Whether a habeas court must articulate and apply prevailing professional norms to determine ineffective-assistance-of-counsel

QUESTIONS PRESENTED In Strickland v. Washington, this Court established its two-part test to determine whether representation is ineffective in violation of the Sixth Amendment: 1) whether the representation “fell below an objective standard of reasonableness”; and 2) whether the “deficient performance prejudiced the defense.” 466 U.S. 668, 687-88 (1984). Strickland directed the courts to identify objective standards of care for counsel defending an accused individual. In a capital case, prejudice exists where there is a “reasonable probability” that the defendant would not have received a death sentence had counsel effectively presented available mitigation evidence. Id. at 695. The questions presented are: 1. Whether a habeas court must articulate and apply prevailing professional norms in order to determine whether trial counsel’s representation was ineffective in violation of the Sixth Amendment? 2. When trial counsel failed to investigate mitigating evidence, whether a habeas court can adequately assess the lawyers’ performance and determine the existence of prejudice from a deficient performance by relying only on counsel’s post hoc representations that they exercised their professional judgment or that further investigation would not have changed the outcome of the trial? 3. Whether the standard for identifying prejudice under Strickland is a “preponderance of the evidence,” as held in this case, or is “reasonable probability” as articulated by this Court in Strickland? i This is a case where the defendant, Roderick Napoleon Harris, presented the only evidence about what the standard of care is. That evidence included the ABA and Texas Guidelines,! as well as expert testimony from an experienced local practitioner. The Texas Court of Criminal Appeals (CCA) rejected all of Harris’s evidence about the standard of care, and failed to identify any standard of care at all. Instead, the CCA excused trial counsel’s conduct because they purportedly relied on their “judgment.” It is undisputed that trial counsel here completely failed to investigate mitigating evidence: Before trial, Harris’s trial counsel learned that his 17-year-old mother drank while pregnant, and knew that Harris was exposed to lead in utero and asachild. But trial counsel failed to investigate these issues. Trial counsel failed to develop a psycho-social history for Harris, which would have enabled them to discover that he was a severely neglected and abused as a child. Trial counsel also failed to investigate the State’s false claim that Harris belonged to a violent street gang. Trial counsel only offered subjective, post hoc justifications for their decisions not to investigate. The undisputed evidence now shows that Harris suffers from Fetal Alcohol Syndrome (FASD), has brain damage from lead exposure and FASD, was severely abused as a child and was not (as the State claimed) in a gang. ' ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 HorsTra L. REV. 913 (2003); ABA Standards for Criminal Justice: Prosecution Function and Defense Function (3d ed. 1993); State Bar of Tex., Guidelines and Standards for Texas Capital Counsel, 69 TEX. B.J. 966 (2006); ABA Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, 36 HOFSTRA L. REV. 677 (2008); State Bar of Tex., Supplementary Guidelines and Standards for the Mitigation Function of Defense Teams in Death Penalty Cases (2015) (collectively the “ABA and Texas Guidelines”). ii II. RELATED CASES STATEMENT e The State of Texas v Roderick Harris, No. F09-00409, In the Criminal District Court No. 7 of Dallas County, Texas. Judgment entered May 21, 2012. e Roderick Harris v The State of Texas, No. AP-76,810, In the Court of Criminal Appeals of Texas. Opinion entered May 21, 2014. e Ex Parte Roderick Harris, No. W09-00409-Y(A), In the Criminal District Court No. 7 of Dallas County, Texas. Order Entered March 31, 2020. e Ex Parte Rod