petition for a writ of certiorari is denied.
Justice Sotomayor, dissenting from the denial of certiorari.
Todd Wessinger was sentenced to death by a jury that was
never presented with significant mitigation evidence that may
have convinced its members to spare his life. For instance,
Wessinger suffers from a major neurocognitive disorder that
compromises his decisionmaking abilities. As a child, he
experienced a stroke in his left frontal lobe that affected
how the left and right sides of his brain communicate. He
also suffered from childhood seizures, and he has a hole in
the area of his brain associated with executive functioning
that resulted from some form of cerebrovascular illness.
jury never considered this evidence at sentencing, or other
mitigation about Wessinger's family history of poverty,
alcoholism, and domestic violence, because Wessinger's
trial counsel did not attempt to discover it.[*]Wessinger's
attorneys on postconviction review similarly failed to
conduct any mitigation investigation in preparation for his
state habeas petition.
first postconviction counsel to represent Wessinger suffered
a mental breakdown and did no work on his petition. The
second attorney was highly inexperienced and had to put
together a petition on a compressed timeline. He filed a
shell petition to meet the 1-year filing deadline, but failed
to immediately seek funding to support a mitigation
investigation. See Record in No. 15-70027 (CA5), Doc.
513312967, p. 138 (Record Doc). He subsequently attempted to
rectify that error to no avail. The court viewed his requests
as delaying the case and as not sufficiently supported by
facts. See id., at 142-144. Counsel proceeded to
file an amended petition based only on the limited facts
developed in the trial record. Apparently recognizing his
limitations, he then sought to withdraw from representation;
but it was not until he received the State's opposition
to the petition 18 months after filing the motion to withdraw
that he realized the motion had been denied. Having done no
work during the interim period, he pulled together a second
amended petition that added discrete allegations regarding
the penalty phase portion of the capital proceedings but that
still were based only on the deficient trial court record.
His efforts were too little, too late. Counsel had pursued no
mitigation investigation, and the state court denied
federal habeas review, the District Court granted
Wessinger's 28 U.S.C. §2254 petition on the basis
that both trial counsel's and postconviction
counsel's failure to investigate mitigation evidence
constituted ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984). A
panel majority of the Court of Appeals for the Fifth Circuit
reversed. 864 F.3d 387 (2017). The panel concluded that
Wessinger had not received ineffective assistance of counsel
during the postconviction proceedings, and was therefore
barred from raising his
ineffective-assistance-of-trial-counsel claim in federal
court. See Martinez v. Ryan, 566 U.S. 1, 17 (2012).
That conclusion is clearly wrong.
Court repeatedly has held that the failure to perform
mitigation investigation constitutes deficient performance.
See, e.g., Williams v. Taylor, 529 U.S. 362, 396
(2000) (finding deficiency where "counsel did not
fulfill their obligation to conduct a thorough investigation
of the defendant's background"); Porter v.
McCollum, 558 U.S. 30, 40 (2009) (per curiam)
("The decision not to investigate did not reflect
reasonable professional judgment"). There is nothing
about the facts of this case that calls for a different
Fifth Circuit panel majority does not dispute the District
Court's finding that the attorney who filed
Wes-singer's state habeas petitions "did no
investigation" into mitigation. Wessinger v.
Cain, 2015 WL 4527245, *2 (MD La., July 27, 2015). It
does not disagree with the District Court's findings that
counsel "did not obtain any medical records, school
records, employment records or family history records, "
or that he did not "conduct interviews of any witnesses,
friends, teachers, coaches, or family members" regarding
potential mitigating factors, aside from having a couple
brief conversations with Wessinger's mother and brother.
more striking, the panel majority does not acknowledge that
counsel did absolutely nothing on Wessinger's case for a
period of at least 18 months after filing the first amended
these blatant shortcomings, the panel majority found that the
failure to conduct any mitigation research was not a result
of deficient performance, but a product of the state
postconviction court's denial of funding for a mitigation
investigation. As the record demonstrates, however, the
denial of funds resulted at least in significant part from
counsel's deficiencies: Wessinger's first counsel did
nothing on his case; his second counsel delayed in requesting
funds immediately upon taking the case; and, when counsel
ultimately made the requests, the court viewed them as
unsupported by any facts. See Record Doc, at 138-139,
important, as noted by the Fifth Circuit panel dissent, the
denial of funds does not excuse counsel's failure to
perform any independent mitigation investigation.
864 F.3d, at 393 (opinion of Dennis, J.). In fact, conducting
such an investigation may have placed the requests for
funding on substantially stronger ground. The denial of funds
also does not explain or justify counsel's complete
abandonment of the case for 1½ years.
Court's denial of certiorari here belies the
"bedrock principle in our justice system" that a
defendant has a right to effective assistance of trial
counsel, and undermines the protections this Court has
recognized are necessary to protect that right.
Martinez, 566 U.S., at 12. Indeed, the investigation
of mitigation evidence and its presentation at sentencing are
crucial to maintaining the integrity of capital proceedings.
The layers of ineffective assistance of counsel that
Wessinger received constitute precisely the type of error
that warrants relief under this Court's precedent. Yet,
Wessinger will remain on death row without a jury ever
considering the significant mitigation evidence that is now
apparent. Because that outcome is contrary to precedent and
deeply unjust and unfair, I dissent from the denial of