Bell v. Cone, 535 U.S. 685, 33 (2002)

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Cite as: 535 U. S. 685 (2002)

Stevens, J., dissenting

"entirely," ibid. (quoting Cronic, 466 U. S., at 659 (emphasis omitted)). The Court of Appeals' conclusion in this regard exemplifies a court's proper use of its judgment to recognize when failures "at specific points" amount to an "entir[e] fail-[ure]" within the meaning of Cronic. We recognized the importance of the exercise of such judgment in Strickland v. Washington, 466 U. S. 668 (1984), in which we explained that Sixth Amendment principles are "not . . . mechanical rules," and that "[i]n every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Id., at 698.

The majority also claims that Cronic's second prong does not apply because this Court has previously analyzed claims "of the same ilk," ante, at 697, under Strickland, not Cronic. However, in none of our previous cases applying Strickland to a penalty phase ineffectiveness claim did the challenged attorney not only fail to conduct a penalty phase investigation, but also fail to put on available mitigation evidence and fail to make a closing argument asking to spare the defend-ant's life. See Williams v. Taylor, 529 U. S. 362 (2000); Burger v. Kemp, 483 U. S. 776 (1987); and Darden v. Wainwright, 477 U. S. 168 (1986). Furthermore, in none of these cases was there evidence that counsel had as "radical" a view of the penalty phase as Dice's, and in none of these cases was the lawyer's own mental health called into question, as it has been here. It is, of course, true that a "total" failure claim, which we confront here, could theoretically be analyzed under Strickland. However, as Cronic makes clear, see ante, at 695-696, although Strickland could apply in all Sixth Amendment right to counsel cases, it does not.

Moreover, presuming prejudice when counsel has entirely failed to function as an adversary makes sense, for three reasons. First, counsel's complete failure to advocate, coupled here with his likely mental illness, undermines Strickland's

717

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