Bobby v. Van Hook , 130 S. Ct. 13 ( 2009 )

Cite as: 558 U. S. ____ (2009) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
DAVID BOBBY, WARDEN v. ROBERT J. VAN HOOK
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 09–144. Decided November 9, 2009
PER CURIAM.
The Court of Appeals for the Sixth Circuit granted
habeas relief to Robert Van Hook on the ground that he
did not receive effective assistance of counsel during the
sentencing phase of his capital trial. Because we think it
clear that Van Hook’s attorneys met the constitutional
minimum of competence under the correct standard, we
grant the petition and reverse.
I
On February 18, 1985, Van Hook went to a Cincinnati
bar that catered to homosexual men, hoping to find some
one to rob. He approached David Self, and after the two
spent several hours drinking together they left for Self’s
apartment. There Van Hook “lured Self into a vulnerable
position” and attacked him, first strangling him until he
was unconscious, then killing him with a kitchen knife
and mutilating his body. State v. Van Hook, 39 Ohio St.
3d 256, 256–257, 530 N. E. 2d 883, 884 (1988). Before
fleeing with Self’s valuables, Van Hook attempted to cover
his tracks, stuffing the knife and other items into the body
and smearing fingerprints he had left behind. Six weeks
later, police found him in Florida, where he confessed.
Van Hook was indicted in Ohio for aggravated murder,
with one capital specification, and aggravated robbery. He
waived his right to a jury trial, and a three-judge panel
found him guilty of both charges and the capital specifica
tion. At the sentencing hearing, the defense called eight
mitigation witnesses, and Van Hook himself gave an
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unsworn statement. After weighing the aggravating and
mitigating circumstances, the trial court imposed the
death penalty. The Ohio courts affirmed on direct appeal,
id., at 265, 530 N. E. 2d, at 892; State v. Van Hook, No.
C–85–0565, 1987 WL 11202 (Ohio App., May 13, 1987)
(per curiam), and we denied certiorari, Van Hook v. Ohio,
489 U. S. 1100 (1989). Van Hook also sought state post
conviction relief, which the Ohio courts denied. State v.
Van Hook, No. C–910505, 1992 WL 308350 (Ohio App.,
Oct. 21, 1992) (per curiam), appeal denied, 66 Ohio St. 3d
1440, 608 N. E. 2d 1085, rehearing denied, 66 Ohio St. 3d
1470, 611 N. E. 2d 328 (1993); State v. Van Hook, 70 Ohio
St. 3d 1216, 639 N. E. 2d 1199 (1994).
Van Hook filed this federal habeas petition in 1995. The
District Court denied relief on all 17 of his claims. Van
Hook v. Anderson, No. C–1–94–269 (SD Ohio, Aug. 7,
2003), App. to Pet. for Cert. 123a, 163a. A panel of the
Sixth Circuit reversed, concluding that Van Hook’s confes
sion was unconstitutionally obtained under Edwards v.
Arizona, 451 U. S. 477 (1981). See Van Hook v. Anderson,
444 F. 3d 830, 832 (2006). The en banc Sixth Circuit
vacated that ruling, holding the confession was proper,
and it remanded the case to the panel to consider Van
Hook’s other claims. See Van Hook v. Anderson, 488 F. 3d
411, 428 (2007). Van Hook petitioned for a writ of certio
rari, which we denied. Van Hook v. Hudson, 552 U. S.
1023 (2007).
On remand, the panel granted Van Hook habeas relief
again, but on different grounds, holding that his attorneys
were ineffective during the penalty phase because they did
not adequately investigate and present mitigating evi
dence, neglected to secure an independent mental-health
expert, and requested and relied on a presentence investi
gation report without objecting to damaging evidence it
contained. See Van Hook v. Anderson, 535 F. 3d 458, 461
(2008). The en banc Sixth Circuit again vacated the
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panel’s opinion, but rather than hearing the case a second
time it remanded for the panel to revise its opinion. See
Van Hook v. Anderson, 560 F. 3d 523, 524 (2009). In its
third opinion, the panel—relying on guidelines published
by the American Bar Association (ABA) in 2003—granted
relief to Van Hook on the sole ground that his lawyers
performed deficiently in investigating and presenting
mitigating evidence. See id., at 525. The State petitioned
for a writ of certiorari. We grant the petition and reverse.
II
Because Van Hook filed his federal habeas petition
before April 24, 1996, the provisions of the Antiterrorism
and Effective Death Penalty Act of 1996 do not apply. See
Lindh v. Murphy, 521 U. S. 320, 327 (1997). Even without
the Act’s added layer of deference to state-court judg
ments, we cannot agree with the Court of Appeals that
Van Hook is entitled to relief.
A
The Sixth Amendment entitles criminal defendants to
the “ ‘effective assistance of counsel’ ”—that is, representa
tion that does not fall “below an objective standard of
reasonableness” in light of “prevailing professional
norms.” Strickland v. Washington, 466 U. S. 668, 686
(1984) (quoting McMann v. Richardson, 397 U. S. 759,
771, n. 14 (1970)). That standard is necessarily a general
one. “No particular set of detailed rules for counsel’s
conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of
legitimate decisions regarding how best to represent a
criminal defendant.” 466 U. S., at 688–689. Restatements
of professional standards, we have recognized, can be
useful as “guides” to what reasonableness entails, but only
to the extent they describe the professional norms prevail
ing when the representation took place. Id., at 688.
The Sixth Circuit ignored this limiting principle, relying
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on ABA guidelines announced 18 years after Van Hook
went to trial. See 560 F. 3d, at 526–528 (quoting ABA
Guidelines for the Appointment and Performance of De
fense Counsel in Death Penalty Cases 10.7, comment., pp.
81–83 (rev. ed. 2003)). The ABA standards in effect in
1985 described defense counsel’s duty to investigate both
the merits and mitigating circumstances in general terms:
“It is the duty of the lawyer to conduct a prompt investiga
tion of the circumstances of the case and to explore all
avenues leading to facts relevant to the merits of the case
and the penalty in the event of conviction.” 1 ABA Stan
dards for Criminal Justice 4–4.1, p. 4–53 (2d ed. 1980).
The accompanying two-page commentary noted that de
fense counsel have “a substantial and important role to
perform in raising mitigating factors,” and that
“[i]nformation concerning the defendant’s background,
education, employment record, mental and emotional
stability, family relationships, and the like, will be rele
vant, as will mitigating circumstances surrounding the
commission of the offense itself.” Id., at 4–55.
Quite different are the ABA’s 131-page “Guidelines” for
capital defense counsel, published in 2003, on which the
Sixth Circuit relied. Those directives expanded what had
been (in the 1980 Standards) a broad outline of defense
counsel’s duties in all criminal cases into detailed pre
scriptions for legal representation of capital defendants.
They discuss the duty to investigate mitigating evidence
in exhaustive detail, specifying what attorneys should look
for, where to look, and when to begin. See ABA Guidelines
10.7, comment., at 80–85. They include, for example, the
requirement that counsel’s investigation cover every pe
riod of the defendant’s life from “the moment of concep
tion,” id., at 81, and that counsel contact “virtually every
one . . . who knew [the defendant] and his family” and
obtain records “concerning not only the client, but also his
parents, grandparents, siblings, and children,” id., at 83.
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Per Curiam
Judging counsel’s conduct in the 1980’s on the basis of
these 2003 Guidelines—without even pausing to consider
whether they reflected the prevailing professional practice
at the time of the trial—was error.
To make matters worse, the Court of Appeals (following
Circuit precedent) treated the ABA’s 2003 Guidelines not
merely as evidence of what reasonably diligent attorneys
would do, but as inexorable commands with which all
capital defense counsel “ ‘must fully comply.’ ” 560 F. 3d, at
526 (quoting Dickerson v. Bagley, 453 F. 3d 690, 693 (CA6
2006)). Strickland stressed, however, that “American Bar
Association standards and the like” are “only guides” to
what reasonableness means, not its definition. 466 U. S.,
at 688. We have since regarded them as such.1 See Wig
gins v. Smith, 539 U. S. 510, 524 (2003). What we have
said of state requirements is a fortiori true of standards
set by private organizations: “[W]hile States are free to
impose whatever specific rules they see fit to ensure that
criminal defendants are well represented, we have held
that the Federal Constitution imposes one general re
quirement: that counsel make objectively reasonable
choices.” Roe v. Flores-Ortega, 528 U. S. 470, 479 (2000).
B
Van Hook insists that the Sixth Circuit’s missteps made
no difference because his counsel were ineffective even
under professional standards prevailing at the time. He is
——————
1 The narrow grounds for our opinion should not be regarded as ac
cepting the legitimacy of a less categorical use of the Guidelines to
evaluate post-2003 representation. For that to be proper, the Guide
lines must reflect “[p]revailing norms of practice,” Strickland, 466 U. S.,
at 688, and “standard practice,” Wiggins v. Smith, 539 U. S. 510, 524
(2003), and must not be so detailed that they would “interfere with the
constitutionally protected independence of counsel and restrict the wide
latitude counsel must have in making tactical decisions,” Strickland,
supra, at 689. We express no views on whether the 2003 Guidelines
meet these criteria.
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Per Curiam
wrong.
Like the Court of Appeals, Van Hook first contends that
his attorneys began their mitigation investigation too late,
waiting until he was found guilty—only days before the
sentencing hearing—to dig into his background. See 560
F. 3d, at 528. But the record shows they started much
sooner. Between Van Hook’s indictment and his trial less
than three months later, they contacted their lay wit
nesses early and often: They spoke nine times with his
mother (beginning within a week after the indictment),
once with both parents together, twice with an aunt who
lived with the family and often cared for Van Hook as a
child, and three times with a family friend whom Van
Hook visited immediately after the crime. App. to Pet. for
Cert. 380a–383a, 384a–387a. As for their expert wit
nesses, they were in touch with one more than a month
before trial, and they met with the other for two hours a
week before the trial court reached its verdict. Id., at
382a, 386a. Moreover, after reviewing his military his
tory, they met with a representative of the Veterans Ad
ministration seven weeks before trial and attempted to
obtain his medical records. Id., at 381a, 386a. And they
looked into enlisting a mitigation specialist when the trial
was still five weeks away. Id., at 386a. The Sixth Circuit,
in short, was simply incorrect in saying Van Hook’s law
yers waited until the “last minute.” 560 F. 3d, at 528. Cf.
Williams v. Taylor, 529 U. S. 362, 395 (2000) (counsel
waited “until a week before the trial” to prepare for the
sentencing phase).
Nor was the scope of counsel’s investigation unreason
able.2 The Sixth Circuit said Van Hook’s attorneys found
——————
2 In his brief in this Court, Van Hook also alludes to his counsel’s
failure to obtain an independent mental-health expert and their reli
ance on (and failure to object to harmful evidence in) a presentence
investigation report—grounds on which the Sixth Circuit panel previ
ously relied but which it abandoned in its final opinion. See supra, at
Cite as: 558 U. S. ____ (2009) 7
Per Curiam
only “a little information about his traumatic childhood
experience,” 560 F. 3d, at 528, but that is a gross distor
tion. The trial court learned, for instance, that Van Hook
(whose parents were both “heavy drinkers”) started drink
ing as a toddler, began “barhopping” with his father at age
9, drank and used drugs regularly with his father from
age 11 forward, and continued abusing drugs and alcohol
into adulthood. App. to Pet. for Cert. 310a–312a, 323a–
326a, 328a–330a, 373a. The court also heard that Van
Hook grew up in a “ ‘combat zone’ ”: He watched his father
beat his mother weekly, saw him hold her at gun- and
knife-point, “observed” episodes of “sexual violence” while
sleeping in his parents’ bedroom, and was beaten himself
at least once. Id., at 321a, 338a–339a, 371a. It learned
that Van Hook, who had “fantasies about killing and war”
from an early age, was deeply upset when his drug and
alcohol abuse forced him out of the military, and at
tempted suicide five times (including a month before the
murder), id., at 351a–353a, 372a. And although the ex
perts agreed that Van Hook did not suffer from a “mental
disease or defect,” the trial court learned that Van Hook’s
borderline personality disorder and his consumption of
drugs and alcohol the day of the crime impaired “his abil
ity to refrain from the [crime],” id., at 303a, and that his
“explo[sion]” of “senseless and bizarre brutality” may have
resulted from what one expert termed a “homosexual
panic,” id., at 376a.
Despite all the mitigating evidence the defense did
present, Van Hook and the Court of Appeals fault his
counsel for failing to find more. What his counsel did
discover, the argument goes, gave them “reason to suspect
that much worse details existed,” and that suspicion
——————
2–3. Van Hook now concedes, however, that neither ground is a “basis
for issuing the writ,” Brief in Opposition 5; see also id., at 7, and
accordingly we do not address them.
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Per Curiam
should have prompted them to interview other family
members—his stepsister, two uncles, and two aunts—as
well as a psychiatrist who once treated his mother, all of
whom “could have helped his counsel narrate the true
story of Van Hook’s childhood experiences.” 560 F. 3d, at
528. But there comes a point at which evidence from more
distant relatives can reasonably be expected to be only
cumulative, and the search for it distractive from more
important duties. The ABA Standards prevailing at the
time called for Van Hook’s counsel to cover several broad
categories of mitigating evidence, see 1 ABA Standards
4–4.1, comment., at 4–55, which they did. And given all
the evidence they unearthed from those closest to Van
Hook’s upbringing and the experts who reviewed his his
tory, it was not unreasonable for his counsel not to identify
and interview every other living family member or every
therapist who once treated his parents. This is not a case
in which the defendant’s attorneys failed to act while
potentially powerful mitigating evidence stared them in
the face, cf. Wiggins, 539 U. S., at 525, or would have been
apparent from documents any reasonable attorney would
have obtained, cf. Rompilla v. Beard, 545 U. S. 374, 389–
393 (2005). It is instead a case, like Strickland itself, in
which defense counsel’s “decision not to seek more” miti
gating evidence from the defendant’s background “than
was already in hand” fell “well within the range of profes
sionally reasonable judgments.” 466 U. S., at 699.3
——————
3 In addition to the evidence the Sixth Circuit said his attorneys over
looked, Van Hook alleges that his lawyers failed to provide the expert
witnesses with a “complete set of relevant records or [his] complete
psycho-social history.” Brief in Opposition 4. But he offers no support
for that assertion. He further claims that his counsel failed to obtain or
present records of his military service and prior hospitalizations, but
the record shows that they did review the former, see App. to Pet. for
Cert. 380a, and that the trial court learned (from one of the written
expert reports) all the relevant information Van Hook says it would
have gleaned from the latter, see id., at 373a–377a.
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Per Curiam
What is more, even if Van Hook’s counsel performed
deficiently by failing to dig deeper, he suffered no preju
dice as a result. See id., at 694. As the Ohio court that
rejected Van Hook’s state habeas petition found, the affi
davits submitted by the witnesses not interviewed shows
their testimony would have added nothing of value. See
State v. Van Hook, No. C–910505, 1992 WL 308350, *2.
Only two witnesses even arguably would have added new,
relevant information: One of Van Hook’s uncles noted that
Van Hook’s mother was temporarily committed to a psy
chiatric hospital, and Van Hook’s stepsister mentioned
that his father hit Van Hook frequently and tried to kill
Van Hook’s mother. App. to Pet. for Cert. 227a, 232a. But
the trial court had already heard—from Van Hook’s
mother herself—that she had been “under psychiatric
care” more than once. Id., at 340a. And it was already
aware that his father had a violent nature, had attacked
Van Hook’s mother, and had beaten Van Hook at least
once. See also id., at 305a (noting that Van Hook “suffered
from a significant degree of neglect and abuse” throughout
his “chaotic” childhood). Neither the Court of Appeals nor
Van Hook has shown why the minor additional details the
trial court did not hear would have made any difference.
On the other side of the scales, moreover, was the evi
dence of the aggravating circumstance the trial court
found: that Van Hook committed the murder alone in the
course of an aggravated robbery. See Ohio Rev. Code Ann.
§2929.04(A)(7) (Lexis 2006). Van Hook’s confession made
clear, and he never subsequently denied, both that he was
the sole perpetrator of the crime and that “[h]is intention
from beginning to end was to rob [Self] at some point in
their evening’s activities.” App. to Pet. for Cert. 295a; see
id., at 276a–278a, 294a. Nor did he arrive at that inten
tion on a whim: Van Hook had previously pursued the
same strategy—of luring homosexual men into secluded
settings to rob them—many times since his teenage years,
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Per Curiam
and he employed it again even after Self’s murder in the
weeks before his arrest. See id., at 279a, 295a, 374a.
Although Van Hook apparently deviated from his original
plan once the offense was underway—going beyond steal
ing Self’s goods to killing him and disfiguring the dead
body—that hardly helped his cause. The Sixth Circuit,
which focused on the number of aggravating factors in
stead of their weight, see 560 F. 3d, at 530; cf. Ohio Rev.
Code Ann. §2929.04(B), gave all this evidence short shrift,
leading it to overstate further the effect additional miti
gating evidence might have had.
* * *
The petition for certiorari and the motion for leave to
proceed in forma pauperis are granted. The judgment of
the Court of Appeals is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
Cite as: 558 U. S. ____ (2009) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
DAVID BOBBY, WARDEN v. ROBERT J. VAN HOOK
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 09–144. Decided November 9, 2009
JUSTICE ALITO, concurring.
I join the Court’s per curiam opinion but emphasize my
understanding that the opinion in no way suggests that
the American Bar Association’s Guidelines for the Ap
pointment and Performance of Defense Counsel in Death
Penalty Cases (rev. ed. 2003) (2003 Guidelines or ABA
Guidelines) have special relevance in determining whether
an attorney’s performance meets the standard required by
the Sixth Amendment. The ABA is a venerable organiza
tion with a history of service to the bar, but it is, after all,
a private group with limited membership. The views of
the association’s members, not to mention the views of the
members of the advisory committee that formulated the
2003 Guidelines, do not necessarily reflect the views of the
American bar as a whole. It is the responsibility of the
courts to determine the nature of the work that a defense
attorney must do in a capital case in order to meet the
obligations imposed by the Constitution, and I see no
reason why the ABA Guidelines should be given a privi
leged position in making that determination.