When a capital defendant on federal habeas review challenges as ineffective his counsel's performance as it relates to the defendant's waiver of a state statutory right to a capital sentencing jury, is the relevant prejudice inquiry whether there is a reasonable probability that the defendant would have chosen to proceed with a jury absent counsel's error, or must the defendant prove that the outcome of his sentencing would have been different had he been afforded a jury of his peers?

QUESTION PRESENTED After misadvising Petitioner Taberon Honie to waive his right to capital sentencing by a jury, Mr. Honie’s counsel later erroneously told him that it was too late to withdraw his waiver and, on that basis, refused his client’s request to do so. Under this Court’s precedent and the law of at least three circuits, the proper way to assess prejudice from counsel’s indisputably deficient performance is to employ a process-based prejudice standard that evaluates whether Mr. Honie would have chosen a jury for his sentencing—which, on the record here, he would have done. Departing from those precedents, a divided Tenth Circuit upheld Utah’s application of a prejudice standard—as opposed to a process-based prejudice test. The Tenth Circuit joined three other circuits to widen a 3-4 split. The question presented is: When a capital defendant on federal habeas review challenges as ineffective his counsel’s performance as it relates to the defendant’s waiver of a state statutory right to a capital sentencing jury, is the relevant prejudice inquiry whether there is a reasonable probability that the defendant would have chosen to proceed with a jury absent counsel’s error, or must the defendant prove that the outcome of his sentencing would have been different had he been afforded a jury of his peers?