Wiggins v. Smith, 539 U.S. 510, 38 (2003)

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Cite as: 539 U. S. 510 (2003)

Scalia, J., dissenting

guides to determining what is reasonable, but they are only guides," id., at 688. Cf. ante, at 524 (treating the ABA Guidelines as "well-defined norms"). It is inconceivable that Schlaich, assuming he testified truthfully regarding his detailed knowledge of Wiggins' troubled childhood, App. 490- 491, would need to hire a social worker to comport with Strickland's competence standards. And it certainly would not have been unreasonable for the Maryland Court of Appeals to conclude otherwise.

The second possible response to Schlaich's testimony about his extensive awareness of Wiggins' background is to assert that Schlaich lied. The Court assumes sub silentio throughout its opinion that Schlaich was not telling the truth when he testified that he knew of reports of sexual abuse in one of Wiggins' foster homes, see, e. g., ante, at 525 ("Had counsel investigated further, they might well have discovered the sexual abuse later revealed during state postconviction proceedings"), and eventually declares straight-out that it disbelieves Schlaich, ante, at 531-533. This conclusion rests upon a blatant mischaracterization of the record, and an improper shifting of the burden of proof to the State to demonstrate Schlaich's awareness of Wiggins' background, rather than requiring Wiggins to prove Schlaich's ignorance of it. But, more importantly, it is simply not enough for the Court to conclude, ante, at 533, that it "cannot infer from Schlaich's postconviction testimony that counsel looked further than the PSI and DSS reports in investigating petitioner's background." If it is at least reasonable to believe Schlaich told the truth, then it could not have been unreasonable for the Maryland Court of Appeals to conclude that Wiggins' trial attorneys conducted an adequate investigation into his background. See 28 U. S. C. § 2254(d)(1).

Schlaich's testimony must have been false, the Court insists, because the social services records do not contain any evidence of sexual abuse, and "the questions put to Schlaich during his postconviction testimony all referred to what he

547

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