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`Per Curiam
`SUPREME COURT OF THE UNITED STATES
`ANTHONY RAY HINTON v. ALABAMA
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`ON PETITION FOR WRIT OF CERTIORARI TO THE
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` COURT OF CRIMINAL APPEALS OF ALABAMA
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`No. 13–6440 Decided February 24, 2014
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` PER CURIAM.
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`In Strickland v. Washington, 466 U. S. 668 (1984), we
`held that a criminal defendant’s Sixth Amendment right
`to counsel is violated if his trial attorney’s performance
`falls below an objective standard of reasonableness and if
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`there is a reasonable probability that the result of the trial
`would have been different absent the deficient act or
`omission. Id., at 687–688, 694. Anthony Ray Hinton, an
`inmate on Alabama’s death row, asks us to decide whether
`the Alabama courts correctly applied Strickland to his
`case. We conclude that they did not and hold that Hin-
`ton’s trial attorney rendered constitutionally deficient
`performance. We vacate the lower court’s judgment and
`remand the case for reconsideration of whether the attor-
`ney’s deficient performance was prejudicial.
`I
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`A
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`
`In February 1985, a restaurant manager in Birming-
`ham was shot to death in the course of an after-hours rob-
`bery of his restaurant. A second manager was murdered
`during a very similar robbery of another restaurant in
`July. Then, later in July, a restaurant manager named
`Smotherman survived another similar robbery-shooting.
`During each crime, the robber fired two .38 caliber bullets;
`all six bullets were recovered by police investigators.
`Smotherman described his assailant to the police, and
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`when the police showed him a photographic array, he
`picked out Hinton’s picture.
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` HINTON v. ALABAMA
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`Per Curiam
`The police arrested Hinton and recovered from his house
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` a .38 caliber revolver belonging to his mother, who shared
`the house with him. After analyzing the six bullets fired
`during the three crimes and test-firing the revolver, exam-
`iners at the State’s Department of Forensic Sciences
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`concluded that the six bullets had all been fired from
`the same gun: the revolver found at Hinton’s house. Hin-
`ton was charged with two counts of capital murder for
`the killings during the first two robberies. He was not
`charged in connection with the third robbery (that is, the
`Smotherman robbery).
`At trial, the State’s strategy was to link Hinton to the
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`Smotherman robbery through eyewitness testimony and
`forensic evidence about the bullets fired at Smotherman
`and then to persuade the jury that, in light of the similar-
`ity of the three crimes and forensic analysis of the bullets
`and the Hinton revolver, Hinton must also have commit-
`ted the two murders. Smotherman identified Hinton as
`the man who robbed his restaurant and tried to kill him,
`and two other witnesses provided testimony that tended to
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` link Hinton to the Smotherman robbery. Hinton main-
`tained that he was innocent and that Smotherman had
`misidentified him.
`In support of that defense, Hinton
`presented witnesses who testified in support of his alibi
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`that he was at work at a warehouse at the time of the
`Smotherman robbery. See 548 So. 2d 562, 568–569 (Ala.
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`1989) (summarizing the evidence on each side of the case).
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`The six bullets and the revolver were the only physical
`evidence. Besides those items, the police found no evi-
`dence at the crime scenes that could be used to identify
`the perpetrator (such as fingerprints) and no incriminat-
`ing evidence at Hinton’s home or in his car. The State’s
`case turned on whether its expert witnesses could con-
`vince the jury that the six recovered bullets had indeed
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`been fired from the Hinton revolver. According to the
`Alabama Supreme Court, “the only evidence linking Hin-
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`Per Curiam
`ton to the two murders were forensic comparisons of the
`bullets recovered from those crime scenes to the Hinton
`revolver.” 2008 WL 4603723, *2 (Oct. 17, 2008).
`The category of forensic evidence at issue in this case is
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`“firearms and toolmark” evidence. Toolmark examiners
`attempt to determine whether a bullet recovered from a
`crime scene was fired from a particular gun by comparing
`microscopic markings (toolmarks) on the recovered bullet
`to the markings on a bullet known to have been fired from
`that gun. The theory is that minor differences even be-
`tween guns of the same model will leave discernible traces
`on bullets that are unique enough for an examiner to
`conclude that the recovered bullet was or was not fired
`from a given weapon. See generally National Research
`Council, Strengthening Forensic Science in the United
`States: A Path Forward 150–155 (2009).
` Recognizing that Hinton’s defense called for an effective
`rebuttal of the State’s expert witnesses, Hinton’s attorney
`filed a motion for funding to hire an expert witness of his
`own. In response, the trial judge granted $1,000 with this
`statement:
`“‘I don’t know as to what my limitations are as for
`how much I can grant, but I can grant up to $500.00
`in each case [that is, for each of the two murder
`charges, which were tried together] as far as I know
`right now and I’m granting up to $500.00 in each of
`these two cases for this. So if you need additional ex-
`perts I would go ahead and file on a separate form and
`I’ll have to see if I can grant additional experts, but I
`am granting up to $500.00, which is the statutory
`maximum as far as I know on this and if it’s necessary
`that we go beyond that then I may check to see if we
`can, but this one’s granted.’” 2006 WL 1125605, *59
`(Ala. Crim. App., Apr. 28, 2006) (Cobb, J., dissenting)
`(quoting Tr. 10).
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` HINTON v. ALABAMA
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`Per Curiam
`Hinton’s attorney did not take the judge up on his invita-
`tion to file a request for more funding.
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`In fact, $500 per case ($1,000 total) was not the statu-
`tory maximum at the time of Hinton’s trial. An earlier
`version of the statute had limited state reimbursement of
`expenses to one half of the $1,000 statutory cap on attor-
`ney’s fees, which explains why the judge believed that
`Hinton was entitled to up to $500 for each of the two
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`murder charges. See Smelley v. State, 564 So. 2d 74, 88
`(Ala. Crim. App. 1990). But the relevant statute had been
`amended to provide: “‘Counsel shall also be entitled to be
`reimbursed for any expenses reasonably incurred in such
`defense to be approved in advance by the trial court.’” See
`Dubose v. State, 662 So. 2d 1156, 1177, n. 5 (Ala. Crim.
`App. 1993) (quoting Ala. Code §15–12–21(d) (1984)), aff ’d
`662 So. 2d 1189 (Ala. 1995). That amendment went into
`effect on June 13, 1984, Dubose, supra, at 1177, n. 5,
`which was over a year before Hinton was arrested, so
`Hinton’s trial attorney could have corrected the trial
`judge’s mistaken belief that a $1,000 limit applied and
`accepted his invitation to file a motion for additional
`funds.
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`The attorney failed to do so because he was himself
`unaware that Alabama law no longer imposed a specific
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`limit and instead allowed reimbursement for “any expenses
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`reasonably incurred.” At an evidentiary hearing held on
`Hinton’s postconviction petition, the following conversa-
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`tion occurred between a state attorney and Hinton’s trial
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`attorney:
`“Q. You did an awful lot of work to try and find what
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`you believed to be a qualified expert in this case,
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`didn’t you?
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`“A. Yes, sir, I did.
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`“Q. Would you characterize it that you did everything
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`that you knew to do?
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`Per Curiam
`“A. Yes, sir, I think so.
`“Q. And this case, did it come down to an unwilling-
`ness of experts to work for the price that you were
`able to pay?
`“A. Yes, sir, I think it did.
`“Q. So your failure to get an expert that you would
`have been let’s say a hundred percent satisfied with
`was not a failure on your part to go out and do some
`act, it was a failure of the court to approve what you
`believed would have been sufficient funds?
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`“A. Well, putting it a little differently, yes, sir, it was
`a failure—it was my failure, my inability under the
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`statute to obtain any more funding for the purpose of
`hiring qualified experts.” Reporter’s Official Tr. 206–
`207 (emphasis added).
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`Operating under the mistaken belief that he could pay
`no more than $1,000, Hinton’s attorney went looking for
`an expert witness. According to his postconviction testi-
`mony, he made an extensive search for a well-regarded
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`expert, but found only one person who was willing to take
`the case for the pay he could offer: Andrew Payne. Hin-
`ton’s attorney “testified that Payne did not have the exper-
`tise he thought he needed and that he did not consider
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`Payne’s testimony to be effective.” 2006 WL 1125605, *27.
`As he told the trial judge during a pretrial hearing:
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`“I made an effort to get somebody that I thought
`would be useable. And I’ll have to tell you what I did
`[about] Payne. I called a couple of other lawyers in
`town . . . to ask if they knew of anybody. One of them
`knew him; one of them knew him. The reason I didn’t
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`contact him was because he wasn’t recommended by
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`the lawyer. So now I’m stuck that he’s the only guy I
`could possibly produce.” Id., at *30 (internal quota-
`tion marks omitted).
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`At trial, Payne testified that the toolmarks in the barrel
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` HINTON v. ALABAMA
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`Per Curiam
` of the Hinton revolver had been corroded away so that it
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`would be impossible to say with certainty whether a par-
`ticular bullet had been fired from that gun. He also testi-
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`fied that the bullets from the three crime scenes did not
`match one another. The State’s two experts, by contrast,
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`maintained that all six bullets had indeed been fired from
`the Hinton revolver.
`On cross-examination, the prosecutor badly discredited
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`Payne. Payne admitted that he’d testified as an expert on
`firearms and toolmark identification just twice in the
`preceding eight years and that one of the two cases in-
`volved a shotgun rather than a handgun. Payne also
`conceded that he had had difficulty operating the micro-
`scope at the state forensic laboratory and had asked for
`help from one of the state experts. The prosecutor ended
`the cross-examination with this colloquy:
`“Q. Mr. Payne, do you have some problem with your
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`vision?
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`“A. Why, yes.
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`“Q. How many eyes do you have?
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`“A. One.” Tr. 1667.
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`The prosecutor’s closing argument highlighted the fact
`that Payne’s expertise was in military ordnance, not fire-
`arms and toolmark identification, and that Payne had
`graduated in 1933 (more than half a century before the
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`trial) with a degree in civil engineering, whereas the
`State’s experts had years of training and experience in the
`field of firearms and toolmark examination. The prosecu-
`tor said:
`“‘I ask you to reject [Payne’s] testimony and you have
`that option because you are the judges of the facts and
`whose testimony, Mr. Yates’ or Mr. Payne’s, you will
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`give credence to, and I submit to you that as between
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`these two men there is no match between them.
`There is no comparison. One man just doesn’t have it
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`Per Curiam
`and the other does it day in and day out, month in and
`month out, year in and year out, and is recognized
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`across the state as an expert.’” 2006 WL 1125605,
`*64 (Cobb, J., dissenting) (quoting Tr. 1733–1734).
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`The jury convicted Hinton and recommended by a 10-
`to-2 vote that he be sentenced to death. The trial
`judge accepted that recommendation and imposed a death
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`sentence.
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`B
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`In his state postconviction petition, Hinton contended
`that his trial attorney was “‘ineffective to not seek addi-
`tional funds when it became obvious that the individual
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`willing to examine the evidence in the case for the $1,000
`allotted by the court was incompetent and unqualified.
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`Indeed, this failure to seek additional, sufficient funds is
`rendered all the more inexplicable by the trial court’s
`express invitation to counsel to seek more funds if such
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`funds were necessary.’” 2006 WL 1125605, *28.
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`To show that he had been prejudiced by Payne’s ineffec-
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`tive testimony, Hinton produced three new experts on
`toolmark evidence. One of the three, a forensic consultant
`named John Dillon, had worked on toolmark identification
`at the Federal Bureau of Investigation’s forensics labora-
`tory and, from 1988 until he retired in 1994, had served as
`chief of the firearms and toolmark unit at the FBI’s head-
`quarters. The other two postconviction experts had
`worked for many years as firearms and toolmark examin-
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`ers at the Dallas County Crime Laboratory and had each
`testified as toolmark experts in several hundred cases.
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`All three experts examined the physical evidence and
`testified that they could not conclude that any of the six
`bullets had been fired from the Hinton revolver. The State
`did not submit rebuttal evidence during the postconviction
`hearing, and one of Hinton’s experts testified that, pursu-
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`ant to the ethics code of his trade organization, the Associ-
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` HINTON v. ALABAMA
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`Per Curiam
`ation of Firearm and Tool Mark Examiners, he had asked
`the State’s expert, Yates, to show him how he had deter-
`mined that the recovered bullets had been fired from the
`Hinton revolver. Yates refused to cooperate.
`C
`The circuit court denied Hinton’s postconviction petition
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`on the ground that Hinton had not been prejudiced by
`Payne’s allegedly poor performance because Payne’s tes-
`timony did not depart from what Hinton’s postconviction
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`experts had said: The bullets could not be affirmatively
`matched either to one another or to the Hinton revolver.
`The Alabama Court of Criminal Appeals affirmed by a
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`3-to-2 vote. 2006 WL 1125605. The court agreed with the
`circuit court that Hinton had not been prejudiced because
`Payne’s testimony, if believed by the jury, strongly sup-
`ported the inference that Hinton was innocent. Id., at *31.
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`Then-Judge Cobb (who later became chief justice of the
`Alabama Supreme Court) dissented. In her view, Hinton’s
`attorney had been ineffective in failing to seek additional
`funds to hire a better expert and Hinton had been preju-
`diced by that failure, meaning that he was entitled to a
`new trial. Then-Judge Shaw (who is now a justice of the
`Alabama Supreme Court) also dissented. He would have
`remanded the case to the circuit court to make a finding as
`to whether or not Payne was qualified to act as an expert
`on toolmark evidence. He stated that “[i]t goes without
`saying that, with knowledge that sufficient funds were
`available to have a qualified firearms and toolmarks ex-
`pert, no reasonable criminal defense lawyer would seek
`out and hire an unqualified firearms witness.” Id., at *73.
`The Supreme Court of Alabama reversed and remanded.
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`2008 WL 4603723. After quoting at length from Judge
`Shaw’s dissent, the Court stated, “We agree with Judge
`Shaw that ‘the dispositive issue is whether Payne was a
`qualified firearms and toolmarks expert’ and that in deny-
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`Per Curiam
`ing Hinton’s [postconviction] petition the trial court did
`not directly rule on ‘the issue whether Payne was qualified
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`to be testifying in the first place.’” Id., at *4 (quoting
`2006 WL 1125605, *70, *72 (Shaw, J., dissenting)). The
`Supreme Court was thus focused on Payne’s own qualifi-
`cations, rather than on whether a better expert—one who
`could have been hired had the attorney learned that there
`was no funding cap and requested additional funds—
`would have made a more compelling case for Hinton.
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`On remand, the circuit court held that Payne was in-
`deed qualified to testify as a firearms and toolmark expert
`witness under the Alabama evidentiary standard in place
`at the time of the trial, which required only that Payne
`have had “knowledge of firearms and toolmarks exam-
`ination beyond that of an average layperson.” 2008 WL
`5517591, *5 (Ala. Crim. App., Dec. 19, 2008); see also
`Charles v. State, 350 So. 2d 730, 733 (Ala. Crim. App.
`1977) (“An ‘expert witness’ is one who can enlighten a jury
`more than the average man in the street. . . . An expert
`witness, by definition, is any person whose opportunity or
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`means of knowledge in a specialized art or science is to
`some degree better than that found in the average juror or
`witness”). The appellate court affirmed the circuit court’s
`ruling that Payne was qualified under the applicable
`standard. 2013 WL 598122 (Ala. Crim. App., Feb. 15,
`2013). The Alabama Supreme Court denied review by a 4-
`to-3 vote, with two justices recused. Hinton then filed this
`petition for a writ of certiorari.
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`II
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`This case calls for a straightforward application of our
`ineffective-assistance-of-counsel precedents, beginning with
`Strickland v. Washington, 466 U. S. 668. Strickland
`recognized that the Sixth Amendment’s guarantee that
`“[i]n all criminal prosecutions, the accused shall enjoy the
`right . . . to have the Assistance of Counsel for his defence”
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` HINTON v. ALABAMA
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`Per Curiam
`entails that defendants are entitled to be represented by
`an attorney who meets at least a minimal standard of
`competence. Id., at 685–687. “Under Strickland, we first
`determine whether counsel’s representation ‘fell below an
`objective standard of reasonableness.’ Then we ask
`whether ‘there is a reasonable probability that, but for
`counsel’s unprofessional errors, the result of the proceed-
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`ing would have been different.’” Padilla v. Kentucky, 559
`U. S. 356, 366 (2010) (quoting Strickland, supra, at 688,
`694).
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`A
` “The first prong—constitutional deficiency—is neces-
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`sarily linked to the practice and expectations of the legal
`community: ‘The proper measure of attorney performance
`remains simply reasonableness under prevailing profes-
`sional norms.’” Padilla, supra, at 366 (quoting Strickland,
`supra, at 688). “In any case presenting an ineffectiveness
`claim, the performance inquiry must be whether counsel’s
`assistance was reasonable considering all the circum-
`stances.” Strickland, supra, at 688. Under that standard,
`it was unreasonable for Hinton’s lawyer to fail to seek
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`additional funds to hire an expert where that failure was
`based not on any strategic choice but on a mistaken belief
`that available funding was capped at $1,000.
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`“Criminal cases will arise where the only reasonable
`and available defense strategy requires consultation with
`experts or introduction of expert evidence.” Harrington v.
`Richter, 562 U. S. ___, ___ (2011) (slip op., at 16). This
`was such a case. As Hinton’s trial attorney recognized,
`the core of the prosecution’s case was the state experts’
`conclusion that the six bullets had been fired from the
`Hinton revolver, and effectively rebutting that case re-
`quired a competent expert on the defense side. Hinton’s
`attorney also recognized that Payne was not a good expert,
`at least with respect to toolmark evidence. Nonetheless,
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`Per Curiam
`he felt he was “stuck” with Payne because he could not
`find a better expert willing to work for $1,000 and he
`believed that he was unable to obtain more than $1,000 to
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`cover expert fees.
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`As discussed above, that belief was wrong: Alabama law
`in effect beginning more than a year before Hinton was
`arrested provided for state reimbursement of “any expenses
`reasonably incurred in such defense to be approved in
`advance by the trial court.” Ala. Code §15–12–21(d). And
`the trial judge expressly invited Hinton’s attorney to file a
`request for further funds if he felt that more funding was
`necessary. Yet the attorney did not seek further funding.
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`The trial attorney’s failure to request additional funding
`in order to replace an expert he knew to be inadequate
`because he mistakenly believed that he had received all he
`could get under Alabama law constituted deficient perfor-
`mance. Under Strickland, “strategic choices made after
`thorough investigation of law and facts relevant to plausi-
`ble options are virtually unchallengeable; and strategic
`choices made after less than complete investigation are
`reasonable precisely to the extent that reasonable profes-
`sional judgments support the limitations on investigation.
`In other words, counsel has a duty to make reasonable
`investigations or to make a reasonable decision that
`makes particular investigations unnecessary.” 466 U. S.,
`at 690–691. Hinton’s attorney knew that he needed more
`funding to present an effective defense, yet he failed to
`make even the cursory investigation of the state statute
`providing for defense funding for indigent defendants that
`would have revealed to him that he could receive reim-
`bursement not just for $1,000 but for “any expenses rea-
`sonably incurred.” An attorney’s ignorance of a point of
`law that is fundamental to his case combined with his
`failure to perform basic research on that point is a quin-
`tessential example of unreasonable performance under
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`Strickland. See, e.g., Williams v. Taylor, 529 U. S. 362,
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` HINTON v. ALABAMA
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`Per Curiam
`395 (2000) (finding deficient performance where counsel
`“failed to conduct an investigation that would have uncov-
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`ered extensive records [that could be used for death penalty
`mitigation purposes], not because of any strategic calcu-
`lation but because they incorrectly thought that state law
`barred access to such records”); Kimmelman v. Morrison,
`477 U. S. 365, 385 (1986) (finding deficient performance
`where counsel failed to conduct pretrial discovery and that
`failure “was not based on ‘strategy,’ but on counsel’s mis-
`taken belie[f] that the State was obliged to take the initia-
`tive and turn over all of its inculpatory evidence to the
`defense”).
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`We wish to be clear that the inadequate assistance of
`counsel we find in this case does not consist of the hiring
`of an expert who, though qualified, was not qualified
`enough. The selection of an expert witness is a paradig-
`matic example of the type of “strategic choic[e]” that, when
`made “after thorough investigation of [the] law and facts,”
`is “virtually unchallengeable.” Strickland, 466 U. S., at
`690. We do not today launch federal courts into examina-
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`tion of the relative qualifications of experts hired and
`experts that might have been hired. The only inadequate
`assistance of counsel here was the inexcusable mistake of
`law—the unreasonable failure to understand the resources
`that state law made available to him—that caused counsel
`to employ an expert that he himself deemed inadequate.
`B
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`Having established deficient performance, Hinton must
`also “show that there is a reasonable probability that, but
`for counsel’s unprofessional errors, the result of the pro-
`ceeding would have been different. A reasonable probabil-
`ity is a probability sufficient to undermine confidence in
`the outcome.” Id., at 694. “When a defendant challenges a
`conviction, the question is whether there is a reasonable
`probability that, absent the errors, the factfinder would
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`Per Curiam
` have had a reasonable doubt respecting guilt.” Id., at 695.
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`The Court of Criminal Appeals held, and the State
`contends in its brief in opposition to certiorari, that Hinton
`could not have been prejudiced by his attorney’s use of
`Payne rather than a more qualified expert because Payne
`said all that Hinton could have hoped for from a toolmark
`expert: that the bullets used in the crimes could not
`have been fired from the Hinton revolver. See 2006 WL
`1125605, *31 (“[E]ven assuming that counsel’s apparent
`ignorance that the cap on expert expenses had been lifted
`constituted deficient performance . . . , the appellant has
`not shown that he was prejudiced by that deficient per-
`formance”). It is true that Payne’s testimony would have
`done Hinton a lot of good if the jury had believed it. But
`the jury did not believe Payne. And if there is a reasona-
`ble probability that Hinton’s attorney would have hired an
`expert who would have instilled in the jury a reasonable
`doubt as to Hinton’s guilt had the attorney known that the
`statutory funding limit had been lifted, then Hinton was
`prejudiced by his lawyer’s deficient performance and is
`entitled to a new trial.
`That the State presented testimony from two experi-
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`enced expert witnesses that tended to inculpate Hinton
`does not, taken alone, demonstrate that Hinton is guilty.
`Prosecution experts, of course, can sometimes make mis-
`takes. Indeed, we have recognized the threat to fair crim-
`inal trials posed by the potential for incompetent or fraud-
`ulent prosecution forensics experts, noting that “[s]erious
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`deficiencies have been found in the forensic evidence used
`in criminal trials. . . . One study of cases in which exon-
`erating evidence resulted in the overturning of criminal
`convictions concluded that invalid forensic testimony
`contributed to the convictions in 60% of the cases.”
`
`Melendez-Diaz v. Massachusetts, 557 U. S. 305, 319 (2009)
`(citing Garrett & Neufeld, Invalid Forensic Science Testi-
`mony and Wrongful Convictions, 95 Va. L. Rev. 1, 14
`
`
`
`
`
`
`

`
`14
`
`
`
`
` HINTON v. ALABAMA
`
`
`Per Curiam
`(2009)). This threat is minimized when the defense re-
`tains a competent expert to counter the testimony of the
`prosecution’s expert witnesses; it is maximized when the
`defense instead fails to understand the resources available
`to it by law.
`
`Because no court has yet evaluated the prejudice ques-
`tion by applying the proper inquiry to the facts of this
`case, we remand the case for reconsideration of whether
`Hinton’s attorney’s deficient performance was prejudicial
`under Strickland.
`
`
`
`
`
`*
`*
`*
`
`The petition for certiorari and Hinton’s motion for leave
`to proceed in forma pauperis are granted, the judgment of
`the Court of Criminal Appeals of Alabama is vacated, and
`the case is remanded for further proceedings not incon-
`sistent with this opinion.
`
`
`It is so ordered.