Cite as: 506 U. S. 357 (1993)
Scalia, J., concurring in judgment
only to the fact that his trial counsel made one rather than two arguments in closing. It would be a rare case in which the omission of one particular argument from an attorney's closing statement would be dispositive of an ineffective-assistance claim. It is simply not true, moreover, that the transcript "flatly contradict[s]," ante, at 358, the testimony of petitioner's trial counsel in the initial habeas hearing—or at least not true in the sense that it shows trial counsel was lying. The transcript confirms that, as trial counsel recalled, he had argued that the death penalty was inappropriate in any circumstance. In fact, he read to the jury large portions of Justice Brennan's opinion in Furman v. Georgia, 408 U. S. 238 (1972), which is certainly an eloquent argument that the death penalty is improper in any case. The transcript does reveal that counsel had not argued in mitigation that the killing was impulsive—which, petitioner now claims, shows that counsel's prior testimony was "false," Pet. for Cert. 19. That is not so. Although counsel stated at one point that he was "sure" he had argued the impulsive-killing point, a few lines earlier in the transcript he had said that "I would assume that I argued [it]" (emphasis added), and had made clear that "a lot of this is really not from actual recollection." Tr. 70-71 (Nov. 10, 1982). Petitioner's habeas counsel understood the import of this, describing (in his posthearing brief) trial counsel's testimony to have been that "he probably argued that the killing was impulsive and not planned." Petitioner's Post-Hearing Brief in No. C80-247R (ND Ga., Dec. 2, 1982), p. 25, n. 6 (emphasis added); see also Objections to Magistrate's Report and Recommendation in No. C80-247R (ND Ga., Sept. 12, 1983), p. 8, n. 1.
There is absolutely zero likelihood that counsel's misrecollection (or misreconstruction) that he had made an "impulsiveness" argument to the jury made the difference in the 1986 finding that his assistance was not ineffective. Petitioner's ineffectiveness contention had not been directed to the inadequacy of counsel's closing argument, but rather to his
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