Published on: Monday, November 13, 2017

After relisting the case six times, this morning the Supreme Court denied certiorari in Reeves v. Alabama, No. 16-9282, over a 14-page dissent by Justice Sotomayor, joined by Justices Ginsburg and Kagan. The issue in Reeves is whether testimony of trial counsel is necessary to establish an ineffective assistance of trial counsel claim.  Expressing the minority view on an issue that has divided state and federal courts, the Alabama Court of Criminal Appeals rejected Mr. Reeves’s ineffective assistance of trial counsel claim—without considering substantial evidence regarding his intellectual disability and his counsel’s performance—because he did not present the testimony of his trial counsel.  In her dissent to the denial of certiorari, Justice Sotomayor stated:

There can be no dispute that the imposition of a categorical rule that counsel must testify in order for a petitioner to succeed on a federal constitutional ineffective-assistance-of-counsel claim contravenes our decisions requiring an objective inquiry into the adequacy and reasonableness of counsel’s performance based on the full record before the court.


This Court has never, however, required that a defendant present evidence of his counsel’s actions or reasoning in the form of testimony from counsel, nor has it ever rejected an ineffective-assistance claim solely because the record did not include such testimony. Rather, Strickland and its progeny establish that when a court is presented with an ineffective-assistance-of-counsel claim, it should look to the full record presented by the defendant to determine whether the defendant satisfied his burden to prove deficient performance. The absence of counsel’s testimony may make it more difficult for a defendant to meet his burden, but that fact alone does not absolve a court of its duty to look at the whole record and evaluate the reasonableness of counsel’s professional assistance in light of that evidence.

Justice Sotomayor’s full dissent is available as the last 14-pages of the Court’s Order List issued today.  The Traning Division provides resource materials to capital trial and federal capital habeas counsel through the Capital Defense Network.