lockhart fretwell argued november decided january arkansas jury convicted respondent fretwell capital felony murder sentenced death finding inter alia aggravating factor murder occurred robbery committed pecuniary gain direct appeal fretwell argued sentence unconstitutional eighth circuit precedent collins lockhart based aggravating factor duplicated element underlying felony murder course robbery however state declined consider whether follow collins fretwell objected aggravator use sentencing phase later rejected state habeas corpus challenge raised claim district conditionally vacated sentence federal habeas holding counsel failure raise collins objection amounted prejudice strickland washington deficient performance prejudice identified two components claim although appeals overruled collins affirmed reasoning trial sustained collins objection made fretwell trial jury sentenced death held counsel failure make collins objection sentencing proceeding constitute prejudice within meaning strickland washington supra show prejudice strickland defendant must demonstrate counsel errors serious deprive trial whose result unfair unreliable merely outcome different unfairness unreliability result unless counsel ineffectiveness deprives defendant substantive procedural right law entitles sentencing proceeding result present case neither unfair unreliable appeals decided collins overruled perry lockhart four years later thus respondent suffered prejudice counsel deficient performance contrary fretwell argument prejudice determined laws existing time trial although contemporary assessment counsel conduct used determining deficient performance component strickland test prejudice component focus fairness reliability implicate concerns motivated former component adoption rigid requirement dampen ardor impair independence defense counsel discourage acceptance assigned cases undermine trust attorney client instant holding inconsistent retroactivity rule announced teague lane circumstances gave rise rule apply claims raised federal habeas petitioner interest finality judgment incarcerated unlike ordinarily claim reliance past judicial precedent basis actions pp reversed rehnquist delivered opinion white scalia kennedy souter thomas joined post thomas post filed concurring opinions stevens filed dissenting opinion blackmun joined post winston bryant attorney general arkansas argued cause petitioner briefs clint miller senior assistant attorney general brent standridge assistant attorney general amy wax argued cause amicus curiae urging reversal brief solicitor general starr assistant attorney general mueller deputy solicitor general bryson richard friedman ricky medlock appointment argued cause filed brief respondent briefs amici curiae urging reversal filed state california et al daniel lungren attorney general california george williamson chief assistant attorney general ward campbell deputy attorney general mark krotoski special assistant attorney general james evans attorney general alabama charles cole attorney general alaska grant woods attorney general arizona gale norton attorney general colorado richard palmer chief state attorney connecticut charles oberly iii attorney general delaware robert butterworth attorney general florida larry echohawk attorney general idaho chris gorman attorney general kentucky marc racicot attorney general montana stenberg attorney general nebraska frankie sue del papa attorney general nevada robert del tufo attorney general new jersey lacy thornburg attorney general north carolina charles crookham attorney general oregon ernest preate attorney general pennsylvania travis medlock attorney general south carolina mark barnett attorney general south dakota jeffrey amestoy attorney general vermont kenneth eikenberry attorney general washington joseph meyer attorney general wyoming criminal justice legal foundation kent scheidegger michael mello martin mcclain filed brief office capital collateral representative florida et al amicus curiae chief justice rehnquist delivered opinion case decide whether counsel failure make objection state criminal sentencing proceeding objection supported decision subsequently overruled constitutes prejudice within meaning decision strickland washington result sentencing proceeding case rendered neither unreliable fundamentally unfair result counsel failure make objection answer question negative hold otherwise grant criminal defendants windfall entitled august arkansas jury convicted respondent bobby ray fretwell capital felony murder penalty phase state argued evidence presented guilt phase established two aggravating factors murder committed pecuniary gain murder committed facilitate respondent escape finding existence first factors mitigating factors jury sentenced respondent death direct appeal respondent argued inter alia sentence reversed light collins lockhart cert denied case appeals eighth circuit held death sentence unconstitutional based aggravating factor duplicates element underlying felony factor genuinely narrow class persons eligible death penalty accordingly respondent argued death sentence unconstitutional pecuniary gain element underlying felony capital conviction murder course robbery arkansas declined consider whether follow collins respondent failed object use pecuniary gain aggravator sentencing proceeding rejecting remainder respondent claims arkansas affirmed conviction death sentence fretwell state ark respondent filed state habeas corpus challenge arguing trial counsel ineffective failing raise collins objection arkansas rejected claim arkansas courts passed collins question time respondent trial fretwell state ark respondent filed petition seeking federal habeas corpus relief district eastern district arkansas among things argued trial counsel perform effectively failed raise collins objection district held counsel duty aware law relevant death penalty cases failure make collins objection amounted prejudice strickland washington supra ed ark district granted habeas relief conditionally vacated respondent death sentence appeals affirmed divided vote even though two years earlier overruled decision collins light decision lowenfield phelps see perry lockhart cert denied majority believed arkansas trial bound supremacy clause obey eighth circuit interpretation federal constitution based belief reasoned counsel made objection trial sustained objection jury sentenced respondent death remanded ordering district sentence respondent life imprisonment without possibility parole held since respondent entitled benefit collins time original sentencing proceeding perpetuate prejudice caused original sixth amendment violation resentence current law dissenting judge argued strickland prejudice involves determination outcome different also involves concepts reliability fairness focusing probable effect counsel error time fretwell sentencing majority misses broader important point sentencing proceeding reached neither unreliable unfair result granted certiorari reverse decisions emphasized sixth amendment right counsel exists order protect fundamental right fair trial strickland washington supra nix whiteside noting strickland benchmark right counsel fairness adversary proceeding cronic without counsel right trial little avail internal quotation marks omitted morrison right counsel meant assure fairness adversary criminal process thus right effective assistance counsel recognized sake effect ability accused receive fair trial absent effect challenged conduct reliability trial process sixth amendment guarantee generally implicated cronic supra test formulated strickland determining whether counsel rendered constitutionally ineffective assistance reflects concern strickland identified two components ineffective assistance claim deficient performance prejudice decisions criminal defendant alleging prejudice must show counsel errors serious deprive defendant fair trial trial whose result reliable strickland see also kimmelman morrison essence claim counsel unprofessional errors upset adversarial balance defense prosecution trial rendered unfair verdict rendered suspect nix whiteside supra thus analysis focusing solely mere outcome determination without attention whether result proceeding fundamentally unfair unreliable defective set aside conviction sentence solely outcome different counsel error may grant defendant windfall law entitle see cronic supra decision nix whiteside supra makes point respondent case argued received ineffective assistance counsel refused cooperate presenting perjured testimony obviously respondent presented false testimony jury might reasonable probability jury returned verdict guilty sheer outcome determination however sufficient make claim sixth amendment held matter law counsel conduct establish prejudice required relief second strand strickland inquiry touchstone claim fairness adversary proceeding judging prejudice likelihood different outcome defendant entitlement luck lawless decisionmaker ibid quoting strickland supra see also nix whiteside supra blackmun concurring judgment extent whiteside claim rests assertion acquitted able testify falsely whiteside claims right law simply recognize since whiteside deprived neither fair trial specific constitutional rights designed guarantee fair trial suffered prejudice result sentencing proceeding present case neither unfair unreliable appeals decided collins overruled perry four years later trial chosen follow collins counsel error deprived respondent chance state make error favor brief amicus curiae respondent argues use hindsight inappropriate determining prejudice strickland element determined laws existing time trial support relies upon language used strickland discussing first part necessary showing deficient performance held order determine whether counsel performed level expected reasonably competent attorney necessary judge counsel challenged conduct facts particular case viewed time counsel conduct strickland claims raised cases defendant found guilty offense charged perspective hindsight natural tendency speculate whether different trial strategy might successful adopted rule contemporary assessment counsel conduct rigid requirement dampen ardor impair independence defense counsel discourage acceptance assigned cases undermine trust attorney client ibid prejudice component strickland test implicate concerns focuses question whether counsel deficient performance renders result trial unreliable proceeding fundamentally unfair see kimmelman powell concurring unreliability unfairness result ineffectiveness counsel deprive defendant substantive procedural right law entitles noted premise grant case perry correctly decided respondent entitled objection based double counting respondent therefore suffered prejudice counsel deficient performance dissent contends holding inconsistent retroactivity rule announced teague lane think otherwise teague stands proposition new constitutional rules criminal procedure announced applied collateral review dissent acknowledges post retroactivity rule motivated respect strong interest finality criminal convictions recognition state penalized relying constitutional standards prevailed time original proceedings took place teague supra plurality opinion internal citations omitted new rule principle therefore validates reasonable interpretations existing precedents made state courts even though shown contrary later decisions butler mckellar federal habeas petitioner interest finality judgment incarcerated indeed purpose habeas petition overturn judgment petitioner ordinarily claim reliance past judicial precedent basis actions corresponds state interest described quotation butler supra result differences state benefit teague decision federal habeas cases habeas petitioner result dissent windfall state instead perfectly logical limitation teague circumstances gave rise cessante ratione legis cessat et ipsa lex judgment appeals reversed footnotes contrary dissent suggestion today decision involve require inquiry analysis triggered reviewing discovers error committed strickland washington error constitutional magnitude occurs sixth amendment context defendant demonstrates deficient performance prejudice opinion nothing apply prejudice inquiry always built strickland test since find constitutional error need consider harmlessness dissent attempt distinguish nix whiteside unpersuasive ignores reasoning employed nix reject respondent claim prejudice perjury perhaps paradigmatic example lawlessness post rather held respondent show strickland prejudice merely demonstrating outcome different counsel behavior nix supra contrary dissent suggestion reasoning invoked resolve factual oddity one case rather represents straightforward application rule law announced strickland nix supra respondent argues collins lockhart cert denied still good law despite decision lowenfield phelps urges us decide question threshold matter decline invitation premise underlying question presented collins properly overruled eighth circuit respondent failed bring objections premise underlying questio presented attention opposition petition certiorari decide question based eighth circuit view collins longer good law eastman kodak image technical services alternative argument solicitor general relies upon language habeas corpus statute provides habeas relief may issue applicant custody violation constitution laws treaties according solicitor general lowenfield decided time respondent petitioned federal habeas relief argue currently custody violation constitution disposition case basis strickland washington supra address contention justice concurring join opinion concur judgment write separately point today decision vast majority cases effect prejudice inquiry strickland washington determinative question whether reasonable probability counsel unprofessional errors result proceeding different remains unchanged case however concerns unusual circumstance defendant attempts demonstrate prejudice based considerations matter law inform inquiry explained strickland certain factors real though may simply taken account assessment likelihood result favorable defendant must exclude possibility arbitrariness whimsy caprice nullification like defendant entitlement luck lawless decisionmaker even lawless decision reviewed assessment prejudice proceed assumption decisionmaker reasonably conscientiously impartially applying standards govern decision depend idiosyncracies particular decisionmaker unusual propensities toward harshness leniency today identifies another factor inform prejudice inquiry specifically today hold making prejudice determination may consider effect objection knows wholly meritless current governing law even objection might considered meritorious time omission narrow holding course precisely disposes case appeared eighth circuit omitted objection respondent complained well may sustained raised trial time eighth circuit reviewed respondent ineffective assistance claim circuit authority bound hold objection meritless arkansas rejected objection well perry lockhart cert denied state ark consequently respondent claim prejudice based allegation denied advantage law might permit predicated instead suggestion might denied right law simply recognize nix supra blackmun concurring judgment namely right state make error favor ante opinion internal quotation marks omitted seems impact advocating decidedly incorrect point law like influence perjured testimony proper consideration assessing likelihood result favorable defendant strickland supra therefore join holding somewhat unusual circumstances appeals concluded respondent suffered legally cognizable prejudice justice thomas concurring join opinion entirety write separately call attention described fundamental misunderstanding supremacy clause part appeals concluding respondent prejudiced attorney failure make objection based upon collins lockhart cert denied appeals said following ince state courts bound supremacy clause obey federal constitutional law conclude reasonable state trial sustained objection based collins fretwell attorney made one understand statement mean reasonable probability arkansas trial found collins persuasive therefore chosen follow instead appeals appears impression arkansas trial compelled follow collins supremacy clause mistaken supremacy clause demands state law yield federal law neither federal supremacy principle federal law requires state interpretation federal law give way lower federal interpretation federal system state trial interpretation federal law less authoritative federal appeals whose circuit trial located see steffel thompson rehnquist concurring ex rel lawrence woods cert denied shapiro state courts federal declaratory judgments arkansas trial bound arkansas arkansas appeals interpretation federal law follows eighth circuit interpretation federal law chooses must agree holding appeals misinterpreted sixth amendment wish make clear misinterpreted supremacy clause well justice stevens justice blackmun joins dissenting concerned respondent fretwell otherwise receive windfall life imprisonment see ante today reaches astonishing conclusion deficient performance counsel prejudice defendant even results erroneous imposition death sentence aversion windfalls seems disappear however state favored recipient end result case state coincidence inadequate representation fortuitous timing may carry death sentence invalid imposed extraordinary result rests entirely retrospective application two changes law occurring respondent trial sentencing first changes relies explicitly affected eligibility defendants like fretwell death penalty second change never directly identified unprincipled transformation standards governing claims introduction element hindsight place sixth amendment jurisprudence view appeals correctly determined fundamental unfairness exists prisoner receives death sentence rather life imprisonment solely attorney error post hoc rationale avoiding conclusion today unconvincing unjust unless defendant charged serious offense counsel able invoke procedural substantive safeguards distinguish system justice serious risk injustice infects trial cuyler sullivan reason held squarely right counsel guaranteed constitution right effective assistance counsel see cronic absent competent counsel ready able subject prosecution case crucible meaningful adversarial testing guarantee adversarial system function properly produce reliable results see strickland washington strickland washington decided certain errors counsel give rise similar presumption adversarial breakdown consequences attend presumption setting aside conviction sentence serious took pains limit class errors support claim first error must egregious indicates deficient performance counsel falling outside wide range reasonable professional assistance second error must severe gives rise prejudice defined quite clearly strickland reasonable probability counsel unprofessional errors result proceeding different many significant errors recognized kimmelman morrison meet highly demanding standard require reversal deprive defendant discrete independent trial right strickland held reflect performance counsel undermined proper functioning adversarial process trial relied produced result standard district appeals determined respondent entitled relief claim counsel performance wanting deficient strickland purposes contested seriously disputed decision reached reasonably likely different counsel failure make objection supported eighth circuit law strickland end inquiry respondent identified error magnitude falls within narrow class attorney errors precluding reliance outcome proceeding see sixth amendment terms though respondent shown actual conflict interest complete absence counsel part sentencing proceeding adversary process malfunctioned resulting verdict therefore without constitutionally unacceptable however standard applies today instead demands respondent point additional indicia unreliability specific way breakdown adversarial process affected respondent discrete trial rights ante precisely kind harmless error inquiry rejected time sixth amendment context criminal proceeding loses character confrontation adversaries cronic harm done defendant certain difficult define accordingly consistently declined require defendant faces state without adequate assistance show harmed result see cuyler sullivan holloway arkansas hamilton alabama williams kaiser right assistance counsel fundamental absolute allow courts indulge nice calculations amount prejudice arising denial glasser compounds error insisting respondent make newly required showing vantage point hindsight hindsight place sixth amendment jurisprudence focuses quite rightly protecting adversarial balance trial respondent denied assistance necessary justify reliance outcome proceeding strickland washington counsel performance far professional standards satisfied strickland first prong severely lacking verdict reasonably likely different absent errors second prong simply irrelevant say hindsight counsel failed make objection four years fact performance neither deficient prejudicial happened counsel failure object came time signified breakdown adversarial process post hoc vision case years later bearing force showing surprisingly reliance hindsight finds support strickland strickland makes clear merits claim must viewed time counsel conduct notes point stated explicitly respect strickland first prong quality counsel performance ante ignores however point implicit strickland entire discussion second prong defining prejudice terms effect counsel errors outcome proceedings based totality evidence judge jury strickland establishes point reference firmly time trial sentencing justify revision strickland standards judging ineffective assistance claims relies large part nix whiteside ante nix however perform heavy duty assigns rather unusual case nix involved claim counsel ineffective refused present defense based perjured testimony suffice say reliance perjured testimony reliance current appeals case law remotely comparable suggest otherwise simply disingenuous distinction needed need search far find first decision nix rests part conclusion counsel refusal cooperate presentation perjury falls well within range reasonable professional conduct acceptable strickland nix whiteside cf cronic course sixth amendment require counsel impossible unethical bona fide defense charge counsel create one words claims predicated failure make wholly frivolous unethical arguments generally dispensed strickland first prong without recourse second hence raise questions issue case extent nix address strickland second prejudice prong context quite different presented strickland cautioned assessment likelihood different outcome exclude possibility lawless decisionmaker fails reasonably conscientiously impartially appl standards govern decision nix faced perhaps paradigmatic example lawlessness strickland referred suggestion perjured testimony might undermined decisionmaker judgment concluded quite correctly defendant rely effects perjury make claim nix whiteside see also blackmun concurring judgment read decision today suggesting state trial need fear label lawless follows decision appeals matter federal constitutional law accordingly nix discussion perjury lawlessness simply inapposite issues presented ii disputed case performance respondent counsel deficient met strickland standard deserves emphasis proven connection deficiency outcome respondent sentencing proceeding well presumptive effect counsel performance adversarial process respondent convicted committing murder course robbery arkansas trial held separate sentencing hearing devoted exclusively question whether respondent eligible death penalty instead receive life sentence without parole state relied two aggravating circumstances establish right execute respondent first alleged purpose avoiding arrest found jury unsupported evidence second felony committed purposes pecuniary gain obviously supported evidence respondent already convicted robbery connection murder thus critical question respondent turned whether permissible matter law double count relying pecuniary gain aggravating circumstance also robbery element crime counsel duty stage proceedings clear addition general investigation preparation penalty phase counsel primary obligation advise trial judge correct answer crucial question law handled professional responsibility anything approaching reasonableness demanded strickland found eighth circuit case directly point addressing arkansas statute respondent sentenced holding double counting unconstitutional collins lockhart cert denied failure find critically important case constitutes irrefutable evidence counsel inadequate performance fact collins later overruled minimize slightest force evidence moreover counsel made collins objection pecuniary gain aggravating circumstance must assume trial sustained district stated although collins since overruled law eighth circuit time respondent trial reason believe trial chosen disregard ed ark neither petitioner relies disagreement finding see supra explained strickland open state argue idiosyncratic state trial judge might refused follow circuit precedent overruled collins objection applying strickland facts district correctly held counsel failure call trial judge attention collins constituted ineffective assistance seriously undermined proper functioning adversarial process granted relief basis district found unnecessary reach additional ineffective assistance claims predicated counsel alleged failure investigate prepare penalty phase time case reached appeals deficient performance conceded eighth circuit affirm district conclusion reasonable state trial sustained objection based collins fretwell attorney made one thus counsel deficient performance form failure discover collins bring attention directly linked outcome respondent sentencing proceeding counsel error respondent received death penalty rather life imprisonment strickland course respondent need show quite much sufficient decision reached reasonably likely different absent errors fortiori showing outcome determination strong made enough support strickland claim judgment respondent might well entitled relief even show prejudice defined strickland second prong fact counsel performance constituted abject failure address important legal question issue client death penalty hearing gives rise without powerful presumption breakdown entire adversarial system presumption least strong stronger inferences adversarial malfunction required reversal cases like holloway glasser see supra words may exceptional cases counsel performance falls grievously far acceptable standards strickland first prong functions equivalent actual conflict interest generating presumption prejudice automatic reversal think may well one cases wrote holloway reversal appropriate even particular prejudice shown even defendant clearly guilty internal quotation marks citation omitted course need go nearly far resolve case us strickland standard prevailed today respondent entitled relief claim shown deficient performance reasonable likelihood different outcome avoid result effecting dramatic change standard applying retroactively respondent case view decision marks startling unwise departure commitment system ensures fairness reliability subjecting prosecution case meaningful adversarial testing iii changes law characteristic constitutional adjudication prior changes direction increasing protection afforded individual accused crime vindicate legitimate reliance interests state law enforcement authorities however recognition state interest preserving outcome trials adhering contemporaneous standards often refused apply new rules retroactively teague lane gave full expression general policy allowing keep prison defendants whose trials appeals conformed constitutional standards holding claims federal habeas petitioners exceptional cases judged standards prevailing time trial since relevant changes law often different direction affording less rather protection individual defendants even handed approach retroactivity seem require continue evaluate defendants claims law stood time trial teague defendant may take advantage subsequent changes law favorable reason state able take advantage subsequent changes law adverse interests however takes directly contrary approach today decision rests critically proposition respondent claim judged law exists today rather law existed time trial sentencing ante words respondent must make case perry lockhart cert denied decided four years sentencing unlike state entitled rely constitutional standards teague rendered ineligible death penalty time sentence imposed already explained reliance hindsight incompatible right counsel jurisprudence also judgment inconsistent case law insists contemporaneous constitutional standards benchmark defendants claims measured rule generally precludes defendants taking advantage postconviction changes law allows state reconciled duty administer justice impartially elementary fairness dictates evaluate respondent claim law stood convicted sentenced collins also strickland understood today see windfall issue one conferred upon state decision respondent counsel rendered effective assistance state required justify respondent execution legal regime included collins highly unlikely met burden arkansas courts see supra almost certainly done federal courts habeas review however state permitted exploit ineffective assistance respondent counsel lapse time provided capitalizing postsentencing changes law justify execution windfall one sixth amendment prevents us bestowing respectfully dissent see geders consultation prevented overnight recess hamilton alabama assistance denied arraignment see cuyler sullivan actual conflict adversely affecting performance constitutes reversible error glasser joint representation codefendants inconsistent interests objection constitutes reversible error concluded assistance counsel among constitutional rights basic fair trial infraction never treated harmless error accordingly defendant deprived presence assistance attorney either throughout prosecution critical stage least prosecution capital offense reversal automatic holloway arkansas internal quotation marks citation omitted neither petitioner today directly challenges district unambiguous conclusion trial followed ruling collins trial counsel made appropriate motion ed ark worth noting kimmelman morrison entirely consistent line case law rendering petitioner reliance case misplaced kimmelman held although certain fourth amendment violations cognizable federal habeas review see stone powell counsel failure litigate fourth amendment claims competently may still give rise cognizable claim words attorney error gives rise claim connected independent right defendant entitled upset adversarial balance defense prosecution trial rendered unfair verdict suspect kimmelman one point refers necessity meritorious fourth amendment claim emphasized justice concurrence ante represents straightforward application strickland test prejudice simply put attorney failure make fourth amendment objection alter outcome proceeding objection meritless hence sustained nothing kimmelman suggests failure make objection supported current precedent hence likely sustained amount anything less ineffective assistance come surprise counsel conduct gave rise additional claims founded deficiencies attorney makes one error strickland proportions unlikely turned performance adequate respects instance may well coincidence counsel failed discover appeals precedent holding application arkansas capital sentencing statute defendants like client unconstitutional also failed convince jury existence mitigating circumstances client favor connection case counsel failure make collins objection overall preparation investigation penalty phase seems perfectly clear nothing opinion today preclude district remand considering lack objection evidence relevant larger question adequacy counsel penalty phase preparation investigation agree gloss put opinion ante justice thomas concurrence ante nothing text opinion suggest appeals believed arkansas trial bound supremacy clause obey eighth circuit precedent appeals simply noted trial bound supremacy clause obey federal constitutional law emphasis added eighth circuit precedent giving content law relevant trial decisionmaking see reason infer plain correct statement law eighth circuit actually meant express view addressed justice thomas see stovall denno factors reliance burden administration justice mandate retroactive application wade gilbert california establishing right counsel pretrial identification johnson new jersey declining apply miranda arizona retroactively tehan ex rel shott griffin california prohibiting adverse comment defendant silence apply retroactively see also engle isaac discussing frustration state courts faithfully apply existing constitutional law change constitutional standards applied retroactively see payne tennessee eighth amendment preclude use victim impact evidence capital defendant sentencing overruling booth maryland south carolina gathers arizona fulminante rule applicable admission involuntary confessions duckworth eagan miranda warnings adequate despite suggestion lawyer appointed interrogation florida riley police may search greenhouse helicopter altitude feet without warrant