We will hear argument this morning in case 22, 982, Thornel v. Jones.

Mr. Lewis?

Thank you, Mr. Chief Justice, and may it please the Court.

The Ninth Circuit erred in two critical ways.

First, it failed to give any deference to the District Court's factual determinations.

After hearing the evidence and testimony at the evidentiary hearing, the

District Court made factual findings as to whether Jones suffered from specific mental

conditions and whether those conditions caused him to murder Robert and Tisha Weaver.

The Ninth Circuit disregarded those findings, instead substituting its own judgment.

My friend defends this error by

positing that the district court's only rule was to determine whether unprecedented mitigation

evidence existed. This view eviscerates the traditional role of trial courts in the

fact-finding process and will radically change habeas practice, resulting in far more

ritz undoing state sentences.

The Ninth Circuit further erred by failing to meaningfully consider the aggravating evidence or its weight.

Strickland does not allow for a sentence to be undone whenever there is some new mitigation that addresses moral culpability.

Instead, it requires a reasonable probability that the new mitigation would, if change of sentence in light of the balance between the total mitigation and the aggravating evidence.

The Ninth Circuit's approach is contrary to this longstanding test and must be rejected.

I urge this Court to reverse the Ninth Circuit's judgment, clarify the applicability of clear error review in the Strickland context,

and reaffirm the principle that a Strickland prejudice determination requires a reviewing court to re-weigh both the total mitigation and the aggravation.

I welcome the Court's questions.

Can we resolve this simply by saying that de novo review is improper?

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