosecutor] was a very intelligent and skilled
cross-examiner and [Cone] felt that he would go off if he took
the stand.” State Postconviction Tr. 103. However, this
explanation conspicuously echoes Dice’s own fears about the
prosecutor’s prowess. Furthermore, respondent testified
that Dice never “urged [him] as to the importance of testify-
ing at the penalty stage,” id., at 204, and Dice testified that
his duties did not include urging Cone to testify, id., at 119.
Given the undisputed evidence of Cone’s intelligence and no
indication that his behavior in the courtroom was anything
but exemplary, it is difficult to imagine why any competent
lawyer would so readily abandon any effort to persuade his
client to take the stand when his life was at stake. Dice’s
claim that he did no more than permit Cone to reach his own
decision about testifying in the penalty phase is simply not
credible. Rather, it appears that Dice, fearful of the prose-
cutor, did not specifically discuss testifying in the penalty

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712 BELL v. CONE
Stevens, J., dissenting
phase with Cone, but rather discussed with him the possibil-
ity of taking the stand on only one occasion—during the guilt
phase of the trial.9
Dice’s failure to recall the medical experts who testified in
the guilt phase is a closer question, and may have been justi-
fied by his belief that they could not add anything that had
not already been presented to the jury.10 Nevertheless, had
they been called, Dice could have made the point, likely lost
on the jury as a result of Dice’s “strategy,” that the experts’
appraisal of Cone had mitigating significance, even if it did
not establish his insanity. For there is a vast difference be-
tween insanity—which the defense utterly failed to prove—
and the possible mitigating effect of drug addiction incurred
as a result of honorable service in the military. By not em-
phasizing this distinction, Dice made it far less likely that
the jury would treat either the trauma resulting from Cone’s
tour of duty in Vietnam 11 or other traumatic events in his
9 This conclusion follows from Cone’s testimony that he was only
consulted once, in a three-person conference, about testifying, before he
got on the stand to state that he would not be testifying. State Postcon-
viction Tr. 203–204. Cone initially recalled that this meeting occurred in
the penalty stage, though he then expressed uncertainty on this point;
however, he remained certain that there had been only one meeting.
See ibid. The conference must have concerned the guilt phase, because
it was during the guilt phase that Cone waived his right to testify. See
Tr. 1865–1866. Furthermore, Dice’s co-counsel does not remember a dis-
cussion concerning Cone’s possible testimony at the penalty phase, State
Postconviction Tr. 35, 48; Dice himself testified repeatedly that Cone does
not lie, id., at 117, 120, 139, 141; and Dice himself was unable to state for
certain that Cone was consulted about penalty phase testimony, id., at 118.
10 Indeed, had counsel’s performance not been so completely deficient,
this would be the sort of strategic choice about which counsel would be
owed deference under Strickland v. Washington, 466 U. S. 668, 689 (1984).
In this case, however, because of Dice’s total failure in the penalty phase,
it is difficult to credit even arguably reasonable choices as the result of
“reasonable professional judgment,” id., at 690. See infra, at 717–718.
11 “Although not a combat soldier in Vietnam, Gary described disturbing
and traumatic experiences while there. For example, the stench from the
corpses, and the way in which they were stored in refrigerators alongside

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713 Cite as: 535 U. S. 685 (2002)
Stevens, J., dissenting
life 12 as mitigating. And, again, the reason for Dice’s failure
is that Dice himself failed to appreciate this distinction, for
he believed that the “jury had completely rejected” the ex-
perts’ testimony after losing at the guilt phase. Id., at 156.
In addition to performing no penalty phase investigation
and failing to introduce available mitigation, Dice made no
closing statement after the State’s affirmative case for death.
Rather, Dice’s “strategy” was to rely on his brief penalty
phase opening statement. This opening statement did refer
to the evidence of drug addiction and the expert testimony
already in the record, though it is unclear to what end, as
Dice believed that the jury had “completely rejected” this
testimony, ibid. Dice’s statement also explained that re-
spondent’s drug abuse began under the “stress and strain of
combat service,” Tr. 2118, even though the jurors knew that
Cone had not been in combat. Otherwise, Dice failed to de-
scribe the substantial mitigating evidence of which he was
aware: Cone’s Bronze Star; his good character before enter-
ing the military; the deaths in his family; the rape and mur-
der of his fiance´ e; and his loving relationships with his
mother, his sisters, and his aunt. At best, Dice’s opening
statement and plea for Cone’s life was perfunctory; indeed,
it occupies only 41 ⁄ 2 of the total 2,158 trial transcript pages.
Dice’s decision not to make a closing argument was most
strongly motivated by his fear that his adversary would
make a persuasive argument depicting Cone as a heartless
food; witnessing death; being required, even on occasion to fire a weapon;
the long hours of guard duty; and the escalating drug abuse, often ostensi-
bly sanctioned by superior officers.” App. 96.
12 According to a defense psychologist’s report about Cone, the major
traumas in his life have been: “witnessing his brother’s body being re-
moved from the lake”; “[h]is grandmother’s death, just after high school
graduation. Gary lived with her, and clearly viewed her as a safe haven
from his father”; “[d]uty in Vietnam, 1968–1969. Although not a combat
soldier, experiences were beyond the realm of normal experiences for a
20-year-old”; and the “[r]ape and murder of his fiance´ e in December 1972.”
Id., at 102.

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714 BELL v. CONE
Stevens, J., dissenting
killer. At all costs, Dice wanted to avoid the prosecutor
“slash[ing] me to pieces on rebuttal,” as “[h]e’s done . . . a
hundred times.” State Postconviction Tr. 123. Dice hoped
that by not making a closing statement, the prosecutor would
“kind of follo[w] me right down the primrose path.” Id., at
107. Of course, at the time Dice waived closing argument,
the aggravating circumstances had already been proved, and
Dice knew that the judge would instruct the jury to return
a verdict of death unless the jurors were persuaded that the
aggravating circumstances were outweighed by mitigating
evidence. Perhaps that burden was insurmountable, but the
jury must have viewed the absence of any argument in re-
sponse to the State’s case for death as Dice’s concession that
no case for life could be made. A closing argument provided
the only chance to avoid the inevitable outcome of the “prim-
rose path”—a death sentence.13
Both of the experienced criminal lawyers who testified as
expert witnesses in the state postconviction proceedings re-
fused to state categorically that it would never be appro-
priate to waive closing argument, to fail to put the defendant
on the stand during the penalty phase of the trial, or to offer
no mitigating evidence in the penalty phase. Both wit-
nesses agreed, however, that Dice’s tactical decisions were
13 In his postconviction testimony, Dice offered another reason for waiv-
ing closing argument. He claimed that the State, in its penalty phase
case, had “screw[ed] up the aggravated circumstances” by arguing to the
jury an aggravating factor that was unsupported by the evidence—that
the lives of two or more people other than the victims were endangered
by the defendant. State Postconviction Tr. 108. Dice testified that he
was concerned that if he made a closing argument, the State might realize
its mistake and correct the error in its rebuttal closing argument. See
id., at 103–104. Not only is Dice’s explanation incredible, but, unsurpris-
ingly, Dice’s “strategy” did not work “perfectly,” as Dice claimed it did,
id., at 103, because the State Supreme Court found any error concerning
the aggravators to be harmless, State v. Cone, 665 S. W. 2d 87, 95 (Tenn.
1984). More importantly, such a “strategy” is never appropriate; counsel’s
hope for an appellate victory concerning one trial error cannot justify abdi-
cation of his duty as advocate for the remainder of the proceeding.

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Stevens, J., dissenting
highly abnormal, and perhaps unprecedented in a capital
case.
II
On these facts, and as a result of Dice’s overwhelming fail-
ure at the penalty phase, the Court of Appeals properly con-
cluded that Cronic controls the Sixth Amendment claim in
this case, and that prejudice to respondent should be pre-
sumed. Given Dice’s repeated and unequivocal testimony
about Cone’s truthfulness, together with Cone’s apparent
feelings of remorse, see Tr. 1675, Dice’s decision not to offer
Cone’s testimony in the penalty phase is simply bewildering.
And his decisions to present no mitigation case in the penalty
phase,14 and to offer no closing argument in the face of the
prosecution’s request for death,15 are nothing short of incred-
ible. Moreover, Dice’s explanations for his decisions not
only were uncorroborated, but were, in my judgment, pat-
ently unsatisfactory. Indeed, his rambling and often inco-
herent descriptions of his unusual trial strategy lend strong
support to the Court of Appeals’ evaluation of this case and
its decision not to defer to Dice’s lack of meaningful partici-
pation in the penalty phase as “strategy.” 16
Although the state courts did not have the benefit of evi-
dence concerning Dice’s mental health, it appears from Dice’s
14 Cf. Penry v. Lynaugh, 492 U. S. 302, 319 (1989) (“If the sentencer is
to make an individualized assessment of the appropriateness of the death
penalty, ‘evidence about the defendant’s background and character is rele-
vant 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’ ” (quoting California v. Brown, 479 U. S. 538,
545 (1987) (O’Connor, J., concurring))).
15 Cf. Herring v. New York, 422 U. S. 853, 862 (1975) (“In a criminal trial,
which is in the end basically a factfinding process, no aspect of such advo-
cacy could be more important than the opportunity finally to marshal the
evidence for each side before submission of the case to judgment”).
16 Dice’s main explanation of his decision to waive closing argument at
the close of the penalty hearing is quoted in an appendix to this opinion.

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Stevens, J., dissenting
medical records that he suffered from a severe mental im-
pairment. He began treatment for this illness a couple of
years after trial, and he committed suicide approximately six
months after the postconviction hearing in this case. See
App. 88–89. The symptoms of his disorder included “con-
fused thinking, impaired memory, inability to concentrate for
more than a short period of time, paranoia, grandiosity, [and]
inappropriate behavior.” Id., at 88. While these mental
health problems may have onset after Cone’s trial, a com-
plete reading of the trial transcript and an assessment of
Dice’s actions at trial suggest this not to be the case.
A theme of fear of possible counterthrusts by his adversar-
ies permeates Dice’s loquacious explanations of his tactical
decisions. But fear of the opponent cannot justify such ab-
solute dereliction of a lawyer’s duty to the client—especially
a client facing death. For “[t]he very premise of our adver-
sary system of criminal justice is that partisan advocacy on
both sides of a case will best promote the ultimate objective
that the guilty be convicted and the innocent go free.” Her-
ring v. New York, 422 U. S. 853, 862 (1975). There may be
cases in which such timidity is consistent with a “meaningful
adversarial testing” of the prosecution’s case, Cronic, 466
U. S., at 659, but my examination of the record has produced
a firm conviction that this is not such a case.
The Court claims that Cronic’s second prong only applies
when “counsel failed to oppose the prosecution throughout
the sentencing proceeding as a whole.” Ante, at 697 (em-
phasis added). But that is exactly what Dice did. It is
true, as the Court claims, that respondent’s complaints about
Dice’s performance can be framed as complaints about what
Dice failed to do “at specific points,” ibid. However, when
those complaints concern “points” that encompass all of coun-
sel’s fundamental duties at a capital sentencing proceeding—
performing a mitigation investigation, putting on available
mitigation evidence, and making a plea for the defendant’s
life after the State has asked for death—counsel has failed

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717 Cite as: 535 U. S. 685 (2002)
Stevens, J., dissenting
“entirely,” ibid. (quoting Cronic, 466 U. S., at 659 (emphasis
omitted)). The Court of Appeals’ conclusion in this regard
exemplifies a court’s proper use of its judgment to recognize
when failures “at specific points” amount to an “entir[e] fail-
[ure]” within the meaning of Cronic. We recognized the im-
portance of the exercise of such judgment in Strickland v.
Washington, 466 U. S. 668 (1984), in which we explained that
Sixth Amendment principles are “not . . . mechanical rules,”
and that “[i]n every case the court should be concerned with
whether, despite the strong presumption of reliability, the
result of the particular proceeding is unreliable because of a
breakdown in the adversarial process that our system counts
on to produce just results.” Id., at 698.
The majority also claims that Cronic’s second prong does
not apply because this Court has previously analyzed claims
“of the same ilk,” ante, at 697, under Strickland, not Cronic.
However, in none of our previous cases applying Strickland
to a penalty phase ineffectiveness claim did the challenged
attorney not only fail to conduct a penalty phase investiga-
tion, but also fail to put on available mitigation evidence and
fail to make a closing argument asking to spare the defend-
ant’s life. See Williams v. Taylor, 529 U. S. 362 (2000);
Burger v. Kemp, 483 U. S. 776 (1987); and Darden v. Wain-
wright, 477 U. S. 168 (1986). Furthermore, in none of these
cases was there evidence that counsel had as “radical” a view
of the penalty phase as Dice’s, and in none of these cases
was the lawyer’s own mental health called into question, as
it has been here. It is, of course, true that a “total” failure
claim, which we confront here, could theoretically be ana-
lyzed under Strickland. However, as Cronic makes clear,
see ante, at 695–696, although Strickland could apply in all
Sixth Amendment right to counsel cases, it does not.
Moreover, presuming prejudice when counsel has entirely
failed to function as an adversary makes sense, for three rea-
sons. First, counsel’s complete failure to advocate, coupled
here with his likely mental illness, undermines Strickland’s

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718 BELL v. CONE
Stevens, J., dissenting
basic assumption: that counsel has “made all significant deci-
sions in the exercise of reasonable professional judgment.”
466 U. S., at 690. Second, a proper Strickland inquiry is
difficult, if not impossible, to conduct when counsel has com-
pletely abdicated his role as advocate, because the abdication
results in an incomplete trial record from which a court can-
not properly evaluate whether a defendant has or has not
suffered prejudice from the attorney’s conduct. Finally,
counsel’s total failure as an adversary renders “the likelihood
that the verdict is unreliable” to be “so high that a case-
by-case inquiry is unnecessary.” Mickens v. Taylor, ante,
at 166.
The Court’s holding today is entirely consistent with its
recent decision in Mickens. In both cases, according to the
Court, a presumption that every lawyer in every capital case
has performed ethically, diligently, and competently is appro-
priate because such performance generally characterizes the
members of an honorable profession. It is nevertheless true
that there are rare cases in which blind reliance on that pre-
sumption, or uncritical analysis of a lawyer’s proffered expla-
nations for aberrant behavior in the courtroom, may result
in the denial of the constitutional “right to the effective as-
sistance of counsel.” McMann v. Richardson, 397 U. S. 759,
771, n. 14 (1970). The importance of protecting this right in
capital cases cannot be overstated.17 Effective representa-
17 A recent, comprehensive report issued by the Governor’s Commission
reviewing Illinois’ capital punishment system concluded: “ ‘Providing qual-
ified counsel is perhaps the most important safeguard against the wrongful
conviction, sentencing, and execution of capital defendants. It is also a
safeguard far too often ignored.’ ” Report of the Governor’s Commission
on Capital Punishment 105 (2002) (quoting Constitution Project, Manda-
tory Justice: Eighteen Reforms to the Death Penalty 6 (2001)).
Members of this Court have similarly recognized both the importance
of qualified counsel in death cases, and the frequent lack thereof. See,
e. g., McFarland v. Scott, 512 U. S. 1256 (1994) (Blackmun, J., dissenting
from denial of certiorari) (describing the “crisis in trial and state postcon-
viction legal representation for capital defendants”); Lane, O’Connor Ex-

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719 Cite as: 535 U. S. 685 (2002)
Appendix to opinion of Stevens, J.
tion provides “the means through which the other rights of
the person on trial are secured.” Cronic, 466 U. S., at 653.
For that reason, there is “a denial of Sixth Amendment
rights that makes the adversary process itself presumptively
unreliable” whenever defense counsel “entirely fails to sub-
ject the prosecution’s case to meaningful adversary testing.”
Id., at 659. That is exactly what happened in the penalty
phase of Gary Cone’s trial.
I respectfully dissent.
APPENDIX TO OPINION OF STEVENS, J.
Excerpt from Dice’s postconviction testimony in which he
explains his reasons for waiving closing argument:
“Q: While we’re on that subject, will you summarize for us
all the reasons that you had at that time, and not at this
time, but at that time, for waiver of final argument in the
penalty phase of the Cone matter?
“A: Okay. Number one; I thought that we had put on al-
most every mitigating circumstance that we had. Okay?
In the first phase of the trial.
“Number two; I managed to sucker Mr. Patterson and
Mr. Strother into putting on my Bronze Star decoration
without having my defendant testify, which I felt was pretty
good trial tactics. I know when I asked Mr. Blackwell that
question, one of the two of them over there became un-
glued. Okay.
“Number three; I thought the trial judge had lost control
of the case. He allowed Mr. Strother to call me unethical
twice in front of the jury, and he did several things in there
presses Death Penalty Doubt; Justice Says Innocent May Be Killed, Wash-
ington Post, July 4, 2001, p. A1 (reporting Justice O’Connor’s comment
that “Perhaps it’s time to look at minimum standards for appointed counsel
in death cases” and Justice Ginsburg’s comment that “I have yet to see
a death case, among the dozens coming to the Supreme Court on the eve of
execution petitions, in which the defendant was well represented at trial”).

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Appendix to opinion of Stevens, J.
which had made my client extremely angry. I forgive
Mr. Strother for that. I don’t think he really believes it, but
he’s a trial lawyer and he took the position.
“Okay. I’m saying the general feeling of that was going—
the trial was not being conducted neutrally by the judge.
Okay.
“The other thing that got to me about the aspects of why
to waive, I knew again that they were so much out for blood
that they’d screw up their own trial in terms of what the
jury was going to find.
“Okay. Another factor is that my defendant told me that
he would probably explode on the stand with anger if Gen-
eral Strother cross-examined him, and I know Don Strother
to be an extremely competent cross-examiner.
“Q: Just so we’ll be clear now. I’ve asked you to name the
reasons for waiving final argument. Was whether or not
what you just said about Mr. Cone possibly exploding, did
that have anything to do with waiving final argument?
“A: Absolutely it did. I didn’t make that decision at the last
moment at all, Mr. Kopernak. That decision was carefully
planned out. When the jury was only out for an hour, when
they were only out for an hour, and I think it was close to
that, and long before the trial I considered that as a trial
tactic. Now, all these factors were being considered, not
just one.
“Q: Okay. Go ahead, please.
“A: Okay.
“Q: Do you want me to go over those so you’ll—
(Interrupted)
“A: No, because I recall most of them pretty clearly. You
know, we’d had all those things go on, and some of the things
which had happened in the trial, and when Ural Adams had
done that in the Groseclose case and he and I had spent so
much time talking about whether or not to do it, I considered

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Appendix to opinion of Stevens, J.
that perhaps because of the nature of the opposition in this
particular case, that it might be an effective tactic. And I’ll
tell you this much. Let’s say that when we’d gotten down
there that Mr. Strother had gotten up and made the first
argument, I might not have waived at all if I knew that Pat-
terson was going to make the kill argument. I might not
have made it. But once Patterson made the first argument,
and then those statements that were reported in the press
where Mr. Patterson said, well, we’re here because it’s wrong
to kill people. I’ll never forget that one as long as I live.
Okay. When he made that portion in another portion of the
trial. So, what I chose to do is to make my closing argument
in my opening argument and then suckered them along be-
cause they’d already made that mistake, as far as I was con-
cerned. Okay? And see whether or not the jury would
take what little mitigating circumstances we had and give
us a verdict and keep him alive.” State Postconviction
Tr. 130–133.