Cite as: 506 U. S. 364 (1993)
Opinion of the Court
The result of the sentencing proceeding in the present case was neither unfair nor unreliable. The Court of Appeals, which had decided Collins in 1985, overruled it in Perry four years later.4 Had the trial court chosen to follow Collins, counsel's error would have "deprived respondent of the chance to have the state court make an error in his favor." Brief for United States as Amicus Curiae 10.5
Respondent argues that the use of hindsight is inappropriate in determining "prejudice" under Strickland, and that this element should be determined under the laws existing at the time of trial. For support, he relies upon language used in Strickland in discussing the first part of the necessary showing—deficient performance. We held that in order to determine whether counsel performed below the level expected from a reasonably competent attorney, it is necessary to "judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U. S., at 690.
4 Respondent argues that Collins v. Lockhart, 754 F. 2d 258 (CA8), cert. denied, 474 U. S. 1013 (1985), is still good law despite our decision in Lowenfield v. Phelps, 484 U. S. 231 (1988), and urges us to decide this question as a threshold matter. We decline the invitation. A premise underlying the question presented was that Collins had been properly overruled by the Eighth Circuit. Because respondent "failed to bring [his] objections to the premise underlying the questio[n] presented to our attention in [his] opposition to the petition for certiorari," we decide that question based on the Eighth Circuit's view that Collins is no longer good law. Eastman Kodak Co. v. Image Technical Services, Inc., 504 U. S. 451, 465-466, n. 10 (1992).
5 As an alternative argument, the Solicitor General relies upon the language of the habeas corpus statute, 28 U. S. C. § 2254(a), which provides that habeas relief may issue only if the applicant "is in custody in violation of the Constitution or laws or treaties of the United States." According to the Solicitor General, because Lowenfield was decided at the time respondent petitioned for federal habeas relief, he could not argue that he was currently in custody in violation of the Constitution. Because of our disposition of the case on the basis of Strickland v. Washington, supra, we do not address this contention.
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