382
Stevens, J., dissenting
based on the "totality of the evidence before the judge or jury," 466 U. S., at 695, the Strickland Court establishes its point of reference firmly at the time of trial or sentencing.
To justify its revision of the Strickland standards for judging ineffective-assistance claims, the Court relies in large part on Nix v. Whiteside, 475 U. S. 157 (1986). Ante, at 370. Nix cannot, however, perform the heavy duty the Court assigns it. A rather unusual case, Nix involved a claim that counsel was ineffective because he refused to present a defense based on perjured testimony. It should suffice to say here that reliance on perjured testimony and reliance on current Court of Appeals case law are not remotely comparable, and that to suggest otherwise is simply disingenuous. But if further distinction is needed, we need not search far to find it.
First, the Court's decision in Nix rests in part on the conclusion that counsel's refusal to cooperate in presentation of perjury falls "well within . . . the range of reasonable professional conduct acceptable under Strickland." Nix v. White-side, 475 U. S., at 171; cf. United States v. Cronic, 466 U. S., at 656, n. 19 ("Of course, the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one . . ."). In other words, ineffective-assistance claims predicated on failure to make wholly frivolous or un-ethical arguments will generally be dispensed with under Strickland's first prong, without recourse to the second, and hence will not raise the questions at issue in this case.
To the extent that Nix does address Strickland's second, or "prejudice," prong, it does so in a context quite different from that presented here. In Strickland, the Court cautioned that assessment of the likelihood of a different outcome should exclude the possibility of "a lawless decision-maker," who fails to "reasonably, conscientiously, and impartially appl[y] the standards that govern the decision." 466 U. S., at 695. The Nix Court faced what is perhaps a
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