{ "resource_uri": "https://www.courtlistener.com:80/api/rest/v3/opinions/4256633/", "id": 4256633, "absolute_url": "/opinion/4479380/ayestas-v-davis/", "cluster": "https://www.courtlistener.com:80/api/rest/v3/clusters/4479380/", "author": "https://www.courtlistener.com:80/api/rest/v3/people/77/", "joined_by": [], "author_str": "", "per_curiam": false, "date_created": "2018-03-21T15:00:31.826064Z", "date_modified": "2018-03-21T15:39:50.563437Z", "type": "010combined", "sha1": "d9c454d66a2ac4587d4a8befd9064d221e6759f0", "page_count": 33, "download_url": "https://www.supremecourt.gov/opinions/17pdf/16-6795_c9dh.pdf", "local_path": "pdf/2018/03/21/ayestas_v._davis.pdf", "plain_text": "(Slip Opinion) OCTOBER TERM, 2017 1\n\n Syllabus\n\n NOTE: Where it is feasible, a syllabus (headnote) will be released, as is\n being done in connection with this case, at the time the opinion is issued.\n The syllabus constitutes no part of the opinion of the Court but has been\n prepared by the Reporter of Decisions for the convenience of the reader.\n See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.\n\n\nSUPREME COURT OF THE UNITED STATES\n\n Syllabus\n\n AYESTAS, AKA ZELAYA COREA v. DAVIS, DIRECTOR, \n\n TEXAS DEPARTMENT OF CRIMINAL JUSTICE, \n\n CORRECTIONAL INSTITUTIONS DIVISION\n\n\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR\n THE FIFTH CIRCUIT\n\n No. 16–6795. Argued October 30, 2017—Decided March 21, 2018\nPetitioner Ayestas was convicted of murder and sentenced to death in a\n Texas state court. He secured new counsel, but his conviction and\n sentence were affirmed on appeal. A third legal team sought, unsuc-\n cessfully, state habeas relief, claiming trial-level ineffective assis-\n tance of counsel but not counsel’s failure to investigate petitioner’s\n mental health and alcohol and drug abuse during the trial’s penalty\n phase. His fourth set of attorneys did raise that failure in a federal\n habeas petition, but because the claim had never been raised in state\n court, the District Court held, it was barred by procedural default.\n That decision was vacated and remanded for reconsideration in light\n of Martinez v. Ryan, 566 U. S. 1—where this Court held that an Ari-\n zona prisoner seeking federal habeas relief could overcome the proce-\n dural default of a trial-level ineffective-assistance-of-counsel claim by\n showing that the claim is substantial and that state habeas counsel\n was also ineffective in failing to raise the claim in a state habeas pro-\n ceeding—and Trevino v. Thaler, 569 U. S. 413—which extended that\n holding to Texas prisoners. Petitioner filed an ex parte motion asking\n the District Court for funding to develop his claim that both his trial\n and state habeas counsel were ineffective, relying on 18 U. S. C.\n §3599(f), which provides, in relevant part, that a district court “may\n authorize” funding for “investigative, expert, or other services . . .\n reasonably necessary for the representation of the defendant.” The\n court found his claim precluded by procedural default and thus de-\n nied his funding request. The Fifth Circuit also rejected the funding\n claim under its precedent: that a §3599(f) funding applicant must\n show that he has a “substantial need” for investigative or other ser-\n\f2 AYESTAS v. DAVIS\n\n Syllabus\n\n vices, and that funding may be denied when an applicant fails to pre-\n sent “a viable constitutional claim that is not procedurally barred.”\n 817 F. 3d 888, 895–896.\nHeld:\n 1. The District Court’s denial of petitioner’s funding request was a\n judicial decision subject to appellate review under the standard juris-\n dictional provisions. Pp. 7–14.\n (a) Title 28 U. S. C. §§1291, 2253, and 1254 confer jurisdiction to\n review decisions made by a district court in a judicial capacity. “Ad-\n ministrative” decisions—about, e.g., facilities, personnel, equipment,\n supplies, and rules of procedure—are “not subject to [this Court’s] re-\n view,” Hohn v. United States, 524 U. S. 236, 245, but the District\n Court’s ruling here does not remotely resemble such decisions. Peti-\n tioner’s request was made by motion in his federal habeas proceed-\n ing, which is indisputably a judicial proceeding. And resolution of\n the funding question requires the application of a legal standard—\n whether the funding is “reasonably necessary” for effective represen-\n tation—that demands an evaluation of petitioner’s prospects of ob-\n taining habeas relief. Pp. 8–10.\n (b) Respondent’s arguments in support of her claim that §3599’s\n funding requests are nonadversarial and administrative are unper-\n suasive. First, that the requests can be decided ex parte does not\n make the proceeding nonadversarial. The habeas proceeding here\n was clearly adversarial. And petitioner and respondent plainly have\n adverse interests on the funding question and have therefore squared\n off as adversaries. The mere fact that a §3599 funding request may\n sometimes be made ex parte is thus hardly dispositive. Second, noth-\n ing in §3599 even hints that the funding decisions may be revised by\n the Director of the Administrative Office of the Courts. Lower court\n cases that appear to have accepted Administrative Office review of\n certain Criminal Justice Act (CJA) payments, even if a proper inter-\n pretation of the CJA, are inapposite. Finally, the fact that\n §3599(g)(2) requires funding in excess of the generally applicable\n statutory cap to be approved by the circuit’s chief judge or another\n designated circuit judge, instead of by a panel of three, does not make\n the proceeding administrative. If Congress wishes to make certain\n rulings reviewable by a single circuit judge, the Constitution does not\n stand in the way. Pp. 10–14.\n 2. The Fifth Circuit did not apply the correct legal standard in af-\n firming the denial of petitioner’s funding request. Section 3599 au-\n thorizes funding for the “reasonably necessary” services of experts,\n investigators, and the like. But the Fifth Circuit’s requirement that\n applicants show a “substantial need” for the services is arguably a\n more demanding standard. Section 3599 appears to use the term\n\f Cite as: 584 U. S. ____ (2018) 3\n\n Syllabus\n\n “necessary” to mean something less than essential. Because it makes\n little sense to refer to something as being “reasonably essential,” the\n Court concludes that the statutory phrase calls for the district court\n to determine, in its discretion, whether a reasonable attorney would\n regard the services as sufficiently important, guided by considera-\n tions detailed in the opinion. The term “substantial” in the Fifth Cir-\n cuit’s test, however, suggests a heavier burden. And that court exac-\n erbated the difference by also requiring a funding applicant to\n present “a viable constitutional claim that is not procedurally\n barred.” That rule that is too restrictive after Trevino, see 569 U. S.\n at 429, because, in cases where funding stands a credible chance of\n enabling a habeas petitioner to overcome the procedural default ob-\n stacle, it may be error for a district court to refuse funding. That be-\n ing said, district courts were given broad discretion in assessing fund-\n ing requests when Congress changed the phrase “shall authorize” in\n §3599’s predecessor statute, see 21 U. S. C. §848(q)(9), to “may au-\n thorize” in §3599(f). A funding applicant must not be expected to\n prove that he will be able to win relief if given the services, but the\n “reasonably necessary” test does require an assessment of the likely\n utility of the services requested.\n Respondent’s alternative ground for affirmance—that funding is\n never “reasonably necessary” where a habeas petitioner seeks to pre-\n sent a procedurally defaulted ineffective-assistance-of-trial-counsel\n claim that depends on facts outside the state-court record—remains\n open for the Fifth Circuit to consider on remand. Pp. 14–19.\n817 F. 3d 888, vacated and remanded.\n\n ALITO, J., delivered the opinion for a unanimous Court. SOTOMAYOR,\nJ., filed a concurring opinion, in which GINSBURG, J., joined.\n\f Cite as: 584 U. S. ____ (2018) 1\n\n Opinion of the Court\n\n NOTICE: This opinion is subject to formal revision before publication in the\n preliminary print of the United States Reports. Readers are requested to\n notify the Reporter of Decisions, Supreme Court of the United States, Wash-\n ington, D. C. 20543, of any typographical or other formal errors, in order\n that corrections may be made before the preliminary print goes to press.\n\n\nSUPREME COURT OF THE UNITED STATES\n _________________\n\n No. 16–6795\n _________________\n\n\n CARLOS MANUEL AYESTAS, AKA DENNIS ZELAYA\n\n COREA, PETITIONER v. LORIE DAVIS, DIRECTOR, \n\n TEXAS DEPARTMENT OF CRIMINAL JUSTICE, \n\n CORRECTIONAL INSTITUTIONS DIVISION\n\n ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF \n\n APPEALS FOR THE FIFTH CIRCUIT\n\n [March 21, 2018]\n\n\n JUSTICE ALITO delivered the opinion of the Court.\n Petitioner Carlos Ayestas, who was convicted of murder\nand sentenced to death in a Texas court, argues that he\nwas wrongfully denied funding for investigative services\nneeded to prove his entitlement to federal habeas relief.\nPetitioner moved for funding under 18 U. S. C. §3599(f ),\nwhich makes funds available if they are “reasonably nec-\nessary,” but petitioner’s motion was denied. We hold that\nthe lower courts applied the wrong legal standard, and we\ntherefore vacate the judgment below and remand for\nfurther proceedings.\n I\n\n A\n\n In 1997, petitioner was convicted of capital murder in a\nTexas court. Evidence at trial showed that he and two\naccomplices invaded the home of a 67-year-old Houston\nwoman, Santiaga Paneque, bound her with duct tape and\nelectrical cord, beat and strangled her, and then made off\nwith a stash of her belongings.\n\f2 AYESTAS v. DAVIS\n\n Opinion of the Court\n\n The jury also heard testimony from Henry Nuila regard-\ning an incident that occurred about two weeks after the\nmurder. Petitioner was drunk at the time, and he re-\nvealed to Nuila that he had recently murdered a woman in\nHouston. Petitioner then brandished an Uzi machinegun\nand threatened to murder Nuila if he did not help peti-\ntioner kill his two accomplices. Fortunately for Nuila,\npetitioner kept talking until he eventually passed out;\nNuila then called the police, who arrested petitioner, still\nin possession of the gun.\n After the jury found petitioner guilty, it was asked to\ndetermine whether he should be sentenced to death or to\nlife in prison. In order to impose a death sentence, Texas\nlaw required the jury to answer the following three ques-\ntions. First, would petitioner pose a continuing threat to\nsociety? Second, had he personally caused the death of the\nvictim, intended to kill her, or anticipated that she would\nbe killed? Third, in light of all the evidence surrounding\nthe crime and petitioner’s background, were there suffi-\ncient mitigating circumstances to warrant a sentence of\nlife without parole instead of death? Tex. Code Crim.\nProc. Ann., Art. 37.071, §§2(b), (e) (Vernon Cum. Supp.\n2017). Only if the jury gave a unanimous yes to the first\ntwo questions, and a unanimous no to the third question,\ncould a death sentence be imposed; otherwise, petitioner\nwould receive a sentence of life without parole. See\n§§2(d)(2), (f )(2), (g).\n In asking the jury to impose a death sentence, the pros-\necution supplemented the trial record with evidence of\npetitioner’s criminal record and his encounter with a man\nnamed Candelario Martinez a few days after the murder.\nMartinez told the jury that he was standing in a hotel\nparking lot waiting for a friend when petitioner ap-\nproached and began to make small talk. Before long,\npetitioner pulled out a machinegun and forced Martinez\ninto a room where two of petitioner’s compatriots were\n\f Cite as: 584 U. S. ____ (2018) 3\n\n Opinion of the Court\n\nholding Martinez’s friend at knifepoint. Ordered to lie\ndown on the bathroom floor and await his execution,\nMartinez begged for his life while petitioner and his co-\nhorts haggled about who would carry out the killing.\nFinally, petitioner relented, but he threatened to kill\nMartinez and his family if he contacted the police. Peti-\ntioner then stole Martinez’s truck.\n Petitioner’s trial counsel presented very little mitigation\nevidence. This was due, at least in part, to petitioner’s\nsteadfast refusal for many months to allow his lawyers to\ncontact his family members, who were living in Honduras\nand might have testified about his character and upbring-\ning. Petitioner gave in on the eve of trial, and at that\npoint, according to the state habeas courts, his lawyers\n“made every effort to contact [his] family.” App. 171.\nThey repeatedly contacted petitioner’s family members\nand urged them to attend the trial; they requested that\nthe U. S. Embassy in Honduras facilitate family members’\ntravel to the United States; and they met in person with\nthe Honduran Consulate to seek assistance. But these\nefforts were to no avail. Petitioner’s sister told his legal\nteam that the family would not leave Honduras because\nthe journey would create economic hardship and because\ntheir father was ill and had killed one of their neighbors.\nA defense attorney who spoke to petitioner’s mother testi-\nfied that she seemed unconcerned about her son’s situa-\ntion. In general, the state habeas courts found, petitioner\n“did nothing to assist counsel’s efforts to contact his family\nand did not want them contacted by the consulate or\ncounsel.” Id., at 174.\n In the end, the only mitigation evidence introduced by\npetitioner’s trial counsel consisted of three letters from\npetitioner’s English instructor. The letters, each two\nsentences long, described petitioner as “a serious and\nattentive student who is progressing well in English.”\nIbid.\n\f4 AYESTAS v. DAVIS\n\n Opinion of the Court\n\n The jury unanimously concluded that petitioner should\nbe sentenced to death, and a capital sentence was im-\nposed. Petitioner secured new counsel to handle his ap-\npeal, and his conviction and sentence were affirmed by the\nTexas Court of Criminal Appeals in 1998. Ayestas v.\nState, No. 72,928, App. 115. Petitioner did not seek review\nat that time from this Court.\n B\n While petitioner’s direct appeal was still pending, a\nthird legal team filed a habeas petition on his behalf in\nstate court. This petition included several claims of trial-\nlevel ineffective assistance of counsel, but the petition did\nnot assert that trial counsel were ineffective for failing to\ninvestigate petitioner’s mental health and abuse of alcohol\nand drugs. Petitioner’s quest for state habeas relief ended\nunsuccessfully in 2008. Ex parte Ayestas, No. WR–69,674–\n01 (Tex. Ct. Crim. App., Sept. 10, 2008), 2008 WL 4151814\n(per curiam) (unpublished).\n In 2009, represented by a fourth set of attorneys, peti-\ntioner filed a federal habeas petition under 28 U. S. C.\n§2254, and this time he did allege that his right to the\neffective assistance of counsel at trial was violated because\nhis attorneys failed to conduct an adequate search for\nmitigation evidence. As relevant here, petitioner argued\nthat trial counsel overlooked evidence that he was mentally\nill and had a history of drug and alcohol abuse. Ayestas\nv. Thaler, Civ. Action No. H–09–2999 (SD Tex., Jan. 26,\n2011), 2011 WL 285138, *4. Petitioner alleged that he had\na history of substance abuse, and he noted that he had\nbeen diagnosed with schizophrenia while the state habeas\nproceeding was still pending. See Pet. for Writ of Habeas\nCorpus in Ayestas v. Quarterman, No. 4:09–cv–2999 (SD\nTex.), Doc. 1, pp. 21–23. Petitioner claimed that trial\ncounsel’s deficient performance caused prejudice because\nthere was a reasonable chance that an adequate investiga-\n\f Cite as: 584 U. S. ____ (2018) 5\n\n Opinion of the Court\n\ntion would have produced mitigation evidence that would\nhave persuaded the jury to spare his life.\n Among the obstacles standing between petitioner and\nfederal habeas relief, however, was the fact that he never\nraised this trial-level ineffective-assistance-of-counsel\nclaim in state court. The District Court therefore held\nthat the claim was barred by procedural default, Ayestas v.\nThaler, 2011 WL 285138, *4–*7, and the Fifth Circuit\naffirmed, Ayestas v. Thaler, 462 Fed. Appx. 474, 482\n(2012) (per curiam).\n Petitioner sought review in this Court, and we vacated\nthe decision below and remanded for reconsideration in\nlight of two of our subsequent decisions, Martinez v. Ryan,\n566 U. S. 1 (2012), and Trevino v. Thaler, 569 U. S. 413\n(2013). Ayestas v. Thaler, 569 U. S. 1015 (2013). Martinez\nheld that an Arizona prisoner seeking federal habeas relief\ncould overcome the procedural default of a trial-level\nineffective-assistance-of-counsel claim by showing that the\nclaim is substantial and that state habeas counsel was\nalso ineffective in failing to raise the claim in a state\nhabeas proceeding. 566 U. S., at 14. Trevino extended\nthat holding to Texas prisoners, 569 U. S., at 416–417, and\non remand, petitioner argued that he fell within Trevino\nbecause effective state habeas counsel would have uncov-\nered evidence showing that trial counsels’ investigative\nefforts were deficient.\n To assist in developing these claims, petitioner filed an\nex parte motion asking the District Court for $20,016 in\nfunding to conduct a search for evidence supporting his\npetition. He relied on 18 U. S. C. §3599(f ), which provides\nin relevant part as follows:\n “Upon a finding that investigative, expert, or other\n services are reasonably necessary for the representa-\n tion of the defendant, whether in connection with is-\n sues relating to guilt or the sentence, the court may\n\f6 AYESTAS v. DAVIS\n\n Opinion of the Court\n\n authorize the defendant’s attorneys to obtain such\n services on behalf of the defendant and, if so author-\n ized, shall order the payment of fees and expenses\n therefor.”\nPetitioner averred that the funds would be used to conduct\nan investigation that would show that his trial counsel\nand his state habeas counsel were ineffective. Accordingly,\nhe claimed, the investigation would establish both that\nhis trial-level ineffective-assistance-of-counsel claim was\nnot barred by procedural default and that he was entitled\nto resentencing based on the denial of his Sixth Amend-\nment right to the effective assistance of trial counsel.\n The District Court refused the funding request and\nultimately denied petitioner’s habeas petition. Ayestas v.\nStephens, Civ. Action No. H–09–2999, (SD Tex., Nov. 18,\n2014), 2014 WL 6606498, *6–*7. On the merits of peti-\ntioner’s new ineffective-assistance-of-trial-counsel claim,\nthe District Court held that petitioner failed both prongs\nof the Strickland test. See Strickland v. Washington, 466\nU. S. 668 (1984). Noting that most of the evidence bearing\non petitioner’s mental health had emerged only after he\nwas sentenced, the court concluded that petitioner’s trial\nlawyers were not deficient in failing to find such evidence\nin time for the sentencing proceeding. 2014 WL 6606498,\n*5. In addition, the court found that state habeas counsel\ndid not render deficient performance by failing to investi-\ngate petitioner’s history of substance abuse, and that, in\nany event, petitioner was not prejudiced at the sentencing\nphase of the trial or during the state habeas proceedings\nbecause the potential mitigation evidence at issue would\nnot have made a difference to the jury in light of “the\nextremely brutal nature of [the] crime and [petitioner’s]\nhistory of criminal violence.” Ibid.\n With respect to funding, the District Court pointed to\nFifth Circuit case law holding that a §3599(f ) funding\n\f Cite as: 584 U. S. ____ (2018) 7\n\n Opinion of the Court\n\napplicant cannot show that investigative services are\n“ ‘reasonably necessary’ ” unless the applicant can show\nthat he has a “ ‘substantial need’ ” for those services. Id.,\nat *6. In addition, the court noted that “[t]he Fifth Circuit\nupholds the denial of funding” when, among other things,\n“a petitioner has . . . failed to supplement his funding\nrequest with a viable constitutional claim that is not\nprocedurally barred.” Ibid. (internal quotation marks\nomitted).\n Given its holding that petitioner’s new ineffective-\nassistance-of-counsel claim was precluded by procedural\ndefault, this rule also doomed his request for funding. The\nDistrict Court denied petitioner’s habeas petition and\nrefused to grant him a certificate of appealability (COA).\nId., at *7. On appeal, the Fifth Circuit held that a COA\nwas not needed for review of the funding issue, but it\nrejected that claim for essentially the same reasons as the\nDistrict Court, citing both the “substantial need” test and\nthe rule that funding may be denied when a funding appli-\ncant fails to present “a viable constitutional claim that is\nnot procedurally barred.” Ayestas v. Stephens, 817 F. 3d\n888, 895–896 (2016) (internal quotation marks omitted).\nWith respect to petitioner’s other claims, including his\nclaim of ineffective assistance of trial counsel, the Fifth\nCircuit refused to issue a COA. Id., at 898.\n C\n We granted certiorari to decide whether the lower courts\napplied the correct legal standard in denying the funding\nrequest. 581 U. S. ___ (2017).\n II\n Before we reach that question, however, we must con-\nsider a jurisdictional argument advanced by respondent,\nthe Director of the Texas Department of Criminal Justice.1\n——————\n 1 We also consider a jurisdictional issue not raised by the parties,\n\f8 AYESTAS v. DAVIS\n\n Opinion of the Court\n\nRespondent contends that the District Court’s denial of\npetitioner’s funding request was an administrative, not a\njudicial, decision and therefore falls outside the scope of\nthe jurisdictional provisions on which petitioner relied in\nseeking review in the Court of Appeals and in this Court.\n A\n When the District Court denied petitioner’s funding\nrequest and his habeas petition, he took an appeal to the\n——————\nnamely, whether we have jurisdiction even though no COA has yet\nbeen issued. We do not have jurisdiction if jurisdiction was lacking in\nthe Court of Appeals, and the jurisdiction of a court of appeals to\nentertain an appeal from a final order in a habeas proceeding is de-\npendent on the issuance of a COA. See 28 U. S. C. §2253(c)(l); Gonzalez\nv. Thaler, 565 U. S. 134, 142 (2012).\n In this case, petitioner appealed an order of the District Court that\ndenied both his request for funding under 18 U. S. C. §3599 and his\nunderlying habeas claims. The Court of Appeals denied a COA as to\nthe merits of his request for habeas relief but held that a COA was not\nrequired insofar as petitioner challenged the District Court’s denial of\nfunding under §3599. The Fifth Circuit relied on Harbison v. Bell, 556\nU. S. 180 (2009), in which a prisoner appealed from an order that\ndenied counsel under §3599 for a state clemency proceeding but that\ndid not address the merits of any habeas petition. This Court held that\na COA was not required. Here, petitioner took his appeal from the final\norder in his habeas proceeding.\n The parties have not briefed whether that difference between Harbi-\nson and the present case is relevant or whether an appeal from a denial\nof a §3599 request for funding would fit within the COA framework,\nand we find it unnecessary to resolve the issue. Though we take no\nview on the merits, we will assume for the sake of argument that the\nCourt of Appeals could not entertain petitioner’s §3599 claim without\nthe issuance of a COA.\n We may review the denial of a COA by the lower courts. See, e.g.,\nMiller-El v. Cockrell, 537 U. S. 322, 326–327 (2003). When the lower\ncourts deny a COA and we conclude that their reason for doing so was\nflawed, we may reverse and remand so that the correct legal standard\nmay be applied. See Slack v. McDaniel, 529 U. S. 473, 485–486, 489–\n490 (2000). We take that course here. As we will explain, the correct-\nness of the rule applied by the District Court in denying the funding\nrequest was not only debatable; it was erroneous.\n\f Cite as: 584 U. S. ____ (2018) 9\n\n Opinion of the Court\n\nFifth Circuit under 28 U. S. C. §§1291 and 2253, which\ngrant the courts of appeals jurisdiction to review final\n“decisions” and “orders” of a district court.2 And when the\nFifth Circuit affirmed, petitioner sought review in this\nCourt under §1254, which gives us jurisdiction to review\n“[c]ases” in the courts of appeals.3 As respondent correctly\nnotes, these provisions confer jurisdiction to review deci-\nsions made by a district court in a judicial capacity. But\nwe have recognized that not all decisions made by a fed-\neral court are “judicial” in nature; some decisions are prop-\nerly understood to be “administrative,” and in that case they\nare “not subject to our review.” Hohn v. United States, 524\nU. S. 236, 245 (1998).\n The need for federal judges to make many administra-\ntive decisions is obvious. The Federal Judiciary, while\ntiny in comparison to the Executive Branch, is neverthe-\nless a large and complex institution, with an annual budget\nexceeding $7 billion and more than 32,000 employees.\nSee Administrative Office of the U. S. Courts, The Judici-\nary FY 2018 Congressional Budget Summary Revised 9–\n10 (June 2017). Administering this operation requires\nmany “decisions” in the ordinary sense of the term—\ndecisions about such things as facilities, personnel,\n——————\n 2 In relevant part §1291 declares that “[t]he courts of appeals . . . shall\nhave jurisdiction of appeals from all final decisions of the district courts\nof the United States, the United States District Court for the District of\nthe Canal Zone, the District Court of Guam, and the District Court of\nthe Virgin Islands, except where a direct review may be had in the\nSupreme Court.”\n Similarly, §2253 provides, as relevant, that “[i]n a habeas corpus\nproceeding or a proceeding under section 2255 before a district judge,\nthe final order shall be subject to review, on appeal, by the court of\nappeals for the circuit in which the proceeding is held.” §2253(a).\n 3 “Cases in the courts of appeals may be reviewed by the Supreme\n\nCourt by . . . writ of certiorari granted upon the petition of any party to\nany civil or criminal case, before or after rendition of judgment or\ndecree.” §1254(1).\n\f10 AYESTAS v. DAVIS\n\n Opinion of the Court\n\nequipment, supplies, and rules of procedure. In re Appli-\ncation for Exemption from Electronic Pub. Access Fees by\nJennifer Gollan and Shane Shifflett, 728 F. 3d 1033, 1037\n(CA9 2013). It would be absurd to suggest that every\n“final decision” on any such matter is appealable under\n§1291 or reviewable in this Court under §1254. See Hohn,\nsupra; 15A C. Wright, A. Miller, & E. Cooper, Federal\nPractice and Procedure §3903, pp. 134–135 (2d ed. 1992).\nSuch administrative decisions are not the kind of decisions\nor orders—i.e., decisions or orders made in a judicial ca-\npacity—to which the relevant jurisdictional provisions\napply.\n Respondent argues that the denial of petitioner’s fund-\ning request was just such an administrative decision, but\nthe District Court’s ruling does not remotely resemble the\nsort of administrative decisions noted above. Petitioner’s\nrequest was made by motion in his federal habeas proceed-\ning, which is indisputably a judicial proceeding. And as\nwe will explain, resolution of the funding question re-\nquires the application of a legal standard—whether the\nfunding is “reasonably necessary” for effective representa-\ntion—that demands an evaluation of petitioner’s prospects\nof obtaining habeas relief. We have never held that a\nruling like that is administrative and thus not subject to\nappellate review under the standard jurisdictional provi-\nsions.\n Respondent claims that two factors support the conclu-\nsion that the funding decision was administrative, but her\nargument is unpersuasive.\n B\n Respondent first argues as follows: Judicial proceedings\nmust be adversarial; 18 U. S. C. §3599(f ) funding adjudi-\ncations are not adversarial because the statute allows\nrequests to be decided ex parte; therefore, §3599(f ) funding\nadjudications are not judicial in nature. This reasoning is\n\f Cite as: 584 U. S. ____ (2018) 11\n\n Opinion of the Court\n\nflawed.\n It is certainly true that cases and controversies in our\nlegal system are adversarial in nature, e.g., Bond v. United\nStates, 564 U. S. 211, 217 (2011); Aetna Life Ins. Co. v.\nHaworth, 300 U. S. 227, 240–241 (1937), but here, both\nthe habeas proceeding as a whole and the adjudication of\nthe specific issue of funding were adversarial. That the\nhabeas proceeding was adversarial is beyond dispute. And\non the funding question, petitioner and respondent plainly\nhave adverse interests and have therefore squared off as\nadversaries. The motion for funding was formally noted\nas “opposed” on the Disrict Court’s docket. App. 341. That\nis not surprising: On one side, petitioner is seeking fund-\ning that he hopes will prevent his execution. On the other,\nrespondent wants to enforce the judgment of the Texas\ncourts and to do so without undue delay. Petitioner and\nrespondent have vigorously litigated the funding question\nall the way to this Court.\n In arguing that the funding dispute is nonadversarial,\nrespondent attaches too much importance to the fact that\nthe request was made ex parte. As we have noted, the\n“ex parte nature of a proceeding has not been thought to\nimply that an act otherwise within a judge’s lawful juris-\ndiction was deprived of its judicial character.” Forrester v.\nWhite, 484 U. S. 219, 227 (1988).\n In our adversary system, ex parte motions are disfa-\nvored, but they have their place. See, e.g., Hohn, supra, at\n248 (application for COA); Dalia v. United States, 441\nU. S. 238, 255 (1979) (application for a search warrant); 50\nU. S. C. §1805(a) (application to conduct electronic surveil-\nlance for foreign intelligence); 18 U. S. C. §2518(3) (appli-\ncations to intercept “wire, oral, or electronic communica-\ntions”); 15 U. S. C. §1116(d)(1)(A) (application to seize\ncertain goods and counterfeit marks involved in violations\nof the trademark laws); Fed. Rule Crim. Proc. 17(b) (appli-\ncation for witness subpoena); Fed. Rule Crim. Proc. 47(c)\n\f12 AYESTAS v. DAVIS\n\n Opinion of the Court\n\n(generally recognizing ex parte motions and applications);\nUllmann v. United States, 350 U. S. 422, 423–424, 434\n(1956) (application for an order granting a witness immun-\nity in exchange for self-incriminating testimony); United\nStates v. Monsanto, 491 U. S. 600, 603–604 (1989) (motion\nto freeze defendant’s assets pending trial).\n Thus, the mere fact that a §3599 funding request may\nsometimes be made ex parte is hardly dispositive. See\nHohn, 524 U. S., at 249; Tutun v. United States, 270 U. S.\n568, 577 (1926).\n C\n Respondent’s second argument is based on the vener-\nable principle “that Congress cannot vest review of the\ndecisions of Article III courts in” entities other than “supe-\nrior courts in the Article III hierarchy.” Plaut v. Spend-\nthrift Farm, Inc., 514 U. S. 211, 218–219 (1995) (citing\nHayburn’s Case, 2 Dall. 409 (1792)). Respondent claims\nthat §3599 funding decisions may be revised by the Direc-\ntor of the Administrative Office of the Courts and that this\nshows that such decisions must be administrative. This\nargument, however, rests on a faulty premise. Nothing in\n§3599 even hints that review by the Director of the Ad-\nministrative Office is allowed.\n Respondent’s argument rests in part on a handful of old\nlower court cases that appear to have accepted Adminis-\ntrative Office review of Criminal Justice Act of 1964 (CJA)\npayments that had been authorized by a District Court\nand approved by the chief judge of the relevant Circuit.\nSee United States v. Aadal, 282 F. Supp. 664, 665 (SDNY\n1968); United States v. Gast, 297 F. Supp. 620, 621–622\n(Del. 1969); see also United States v. Hunter, 385 F. Supp.\n358, 362 (DC 1974). The basis for these decisions was a\nprovision of the CJA, 18 U. S. C. §3006A(h) (1964 ed.),\nstating that CJA payments “shall be made under the\nsupervision of the Director of the Administrative Office of\n\f Cite as: 584 U. S. ____ (2018) 13\n\n Opinion of the Court\n\nthe United States Courts.”4\n It is not clear whether these decisions correctly inter-\npreted the CJA,5 but in any event, no similar language\nappears in §3599. And respondent has not identified a\nsingle instance in which the Director of the Administrative\nOffice or any other nonjudicial officer has attempted to\nreview or alter a §3599 decision.\n Moreover, attorneys’ requests for CJA funds are mark-\nedly different from the funding application at issue here.\nAttorneys appointed under the CJA typically submit those\nrequests after the conclusion of the case, and the prosecu-\ntion has no stake in the resolution of the matter. The\njudgment in the criminal case cannot be affected by a\ndecision on compensation for services that have been\ncompleted, and any funds awarded come out of the budget\nof the Judiciary, not the Executive. See 18 U. S. C.\n§3006A(i) (2012 ed.). Thus, the adversaries in the crimi-\nnal case are not pitted against each other. In this case,\non the other hand, as we have explained, petitioner\nand respondent have strong adverse interests. For\nthese reasons, we reject respondent’s argument that the\nadjudication of the funding issue is nonadversarial and\nadministrative.\n Respondent, however, claims that the funding decision\nis administrative for an additional reason. “A §3599(f )\nfunding determination is properly deemed administra-\ntive,” she contends, “because it . . . may be revised outside\nthe traditional Article III judicial hierarchy.” Brief for\nRespondent 23. The basis for this argument is a provision\nof §3599 stating that funding in excess of the generally\n——————\n 4 This language now appears at 18 U. S. C. §3006A(i) (2012 ed.).\n 5 As far as we are aware, neither the Administrative Office nor any\nother nonjudicial entity currently claims the power to revise or reject a\nCJA compensation order issued by a court. Nothing in the CJA Guide-\nlines suggests such a policy. See generally 7A Guide to Judiciary Policy\n(May 17, 2017).\n\f14 AYESTAS v. DAVIS\n\n Opinion of the Court\n\napplicable statutory cap of $7,500 must be approved by the\nchief judge of the circuit or another designated circuit\njudge. §3599(g)(2). If a funding decision is judicial and\nnot administrative, respondent suggests, it could not be\nreviewed by a single circuit judge as opposed to a panel of\nthree.\n This argument confuses what is familiar with what is\nconstitutionally required. Nothing in the Constitution ties\nCongress to the typical structure of appellate review es-\ntablished by statute. If Congress wishes to make certain\nrulings reviewable by a single circuit judge, rather than a\npanel of three, the Constitution does not stand in the way.\n III\n Satisfied that we have jurisdiction, we turn to the ques-\ntion whether the Court of Appeals applied the correct legal\nstandard when it affirmed the denial of petitioner’s fund-\ning request.\n Section 3599(a) authorizes federal courts to provide\nfunding to a party who is facing the prospect of a death\nsentence and is “financially unable to obtain adequate\nrepresentation or investigative, expert, or other reason-\nably necessary services.” The statute applies to defendants\nin federal cases, §3599(a)(1), as well as to state and federal\nprisoners seeking collateral relief in federal court,\n§3599(a)(2).\n Here we are concerned not with legal representation but\nwith services provided by experts, investigators, and the\nlike. Such services must be “reasonably necessary for the\nrepresentation of the [applicant]” in order to be eligible for\nfunding. §3599(f ). If the statutory standard is met, a\ncourt “may authorize the [applicant’s] attorneys to obtain\nsuch services on [his] behalf.” Ibid.\n The Fifth Circuit has held that individuals seeking\nfunding for such services must show that they have a\n“substantial need” for the services. 817 F. 3d, at 896;\n\f Cite as: 584 U. S. ____ (2018) 15\n\n Opinion of the Court\n\nAllen v. Stephens, 805 F. 3d 617, 626 (2015); Ward v.\nStephens, 777 F. 3d 250, 266, cert. denied, 577 U. S. ___\n(2015). Petitioner contends that this interpretation is\nmore demanding than the standard—“reasonably neces-\nsary”—set out in the statute. And although the difference\nbetween the two formulations may not be great, petitioner\nhas a point.\n In the strictest sense of the term, something is “neces-\nsary” only if it is essential. See Webster’s Third New\nInternational Dictionary 1510 (1993) (something is neces-\nsary if it “must be by reason of the nature of things,” if it\n“cannot be otherwise by reason of inherent qualities”); 10\nOxford English Dictionary 275–276 (2d ed. 1989) (OED)\n(defining the adjective “necessary” to mean “essential”).\nBut in ordinary speech, the term is often used more loosely\nto refer to something that is merely important or strongly\ndesired. (“I need a vacation.” “I need to catch up with an\nold friend.”) The term is sometimes used in a similar way\nin the law. The term “necessary” in the Necessary and\nProper Clause does not mean “absolutely necessary,”\nMcCulloch v. Maryland, 4 Wheat. 316, 414–415 (1819),\nand a “necessary” business expense under the Internal\nRevenue Code, 26 U. S. C. §162(a), may be an expense\nthat is merely helpful and appropriate, Commissioner v.\nTellier, 383 U. S. 687, 689 (1966). As Black’s Law Diction-\nary puts it, the term “may import absolute physical neces-\nsity or inevitability, or it may import that which is only\nconvenient, useful, appropriate, suitable, proper, or condu-\ncive to the end sought.” Black’s Law Dictionary 928 (5th\ned. 1979) (Black’s).\n Section 3599 appears to use the term “necessary” to\nmean something less than essential. The provision applies\nto services that are “reasonably necessary,” but it makes\nlittle sense to refer to something as being “reasonably\nessential.” What the statutory phrase calls for, we con-\nclude, is a determination by the district court, in the exer-\n\f16 AYESTAS v. DAVIS\n\n Opinion of the Court\n\ncise of its discretion, as to whether a reasonable attorney\nwould regard the services as sufficiently important, guided\nby the considerations we set out more fully below.\n The Fifth Circuit’s test—“substantial need”—is arguably\nmore demanding. We may assume that the term “need” is\ncomparable to “necessary”—that is, that something is\n“needed” if it is “necessary.” But the term “substantial”\nsuggests a heavier burden than the statutory term “rea-\nsonably.” Compare 13 OED 291 (defining “reasonably” to\nmean, among other things, “[s]ufficiently, suitably, fairly”;\n“[f ]airly or pretty well”) with 17 id., at 66–67 (defining\n“substantial,” with respect to “reasons, causes, evidence,”\nto mean “firmly or solidly established”); see also Black’s\n1456 (10th ed. 2014) (defining “reasonable” to mean\n“[f ]air, proper, or moderate under the circumstances . . .\nSee plausible”); id., at 1656 (defining “substantial” to\nmean, among other things, “[i]mportant, essential, and\nmaterial”).\n The difference between “reasonably necessary” and\n“substantially need[ed]” may be small, but the Fifth Cir-\ncuit exacerbated the problem by invoking precedent to the\neffect that a habeas petitioner seeking funding must pre-\nsent “a viable constitutional claim that is not procedurally\nbarred.” 817 F. 3d, at 895 (internal quotation marks\nomitted). See also, e.g., Riley v. Dretke, 362 F. 3d 302, 307\n(CA5 2004) (“A petitioner cannot show a substantial need\nwhen his claim is procedurally barred from review”);\nAllen, supra, at 638–639 (describing “ ‘our rule that a\nprisoner cannot show a substantial need for funds when\nhis claim is procedurally barred from review’ ” (quoting\nCrutsinger v. Stephens, 576 Fed. Appx. 422, 431 (CA5\n2014) (per curiam)); Ward, supra, at 266 (“The denial of\nfunding will be upheld . . . when the constitutional claim is\nprocedurally barred”).\n The Fifth Circuit adopted this rule before our decision in\nTrevino, but after Trevino, the rule is too restrictive.\n\f Cite as: 584 U. S. ____ (2018) 17\n\n Opinion of the Court\n\nTrevino permits a Texas prisoner to overcome the failure\nto raise a substantial ineffective-assistance claim in state\ncourt by showing that state habeas counsel was ineffec-\ntive, 569 U. S., at 429, and it is possible that investigation\nmight enable a petitioner to carry that burden. In those\ncases in which funding stands a credible chance of ena-\nbling a habeas petitioner to overcome the obstacle of pro-\ncedural default, it may be error for a district court to\nrefuse funding.\n Congress has made it clear, however, that district courts\nhave broad discretion in assessing requests for funding.\nSection 3599’s predecessor declared that district courts\n“shall authorize” funding for services deemed “reasonably\nnecessary.” 21 U. S. C. §848(q)(9) (1988 ed.). Applying\nthis provision, courts of appeals reviewed district court\nfunding decisions for abuse of discretion. E.g., Bonin v.\nCalderon, 59 F. 3d 815, 837 (CA9 1995); In re Lindsey, 875\nF. 2d 1502, 1507, n. 4 (CA11 1989); United States v. Alden,\n767 F. 2d 314, 319 (CA7 1984). Then, as part of the Anti-\nterrorism and Effective Death Penalty Act of 1996, 110\nStat. 1226, Congress changed the verb from “shall” to\n“may,” and thus made it perfectly clear that determining\nwhether funding is “reasonably necessary” is a decision as\nto which district courts enjoy broad discretion. See King-\ndomware Technologies, Inc. v. United States, 579 U. S. ___,\n___ (2016) (slip op., at 9).\n A natural consideration informing the exercise of that\ndiscretion is the likelihood that the contemplated services\nwill help the applicant win relief. After all, the proposed\nservices must be “reasonably necessary” for the applicant’s\nrepresentation, and it would not be reasonable—in fact, it\nwould be quite unreasonable—to think that services are\nnecessary to the applicant’s representation if, realistically\nspeaking, they stand little hope of helping him win relief.\nProper application of the “reasonably necessary” standard\nthus requires courts to consider the potential merit of the\n\f18 AYESTAS v. DAVIS\n\n Opinion of the Court\n\nclaims that the applicant wants to pursue, the likelihood\nthat the services will generate useful and admissible\nevidence, and the prospect that the applicant will be able\nto clear any procedural hurdles standing in the way.\n To be clear, a funding applicant must not be expected to\nprove that he will be able to win relief if given the services\nhe seeks. But the “reasonably necessary” test requires an\nassessment of the likely utility of the services requested,\nand §3599(f ) cannot be read to guarantee that an appli-\ncant will have enough money to turn over every stone.\n Petitioner does not deny this. He agrees that an appli-\ncant must “articulat[e] specific reasons why the services\nare warranted”—which includes demonstrating that the\nunderlying claim is at least “ ‘plausible’ ”—and he\nacknowledges that there may even be cases in which it\nwould be within a court’s discretion to “deny funds after a\nfinding of ‘reasonable necessity.’ ” Brief for Petitioner 43.\n These interpretive principles are consistent with the\nway in which §3599’s predecessors were read by the lower\ncourts. See, e.g., Alden, supra, at 318–319 (explaining\nthat it was “appropriate for the district court to satisfy\nitself that [the] defendant may have a plausible defense\nbefore granting the defendant’s . . . motion for psychiatric\nassistance to aid in that defense,” and that it is not proper\nto use the funding statute to subsidize a “ ‘fishing expedi-\ntion’ ”); United States v. Hamlet, 480 F. 2d 556, 557 (CA5\n1973) (per curiam) (upholding District Court’s refusal to\nfund psychiatric services based on the District Court’s\nconclusion that “the request for psychiatric services was\n. . . lacking in merit” because there was “no serious possi-\nbility that appellant was legally insane at any time perti-\nnent to the crimes committed”). This abundance of prece-\ndent shows courts have plenty of experience making the\ndeterminations that §3599(f ) contemplates.\n\f Cite as: 584 U. S. ____ (2018) 19\n\n Opinion of the Court\n\n IV\n Perhaps anticipating that we might not accept the Fifth\nCircuit’s reading of §3599(f ), respondent devotes a sub-\nstantial portion of her brief to an alternative ground for\naffirmance that was neither presented nor passed on\nbelow.\n Respondent contends that whatever “reasonably neces-\nsary” means, funding is never “reasonably necessary” in a\ncase like this one, where a habeas petitioner seeks to\npresent a procedurally defaulted ineffective-assistance-of-\ntrial-counsel claim that depends on facts outside the state-\ncourt record. Citing 28 U. S. C. §2254(e)(2), respondent\ncontends that the fruits of any such investigation would be\ninadmissible in a federal habeas court.\n We decline to decide in the first instance whether re-\nspondent’s reading of §2254(e)(2) is correct. Petitioner\nagrees that the argument remains open for the Fifth\nCircuit to consider on remand. Tr. of Oral Arg. 6.\n * * *\n We conclude that the Fifth Circuit’s interpretation of\n§3599(f ) is not a permissible reading of the statute. We\ntherefore vacate the judgment below and remand the case\nfor further proceedings consistent with this opinion.\n\n It is so ordered.\n\f Cite as: 584 U. S. ____ (2018) 1\n\n SOTOMAYOR, J., concurring\n\nSUPREME COURT OF THE UNITED STATES\n _________________\n\n No. 16–6795\n _________________\n\n\n CARLOS MANUEL AYESTAS, AKA DENNIS ZELAYA\n\n COREA, PETITIONER v. LORIE DAVIS, DIRECTOR, \n\n TEXAS DEPARTMENT OF CRIMINAL JUSTICE, \n\n CORRECTIONAL INSTITUTIONS DIVISION\n\n ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF \n\n APPEALS FOR THE FIFTH CIRCUIT\n\n [March 21, 2018]\n\n\n JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG\njoins, concurring.\n The Court correctly concludes that the Fifth Circuit\napplied the wrong legal standard in evaluating a request\nfor funding for investigative services under 18 U. S. C.\n§3599(f ). That should come as no surprise, as the Fifth\nCircuit required capital habeas petitioners to show a\n“ ‘substantial need’ ” for services, when the statute requires\nonly a showing that the services are “ ‘reasonably neces-\nsary.’ ” Ante, at 16. “Substantial,” of course, imposes a\nhigher burden than “reasonable.” Ante, at 16. The Fifth\nCircuit “exacerbated the problem” by requiring a showing\nof “a viable constitutional claim that is not procedurally\nbarred,” which ignores “that investigation might enable a\npetitioner . . . to overcome the obstacle of procedural de-\nfault.” Ante, at 16–17 (internal quotation marks omitted).\nI therefore join the opinion of the Court in full holding\nthat to satisfy §3599(f ), a petitioner need only show that\n“a reasonable attorney would regard the services as suffi-\nciently important.” Ante, at 16.\n Having answered the question presented of what is the\nappropriate §3599(f ) standard, the Court remands Ayes-\ntas’ case for the lower courts to consider the application of\n\f2 AYESTAS v. DAVIS\n\n SOTOMAYOR, J., concurring\n\nthe standard in the first instance. Ante, at 19.1 I write\nseparately to explain why, on the record before this Court,\nthere should be little doubt that Ayestas has satisfied\n§3599(f ).\n I\n At the center of the §3599(f ) funding request in this\ncase is Ayestas’ claim that his trial counsel was ineffective\nfor failing to investigate mitigation. Specifically, Ayestas\nclaims that his trial counsel was deficient in failing to\nconduct an investigation of his mental health and sub-\nstance abuse, which could have been presented at the\npenalty phase of the trial to convince the jury to spare his\nlife. As the Court notes, however, Ayestas faces a hurdle\nin presenting this ineffective-assistance-of-trial-counsel\nclaim in his federal habeas petition, as his state postcon-\nviction counsel never presented that claim in the Texas\ncollateral proceedings. See ante, at 5.\n To overcome that procedural default, Ayestas relies on\nMartinez v. Ryan, 566 U. S. 1 (2012), and Trevino v. Thaler,\n569 U. S. 413 (2013). In those cases, this Court recognized\na “particular concern” in the application of a procedural\ndefault rule that would prevent a petitioner from “pre-\nsent[ing] a claim of trial error,” especially “when the claim\nis one of ineffective assistance of counsel.” Martinez, 566\nU. S., at 12. “The right to the effective assistance of coun-\nsel,” the Court reasoned, “is a bedrock principle in our\njustice system.” Ibid. The Court thus held that where the\n“state procedural framework, by reason of its design and\noperation, makes it highly unlikely in a typical case that a\ndefendant will have a meaningful opportunity to raise a\nclaim of ineffective assistance of trial counsel on direct\nappeal,” then “ ‘a procedural default will not bar a federal\n\n——————\n 1 The Court also declines to consider arguments that respondent ad-\n\nvanced that were neither presented nor passed on below. Ante, at 19.\n\f Cite as: 584 U. S. ____ (2018) 3\n\n SOTOMAYOR, J., concurring\n\nhabeas court from hearing a substantial claim of ineffec-\ntive assistance at trial if, in the initial-review collateral\nproceeding, there was no counsel or counsel . . . was inef-\nfective.’ ” Trevino, 569 U. S., at 429 (quoting Martinez, 566\nU. S., at 17; alteration omitted).2\n Therefore, the fact that Ayestas’ postconviction counsel\nfailed to raise his ineffective-assistance-of-trial-counsel\nclaim in state court does not bar federal review of that\nclaim if Ayestas can show that the “attorney in his first\ncollateral proceeding was ineffective” and that “his claim\nof ineffective assistance of trial counsel is substantial.”\nId., at 18. The substantiality of the ineffective-assistance-\nof-trial-counsel claim and the ineffectiveness of postconvic-\ntion counsel are both analyzed under the familiar frame-\nwork set out in Strickland v. Washington, 466 U. S. 668\n(1984). “Ineffective assistance under Strickland is defi-\ncient performance by counsel resulting in prejudice, with\nperformance being measured against an objective standard\nof reasonableness.” Rompilla v. Beard, 545 U. S. 374, 380\n(2005) (citation and internal quotation marks omitted).\n Remember, however, the specific context in which inef-\nfective assistance is being considered in Ayestas’ case: a\nrequest under §3599(f ) for investigative services, which\nrequires a showing only that “a reasonable attorney would\nregard the services as sufficiently important.” Ante, at 16.\nAyestas is not “expected to prove that he will be able to\nwin relief if given the services he seeks.” Ante, at 18\n\n——————\n 2 The reason for this exception is evident. Excusing the procedural\n\ndefault “acknowledges, as an equitable matter, that the initial-review\ncollateral proceeding, if undertaken without counsel or with ineffective\ncounsel, may not have been sufficient.” Martinez, 566 U. S., at 14.\n“Claims of ineffective assistance at trial often require investigative\nwork and an understanding of trial strategy,” and “the prisoner is in no\nposition to develop the evidentiary basis for a claim of ineffective\nassistance, which often turns on evidence outside the trial record.” Id.,\nat 11–12; see also Trevino, 569 U. S., at 423–424, 428.\n\f4 AYESTAS v. DAVIS\n\n SOTOMAYOR, J., concurring\n\n(emphasis in original). A court simply must consider at\nthis stage “the potential merit of the claims that the appli-\ncant wants to pursue, the likelihood that the services will\ngenerate useful and admissible evidence, and the prospect\nthat the applicant will be able to clear any procedural\nhurdles standing in the way.” Ante, at 17–18. Thus, the\ninquiry is not whether Ayestas can prove that his trial\ncounsel was ineffective under Strickland or whether he\nwill succeed in overcoming the procedural default under\nMartinez and Trevino. Rather, at this §3599(f ) request\nstage, the focus is on the potential merit of these claims.\n II\n\n A\n\n With this framework in mind, the focus first is on the\nevidence of the deficient performance of Ayestas’ state-\nappointed counsel.3 Trial counsel secured the appoint-\nment of an investigator, who met with Ayestas shortly\nafter the appointment. For nearly 15 months, however,\nthere was apparently no investigation into Ayestas’ history\nin preparation for trial. Counsel instructed the investi-\ngator “to resume investigation” only about a month before\njury selection. Record 878. The investigator then subpoe-\nnaed psychological and disciplinary prison records and\nhad Ayestas fill out a questionnaire, in response to which\nAyestas revealed that he had experienced multiple head\ntraumas and had a history of substance abuse. Jail rec-\nords also noted a rules infraction for possession of home-\nmade intoxicants. Trial counsel never followed up on any\nof this information, sought further related records, or had\nAyestas evaluated by a mental health professional.\n About two weeks before jury selection, trial counsel for\nthe first time reached out to Ayestas’ family in Honduras.\n\n——————\n 3 The State appointed two attorneys to represent Ayestas at trial. I\n\nrefer to them together as “trial counsel.”\n\f Cite as: 584 U. S. ____ (2018) 5\n\n SOTOMAYOR, J., concurring\n\nShortly thereafter, five days before trial, counsel wrote\nAyestas’ family stating that she needed them to come\ntestify. Ayestas’ family agreed, but they indicated that\nthey could not obtain visas because a letter that trial\ncounsel was supposed to have sent to the U. S. Embassy to\nfacilitate their travel never arrived, and ultimately no\nfamily members appeared at Ayestas’ trial.\n The guilt phase lasted two days, and trial counsel pre-\nsented no witnesses. The penalty phase lasted less than a\nday, and trial counsel presented two minutes of mitigation\nevidence consisting of three letters from an instructor who\ntaught English classes to Ayestas in prison, attesting that\nhe was “a serious and attentive student.” App. 41–43.4\n On this record, Ayestas has made a strong showing that\ntrial counsel was deficient. “It is unquestioned that under\nthe prevailing professional norms at the time of [Ayestas’]\ntrial, counsel had an obligation to conduct a thorough\ninvestigation of [his] background.” Porter v. McCollum,\n558 U. S. 30, 39 (2009) (per curiam) (internal quotation\nmarks omitted). Here, Ayestas’ trial counsel “clearly did\nnot satisfy those norms.” Ibid. With a client facing a\npossible death sentence, counsel and her investigator did\nnot start looking into Ayestas’ personal history until the\neve of trial. The little the investigator uncovered—head\ntrauma and a history of substance abuse—should have\nprompted further inquiry. Yet trial counsel did nothing.\nEven if Ayestas prohibited counsel from contacting his\nfamily in Honduras until the start of trial was imminent,\nsee ante, at 3,5 that still would not explain why counsel\n——————\n 4 Trial counsel also attempted to introduce evidence that Ayestas had\n\nno criminal history in Honduras, but failed to link Ayestas to the\nrecords, which were under his given name, “Dennis Zelaya Corea.” See\nAyestas v. Stephens, 817 F. 3d 888, 892, n. 1 (CA5 2016) (per curiam).\n 5 During postconviction proceedings, trial counsel filed an affidavit\n\nasserting that Ayestas did not allow contact with his family in Hondu-\nras until after jury selection had commenced. When the record evi-\n\f6 AYESTAS v. DAVIS\n\n SOTOMAYOR, J., concurring\n\nfailed to perform any other mitigation investigation, see\nPorter, 558 U. S., at 40 (noting that even if the defendant\nis “uncooperative, . . . that does not obviate the need for\ndefense counsel to conduct some sort of mitigation investi-\ngation (emphasis in original)). In the end, the decision to\nsentence Ayestas to death was made in less than one day,\nand his counsel spent less than two minutes presenting\nmitigation to the jury. Two minutes.\n This Court has recognized that the decision not to pre-\nsent mitigation may be supported in certain cases by\n“strategic judgments,” provided the reviewing court is\nsatisfied with “the adequacy of the investigations support-\ning those judgments.” Wiggins v. Smith, 539 U. S. 510,\n521 (2003). But this does not appear to be one of those\ncases. There is nothing in the record that would support\nthe conclusion that counsel chose the two-minutes-of-\nmitigation strategy after careful investigation and consid-\neration of Ayestas’ case. Instead, counsel for the most part\n“did not even take the first step of interviewing witnesses\nor requesting records” and “ignored pertinent avenues for\ninvestigation of which [they] should have been aware.”\nPorter, 558 U. S., at 39–40.\n In evaluating the potential merit of Ayestas’ claim, the\nFifth Circuit misapplied Strickland and the §3599(f )\nstandard. It reasoned that Ayestas had not presented a\nviable claim that trial counsel was deficient in failing to\ninvestigate Ayestas’ mental illness because, as he was not\ndiagnosed with schizophrenia until his time in prison,\nthere was nothing that flagged mental illness issues prior\nto trial.6 See Ayestas v. Stephens, 817 F. 3d 888, 895–897\n——————\ndence contradicted that assertion, counsel submitted another affidavit\nwith a revised timeline. Ayestas disputes having instructed trial\ncounsel not to contact his family in Honduras.\n 6 It is unclear whether the Fifth Circuit ultimately relied on its de-\n\ntermination that trial counsel was not deficient in rejecting Ayestas’\nclaims. In its panel opinion, it incorrectly stated that trial counsel had\n\f Cite as: 584 U. S. ____ (2018) 7\n\n SOTOMAYOR, J., concurring\n\n(2016) (per curiam). The absence of a documented diagno-\nsis, however, did not excuse trial counsel from their “obli-\ngation to conduct a thorough investigation of [Ayestas’]\nbackground.” Porter, 558 U. S., at 39 (internal quotation\nmarks omitted). In fact, the obligation to investigate\nexists in part precisely because it is all too common for\nindividuals to go years battling an undiagnosed and un-\ntreated mental illness.\n In any event, the Fifth Circuit failed to consider that\none of the purposes of the §3599(f ) investigation was to\nlook at Ayestas’ life around the time of the crime and trial\nto determine if there were mitigating circumstances that\ntrial counsel could have discovered, such as whether\nsymptoms of his schizophrenia had begun to manifest even\nbefore his diagnosis. The Court makes clear today that in\nevaluating §3599(f ) funding requests, courts must consider\n“the likelihood that the services will generate useful and\nadmissible evidence.” Ante, at 17. It was error, therefore,\nfor the Fifth Circuit to evaluate the merit of the ineffec-\ntive-assistance-of-trial-counsel claim and to deny §3599(f )\nfunding based solely on an evaluation of the evidence in\nthe record at the time of the request, without evaluating\nthe potential evidence that Ayestas sought. Ante, at\n17–18.\n B\n The evidence concerning the deficiency of Ayestas’ state\npostconviction counsel is similarly strong. State postcon-\nviction counsel retained the services of a mitigation spe-\ncialist, who prepared an investigation plan noting that it\n——————\nconducted a psychological evaluation of Ayestas. 817 F. 3d, at 897.\nAfter Ayestas corrected the record in his petition for rehearing, the\npanel issued an order reaffirming its holding, relying on its finding of\nno prejudice. See Ayestas v. Stephens, 826 F. 3d 214, 215 (2016) ( per\ncuriam). Still, the Fifth Circuit never disavowed its conclusion regard-\ning trial-counsel deficiency. Ibid.\n\f8 AYESTAS v. DAVIS\n\n SOTOMAYOR, J., concurring\n\nwas “obvious no social history investigation was conducted”\nand that the jury had “heard nothing about [Ayestas’] . . .\nmental health, possible mental illness, [or] substance\nabuse history.” App. 81, 266. The plan also noted that it\nwas “clear that [Ayestas] had a history of substance\nabuse.” Record 721; see also App. 267. The specialist\nrecommended a comprehensive investigation into Ayestas’\nbiological, psychological, and social history to explore,\ninter alia, issues related to addiction and mental health.\n State postconviction counsel failed to follow these rec-\nommendations. He did nothing to investigate issues related\nto Ayestas’ mental health or substance abuse. Notably,\nAyestas suffered a psychotic episode and was diagnosed\nwith schizophrenia while his state postconviction applica-\ntion was pending. Moreover, in 2003, a counsel-arranged\nevaluation pursuant Atkins v. Virginia, 536 U. S. 304\n(2002), noted concerns about Ayestas’ “delusional think-\ning.” App. 139–140. These events still did not prompt\ncounsel to investigate Ayestas’ mental health history.\n Instead, state postconviction counsel explored the cir-\ncumstances of Ayestas’ arrest, conducted some juror inter-\nviews, and interviewed Ayestas’ mother and sisters, ob-\ntaining affidavits regarding Ayestas’ upbringing in\nHonduras and their interactions with trial counsel. Post-\nconviction counsel eventually filed an application that\ncontained a narrow claim of ineffective assistance of trial\ncounsel with respect to mitigation regarding the attorneys’\nfailure to secure the attendance of Ayestas’ family mem-\nbers at trial. The Texas Court of Criminal Appeals denied\nthe application, relying on the affidavit submitted by trial\ncounsel, see n. 4, supra, to find no ineffectiveness in failing\nto get Ayestas’ family to attend trial.\n The Fifth Circuit concluded that Ayestas’ state postcon-\nviction counsel was not ineffective because, in its view,\nAyestas had not established any deficiency at trial in the\nfailure to investigate mental health and substance abuse\n\f Cite as: 584 U. S. ____ (2018) 9\n\n SOTOMAYOR, J., concurring\n\nmitigation. See 817 F. 3d, at 898. That conclusion, as\nnoted in Part II–A, supra, was based on a misapplication\nof Strickland and the §3599(f ) standard, and thus cannot\nsupport a finding that the failure to present the claim in\npostconviction proceedings was “strategic.” 817 F. 3d, at\n898. Nor is there anything else in the record that would\nexcuse that deficiency. State postconviction counsel ig-\nnored his own mitigation specialist, who alerted him to a\nserious failing in the trial because the jury heard virtually\nno mitigation and to the serious failings of trial counsel\nbecause of the failure to conduct a social history investiga-\ntion of Ayestas. Even after Ayestas’ psychotic episode,\nschizophrenia diagnosis, and documented tendencies of\n“delusional thinking” during the course of the representa-\ntion, state postconviction counsel did nothing. As with\ntrial counsel, the record provides no support for any “stra-\ntegic justification” to disregard completely a mitigation\ninvestigation of Ayestas’ mental health and substance\nabuse.\n III\n Strickland next requires consideration of prejudice. To\nestablish prejudice, this Court has held that a “defendant\nmust show that there is a reasonable probability that, but\nfor counsel’s unprofessional errors, the result of the pro-\nceeding would have been different,” meaning “a probabil-\nity sufficient to undermine confidence in the outcome.”\n466 U. S., at 694. In cases alleging a failure to investigate\nmitigation, as here, the Court must “reweigh the evidence\nin aggravation against the totality of available mitigating\nevidence.” Wiggins, 539 U. S., at 534.\n Even with the scant evidence in the record at this time\nas to what Ayestas could have presented to the jury in the\nform of mitigation, Ayestas has made a strong showing\nthat his claim has potential merit. That trial counsel\npresented only two minutes of mitigation already goes a\n\f10 AYESTAS v. DAVIS\n\n SOTOMAYOR, J., concurring\n\nlong way to establishing prejudice. In fact, the State\nemphasized to the jury at sentencing:\n “Does he have anything there that would lead you to\n conclude there is some type of mitigation, anything at\n all? There is no drug problem . . . no health problem\n . . . no alcohol problem. . . . [O]nly . . . these three pieces\n of paper . . . . Making steps to learn a second lan-\n guage does not lessen his moral blameworthiness\n . . . .” Record 4747.\nThe State, in contrast, presented evidence of Ayestas’\ncriminal history as well as victim impact testimony. After\ndeliberating for only 25 minutes, the jury assessed a pun-\nishment of death against Ayestas, finding that he was a\nfuture danger, that he intended to cause death or antici-\npated the loss of life, and that there were no mitigating\ncircumstances that warranted imposition of a life sentence\nover a death sentence. Had just one juror dissented on a\nsingle one of these findings, no death sentence could have\nbeen imposed. See Tex. Code Crim. Proc. Ann., Art.\n37.071, §2(g) (Vernon Cum. Supp. 2017); see also ante, at\n2. With even minimal investigation by trial counsel, at\nleast one may well have, as this Court has held that evi-\ndence of mental illness and substance abuse is relevant to\nassessing moral culpability. See Rompilla, 545 U. S., at\n393; Porter, 558 U. S., at 43–44. Instead, the jury “heard\nalmost nothing that would humanize [him] or allow them\nto accurately gauge his moral culpability.” Id., at 41.\nThere is thus good reason to believe that, were Ayestas’\n§3599(f ) motion granted, he could establish prejudice\nunder Strickland.\n The Fifth Circuit held otherwise based on its belief that\nno amount of mitigation would have changed the outcome\nof the sentencing given the “brutality of the crime.” 817\nF. 3d, at 898. That “brutality of the crime” rationale is\nsimply contrary to our directive in case after case that, in\n\f Cite as: 584 U. S. ____ (2018) 11\n\n SOTOMAYOR, J., concurring\n\nassessing prejudice, a court must “consider the totality of\nthe available mitigation evidence . . . and reweigh it\nagainst the evidence in aggravation.” Porter, 558 U. S., at\n41 (internal quotation marks and alterations omitted); see\nalso Williams v. Taylor, 529 U. S. 362, 397–398 (2000);\nWiggins, 539 U. S., at 534. By considering aggravation in\nisolation, the Fifth Circuit directly contravened this fun-\ndamental principle.7\n IV\n In sum, Ayestas has made a strong showing that he is\nentitled to §3599(f ) funding. As the Court notes, the\nstatute affords district courts some discretion in these\nfunding determinations, even where a petitioner shows\nthe services are “ ‘reasonably necessary.’ ” Ante, at 17–18.\nExercise of that discretion may be appropriate if there is a\nshowing of gamesmanship or where the State has provided\nfunding for the same investigation services, as Ayestas\nconceded at argument. See Tr. of Oral Arg. 13. Nonethe-\nless, the troubling failures of counsel at both the trial and\nstate postconviction stages of Ayestas’ case are exactly the\ntypes of facts that should prompt courts to afford investi-\ngatory services to ensure that trial errors that go to a\n“bedrock principle in our justice system” do not go un-\naddressed. Martinez, 566 U. S., at 12.\n\n\n\n\n——————\n 7 Notably, application of this “brutality of the crime” rule is particu-\n\nlarly irrational in the §3599(f ) context, where the court is unaware of\nwhat the undiscovered evidence of mitigation looks like.\n\f", "html": null, "html_lawbox": null, "html_columbia": null, "html_with_citations": "
(Slip Opinion)              OCTOBER TERM, 2017                                       1\n\n                                       Syllabus\n\n         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is\n       being done in connection with this case, at the time the opinion is issued.\n       The syllabus constitutes no part of the opinion of the Court but has been\n       prepared by the Reporter of Decisions for the convenience of the reader.\n       See United States v. Detroit Timber & Lumber Co., 
200 U.S. 321
, 337.\n\n\nSUPREME COURT OF THE UNITED STATES\n\n                                       Syllabus\n\n AYESTAS, AKA ZELAYA COREA v. DAVIS, DIRECTOR, \n\n   TEXAS DEPARTMENT OF CRIMINAL JUSTICE, \n\n    CORRECTIONAL INSTITUTIONS DIVISION\n\n\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR\n                  THE FIFTH CIRCUIT\n\n   No. 16–6795. Argued October 30, 2017—Decided March 21, 2018\nPetitioner Ayestas was convicted of murder and sentenced to death in a\n  Texas state court. He secured new counsel, but his conviction and\n  sentence were affirmed on appeal. A third legal team sought, unsuc-\n  cessfully, state habeas relief, claiming trial-level ineffective assis-\n  tance of counsel but not counsel’s failure to investigate petitioner’s\n  mental health and alcohol and drug abuse during the trial’s penalty\n  phase. His fourth set of attorneys did raise that failure in a federal\n  habeas petition, but because the claim had never been raised in state\n  court, the District Court held, it was barred by procedural default.\n  That decision was vacated and remanded for reconsideration in light\n  of Martinez v. Ryan, 
566 U.S. 1
—where this Court held that an Ari-\n  zona prisoner seeking federal habeas relief could overcome the proce-\n  dural default of a trial-level ineffective-assistance-of-counsel claim by\n  showing that the claim is substantial and that state habeas counsel\n  was also ineffective in failing to raise the claim in a state habeas pro-\n  ceeding—and Trevino v. Thaler, 
569 U.S. 413
—which extended that\n  holding to Texas prisoners. Petitioner filed an ex parte motion asking\n  the District Court for funding to develop his claim that both his trial\n  and state habeas counsel were ineffective, relying on 
18 U.S. C
.\n  §3599(f), which provides, in relevant part, that a district court “may\n  authorize” funding for “investigative, expert, or other services . . .\n  reasonably necessary for the representation of the defendant.” The\n  court found his claim precluded by procedural default and thus de-\n  nied his funding request. The Fifth Circuit also rejected the funding\n  claim under its precedent: that a §3599(f) funding applicant must\n  show that he has a “substantial need” for investigative or other ser-\n\f2                         AYESTAS v. DAVIS\n\n                                Syllabus\n\n vices, and that funding may be denied when an applicant fails to pre-\n sent “a viable constitutional claim that is not procedurally barred.”\n 
817 F.3d 888
, 895–896.\nHeld:\n    1. The District Court’s denial of petitioner’s funding request was a\n judicial decision subject to appellate review under the standard juris-\n dictional provisions. Pp. 7–14.\n       (a) Title 
28 U.S. C
. §§1291, 2253, and 1254 confer jurisdiction to\n review decisions made by a district court in a judicial capacity. “Ad-\n ministrative” decisions—about, e.g., facilities, personnel, equipment,\n supplies, and rules of procedure—are “not subject to [this Court’s] re-\n view,” Hohn v. United States, 
524 U.S. 236
, 245, but the District\n Court’s ruling here does not remotely resemble such decisions. Peti-\n tioner’s request was made by motion in his federal habeas proceed-\n ing, which is indisputably a judicial proceeding. And resolution of\n the funding question requires the application of a legal standard—\n whether the funding is “reasonably necessary” for effective represen-\n tation—that demands an evaluation of petitioner’s prospects of ob-\n taining habeas relief. Pp. 8–10.\n       (b) Respondent’s arguments in support of her claim that §3599’s\n funding requests are nonadversarial and administrative are unper-\n suasive. First, that the requests can be decided ex parte does not\n make the proceeding nonadversarial. The habeas proceeding here\n was clearly adversarial. And petitioner and respondent plainly have\n adverse interests on the funding question and have therefore squared\n off as adversaries. The mere fact that a §3599 funding request may\n sometimes be made ex parte is thus hardly dispositive. Second, noth-\n ing in §3599 even hints that the funding decisions may be revised by\n the Director of the Administrative Office of the Courts. Lower court\n cases that appear to have accepted Administrative Office review of\n certain Criminal Justice Act (CJA) payments, even if a proper inter-\n pretation of the CJA, are inapposite.           Finally, the fact that\n §3599(g)(2) requires funding in excess of the generally applicable\n statutory cap to be approved by the circuit’s chief judge or another\n designated circuit judge, instead of by a panel of three, does not make\n the proceeding administrative. If Congress wishes to make certain\n rulings reviewable by a single circuit judge, the Constitution does not\n stand in the way. Pp. 10–14.\n    2. The Fifth Circuit did not apply the correct legal standard in af-\n firming the denial of petitioner’s funding request. Section 3599 au-\n thorizes funding for the “reasonably necessary” services of experts,\n investigators, and the like. But the Fifth Circuit’s requirement that\n applicants show a “substantial need” for the services is arguably a\n more demanding standard. Section 3599 appears to use the term\n\f                     Cite as: 584 U. S. ____ (2018)                     3\n\n                                Syllabus\n\n  “necessary” to mean something less than essential. Because it makes\n  little sense to refer to something as being “reasonably essential,” the\n  Court concludes that the statutory phrase calls for the district court\n  to determine, in its discretion, whether a reasonable attorney would\n  regard the services as sufficiently important, guided by considera-\n  tions detailed in the opinion. The term “substantial” in the Fifth Cir-\n  cuit’s test, however, suggests a heavier burden. And that court exac-\n  erbated the difference by also requiring a funding applicant to\n  present “a viable constitutional claim that is not procedurally\n  barred.” That rule that is too restrictive after Trevino, see 569 U. S.\n  at 429, because, in cases where funding stands a credible chance of\n  enabling a habeas petitioner to overcome the procedural default ob-\n  stacle, it may be error for a district court to refuse funding. That be-\n  ing said, district courts were given broad discretion in assessing fund-\n  ing requests when Congress changed the phrase “shall authorize” in\n  §3599’s predecessor statute, see 
21 U.S. C
. §848(q)(9), to “may au-\n  thorize” in §3599(f). A funding applicant must not be expected to\n  prove that he will be able to win relief if given the services, but the\n  “reasonably necessary” test does require an assessment of the likely\n  utility of the services requested.\n     Respondent’s alternative ground for affirmance—that funding is\n  never “reasonably necessary” where a habeas petitioner seeks to pre-\n  sent a procedurally defaulted ineffective-assistance-of-trial-counsel\n  claim that depends on facts outside the state-court record—remains\n  open for the Fifth Circuit to consider on remand. Pp. 14–19.\n
817 F.3d 888
, vacated and remanded.\n\n   ALITO, J., delivered the opinion for a unanimous Court. SOTOMAYOR,\nJ., filed a concurring opinion, in which GINSBURG, J., joined.\n\f                       Cite as: 584 U. S. ____ (2018)                              1\n\n                            Opinion of the Court\n\n    NOTICE: This opinion is subject to formal revision before publication in the\n    preliminary print of the United States Reports. Readers are requested to\n    notify the Reporter of Decisions, Supreme Court of the United States, Wash-\n    ington, D. C. 20543, of any typographical or other formal errors, in order\n    that corrections may be made before the preliminary print goes to press.\n\n\nSUPREME COURT OF THE UNITED STATES\n                                  _________________\n\n                                  No. 16–6795\n                                  _________________\n\n\n CARLOS MANUEL AYESTAS, AKA DENNIS ZELAYA\n\n COREA, PETITIONER v. LORIE DAVIS, DIRECTOR, \n\n  TEXAS DEPARTMENT OF CRIMINAL JUSTICE, \n\n    CORRECTIONAL INSTITUTIONS DIVISION\n\n ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF \n\n            APPEALS FOR THE FIFTH CIRCUIT\n\n                               [March 21, 2018]\n\n\n  JUSTICE ALITO delivered the opinion of the Court.\n  Petitioner Carlos Ayestas, who was convicted of murder\nand sentenced to death in a Texas court, argues that he\nwas wrongfully denied funding for investigative services\nneeded to prove his entitlement to federal habeas relief.\nPetitioner moved for funding under 
18 U.S. C
. §3599(f ),\nwhich makes funds available if they are “reasonably nec-\nessary,” but petitioner’s motion was denied. We hold that\nthe lower courts applied the wrong legal standard, and we\ntherefore vacate the judgment below and remand for\nfurther proceedings.\n                              I\n\n                              A\n\n  In 1997, petitioner was convicted of capital murder in a\nTexas court. Evidence at trial showed that he and two\naccomplices invaded the home of a 67-year-old Houston\nwoman, Santiaga Paneque, bound her with duct tape and\nelectrical cord, beat and strangled her, and then made off\nwith a stash of her belongings.\n\f2                    AYESTAS v. DAVIS\n\n                     Opinion of the Court\n\n   The jury also heard testimony from Henry Nuila regard-\ning an incident that occurred about two weeks after the\nmurder. Petitioner was drunk at the time, and he re-\nvealed to Nuila that he had recently murdered a woman in\nHouston. Petitioner then brandished an Uzi machinegun\nand threatened to murder Nuila if he did not help peti-\ntioner kill his two accomplices. Fortunately for Nuila,\npetitioner kept talking until he eventually passed out;\nNuila then called the police, who arrested petitioner, still\nin possession of the gun.\n   After the jury found petitioner guilty, it was asked to\ndetermine whether he should be sentenced to death or to\nlife in prison. In order to impose a death sentence, Texas\nlaw required the jury to answer the following three ques-\ntions. First, would petitioner pose a continuing threat to\nsociety? Second, had he personally caused the death of the\nvictim, intended to kill her, or anticipated that she would\nbe killed? Third, in light of all the evidence surrounding\nthe crime and petitioner’s background, were there suffi-\ncient mitigating circumstances to warrant a sentence of\nlife without parole instead of death? Tex. Code Crim.\nProc. Ann., Art. 37.071, §§2(b), (e) (Vernon Cum. Supp.\n2017). Only if the jury gave a unanimous yes to the first\ntwo questions, and a unanimous no to the third question,\ncould a death sentence be imposed; otherwise, petitioner\nwould receive a sentence of life without parole. See\n§§2(d)(2), (f )(2), (g).\n   In asking the jury to impose a death sentence, the pros-\necution supplemented the trial record with evidence of\npetitioner’s criminal record and his encounter with a man\nnamed Candelario Martinez a few days after the murder.\nMartinez told the jury that he was standing in a hotel\nparking lot waiting for a friend when petitioner ap-\nproached and began to make small talk. Before long,\npetitioner pulled out a machinegun and forced Martinez\ninto a room where two of petitioner’s compatriots were\n\f                  Cite as: 584 U. S. ____ (2018)            3\n\n                      Opinion of the Court\n\nholding Martinez’s friend at knifepoint. Ordered to lie\ndown on the bathroom floor and await his execution,\nMartinez begged for his life while petitioner and his co-\nhorts haggled about who would carry out the killing.\nFinally, petitioner relented, but he threatened to kill\nMartinez and his family if he contacted the police. Peti-\ntioner then stole Martinez’s truck.\n   Petitioner’s trial counsel presented very little mitigation\nevidence. This was due, at least in part, to petitioner’s\nsteadfast refusal for many months to allow his lawyers to\ncontact his family members, who were living in Honduras\nand might have testified about his character and upbring-\ning. Petitioner gave in on the eve of trial, and at that\npoint, according to the state habeas courts, his lawyers\n“made every effort to contact [his] family.” App. 171.\nThey repeatedly contacted petitioner’s family members\nand urged them to attend the trial; they requested that\nthe U. S. Embassy in Honduras facilitate family members’\ntravel to the United States; and they met in person with\nthe Honduran Consulate to seek assistance. But these\nefforts were to no avail. Petitioner’s sister told his legal\nteam that the family would not leave Honduras because\nthe journey would create economic hardship and because\ntheir father was ill and had killed one of their neighbors.\nA defense attorney who spoke to petitioner’s mother testi-\nfied that she seemed unconcerned about her son’s situa-\ntion. In general, the state habeas courts found, petitioner\n“did nothing to assist counsel’s efforts to contact his family\nand did not want them contacted by the consulate or\ncounsel.” Id., at 174.\n   In the end, the only mitigation evidence introduced by\npetitioner’s trial counsel consisted of three letters from\npetitioner’s English instructor. The letters, each two\nsentences long, described petitioner as “a serious and\nattentive student who is progressing well in English.”\nIbid.\n\f4                    AYESTAS v. DAVIS\n\n                     Opinion of the Court\n\n  The jury unanimously concluded that petitioner should\nbe sentenced to death, and a capital sentence was im-\nposed. Petitioner secured new counsel to handle his ap-\npeal, and his conviction and sentence were affirmed by the\nTexas Court of Criminal Appeals in 1998. Ayestas v.\nState, No. 72,928, App. 115. Petitioner did not seek review\nat that time from this Court.\n                              B\n   While petitioner’s direct appeal was still pending, a\nthird legal team filed a habeas petition on his behalf in\nstate court. This petition included several claims of trial-\nlevel ineffective assistance of counsel, but the petition did\nnot assert that trial counsel were ineffective for failing to\ninvestigate petitioner’s mental health and abuse of alcohol\nand drugs. Petitioner’s quest for state habeas relief ended\nunsuccessfully in 2008. Ex parte Ayestas, No. WR–69,674–\n01 (Tex. Ct. Crim. App., Sept. 10, 2008), 
2008 WL 4151814
\n(per curiam) (unpublished).\n   In 2009, represented by a fourth set of attorneys, peti-\ntioner filed a federal habeas petition under 
28 U.S. C
.\n§2254, and this time he did allege that his right to the\neffective assistance of counsel at trial was violated because\nhis attorneys failed to conduct an adequate search for\nmitigation evidence. As relevant here, petitioner argued\nthat trial counsel overlooked evidence that he was mentally\nill and had a history of drug and alcohol abuse. Ayestas\nv. Thaler, Civ. Action No. H–09–2999 (SD Tex., Jan. 26,\n2011), 
2011 WL 285138
, *4. Petitioner alleged that he had\na history of substance abuse, and he noted that he had\nbeen diagnosed with schizophrenia while the state habeas\nproceeding was still pending. See Pet. for Writ of Habeas\nCorpus in Ayestas v. Quarterman, No. 4:09–cv–2999 (SD\nTex.), Doc. 1, pp. 21–23. Petitioner claimed that trial\ncounsel’s deficient performance caused prejudice because\nthere was a reasonable chance that an adequate investiga-\n\f                 Cite as: 584 U. S. ____ (2018)            5\n\n                     Opinion of the Court\n\ntion would have produced mitigation evidence that would\nhave persuaded the jury to spare his life.\n   Among the obstacles standing between petitioner and\nfederal habeas relief, however, was the fact that he never\nraised this trial-level ineffective-assistance-of-counsel\nclaim in state court. The District Court therefore held\nthat the claim was barred by procedural default, Ayestas v.\nThaler, 
2011 WL 285138
, *4–*7, and the Fifth Circuit\naffirmed, Ayestas v. Thaler, 462 Fed. Appx. 474, 482\n(2012) (per curiam).\n   Petitioner sought review in this Court, and we vacated\nthe decision below and remanded for reconsideration in\nlight of two of our subsequent decisions, Martinez v. Ryan,\n
566 U.S. 1
 (2012), and Trevino v. Thaler, 
569 U.S. 413
\n(2013). Ayestas v. Thaler, 
569 U.S. 1015
 (2013). Martinez\nheld that an Arizona prisoner seeking federal habeas relief\ncould overcome the procedural default of a trial-level\nineffective-assistance-of-counsel claim by showing that the\nclaim is substantial and that state habeas counsel was\nalso ineffective in failing to raise the claim in a state\nhabeas proceeding. 566 U. S., at 14. Trevino extended\nthat holding to Texas prisoners, 569 U. S., at 416–417, and\non remand, petitioner argued that he fell within Trevino\nbecause effective state habeas counsel would have uncov-\nered evidence showing that trial counsels’ investigative\nefforts were deficient.\n   To assist in developing these claims, petitioner filed an\nex parte motion asking the District Court for $20,016 in\nfunding to conduct a search for evidence supporting his\npetition. He relied on 
18 U.S. C
. §3599(f ), which provides\nin relevant part as follows:\n       “Upon a finding that investigative, expert, or other\n    services are reasonably necessary for the representa-\n    tion of the defendant, whether in connection with is-\n    sues relating to guilt or the sentence, the court may\n\f6                    AYESTAS v. DAVIS\n\n                     Opinion of the Court\n\n    authorize the defendant’s attorneys to obtain such\n    services on behalf of the defendant and, if so author-\n    ized, shall order the payment of fees and expenses\n    therefor.”\nPetitioner averred that the funds would be used to conduct\nan investigation that would show that his trial counsel\nand his state habeas counsel were ineffective. Accordingly,\nhe claimed, the investigation would establish both that\nhis trial-level ineffective-assistance-of-counsel claim was\nnot barred by procedural default and that he was entitled\nto resentencing based on the denial of his Sixth Amend-\nment right to the effective assistance of trial counsel.\n   The District Court refused the funding request and\nultimately denied petitioner’s habeas petition. Ayestas v.\nStephens, Civ. Action No. H–09–2999, (SD Tex., Nov. 18,\n2014), 
2014 WL 6606498
, *6–*7. On the merits of peti-\ntioner’s new ineffective-assistance-of-trial-counsel claim,\nthe District Court held that petitioner failed both prongs\nof the Strickland test. See Strickland v. Washington, 
466\nU.S. 668
 (1984). Noting that most of the evidence bearing\non petitioner’s mental health had emerged only after he\nwas sentenced, the court concluded that petitioner’s trial\nlawyers were not deficient in failing to find such evidence\nin time for the sentencing proceeding. 
2014 WL 6606498
,\n*5. In addition, the court found that state habeas counsel\ndid not render deficient performance by failing to investi-\ngate petitioner’s history of substance abuse, and that, in\nany event, petitioner was not prejudiced at the sentencing\nphase of the trial or during the state habeas proceedings\nbecause the potential mitigation evidence at issue would\nnot have made a difference to the jury in light of “the\nextremely brutal nature of [the] crime and [petitioner’s]\nhistory of criminal violence.” Ibid.\n   With respect to funding, the District Court pointed to\nFifth Circuit case law holding that a §3599(f ) funding\n\f                     Cite as: 584 U. S. ____ (2018)                  7\n\n                         Opinion of the Court\n\napplicant cannot show that investigative services are\n“ ‘reasonably necessary’ ” unless the applicant can show\nthat he has a “ ‘substantial need’ ” for those services. Id.,\nat *6. In addition, the court noted that “[t]he Fifth Circuit\nupholds the denial of funding” when, among other things,\n“a petitioner has . . . failed to supplement his funding\nrequest with a viable constitutional claim that is not\nprocedurally barred.” Ibid. (internal quotation marks\nomitted).\n    Given its holding that petitioner’s new ineffective-\nassistance-of-counsel claim was precluded by procedural\ndefault, this rule also doomed his request for funding. The\nDistrict Court denied petitioner’s habeas petition and\nrefused to grant him a certificate of appealability (COA).\nId., at *7. On appeal, the Fifth Circuit held that a COA\nwas not needed for review of the funding issue, but it\nrejected that claim for essentially the same reasons as the\nDistrict Court, citing both the “substantial need” test and\nthe rule that funding may be denied when a funding appli-\ncant fails to present “a viable constitutional claim that is\nnot procedurally barred.” Ayestas v. Stephens, 
817 F.3d\n888
, 895–896 (2016) (internal quotation marks omitted).\nWith respect to petitioner’s other claims, including his\nclaim of ineffective assistance of trial counsel, the Fifth\nCircuit refused to issue a COA. Id., at 898.\n                             C\n  We granted certiorari to decide whether the lower courts\napplied the correct legal standard in denying the funding\nrequest. 581 U. S. ___ (2017).\n                            II\n  Before we reach that question, however, we must con-\nsider a jurisdictional argument advanced by respondent,\nthe Director of the Texas Department of Criminal Justice.1\n——————\n 1 We   also consider a jurisdictional issue not raised by the parties,\n\f8                        AYESTAS v. DAVIS\n\n                         Opinion of the Court\n\nRespondent contends that the District Court’s denial of\npetitioner’s funding request was an administrative, not a\njudicial, decision and therefore falls outside the scope of\nthe jurisdictional provisions on which petitioner relied in\nseeking review in the Court of Appeals and in this Court.\n                           A\n  When the District Court denied petitioner’s funding\nrequest and his habeas petition, he took an appeal to the\n——————\nnamely, whether we have jurisdiction even though no COA has yet\nbeen issued. We do not have jurisdiction if jurisdiction was lacking in\nthe Court of Appeals, and the jurisdiction of a court of appeals to\nentertain an appeal from a final order in a habeas proceeding is de-\npendent on the issuance of a COA. See 
28 U.S. C
. §2253(c)(l); Gonzalez\nv. Thaler, 
565 U.S. 134
, 142 (2012).\n   In this case, petitioner appealed an order of the District Court that\ndenied both his request for funding under 
18 U.S. C
. §3599 and his\nunderlying habeas claims. The Court of Appeals denied a COA as to\nthe merits of his request for habeas relief but held that a COA was not\nrequired insofar as petitioner challenged the District Court’s denial of\nfunding under §3599. The Fifth Circuit relied on Harbison v. Bell, 
556\nU.S. 180
 (2009), in which a prisoner appealed from an order that\ndenied counsel under §3599 for a state clemency proceeding but that\ndid not address the merits of any habeas petition. This Court held that\na COA was not required. Here, petitioner took his appeal from the final\norder in his habeas proceeding.\n   The parties have not briefed whether that difference between Harbi-\nson and the present case is relevant or whether an appeal from a denial\nof a §3599 request for funding would fit within the COA framework,\nand we find it unnecessary to resolve the issue. Though we take no\nview on the merits, we will assume for the sake of argument that the\nCourt of Appeals could not entertain petitioner’s §3599 claim without\nthe issuance of a COA.\n   We may review the denial of a COA by the lower courts. See, e.g.,\nMiller-El v. Cockrell, 
537 U.S. 322
, 326–327 (2003). When the lower\ncourts deny a COA and we conclude that their reason for doing so was\nflawed, we may reverse and remand so that the correct legal standard\nmay be applied. See Slack v. McDaniel, 
529 U.S. 473
, 485–486, 489–\n490 (2000). We take that course here. As we will explain, the correct-\nness of the rule applied by the District Court in denying the funding\nrequest was not only debatable; it was erroneous.\n\f                      Cite as: 584 U. S. ____ (2018)                       9\n\n                           Opinion of the Court\n\nFifth Circuit under 
28 U.S. C
. §§1291 and 2253, which\ngrant the courts of appeals jurisdiction to review final\n“decisions” and “orders” of a district court.2 And when the\nFifth Circuit affirmed, petitioner sought review in this\nCourt under §1254, which gives us jurisdiction to review\n“[c]ases” in the courts of appeals.3 As respondent correctly\nnotes, these provisions confer jurisdiction to review deci-\nsions made by a district court in a judicial capacity. But\nwe have recognized that not all decisions made by a fed-\neral court are “judicial” in nature; some decisions are prop-\nerly understood to be “administrative,” and in that case they\nare “not subject to our review.” Hohn v. United States, 
524\nU.S. 236
, 245 (1998).\n   The need for federal judges to make many administra-\ntive decisions is obvious. The Federal Judiciary, while\ntiny in comparison to the Executive Branch, is neverthe-\nless a large and complex institution, with an annual budget\nexceeding $7 billion and more than 32,000 employees.\nSee Administrative Office of the U. S. Courts, The Judici-\nary FY 2018 Congressional Budget Summary Revised 9–\n10 (June 2017). Administering this operation requires\nmany “decisions” in the ordinary sense of the term—\ndecisions about such things as facilities, personnel,\n——————\n  2 In relevant part §1291 declares that “[t]he courts of appeals . . . shall\nhave jurisdiction of appeals from all final decisions of the district courts\nof the United States, the United States District Court for the District of\nthe Canal Zone, the District Court of Guam, and the District Court of\nthe Virgin Islands, except where a direct review may be had in the\nSupreme Court.”\n   Similarly, §2253 provides, as relevant, that “[i]n a habeas corpus\nproceeding or a proceeding under section 2255 before a district judge,\nthe final order shall be subject to review, on appeal, by the court of\nappeals for the circuit in which the proceeding is held.” §2253(a).\n   3 “Cases in the courts of appeals may be reviewed by the Supreme\n\nCourt by . . . writ of certiorari granted upon the petition of any party to\nany civil or criminal case, before or after rendition of judgment or\ndecree.” §1254(1).\n\f10                   AYESTAS v. DAVIS\n\n                     Opinion of the Court\n\nequipment, supplies, and rules of procedure. In re Appli-\ncation for Exemption from Electronic Pub. Access Fees by\nJennifer Gollan and Shane Shifflett, 
728 F.3d 1033
, 1037\n(CA9 2013). It would be absurd to suggest that every\n“final decision” on any such matter is appealable under\n§1291 or reviewable in this Court under §1254. See Hohn,\nsupra; 15A C. Wright, A. Miller, & E. Cooper, Federal\nPractice and Procedure §3903, pp. 134–135 (2d ed. 1992).\nSuch administrative decisions are not the kind of decisions\nor orders—i.e., decisions or orders made in a judicial ca-\npacity—to which the relevant jurisdictional provisions\napply.\n   Respondent argues that the denial of petitioner’s fund-\ning request was just such an administrative decision, but\nthe District Court’s ruling does not remotely resemble the\nsort of administrative decisions noted above. Petitioner’s\nrequest was made by motion in his federal habeas proceed-\ning, which is indisputably a judicial proceeding. And as\nwe will explain, resolution of the funding question re-\nquires the application of a legal standard—whether the\nfunding is “reasonably necessary” for effective representa-\ntion—that demands an evaluation of petitioner’s prospects\nof obtaining habeas relief. We have never held that a\nruling like that is administrative and thus not subject to\nappellate review under the standard jurisdictional provi-\nsions.\n   Respondent claims that two factors support the conclu-\nsion that the funding decision was administrative, but her\nargument is unpersuasive.\n                             B\n  Respondent first argues as follows: Judicial proceedings\nmust be adversarial; 
18 U.S. C
. §3599(f ) funding adjudi-\ncations are not adversarial because the statute allows\nrequests to be decided ex parte; therefore, §3599(f ) funding\nadjudications are not judicial in nature. This reasoning is\n\f                 Cite as: 584 U. S. ____ (2018)           11\n\n                     Opinion of the Court\n\nflawed.\n   It is certainly true that cases and controversies in our\nlegal system are adversarial in nature, e.g., Bond v. United\nStates, 
564 U.S. 211
, 217 (2011); Aetna Life Ins. Co. v.\nHaworth, 
300 U.S. 227
, 240–241 (1937), but here, both\nthe habeas proceeding as a whole and the adjudication of\nthe specific issue of funding were adversarial. That the\nhabeas proceeding was adversarial is beyond dispute. And\non the funding question, petitioner and respondent plainly\nhave adverse interests and have therefore squared off as\nadversaries. The motion for funding was formally noted\nas “opposed” on the Disrict Court’s docket. App. 341. That\nis not surprising: On one side, petitioner is seeking fund-\ning that he hopes will prevent his execution. On the other,\nrespondent wants to enforce the judgment of the Texas\ncourts and to do so without undue delay. Petitioner and\nrespondent have vigorously litigated the funding question\nall the way to this Court.\n   In arguing that the funding dispute is nonadversarial,\nrespondent attaches too much importance to the fact that\nthe request was made ex parte. As we have noted, the\n“ex parte nature of a proceeding has not been thought to\nimply that an act otherwise within a judge’s lawful juris-\ndiction was deprived of its judicial character.” Forrester v.\nWhite, 
484 U.S. 219
, 227 (1988).\n   In our adversary system, ex parte motions are disfa-\nvored, but they have their place. See, e.g., Hohn, supra, at\n248 (application for COA); Dalia v. United States, 
441\nU.S. 238
, 255 (1979) (application for a search warrant); 
50\nU.S. C
. §1805(a) (application to conduct electronic surveil-\nlance for foreign intelligence); 
18 U.S. C
. §2518(3) (appli-\ncations to intercept “wire, oral, or electronic communica-\ntions”); 
15 U.S. C
. §1116(d)(1)(A) (application to seize\ncertain goods and counterfeit marks involved in violations\nof the trademark laws); Fed. Rule Crim. Proc. 17(b) (appli-\ncation for witness subpoena); Fed. Rule Crim. Proc. 47(c)\n\f12                    AYESTAS v. DAVIS\n\n                      Opinion of the Court\n\n(generally recognizing ex parte motions and applications);\nUllmann v. United States, 
350 U.S. 422
, 423–424, 434\n(1956) (application for an order granting a witness immun-\nity in exchange for self-incriminating testimony); United\nStates v. Monsanto, 
491 U.S. 600
, 603–604 (1989) (motion\nto freeze defendant’s assets pending trial).\n   Thus, the mere fact that a §3599 funding request may\nsometimes be made ex parte is hardly dispositive. See\nHohn, 524 U. S., at 249; Tutun v. United States, 
270 U.S.\n568
, 577 (1926).\n                               C\n  Respondent’s second argument is based on the vener-\nable principle “that Congress cannot vest review of the\ndecisions of Article III courts in” entities other than “supe-\nrior courts in the Article III hierarchy.” Plaut v. Spend-\nthrift Farm, Inc., 
514 U.S. 211
, 218–219 (1995) (citing\nHayburn’s Case, 2 Dall. 409 (1792)). Respondent claims\nthat §3599 funding decisions may be revised by the Direc-\ntor of the Administrative Office of the Courts and that this\nshows that such decisions must be administrative. This\nargument, however, rests on a faulty premise. Nothing in\n§3599 even hints that review by the Director of the Ad-\nministrative Office is allowed.\n  Respondent’s argument rests in part on a handful of old\nlower court cases that appear to have accepted Adminis-\ntrative Office review of Criminal Justice Act of 1964 (CJA)\npayments that had been authorized by a District Court\nand approved by the chief judge of the relevant Circuit.\nSee United States v. Aadal, 
282 F. Supp. 664
, 665 (SDNY\n1968); United States v. Gast, 
297 F. Supp. 620
, 621–622\n(Del. 1969); see also United States v. Hunter, 
385 F. Supp.\n358
, 362 (DC 1974). The basis for these decisions was a\nprovision of the CJA, 
18 U.S. C
. §3006A(h) (1964 ed.),\nstating that CJA payments “shall be made under the\nsupervision of the Director of the Administrative Office of\n\f                     Cite as: 584 U. S. ____ (2018)                   13\n\n                          Opinion of the Court\n\nthe United States Courts.”4\n   It is not clear whether these decisions correctly inter-\npreted the CJA,5 but in any event, no similar language\nappears in §3599. And respondent has not identified a\nsingle instance in which the Director of the Administrative\nOffice or any other nonjudicial officer has attempted to\nreview or alter a §3599 decision.\n   Moreover, attorneys’ requests for CJA funds are mark-\nedly different from the funding application at issue here.\nAttorneys appointed under the CJA typically submit those\nrequests after the conclusion of the case, and the prosecu-\ntion has no stake in the resolution of the matter. The\njudgment in the criminal case cannot be affected by a\ndecision on compensation for services that have been\ncompleted, and any funds awarded come out of the budget\nof the Judiciary, not the Executive. See 
18 U.S. C
.\n§3006A(i) (2012 ed.). Thus, the adversaries in the crimi-\nnal case are not pitted against each other. In this case,\non the other hand, as we have explained, petitioner\nand respondent have strong adverse interests.             For\nthese reasons, we reject respondent’s argument that the\nadjudication of the funding issue is nonadversarial and\nadministrative.\n   Respondent, however, claims that the funding decision\nis administrative for an additional reason. “A §3599(f )\nfunding determination is properly deemed administra-\ntive,” she contends, “because it . . . may be revised outside\nthe traditional Article III judicial hierarchy.” Brief for\nRespondent 23. The basis for this argument is a provision\nof §3599 stating that funding in excess of the generally\n——————\n  4 This language now appears at 
18 U.S. C
. §3006A(i) (2012 ed.).\n  5 As far as we are aware, neither the Administrative Office nor any\nother nonjudicial entity currently claims the power to revise or reject a\nCJA compensation order issued by a court. Nothing in the CJA Guide-\nlines suggests such a policy. See generally 7A Guide to Judiciary Policy\n(May 17, 2017).\n\f14                    AYESTAS v. DAVIS\n\n                      Opinion of the Court\n\napplicable statutory cap of $7,500 must be approved by the\nchief judge of the circuit or another designated circuit\njudge. §3599(g)(2). If a funding decision is judicial and\nnot administrative, respondent suggests, it could not be\nreviewed by a single circuit judge as opposed to a panel of\nthree.\n  This argument confuses what is familiar with what is\nconstitutionally required. Nothing in the Constitution ties\nCongress to the typical structure of appellate review es-\ntablished by statute. If Congress wishes to make certain\nrulings reviewable by a single circuit judge, rather than a\npanel of three, the Constitution does not stand in the way.\n                             III\n   Satisfied that we have jurisdiction, we turn to the ques-\ntion whether the Court of Appeals applied the correct legal\nstandard when it affirmed the denial of petitioner’s fund-\ning request.\n   Section 3599(a) authorizes federal courts to provide\nfunding to a party who is facing the prospect of a death\nsentence and is “financially unable to obtain adequate\nrepresentation or investigative, expert, or other reason-\nably necessary services.” The statute applies to defendants\nin federal cases, §3599(a)(1), as well as to state and federal\nprisoners seeking collateral relief in federal court,\n§3599(a)(2).\n   Here we are concerned not with legal representation but\nwith services provided by experts, investigators, and the\nlike. Such services must be “reasonably necessary for the\nrepresentation of the [applicant]” in order to be eligible for\nfunding. §3599(f ). If the statutory standard is met, a\ncourt “may authorize the [applicant’s] attorneys to obtain\nsuch services on [his] behalf.” Ibid.\n   The Fifth Circuit has held that individuals seeking\nfunding for such services must show that they have a\n“substantial need” for the services. 
817 F. 3d
, at 896;\n\f                 Cite as: 584 U. S. ____ (2018)           15\n\n                     Opinion of the Court\n\nAllen v. Stephens, 
805 F.3d 617
, 626 (2015); Ward v.\nStephens, 
777 F.3d 250
, 266, cert. denied, 577 U. S. ___\n(2015). Petitioner contends that this interpretation is\nmore demanding than the standard—“reasonably neces-\nsary”—set out in the statute. And although the difference\nbetween the two formulations may not be great, petitioner\nhas a point.\n   In the strictest sense of the term, something is “neces-\nsary” only if it is essential. See Webster’s Third New\nInternational Dictionary 1510 (1993) (something is neces-\nsary if it “must be by reason of the nature of things,” if it\n“cannot be otherwise by reason of inherent qualities”); 10\nOxford English Dictionary 275–276 (2d ed. 1989) (OED)\n(defining the adjective “necessary” to mean “essential”).\nBut in ordinary speech, the term is often used more loosely\nto refer to something that is merely important or strongly\ndesired. (“I need a vacation.” “I need to catch up with an\nold friend.”) The term is sometimes used in a similar way\nin the law. The term “necessary” in the Necessary and\nProper Clause does not mean “absolutely necessary,”\nMcCulloch v. Maryland, 
4 Wheat. 316
, 414–415 (1819),\nand a “necessary” business expense under the Internal\nRevenue Code, 
26 U.S. C
. §162(a), may be an expense\nthat is merely helpful and appropriate, Commissioner v.\nTellier, 
383 U.S. 687
, 689 (1966). As Black’s Law Diction-\nary puts it, the term “may import absolute physical neces-\nsity or inevitability, or it may import that which is only\nconvenient, useful, appropriate, suitable, proper, or condu-\ncive to the end sought.” Black’s Law Dictionary 928 (5th\ned. 1979) (Black’s).\n   Section 3599 appears to use the term “necessary” to\nmean something less than essential. The provision applies\nto services that are “reasonably necessary,” but it makes\nlittle sense to refer to something as being “reasonably\nessential.” What the statutory phrase calls for, we con-\nclude, is a determination by the district court, in the exer-\n\f16                   AYESTAS v. DAVIS\n\n                     Opinion of the Court\n\ncise of its discretion, as to whether a reasonable attorney\nwould regard the services as sufficiently important, guided\nby the considerations we set out more fully below.\n   The Fifth Circuit’s test—“substantial need”—is arguably\nmore demanding. We may assume that the term “need” is\ncomparable to “necessary”—that is, that something is\n“needed” if it is “necessary.” But the term “substantial”\nsuggests a heavier burden than the statutory term “rea-\nsonably.” Compare 13 OED 291 (defining “reasonably” to\nmean, among other things, “[s]ufficiently, suitably, fairly”;\n“[f ]airly or pretty well”) with 17 id., at 66–67 (defining\n“substantial,” with respect to “reasons, causes, evidence,”\nto mean “firmly or solidly established”); see also Black’s\n1456 (10th ed. 2014) (defining “reasonable” to mean\n“[f ]air, proper, or moderate under the circumstances . . .\nSee plausible”); id., at 1656 (defining “substantial” to\nmean, among other things, “[i]mportant, essential, and\nmaterial”).\n   The difference between “reasonably necessary” and\n“substantially need[ed]” may be small, but the Fifth Cir-\ncuit exacerbated the problem by invoking precedent to the\neffect that a habeas petitioner seeking funding must pre-\nsent “a viable constitutional claim that is not procedurally\nbarred.” 
817 F. 3d
, at 895 (internal quotation marks\nomitted). See also, e.g., Riley v. Dretke, 
362 F.3d 302
, 307\n(CA5 2004) (“A petitioner cannot show a substantial need\nwhen his claim is procedurally barred from review”);\nAllen, supra, at 638–639 (describing “ ‘our rule that a\nprisoner cannot show a substantial need for funds when\nhis claim is procedurally barred from review’ ” (quoting\nCrutsinger v. Stephens, 576 Fed. Appx. 422, 431 (CA5\n2014) (per curiam)); Ward, supra, at 266 (“The denial of\nfunding will be upheld . . . when the constitutional claim is\nprocedurally barred”).\n   The Fifth Circuit adopted this rule before our decision in\nTrevino, but after Trevino, the rule is too restrictive.\n\f                  Cite as: 584 U. S. ____ (2018)           17\n\n                      Opinion of the Court\n\nTrevino permits a Texas prisoner to overcome the failure\nto raise a substantial ineffective-assistance claim in state\ncourt by showing that state habeas counsel was ineffec-\ntive, 569 U. S., at 429, and it is possible that investigation\nmight enable a petitioner to carry that burden. In those\ncases in which funding stands a credible chance of ena-\nbling a habeas petitioner to overcome the obstacle of pro-\ncedural default, it may be error for a district court to\nrefuse funding.\n   Congress has made it clear, however, that district courts\nhave broad discretion in assessing requests for funding.\nSection 3599’s predecessor declared that district courts\n“shall authorize” funding for services deemed “reasonably\nnecessary.” 
21 U.S. C
. §848(q)(9) (1988 ed.). Applying\nthis provision, courts of appeals reviewed district court\nfunding decisions for abuse of discretion. E.g., Bonin v.\nCalderon, 
59 F.3d 815
, 837 (CA9 1995); In re Lindsey, 
875\nF.2d 1502
, 1507, n. 4 (CA11 1989); United States v. Alden,\n
767 F.2d 314
, 319 (CA7 1984). Then, as part of the Anti-\nterrorism and Effective Death Penalty Act of 1996, 110\nStat. 1226, Congress changed the verb from “shall” to\n“may,” and thus made it perfectly clear that determining\nwhether funding is “reasonably necessary” is a decision as\nto which district courts enjoy broad discretion. See King-\ndomware Technologies, Inc. v. United States, 
579 U.S.
___,\n___ (2016) (slip op., at 9).\n   A natural consideration informing the exercise of that\ndiscretion is the likelihood that the contemplated services\nwill help the applicant win relief. After all, the proposed\nservices must be “reasonably necessary” for the applicant’s\nrepresentation, and it would not be reasonable—in fact, it\nwould be quite unreasonable—to think that services are\nnecessary to the applicant’s representation if, realistically\nspeaking, they stand little hope of helping him win relief.\nProper application of the “reasonably necessary” standard\nthus requires courts to consider the potential merit of the\n\f18                    AYESTAS v. DAVIS\n\n                      Opinion of the Court\n\nclaims that the applicant wants to pursue, the likelihood\nthat the services will generate useful and admissible\nevidence, and the prospect that the applicant will be able\nto clear any procedural hurdles standing in the way.\n    To be clear, a funding applicant must not be expected to\nprove that he will be able to win relief if given the services\nhe seeks. But the “reasonably necessary” test requires an\nassessment of the likely utility of the services requested,\nand §3599(f ) cannot be read to guarantee that an appli-\ncant will have enough money to turn over every stone.\n    Petitioner does not deny this. He agrees that an appli-\ncant must “articulat[e] specific reasons why the services\nare warranted”—which includes demonstrating that the\nunderlying claim is at least “ ‘plausible’ ”—and he\nacknowledges that there may even be cases in which it\nwould be within a court’s discretion to “deny funds after a\nfinding of ‘reasonable necessity.’ ” Brief for Petitioner 43.\n    These interpretive principles are consistent with the\nway in which §3599’s predecessors were read by the lower\ncourts. See, e.g., Alden, supra, at 318–319 (explaining\nthat it was “appropriate for the district court to satisfy\nitself that [the] defendant may have a plausible defense\nbefore granting the defendant’s . . . motion for psychiatric\nassistance to aid in that defense,” and that it is not proper\nto use the funding statute to subsidize a “ ‘fishing expedi-\ntion’ ”); United States v. Hamlet, 
480 F.2d 556
, 557 (CA5\n1973) (per curiam) (upholding District Court’s refusal to\nfund psychiatric services based on the District Court’s\nconclusion that “the request for psychiatric services was\n. . . lacking in merit” because there was “no serious possi-\nbility that appellant was legally insane at any time perti-\nnent to the crimes committed”). This abundance of prece-\ndent shows courts have plenty of experience making the\ndeterminations that §3599(f ) contemplates.\n\f                 Cite as: 584 U. S. ____ (2018)                 19\n\n                     Opinion of the Court\n\n                             IV\n   Perhaps anticipating that we might not accept the Fifth\nCircuit’s reading of §3599(f ), respondent devotes a sub-\nstantial portion of her brief to an alternative ground for\naffirmance that was neither presented nor passed on\nbelow.\n   Respondent contends that whatever “reasonably neces-\nsary” means, funding is never “reasonably necessary” in a\ncase like this one, where a habeas petitioner seeks to\npresent a procedurally defaulted ineffective-assistance-of-\ntrial-counsel claim that depends on facts outside the state-\ncourt record. Citing 
28 U.S. C
. §2254(e)(2), respondent\ncontends that the fruits of any such investigation would be\ninadmissible in a federal habeas court.\n   We decline to decide in the first instance whether re-\nspondent’s reading of §2254(e)(2) is correct. Petitioner\nagrees that the argument remains open for the Fifth\nCircuit to consider on remand. Tr. of Oral Arg. 6.\n                        *    *     *\n  We conclude that the Fifth Circuit’s interpretation of\n§3599(f ) is not a permissible reading of the statute. We\ntherefore vacate the judgment below and remand the case\nfor further proceedings consistent with this opinion.\n\n                                                  It is so ordered.\n\f                  Cite as: 584 U. S. ____ (2018)            1\n\n                   SOTOMAYOR, J., concurring\n\nSUPREME COURT OF THE UNITED STATES\n                          _________________\n\n                          No. 16–6795\n                          _________________\n\n\n CARLOS MANUEL AYESTAS, AKA DENNIS ZELAYA\n\n COREA, PETITIONER v. LORIE DAVIS, DIRECTOR, \n\n  TEXAS DEPARTMENT OF CRIMINAL JUSTICE, \n\n    CORRECTIONAL INSTITUTIONS DIVISION\n\n ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF \n\n            APPEALS FOR THE FIFTH CIRCUIT\n\n                        [March 21, 2018]\n\n\n    JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG\njoins, concurring.\n    The Court correctly concludes that the Fifth Circuit\napplied the wrong legal standard in evaluating a request\nfor funding for investigative services under 
18 U.S. C
.\n§3599(f ). That should come as no surprise, as the Fifth\nCircuit required capital habeas petitioners to show a\n“ ‘substantial need’ ” for services, when the statute requires\nonly a showing that the services are “ ‘reasonably neces-\nsary.’ ” Ante, at 16. “Substantial,” of course, imposes a\nhigher burden than “reasonable.” Ante, at 16. The Fifth\nCircuit “exacerbated the problem” by requiring a showing\nof “a viable constitutional claim that is not procedurally\nbarred,” which ignores “that investigation might enable a\npetitioner . . . to overcome the obstacle of procedural de-\nfault.” Ante, at 16–17 (internal quotation marks omitted).\nI therefore join the opinion of the Court in full holding\nthat to satisfy §3599(f ), a petitioner need only show that\n“a reasonable attorney would regard the services as suffi-\nciently important.” Ante, at 16.\n    Having answered the question presented of what is the\nappropriate §3599(f ) standard, the Court remands Ayes-\ntas’ case for the lower courts to consider the application of\n\f2                       AYESTAS v. DAVIS\n\n                     SOTOMAYOR, J., concurring\n\nthe standard in the first instance. Ante, at 19.1 I write\nseparately to explain why, on the record before this Court,\nthere should be little doubt that Ayestas has satisfied\n§3599(f ).\n                               I\n   At the center of the §3599(f ) funding request in this\ncase is Ayestas’ claim that his trial counsel was ineffective\nfor failing to investigate mitigation. Specifically, Ayestas\nclaims that his trial counsel was deficient in failing to\nconduct an investigation of his mental health and sub-\nstance abuse, which could have been presented at the\npenalty phase of the trial to convince the jury to spare his\nlife. As the Court notes, however, Ayestas faces a hurdle\nin presenting this ineffective-assistance-of-trial-counsel\nclaim in his federal habeas petition, as his state postcon-\nviction counsel never presented that claim in the Texas\ncollateral proceedings. See ante, at 5.\n   To overcome that procedural default, Ayestas relies on\nMartinez v. Ryan, 
566 U.S. 1
 (2012), and Trevino v. Thaler,\n
569 U.S. 413
 (2013). In those cases, this Court recognized\na “particular concern” in the application of a procedural\ndefault rule that would prevent a petitioner from “pre-\nsent[ing] a claim of trial error,” especially “when the claim\nis one of ineffective assistance of counsel.” Martinez, 566\nU. S., at 12. “The right to the effective assistance of coun-\nsel,” the Court reasoned, “is a bedrock principle in our\njustice system.” Ibid. The Court thus held that where the\n“state procedural framework, by reason of its design and\noperation, makes it highly unlikely in a typical case that a\ndefendant will have a meaningful opportunity to raise a\nclaim of ineffective assistance of trial counsel on direct\nappeal,” then “ ‘a procedural default will not bar a federal\n\n——————\n  1 The Court also declines to consider arguments that respondent ad-\n\nvanced that were neither presented nor passed on below. Ante, at 19.\n\f                     Cite as: 584 U. S. ____ (2018)                    3\n\n                       SOTOMAYOR, J., concurring\n\nhabeas court from hearing a substantial claim of ineffec-\ntive assistance at trial if, in the initial-review collateral\nproceeding, there was no counsel or counsel . . . was inef-\nfective.’ ” Trevino, 569 U. S., at 429 (quoting Martinez, 566\nU. S., at 17; alteration omitted).2\n   Therefore, the fact that Ayestas’ postconviction counsel\nfailed to raise his ineffective-assistance-of-trial-counsel\nclaim in state court does not bar federal review of that\nclaim if Ayestas can show that the “attorney in his first\ncollateral proceeding was ineffective” and that “his claim\nof ineffective assistance of trial counsel is substantial.”\nId., at 18. The substantiality of the ineffective-assistance-\nof-trial-counsel claim and the ineffectiveness of postconvic-\ntion counsel are both analyzed under the familiar frame-\nwork set out in Strickland v. Washington, 
466 U.S. 668
\n(1984). “Ineffective assistance under Strickland is defi-\ncient performance by counsel resulting in prejudice, with\nperformance being measured against an objective standard\nof reasonableness.” Rompilla v. Beard, 
545 U.S. 374
, 380\n(2005) (citation and internal quotation marks omitted).\n   Remember, however, the specific context in which inef-\nfective assistance is being considered in Ayestas’ case: a\nrequest under §3599(f ) for investigative services, which\nrequires a showing only that “a reasonable attorney would\nregard the services as sufficiently important.” Ante, at 16.\nAyestas is not “expected to prove that he will be able to\nwin relief if given the services he seeks.” Ante, at 18\n\n——————\n  2 The reason for this exception is evident. Excusing the procedural\n\ndefault “acknowledges, as an equitable matter, that the initial-review\ncollateral proceeding, if undertaken without counsel or with ineffective\ncounsel, may not have been sufficient.” Martinez, 566 U. S., at 14.\n“Claims of ineffective assistance at trial often require investigative\nwork and an understanding of trial strategy,” and “the prisoner is in no\nposition to develop the evidentiary basis for a claim of ineffective\nassistance, which often turns on evidence outside the trial record.” Id.,\nat 11–12; see also Trevino, 569 U. S., at 423–424, 428.\n\f4                        AYESTAS v. DAVIS\n\n                      SOTOMAYOR, J., concurring\n\n(emphasis in original). A court simply must consider at\nthis stage “the potential merit of the claims that the appli-\ncant wants to pursue, the likelihood that the services will\ngenerate useful and admissible evidence, and the prospect\nthat the applicant will be able to clear any procedural\nhurdles standing in the way.” Ante, at 17–18. Thus, the\ninquiry is not whether Ayestas can prove that his trial\ncounsel was ineffective under Strickland or whether he\nwill succeed in overcoming the procedural default under\nMartinez and Trevino. Rather, at this §3599(f ) request\nstage, the focus is on the potential merit of these claims.\n                             II\n\n                             A\n\n  With this framework in mind, the focus first is on the\nevidence of the deficient performance of Ayestas’ state-\nappointed counsel.3 Trial counsel secured the appoint-\nment of an investigator, who met with Ayestas shortly\nafter the appointment. For nearly 15 months, however,\nthere was apparently no investigation into Ayestas’ history\nin preparation for trial. Counsel instructed the investi-\ngator “to resume investigation” only about a month before\njury selection. Record 878. The investigator then subpoe-\nnaed psychological and disciplinary prison records and\nhad Ayestas fill out a questionnaire, in response to which\nAyestas revealed that he had experienced multiple head\ntraumas and had a history of substance abuse. Jail rec-\nords also noted a rules infraction for possession of home-\nmade intoxicants. Trial counsel never followed up on any\nof this information, sought further related records, or had\nAyestas evaluated by a mental health professional.\n  About two weeks before jury selection, trial counsel for\nthe first time reached out to Ayestas’ family in Honduras.\n\n——————\n  3 The State appointed two attorneys to represent Ayestas at trial. I\n\nrefer to them together as “trial counsel.”\n\f                    Cite as: 584 U. S. ____ (2018)                   5\n\n                      SOTOMAYOR, J., concurring\n\nShortly thereafter, five days before trial, counsel wrote\nAyestas’ family stating that she needed them to come\ntestify. Ayestas’ family agreed, but they indicated that\nthey could not obtain visas because a letter that trial\ncounsel was supposed to have sent to the U. S. Embassy to\nfacilitate their travel never arrived, and ultimately no\nfamily members appeared at Ayestas’ trial.\n   The guilt phase lasted two days, and trial counsel pre-\nsented no witnesses. The penalty phase lasted less than a\nday, and trial counsel presented two minutes of mitigation\nevidence consisting of three letters from an instructor who\ntaught English classes to Ayestas in prison, attesting that\nhe was “a serious and attentive student.” App. 41–43.4\n   On this record, Ayestas has made a strong showing that\ntrial counsel was deficient. “It is unquestioned that under\nthe prevailing professional norms at the time of [Ayestas’]\ntrial, counsel had an obligation to conduct a thorough\ninvestigation of [his] background.” Porter v. McCollum,\n
558 U.S. 30
, 39 (2009) (per curiam) (internal quotation\nmarks omitted). Here, Ayestas’ trial counsel “clearly did\nnot satisfy those norms.” Ibid. With a client facing a\npossible death sentence, counsel and her investigator did\nnot start looking into Ayestas’ personal history until the\neve of trial. The little the investigator uncovered—head\ntrauma and a history of substance abuse—should have\nprompted further inquiry. Yet trial counsel did nothing.\nEven if Ayestas prohibited counsel from contacting his\nfamily in Honduras until the start of trial was imminent,\nsee ante, at 3,5 that still would not explain why counsel\n——————\n  4 Trial counsel also attempted to introduce evidence that Ayestas had\n\nno criminal history in Honduras, but failed to link Ayestas to the\nrecords, which were under his given name, “Dennis Zelaya Corea.” See\nAyestas v. Stephens, 
817 F.3d 888
, 892, n. 1 (CA5 2016) (per curiam).\n  5 During postconviction proceedings, trial counsel filed an affidavit\n\nasserting that Ayestas did not allow contact with his family in Hondu-\nras until after jury selection had commenced. When the record evi-\n\f6                         AYESTAS v. DAVIS\n\n                       SOTOMAYOR, J., concurring\n\nfailed to perform any other mitigation investigation, see\nPorter, 558 U. S., at 40 (noting that even if the defendant\nis “uncooperative, . . . that does not obviate the need for\ndefense counsel to conduct some sort of mitigation investi-\ngation (emphasis in original)). In the end, the decision to\nsentence Ayestas to death was made in less than one day,\nand his counsel spent less than two minutes presenting\nmitigation to the jury. Two minutes.\n  This Court has recognized that the decision not to pre-\nsent mitigation may be supported in certain cases by\n“strategic judgments,” provided the reviewing court is\nsatisfied with “the adequacy of the investigations support-\ning those judgments.” Wiggins v. Smith, 
539 U.S. 510
,\n521 (2003). But this does not appear to be one of those\ncases. There is nothing in the record that would support\nthe conclusion that counsel chose the two-minutes-of-\nmitigation strategy after careful investigation and consid-\neration of Ayestas’ case. Instead, counsel for the most part\n“did not even take the first step of interviewing witnesses\nor requesting records” and “ignored pertinent avenues for\ninvestigation of which [they] should have been aware.”\nPorter, 558 U. S., at 39–40.\n  In evaluating the potential merit of Ayestas’ claim, the\nFifth Circuit misapplied Strickland and the §3599(f )\nstandard. It reasoned that Ayestas had not presented a\nviable claim that trial counsel was deficient in failing to\ninvestigate Ayestas’ mental illness because, as he was not\ndiagnosed with schizophrenia until his time in prison,\nthere was nothing that flagged mental illness issues prior\nto trial.6 See Ayestas v. Stephens, 
817 F.3d 888
, 895–897\n——————\ndence contradicted that assertion, counsel submitted another affidavit\nwith a revised timeline. Ayestas disputes having instructed trial\ncounsel not to contact his family in Honduras.\n  6 It is unclear whether the Fifth Circuit ultimately relied on its de-\n\ntermination that trial counsel was not deficient in rejecting Ayestas’\nclaims. In its panel opinion, it incorrectly stated that trial counsel had\n\f                     Cite as: 584 U. S. ____ (2018)                   7\n\n                      SOTOMAYOR, J., concurring\n\n(2016) (per curiam). The absence of a documented diagno-\nsis, however, did not excuse trial counsel from their “obli-\ngation to conduct a thorough investigation of [Ayestas’]\nbackground.” Porter, 558 U. S., at 39 (internal quotation\nmarks omitted). In fact, the obligation to investigate\nexists in part precisely because it is all too common for\nindividuals to go years battling an undiagnosed and un-\ntreated mental illness.\n   In any event, the Fifth Circuit failed to consider that\none of the purposes of the §3599(f ) investigation was to\nlook at Ayestas’ life around the time of the crime and trial\nto determine if there were mitigating circumstances that\ntrial counsel could have discovered, such as whether\nsymptoms of his schizophrenia had begun to manifest even\nbefore his diagnosis. The Court makes clear today that in\nevaluating §3599(f ) funding requests, courts must consider\n“the likelihood that the services will generate useful and\nadmissible evidence.” Ante, at 17. It was error, therefore,\nfor the Fifth Circuit to evaluate the merit of the ineffec-\ntive-assistance-of-trial-counsel claim and to deny §3599(f )\nfunding based solely on an evaluation of the evidence in\nthe record at the time of the request, without evaluating\nthe potential evidence that Ayestas sought. Ante, at\n17–18.\n                             B\n  The evidence concerning the deficiency of Ayestas’ state\npostconviction counsel is similarly strong. State postcon-\nviction counsel retained the services of a mitigation spe-\ncialist, who prepared an investigation plan noting that it\n——————\nconducted a psychological evaluation of Ayestas. 
817 F. 3d
, at 897.\nAfter Ayestas corrected the record in his petition for rehearing, the\npanel issued an order reaffirming its holding, relying on its finding of\nno prejudice. See Ayestas v. Stephens, 
826 F.3d 214
, 215 (2016) ( per\ncuriam). Still, the Fifth Circuit never disavowed its conclusion regard-\ning trial-counsel deficiency. Ibid.\n\f8                     AYESTAS v. DAVIS\n\n                   SOTOMAYOR, J., concurring\n\nwas “obvious no social history investigation was conducted”\nand that the jury had “heard nothing about [Ayestas’] . . .\nmental health, possible mental illness, [or] substance\nabuse history.” App. 81, 266. The plan also noted that it\nwas “clear that [Ayestas] had a history of substance\nabuse.” Record 721; see also App. 267. The specialist\nrecommended a comprehensive investigation into Ayestas’\nbiological, psychological, and social history to explore,\ninter alia, issues related to addiction and mental health.\n   State postconviction counsel failed to follow these rec-\nommendations. He did nothing to investigate issues related\nto Ayestas’ mental health or substance abuse. Notably,\nAyestas suffered a psychotic episode and was diagnosed\nwith schizophrenia while his state postconviction applica-\ntion was pending. Moreover, in 2003, a counsel-arranged\nevaluation pursuant Atkins v. Virginia, 
536 U.S. 304
\n(2002), noted concerns about Ayestas’ “delusional think-\ning.” App. 139–140. These events still did not prompt\ncounsel to investigate Ayestas’ mental health history.\n   Instead, state postconviction counsel explored the cir-\ncumstances of Ayestas’ arrest, conducted some juror inter-\nviews, and interviewed Ayestas’ mother and sisters, ob-\ntaining affidavits regarding Ayestas’ upbringing in\nHonduras and their interactions with trial counsel. Post-\nconviction counsel eventually filed an application that\ncontained a narrow claim of ineffective assistance of trial\ncounsel with respect to mitigation regarding the attorneys’\nfailure to secure the attendance of Ayestas’ family mem-\nbers at trial. The Texas Court of Criminal Appeals denied\nthe application, relying on the affidavit submitted by trial\ncounsel, see n. 4, supra, to find no ineffectiveness in failing\nto get Ayestas’ family to attend trial.\n   The Fifth Circuit concluded that Ayestas’ state postcon-\nviction counsel was not ineffective because, in its view,\nAyestas had not established any deficiency at trial in the\nfailure to investigate mental health and substance abuse\n\f                 Cite as: 584 U. S. ____ (2018)            9\n\n                   SOTOMAYOR, J., concurring\n\nmitigation. See 
817 F. 3d
, at 898. That conclusion, as\nnoted in Part II–A, supra, was based on a misapplication\nof Strickland and the §3599(f ) standard, and thus cannot\nsupport a finding that the failure to present the claim in\npostconviction proceedings was “strategic.” 
817 F. 3d
, at\n898. Nor is there anything else in the record that would\nexcuse that deficiency. State postconviction counsel ig-\nnored his own mitigation specialist, who alerted him to a\nserious failing in the trial because the jury heard virtually\nno mitigation and to the serious failings of trial counsel\nbecause of the failure to conduct a social history investiga-\ntion of Ayestas. Even after Ayestas’ psychotic episode,\nschizophrenia diagnosis, and documented tendencies of\n“delusional thinking” during the course of the representa-\ntion, state postconviction counsel did nothing. As with\ntrial counsel, the record provides no support for any “stra-\ntegic justification” to disregard completely a mitigation\ninvestigation of Ayestas’ mental health and substance\nabuse.\n                             III\n   Strickland next requires consideration of prejudice. To\nestablish prejudice, this Court has held that a “defendant\nmust show that there is a reasonable probability that, but\nfor counsel’s unprofessional errors, the result of the pro-\nceeding would have been different,” meaning “a probabil-\nity sufficient to undermine confidence in the outcome.”\n466 U. S., at 694. In cases alleging a failure to investigate\nmitigation, as here, the Court must “reweigh the evidence\nin aggravation against the totality of available mitigating\nevidence.” Wiggins, 539 U. S., at 534.\n   Even with the scant evidence in the record at this time\nas to what Ayestas could have presented to the jury in the\nform of mitigation, Ayestas has made a strong showing\nthat his claim has potential merit. That trial counsel\npresented only two minutes of mitigation already goes a\n\f10                      AYESTAS v. DAVIS\n\n                     SOTOMAYOR, J., concurring\n\nlong way to establishing prejudice.           In fact, the State\nemphasized to the jury at sentencing:\n     “Does he have anything there that would lead you to\n     conclude there is some type of mitigation, anything at\n     all? There is no drug problem . . . no health problem\n     . . . no alcohol problem. . . . [O]nly . . . these three pieces\n     of paper . . . . Making steps to learn a second lan-\n     guage does not lessen his moral blameworthiness\n     . . . .” Record 4747.\nThe State, in contrast, presented evidence of Ayestas’\ncriminal history as well as victim impact testimony. After\ndeliberating for only 25 minutes, the jury assessed a pun-\nishment of death against Ayestas, finding that he was a\nfuture danger, that he intended to cause death or antici-\npated the loss of life, and that there were no mitigating\ncircumstances that warranted imposition of a life sentence\nover a death sentence. Had just one juror dissented on a\nsingle one of these findings, no death sentence could have\nbeen imposed. See Tex. Code Crim. Proc. Ann., Art.\n37.071, §2(g) (Vernon Cum. Supp. 2017); see also ante, at\n2. With even minimal investigation by trial counsel, at\nleast one may well have, as this Court has held that evi-\ndence of mental illness and substance abuse is relevant to\nassessing moral culpability. See Rompilla, 545 U. S., at\n393; Porter, 558 U. S., at 43–44. Instead, the jury “heard\nalmost nothing that would humanize [him] or allow them\nto accurately gauge his moral culpability.” Id., at 41.\nThere is thus good reason to believe that, were Ayestas’\n§3599(f ) motion granted, he could establish prejudice\nunder Strickland.\n   The Fifth Circuit held otherwise based on its belief that\nno amount of mitigation would have changed the outcome\nof the sentencing given the “brutality of the crime.” 
817\nF. 3d
, at 898. That “brutality of the crime” rationale is\nsimply contrary to our directive in case after case that, in\n\f                     Cite as: 584 U. S. ____ (2018)                    11\n\n                       SOTOMAYOR, J., concurring\n\nassessing prejudice, a court must “consider the totality of\nthe available mitigation evidence . . . and reweigh it\nagainst the evidence in aggravation.” Porter, 558 U. S., at\n41 (internal quotation marks and alterations omitted); see\nalso Williams v. Taylor, 
529 U.S. 362
, 397–398 (2000);\nWiggins, 539 U. S., at 534. By considering aggravation in\nisolation, the Fifth Circuit directly contravened this fun-\ndamental principle.7\n                              IV\n  In sum, Ayestas has made a strong showing that he is\nentitled to §3599(f ) funding. As the Court notes, the\nstatute affords district courts some discretion in these\nfunding determinations, even where a petitioner shows\nthe services are “ ‘reasonably necessary.’ ” Ante, at 17–18.\nExercise of that discretion may be appropriate if there is a\nshowing of gamesmanship or where the State has provided\nfunding for the same investigation services, as Ayestas\nconceded at argument. See Tr. of Oral Arg. 13. Nonethe-\nless, the troubling failures of counsel at both the trial and\nstate postconviction stages of Ayestas’ case are exactly the\ntypes of facts that should prompt courts to afford investi-\ngatory services to ensure that trial errors that go to a\n“bedrock principle in our justice system” do not go un-\naddressed. Martinez, 566 U. S., at 12.\n\n\n\n\n——————\n  7 Notably, application of this “brutality of the crime” rule is particu-\n\nlarly irrational in the §3599(f ) context, where the court is unaware of\nwhat the undiscovered evidence of mitigation looks like.\n\f
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