Burger v. Kemp

483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d 638, 1987 U.S. LEXIS 3047

• Court: Supreme Court of the United States
• Decided: September 21, 1987
• Docket: 86-5375
• Status: Published

Opinions

Justice Stevens

delivered the opinion of the Court.

A jury in the Superior Court of Wayne County, Georgia, found petitioner Christopher Burger guilty of murder and sentenced him to death on January 25, 1978.- In this habeas corpus proceeding, he contends that he was denied his constitutional right to the effective assistance of counsel because his lawyer labored under a conflict of interest and failed to make an adequate investigation of the possibly mitigating circumstances of his offense. After a full evidentiary hearing, the District Court rejected the claim. We are persuaded, as was the Court of Appeals, that the judgment of the District Court must be affirmed.

I

The sordid story of the crime involves four soldiers in the United States Army who were stationed at Fort Stewart, Georgia, on September 4, 1977. On that evening, petitioner and his coindictee, Thomas Stevens, both privates, were drinking at a club on the post. They talked on the telephone with Private James Botsford, who had just arrived at the Savannah Airport, and agreed to pick him up and bring him back to the base. They stole a butcher knife and a sharpening tool from the mess hall and called a cab that was being driven by Roger Honeycutt, a soldier who worked part-time for a taxi company. On the way to the airport, petitioner held the knife and Stevens held the sharpening tool against Honeycutt. They forced him to stop the automobile, robbed him of $16, and placed him in the backseat. Petitioner took over the driving. Stevens then ordered Honeycutt to undress, threw each article of his clothing out of the car window after searching it, blindfolded him, and tied his hands behind his back. As petitioner drove, Stevens climbed into the backseat with Honeycutt, where he compelled Honeycutt to commit oral sodomy on him and anally sodomized him. After stopping the car a second time, petitioner and Stevens placed their victim, nude, blindfolded, and hands tied behind his back, in the trunk of the cab. They then proceeded to pick up Botsford at the airport. During the ride back to Fort Stewart, they told Botsford that they had stolen the cab and confirmed their story by conversing with Honeycutt in the trunk. In exchange for Botsford’s promise not to notify the authorities, they promised that they would not harm Honeycutt after leaving Botsford at the base.

Ultimately, however, petitioner and Stevens drove to a pond in Wayne County where they had gone swimming in the past. They removed the cab’s citizen-band radio and, while Stevens was hiding the radio in the bushes, petitioner opened the trunk and asked Honeycutt if he was all right. He answered affirmatively. Petitioner then closed the trunk, started the automobile, and put it in gear, getting out before it entered the water. Honeycutt drowned.

A week later Botsford contacted the authorities, and the military police arrested petitioner and Stevens. The two men made complete confessions. Petitioner also took the military police to the pond and identified the point where Honeycutt’s body could be found. Petitioner’s confession and Private Botsford’s testimony were the primary evidence used at Burger’s trial. That evidence was consistent with the defense thesis that Stevens, rather than petitioner, was primarily responsible for the plan to kidnap the cabdriver, the physical abuse of the victim, and the decision to kill him. Stevens was 20 years old at the time of the killing. Petitioner was 17;¹ a psychologist testified that he had an IQ of 82 and functioned at the level of a 12-year-old child.

II

Alvin Leaphart was appointed to represent petitioner about a week after his arrest. Leaphart had been practicing law in Wayne County for about 14 years, had served as the county’s attorney for most of that time, and had served on the Board of Governors of the State Bar Association. About 15 percent of his practice was in criminal law, and he had tried about a dozen capital cases. It is apparent that he was a well-respected lawyer, thoroughly familiar with practice and sentencing juries in the local community. He represented petitioner during the proceedings that resulted in his conviction and sentence, during an appeal to the Georgia Supreme Court which resulted in a vacation of the death penalty, during a second sentencing hearing, and also during a second appeal which resulted in affirmance of petitioner’s capital sentence in 1980. Burger v. State, 242 Ga. 28, 247 S. E. 2d 834 (1978); Burger v. State, 245 Ga. 458, 265 S. E. 2d 796, cert. denied, 446 U. S. 988 (1980). Leaphart was paid approximately $9,000 for his services.

After exhausting his state collateral remedies, petitioner (then represented by a different attorney) filed a habeas corpus proceeding in the United States District Court for the Southern District of Georgia. He advanced several claims, including a charge that Leaphart’s representation had been constitutionally inadequate. The District Court conducted an evidentiary hearing and emphatically rejected that claim,² but concluded that the trial court’s instructions to the jury permitted it to base its sentencing decision on an invalid aggravating circumstance. Accordingly, the District Court vacated petitioner’s death sentence. Blake v. Zant, 513 F. Supp. 772 (1981).

The Court of Appeals affirmed in part, reversed in part, and reinstated the death penalty. Burger v. Zant, 718 F. 2d 979 (CA11 1983). On the issue of Leaphart’s competence, it adopted the District Court’s opinion as its own over the dissent of Judge Johnson. The dissent found that Leaphart had a conflict of interest because his partner Robert Smith³ had been appointed to represent Stevens in his later, separate trial for the murder of Honeycutt, and Leaphart had assisted in that representation. He had interviewed Stevens and assisted his partner during Stevens’ trial. Moreover, the two partners shared their legal research and discussed the cases with one another. Judge Johnson was persuaded that the conflict created actual prejudice to petitioner’s interest for two reasons. First, each of the two defendants sought to emphasize the culpability of the other in order to avoid the death penalty. Second, Leaphart failed to negotiate a plea bargain in which petitioner’s testimony against Stevens might be traded for a life sentence. Judge Johnson was also persuaded that Leaphart’s performance was defective because he did not conduct an adequate investigation of possible mitigating circumstances and did not have a valid strategic explanation for his failure to offer any mitigating evidence at either the first or the second sentencing hearing.

After the Court of Appeals rendered its decision, we decided Strickland v. Washington, 466 U. S. 668 (1984). We granted Burger’s petition for certiorari and remanded the case to the Court of Appeals for consideration of “the effectiveness of counsel’s assistance at petitioner’s second sentencing hearing” in light of that decision. Burger v. Zant, 467 U. S. 1212, 1213 (1984). The Court of Appeals in turn remanded the case to the District Court with instructions to extend or revise its findings, and if appropriate, its conclusions on the ineffective-assistance-of-counsel claim. Burger v. Zant, 741 F. 2d 1274 (CA11 1984). The District Court wrote a more extensive opinion on that issue and again concluded that there was no merit to petitioner’s claim. Once again, the Court of Appeals affirmed on the basis of the District Court’s opinion, over the dissent of Judge Johnson. Burger v. Kemp, 753 F. 2d 930 (CA11 1985) (per curiam).4 We granted the petition for certiorari, vacated, and remanded for reconsideration in light of Francis v. Franklin, 471 U. S. 307 (1985), on the question whether the jury instruction impermissibly shifted the burden of proof on the issue of intent. Burger v. Kemp, 474 U. S. 806 (1985). The Court of Appeals assumed the trial court’s charge on intent unconstitutionally shifted the burden of proof, but found the error harmless beyond a reasonable doubt. 785 F. 2d 890 (1986) (per curiam). We granted certiorari, 479 U. S. 929 (1986), and now affirm. We first consider counsel’s alleged conflict of interest argument and then his failure to offer mitigating evidence.⁵

III

There is certainly much substance to petitioner’s argument that the appointment of two partners to represent coindictees in their respective trials creates a possible conflict of interest that could prejudice either or both clients. Moreover, the risk of prejudice is increased when the two lawyers cooperate with one another in the planning and conduct of trial strategy, as Leaphart and his partner did. Assuming without deciding that two law partners are considered as one attorney, it is settled that “[requiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel.” Holloway v. Arkansas, 435 U. S. 475, 482 (1978). We have never held that the possibility of prejudice that “inheres in almost every instance of multiple representation” justifies the adoption of an inflexible rule that would presume prejudice in all such cases. See Cuyler v. Sullivan, 446 U. S. 335, 348 (1980). Instead, we presume prejudice “only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’” Strickland, 466 U. S., at 692 (citation omitted). See also Cuyler, 446 U. S., at 348, 350.

As an initial matter, we agree with the District Court that the overlap of counsel, if any, did not so infect Leaphart’s representation as to constitute an active representation of competing interests. Particularly in smaller communities where the supply of qualified lawyers willing to accept the demanding and unrewarding work' of representing capital prisoners is extremely limited, the defendants may actually benefit from the joint efforts of two partners who supplement one another in their preparation. In many cases a “ ‘common defense... gives strength against a common attack. ’ ” Holloway v. Arkansas, 435 U. S., at 482-483 (quoting Glasser v. United States, 315 U. S. 60, 92 (1942) (dissenting opinion of Frankfurter, J.)). Moreover, we generally presume that the lawyer is fully conscious of the overarching duty of complete loyalty to his or her client. Trial courts appropriately and “necessarily rely in large measure upon the good faith and good judgment of defense counsel.” Cuyler, 446 U. S., at 347. In addition, petitioner and Stevens were tried in separate proceedings; as we noted in Cuyler, the provision of separate murder trials for the three coindictees “significantly reduced the potential for a divergence in their interests.” Ibid.

In an effort to identify an actual conflict of interest, petitioner points out that Leaphart prepared the briefs for both him and Stevens on their second appeal to the Georgia Supreme Court, and that Leaphart did not make a “lesser culpability” argument in his appellate brief on behalf of petitioner even though he had relied on petitioner’s lesser culpability as a trial defense. Given the fact that it was petitioner who actually killed Honeycutt immediately after opening the trunk to ask if he was all right, and the further fact that the Georgia Supreme Court expressed the opinion that petitioner’s actions were “outrageously and wantonly vile and inhuman under any reasonable standard of human conduct,” Burger v. State, 245 Ga., at 461-462, 265 S. E. 2d, at 800, the decision to forgo this issue had a sound strategic basis. As we reaffirmed in Smith v. Murray, 477 U. S. 527, 536 (1986), the “process of ‘winnowing out weaker claims-on appeal and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy. Jones v. Barnes, 463 U. S. 745, 751-752 (1983).”

In addition, determining that there was an actual conflict of interest requires the attribution of Leaphart’s motivation for not making the “lesser culpability” argument to the fact that his partner was Stevens’ lawyer, or to the further fact that he assisted his partner in that representation. The District Court obviously credited his testimony to the contrary, see 513 F. Supp., at 795; 753 F. 2d, at 941, and its findings were twice sustained by the Court of Appeals. It would thus be most inappropriate, and factually unsupportable, for this Court to speculate-that the drafting of a brief on appeal was tainted by a lawyer’s improper motivation. Our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case. Nevertheless, when the lower courts have found that a lawyer has performed his or her solemn duties in such a case at or above the lower boundary of professional competence, both respect for the bar and deference to the shared conclusion of two reviewing courts prevent us from substituting speculation for their considered opinions. The district judge, who presumably is familiar with the legal talents and character of the lawyers who practice at the local bar and who saw and heard the witness testify, is in a far better position than we are to evaluate a charge of this kind, and the regional courts of appeals are in a far better position than we are to conduct appellate review of these heavily fact-based rulings.

We also conclude that the asserted actual conflict of interest, even if it had been established, did not harm his lawyer’s advocacy. Petitioner argues that the joint representation adversely affected the quality of the counsel he received in two ways: Leaphart did not negotiate a plea agreement resulting in a life sentence, and he failed to take ■ advantage of petitioner’s lesser culpability when compared with his coindictee Stevens. We find that neither argument provides a basis for relief.

The notion that the prosecutor would have been receptive to a plea bargain is completely unsupported in the record. The evidence of both defendants’ guilt, including their confessions, and eyewitness and tangible evidence, was overwhelming and uncontradicted; the prosecutor had no need for petitioner’s eyewitness testimony to persuade the jury to convict Stevens and to sentence him to death. In these circumstances, there is not the slightest reason for appellate doubt of the veracity of Leaphart’s testimony:

“Q. Did you ever engage in any plea negotiations in this case?

“A. Yes.

“Q. Could you tell me the substance of it?

“A. Well, we — I constantly all during the time I represented Mr. Burger tried to negotiate a plea with the district attorney for a life sentence. And, he — during the first trial he just flatly refused to even discuss it in any terms. And, then when we got it reversed on the sentence feature I continued to — in that time to try to negotiate with the — with the district attorney about entering a plea, for Mr. Burger to serve a life sentence. And, he insisted on trying it and insisted on seeking the death penalty.” App. 74-75.

As the District Court found, Leaphart “constantly attempted to plea bargain with the prosecutor,” but was rebuffed. 753 F. 2d, at 940. “The prosecutor’s flat refusal to engage in plea bargaining is not surprising when viewed in light of the strength of the case against Burger.” Ibid.

The argument that his partner’s representation of Stevens inhibited Leaphart from arguing petitioner’s lesser culpability because such reliance would be prejudicial to Stevens is also unsupported by the record. Such an argument might have been more persuasive if the two defendants had been tried together. As the State conducted the prosecutions, however, each defendant’s confession was used in his trial but neither was used against the coindictee. Because the trials were separate, Leaphart would have had no particular reason for concern about the possible impact of the tactics in petitioner’s trial on the outcome of Stevens’ trial. Moreover, in the initial habeas corpus proceeding, the District Court credited Leaphart’s uncontradicted testimony that “he in no way tailored his strategy toward protecting Stevens.” 513 F. Supp., at 795. The District Court concluded that his “testimony is strongly supported by examination of trial record, which shows considerable effort to gain mercy for petitioner by portraying Stevens as the chief architect of the crime.” Ibid.6

In an effort to bolster his claim that an adverse effect resulted from Leaphart’s actual conflict of interest, petitioner argues that because he was tried in a small community in which the facts of the crime were widely known, “it necessarily follows that the public, and very possibly members of the jury, knew that the cases were being tried on inherently inconsistent theories.” Brief for Petitioner 14. But this observation does nothing to establish an actual, deleterious conflict of interest between Leaphart’s work for his client and his partner’s representation of Stevens. If two unaffiliated lawyers, complete strangers to one another, had represented Burger and Stevens respectively and had advanced the same defenses that were advanced, the community would have had the same awareness that the theories were inherently inconsistent. There was undoubtedly a conflict of interest between Burger and Stevens because of the nature of their defenses. But this inherent conflict between two participants in a single criminal undertaking cannot be transformed into a Sixth Amendment violation simply because the community might be aware that their respective attorneys were law partners.

IV

The District Court expressed much more concern about petitioner’s argument that Leaphart had failed to develop and present mitigating evidence at either of the two sentencing hearings. See 513 F. Supp., at 796. At both hearings Leaphart offered no mitigating evidence at all. A capital sentencing proceeding “is sufficiently like a trial in its adversarial format and in the existence of standards for decision” that counsel’s role in the two proceedings is comparable — it is “to ensure that the adversarial testing process works to produce a just result under the standards governing decision.” Strickland, 466 U. S., at 686, 687. We therefore must determine whether Leaphart’s performance in evaluating the mitigating evidence available to him, and in deciding not to pursue further mitigating evidence, undermines confidence in the adversarial process of this case. In embarking on our review of the District Court’s conclusions, we are guided by our most recent admonition on this subject:

“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U. S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland v. Washington, 466 U. S., at 689.

The evidence that might have been presented would have disclosed that petitioner had an exceptionally unhappy and unstable childhood.⁷ Most of this evidence was described by petitioner’s mother, who testified at length at the habeas corpus hearing. At the age of 14 she married Burger’s father, who was 16. She was divorced from petitioner’s father when petitioner was nine years old. She remarried twice, and neither of petitioner’s stepfathers wanted petitioner in the home; one of them beat his mother in petitioner’s presence when he was 11 and the other apparently “got him involved with marijuana, and that was the whole point of his life, where the next bag was coming from, or the next bottle of beer. And, this was the kind of influence that he had.” App. 91. When his mother moved from Indiana to Florida, petitioner ran away from his father and hitchhiked to Tampa. After he became involved in an auto accident, she returned him to Indiana where he was placed in a juvenile detention home until he was released to his father’s custody. Except for one incident of shoplifting, being absent from school without permission, and being held in juvenile detention — none of which was brought to the jury’s attention — petitioner apparently had no criminal record before entering the Army.

Leaphart was aware of some, but not all, of this family history prior to petitioner’s trial. He talked with petitioner’s mother on several occasions,⁸ an attorney in Indiana who had befriended petitioner and his mother, and a psychologist whom Leaphart had employed to conduct an examination of petitioner in preparation for trial. He reviewed psychologists’ reports that were obtained with the help of petitioner’s mother. Id., at 50-51. He also interviewed Stevens and other men at Fort Stewart. Id., at 51. Based on these interviews, Leaphart made the reasonable decision that his client’s interest would not be served by presenting this type of evidence.

His own meetings with petitioner, as well as the testimony of the psychologist at the hearing on the admissibility of petitioner’s confession, convinced Leaphart that it would be unwise to put petitioner himself on the witness stand. The record indicates that petitioner never expressed any remorse about his crime, and the psychologist’s testimony indicates that he might even have bragged about it on the witness stand.⁹ Leaphart formed the opinion that Burger enjoyed talking about the crimes; he was worried that the jury might regard Burger’s attitude on the witness stand as indifferent or worse. Id., at 75-76. Quite obviously, as the District Court concluded, an experienced trial lawyer could properly have decided not to put either petitioner or the psychologist who had thus evaluated him in a position where he would be subjected to cross-examination that might be literally fatal. 758 F. 2d, at 935-936.

The other two witnesses that Leaphart considered using were petitioner’s mother and the Indiana lawyer who had acted as petitioner’s “big brother.” Leaphart talked with the mother on several occasions and concluded that her testimony would not be helpful and might have been counterproductive. As the record stood, there was absolutely no evidence that petitioner had any prior criminal record of any kind. Her testimony indicates that petitioner had committed at least one petty offense. App. 90. The District Judge who heard all of the testimony that she would have given on direct examination at the sentencing hearing was not convinced that it would have aided petitioner’s case; it was surely not unreasonable for Leaphart to have concluded that cross-examination might well have revealed matters of historical fact that would have harmed his client’s chances for a life sentence.

The Indiana lawyer was willing to travel to Georgia to testify on petitioner’s behalf, but nothing in the record describes the content of the testimony he might have given. Although Leaphart was unable to recall the details of the background information that he received from the Indiana lawyer, he testified that the information was not helpful to petitioner, id., at 57, and the Indiana lawyer apparently agreed with that assessment. Id., at 57-58. Consistently with that conclusion, petitioner’s present counsel — even with the benefit of hindsight — has submitted no affidavit from that lawyer establishing that he would have offered substantial mitigating evidence if he had testified. Accordingly, while Leaphart’s judgment may have been erroneous, the record surely does not permit us to reach that conclusion.

Finally, petitioner submitted several affidavits to the court to describe the evidence that Leaphart might have used if he had conducted a more thorough investigation. These affidavits present information about petitioner’s troubled family background that could have affected the jury adversely by introducing facts not disclosed by his clean adult criminal record. The affidavits indicate that the affiants, had they testified, might well have referred on direct examination or cross-examination to his encounters with law enforcement authorities. For example, a former neighbor, Phyllis Russell, stated that petitioner’s father did not want to associate with him when he “got into trouble and was on juvenile probation.” 1 Record 142. Petitioner’s uncle, Earnest Holtsclaw, narrated that petitioner “got involved with drugs” while in Florida. Id., at 145. Cathy Russell Ray, petitioner’s friend in junior high school, stated that “Chris’s father was supposed to go with him to juvenile court to get a release so that he could join the service [Army].” Id., at 149.

Even apart from their references to damaging facts, the papers are by no means uniformly helpful to petitioner because they suggest violent tendencies that are at odds with the defense’s strategy of portraying petitioner’s actions on the night of the murder as the result of Stevens’ strong influence upon his will. For example, the District Judge pointed out:

“In an affidavit submitted to this Court, petitioner’s uncle attests that petitioner came from a broken home and that he was unwanted by-his parents. He opined that Burger had a split personality. ‘Sometimes [Burger] would be a nice, normal guy, then at times he would flip out and would get-violent over nothing.’ Affidavit of Earnest R. Holtcsclaw [sic] at 1-2; see also Affidavit of Cathy Russell Ray at 1 (‘He had a hairtrigger temper. He would get mad and punch the walls. Once he broke his knuckles he got so ma[d].’). On one hand, a jury could react with sympathy over the tragic childhood Burger endured. On the other hand, since Burger’s sanity was not in issue in this case, the prosecution could use this same testimony, after pointing out that petitioner was nevertheless responsible for his acts, to emphasize that it was this same unpredictable propensity for violence which played a prominent role in the death of Burger’s victim. See note 6, swpra. ‘[M]itigation . . . ,’ after all, [m]ay be in the eye of the beholder.’ Stanley v. Zant, 697 F. 2d 955, 969 & n. 11 (11th Cir. 1983) (footnote omitted).” 753 F. 2d, at 937-938, n. 7.

The record at the habeas corpus hearing does suggest that Leaphart could well have made a more thorough investigation than he did. Nevertheless, in considering claims of ineffective assistance of counsel, “[w]e address not what is prudent or appropriate, but only what is constitutionally compelled.” United States v. Cronic, 466 U. S. 648, 665, n. 38 (1984). We have decided that “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U. S., at 690-691. Applying this standard, we agree with the courts below that counsel’s decision not to mount an all-out investigation into petitioner’s background in search of mitigating circumstances was supported by reasonable professional judgment. It appears that he did interview all potential witnesses who had been called to his attention and that there was a reasonable basis for his strategic decision that an explanation of petitioner’s history would not have minimized the risk of the death penalty. Having made this judgment, he reasonably determined that he need not undertake further investigation to locate witnesses who would make statements about Burger’s past. We hold that the Court of Appeals complied with the directives of Strickland:

“In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.

“The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.” Id., at 691.

V

Petitioner has not established that “in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance.” Id., at 690. He “has made no showing that the justice of his sentence was rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel’s assistance.” Id., at 700.

Accordingly, the judgment of the Court of Appeals is

Affirmed.

1 In his direct review and collateral proceedings to date, petitioner has not advanced the claim that execution by a State of a person for a murder committed while a minor violates the Eighth and Fourteenth Amendments to the Constitution. Cf. Thompson v. State, 724 P. 2d 780 (Okla. Crim. App. 1986) (defendant was 15 years old at time of crime), cert. granted, 479 U. S. 1084 (1987). We have held that a habeas petitioner may “establish cause for a procedural default if his claim is ‘so novel that its legal basis is not reasonably available to counsel.’” Murray v. Carrier, 477 U. S. 478, 489-490 (1986) (quoting Reed v. Ross, 468 U. S. 1, 16 (1984)). Of course, we do not now determine whether the legal basis for a constitutional claim based on the youth of the defendant was reasonably available to petitioner in 1978. Nor do we rule upon whether refusal to consider such a claim would carry with it “the risk of a manifest miscarriage of justice” and would thus permit a habeas corpus court to address the merits of the claim in a subsequent proceeding. Smith v. Murray, 477 U. S. 527, 537-538 (1986).

2 “The Court most definitely finds no basis for concluding that Mr. Leap-hart’s representation was constitutionally inadequate.” Blake v. Zant, 513 F. Supp. 772, 802 (1981). In a footnote, the court added:

“This Court is particularly concerned by arguments raised with respect to ineffective assistance of counsel. I certainly do not question the wisdom or the propriety of advancing every legitimate argument on petitioner’s behalf. However, many, if not all, the allegations made against Mr. Leap-hart are directly contradicted by the record. Thus, they could not possibly be of any benefit to Mr. Burger. On the other hand, the raising of such unfounded charges must have a significant ‘chilling effect’ on the willingness of experienced attorneys, like Mr. Leaphart, to undertake the defense of capital cases. Petitioner’s attorneys here might do well to reconsider their apparent policy of routinely attacking the performance of trial counsel in light of this fact.” Id., at 802, n. 13.

3 Leaphart and Smith were both members of the same professional corporation. The form of their business organization is not relevant to this case and they will be described as partners for the sake of convenience.

4 The opinion of the District Court is published as an Appendix to the Court of Appeals’ opinion. 753 F. 2d, at 932-942.

5 Petitioner also argues in this proceeding that the malice charge given to the jury at the guilt or innocence phase of his trial was unconstitutional under Francis v. Franklin, 471 U. S. 307 (1985). The trial court charged the jury that a “person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts.” The Court of Appeals observed that the jury instruction was “virtually identical to the one held unconstitutional in Franklin,” 785 F. 2d, at 891, even though the trial court also instructed the jury that a person will not be presumed to act with criminal intent and that a specific intent to commit the crime charged was an essential element of the crime that the State must prove beyond a reasonable doubt. The Court of Appeals found any error harmless beyond a reasonable doubt. We agree with the Court of Appeals that, pretermiting the inquiry whether the trial judge’s charge to the jury impermissibly ' shifted the burden of proof on the question of petitioner’s criminal intent to commit murder, ‘“the evidence was so dispositive of intent’” that it can be said beyond a reasonable doubt that “ ‘the jury would have found it unnecessary to rely on the presumption.’” See Rose v. Clark, 478 U. S. 570, 583 (1986) (quoting Connecticut v. Johnson, 460 U. S. 73, 97, n. 5 (1983) (Powell, J., dissenting)).

6 We note that Leaphart persisted in this strategy in his closing argument to the jury at the second sentencing hearing. He argued, in part: “Each and every one of these acts, according to this statement which they have introduced into evidence, the initiation of the crime, the act of robbery, the acts of sodomy, the acts of tying him up, the telling him to get in the trunk, the saying let’s kill him, telling him where to drive, telling him we must get rid of the car, we must get rid of the fingerprints, who was that? That was all Stevens. Stevens is not on trial here today.

“Now, this boy here was seventeen years old at that time, and Stevens was twenty. Now, we all know that the influence that a twenty year old person has over a seventeen year old person who he looks on as his friend and companion. And, all of this bears out that Stevens was the one in control. . . .

“... You may recommend life imprisonment even though you have found aggravating circumstances, or one or more of the aggravating circumstances given to you in this charge to have existed beyond a reasonable doubt.

“Well, why is that the law? That’s the law because of the situations such as this where you have a moving force, and you have a person who follows along and does the beating [bidding] of an individual, who gets convicted of murder. And, the person who actually perpetrated the crime was, and actually was the catalyst, the moving force that carried it all about and did all these things even though this person was a part of it, that the punishment of one is different from the punishment of the other, or can be. That was in your discretion.'

“And, in this particular situation, even though you say under these set of circumstances these things existed, Burger did none of that, except being involved there at that time and going along with Stevens who was the leader.” 2 Tr. 252-254 (second sentencing hearing).

7 We have no doubt that this potential testimony would have been relevant mitigating evidence that the sentencer could not have refused to consider and could not have been precluded from considering had counsel sought to introduce it. See Hitchcock v. Dugger, 481 U. S. 393, 398-399 (1987); Skipper v. South Carolina, 476 U. S. 1, 4-5 (1986); Eddings v. Oklahoma, 455 U. S. 104, 114-116 (1982); Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion). In light of petitioner’s youth at the time of the offense, evidence of his “neglectful, sometimes even violent, family background” and testimony that his “mental and emotional development were at a level several years below his chronological age” could not have been excluded by the state court. Eddings, 455 U. S., at 116. It is equally clear, however, that the undisputed relevancy of this information and the trial court’s corresponding duty to allow its consideration have no bearing on the quite distinct question before us. That issue is whether counsel acted reasonably in deciding not to introduce the evidence out of apprehension that it would contribute little to his client’s chances of obtaining a life sentence while revealing possibly damaging details about his past and allowing foreseeably devastating cross-examination.

8 There was a conflict in the testimony with respect to the extent of these conversations which the District Court described in its first treatment of the issue as follows:

“Mrs. Foster testified that Mr. Leaphart made only very minimal efforts to discuss petitioner’s case with her and to develop possible mitigating factors. Mr. Leaphart’s account suggested that he had talked with Mrs. Foster several times and made adequate if hardly ideal inquiries. Mr. Leaphart’s account is supported by his bill, which lists two conferences totaling three and a half hours prior to trial and four conferences of unstated duration prior to retrial. Defendant’s Exhibits 1, 2, Thus, the Court must conclude that Mr. Leaphart’s investigation appears to meet at least minimal professional standards.” 513 F. Supp., at 796, n. 6.

On remand from the Court of Appeals, the District Court concluded:

“Interviews with Burger, Burger’s mother, and an attorney who had befriended Burger and his mother, in addition to his consultation with a psychologist, and review of psychologists’ reports obtained through Burger’s mother convinced Leaphart that a more exhaustive investigation into Burger’s background would not be a profitable pursuit. He also concluded that presenting background and character evidence to the sentencing jury would have been at best unproductive, and at worst, harmful to his client.” Burger v. Kemp, 753 F. 2d 930, 935 (CA11 1985) (footnotes omitted; citations to transcript of second sentencing hearing omitted).

9 “Q. Do you have an opinion, based on your examination of Mr. Burger, both your use of Wechsler IQ test and your other examination, and based on your experience as a psychologist, do you have an opinion as to whether or not he could appreciate the consequences of the making of a confession?

“A. I would think he would enjoy the idea, frankly. This would be a great opportunity to display his psyehopathologieal behavior. He’d probably shout in the wind as much as he could of all the things he might have done.

“Q. But could he appreciate the trouble or the consequences of, or the magnitude of what he was doing?

“A. His grade of deficiency with a relative IQ of 82 would not [be] beyond the concept of understanding right from wrong. His psychopathology would make him want to do wrong, basically within his structure. He’s just as determined to do evil as a preacher is determined to do [good], if I could use that as an illustration. So in the concept of appreciating any confession he would make, it would be to him almost a compelling need, because any psychopath has no pleasure, has no joy unless he can at some point along the line let the world know of his behavior, which to most of us is very unseemingly.” 1 Tr. 249-251 (first sentencing hearing).