(Slip Opinion)              OCTOBER TERM, 2011                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

                            LAFLER v. COOPER

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                  THE SIXTH CIRCUIT

    No. 10–209.      Argued October 31, 2011—Decided March 21, 2012
Respondent was charged under Michigan law with assault with intent
  to murder and three other offenses. The prosecution offered to dis­
  miss two of the charges and to recommend a 51-to-85-month sentence
  on the other two, in exchange for a guilty plea. In a communication
  with the court, respondent admitted his guilt and expressed a will­
  ingness to accept the offer. But he rejected the offer, allegedly after
  his attorney convinced him that the prosecution would be unable to
  establish intent to murder because the victim had been shot below
  the waist. At trial, respondent was convicted on all counts and re­
  ceived a mandatory minimum 185-to-360-month sentence. In a sub­
  sequent hearing, the state trial court rejected respondent’s claim that
  his attorney’s advice to reject the plea constituted ineffective assis­
  tance. The Michigan Court of Appeals affirmed, rejecting the ineffec­
  tive-assistance claim on the ground that respondent knowingly and
  intelligently turned down the plea offer and chose to go to trial. Re­
  spondent renewed his claim in federal habeas. Finding that the state
  appellate court had unreasonably applied the constitutional effective­
  assistance standards laid out in Strickland v. Washington, 466 U. S.
  668, and Hill v. Lockhart, 474 U. S. 52, the District Court granted a
  conditional writ and ordered specific performance of the original plea
  offer. The Sixth Circuit affirmed. Applying Strickland, it found that
  counsel had provided deficient performance by advising respondent of
  an incorrect legal rule, and that respondent suffered prejudice be­
  cause he lost the opportunity to take the more favorable sentence of­
  fered in the plea.
Held:
    1. Where counsel’s ineffective advice led to an offer’s rejection, and
 where the prejudice alleged is having to stand trial, a defendant must
2                           LAFLER v. COOPER

                                  Syllabus

    show that but for the ineffective advice, there is a reasonable proba­
    bility that the plea offer would have been presented to the court, that
    the court would have accepted its terms, and that the conviction or
    sentence, or both, under the offer’s terms would have been less severe
    than under the actual judgment and sentence imposed. Pp. 3–11.
         (a) Because the parties agree that counsel’s performance was de­
    ficient, the only question is how to apply Strickland’s prejudice test
    where ineffective assistance results in a rejection of the plea offer and
    the defendant is convicted at the ensuing trial. Pp. 3–4.
         (b) In that context, the Strickland prejudice test requires a de­
    fendant to show a reasonable possibility that the outcome of the plea
    process would have been different with competent advice. The Sixth
    Circuit and other federal appellate courts have agreed with the
    Strickland prejudice test for rejected pleas adopted here by this
    Court. Petitioner and the Solicitor General propose a narrow view—
    that Strickland prejudice cannot arise from plea bargaining if the de­
    fendant is later convicted at a fair trial—but their reasoning is un­
    persuasive. First, they claim that the Sixth Amendment’s sole pur­
    pose is to protect the right to a fair trial, but the Amendment actually
    requires effective assistance at critical stages of a criminal proceed­
    ing, including pretrial stages. This is consistent with the right to ef­
    fective assistance on appeal, see, e.g., Halbert v. Michigan, 545 U. S.
    605, and the right to counsel during sentencing, see, e.g., Glover v.
    United States, 531 U. S. 198, 203–204. This Court has not followed a
    rigid rule that an otherwise fair trial remedies errors not occurring at
    trial, but has instead inquired whether the trial cured the particular
    error at issue. See, e.g., Vasquez v. Hillery, 474 U. S. 254, 263. Se­
    cond, this Court has previously rejected petitioner’s argument that
    Lockhart v. Fretwell, 506 U. S. 364, modified Strickland and does so
    again here. Fretwell and Nix v. Whiteside, 475 U. S. 157, demon­
    strate that “it would be unjust to characterize the likelihood of a dif­
    ferent outcome as legitimate ‘prejudice,’ ” Williams v. Taylor, 529
    U. S. 362, 391–392, where defendants would receive a windfall as a
    result of the application of an incorrect legal principle or a defense
    strategy outside the law. Here, however, respondent seeks relief
    from counsel’s failure to meet a valid legal standard. Third, petition­
    er seeks to preserve the conviction by arguing that the Sixth
    Amendment’s purpose is to ensure a conviction’s reliability, but this
    argument fails to comprehend the full scope of the Sixth Amendment
    and is refuted by precedent. Here, the question is the fairness or re­
    liability not of the trial but of the processes that preceded it, which
    caused respondent to lose benefits he would have received but for
    counsel’s ineffective assistance. Furthermore, a reliable trial may not
    foreclose relief when counsel has failed to assert rights that may have
                   Cite as: 566 U. S. ____ (2012)                      3

                              Syllabus

altered the outcome. See Kimmelman v. Morrison, 477 U. S. 365,
379. Petitioner’s position that a fair trial wipes clean ineffective as­
sistance during plea bargaining also ignores the reality that criminal
justice today is for the most part a system of pleas, not a system of
trials. See Missouri v. Frye, ante, at ___. Pp. 4–11.
   2. Where a defendant shows ineffective assistance has caused the
rejection of a plea leading to a more severe sentence at trial, the rem­
edy must “neutralize the taint” of a constitutional violation, United
States v. Morrison, 449 U. S. 361, 365, but must not grant a windfall
to the defendant or needlessly squander the resources the State
properly invested in the criminal prosecution, see United States v.
Mechanik, 475 U. S. 66, 72. If the sole advantage is that the defend­
ant would have received a lesser sentence under the plea, the court
should have an evidentiary hearing to determine whether the de­
fendant would have accepted the plea. If so, the court may exercise
discretion in determining whether the defendant should receive the
term offered in the plea, the sentence received at trial, or something
in between. However, resentencing based on the conviction at trial
may not suffice, e.g., where the offered guilty plea was for less serious
counts than the ones for which a defendant was convicted after trial,
or where a mandatory sentence confines a judge’s sentencing discre­
tion. In these circumstances, the proper remedy may be to require
the prosecution to reoffer the plea. The judge can then exercise dis­
cretion in deciding whether to vacate the conviction from trial and
accept the plea, or leave the conviction undisturbed. In either situa­
tion, a court must weigh various factors. Here, it suffices to give two
relevant considerations. First, a court may take account of a defend­
ant’s earlier expressed willingness, or unwillingness, to accept re­
sponsibility for his or her actions. Second, it is not necessary here to
decide as a constitutional rule that a judge is required to disregard
any information concerning the crime discovered after the plea offer
was made. Petitioner argues that implementing a remedy will open
the floodgates to litigation by defendants seeking to unsettle their
convictions, but in the 30 years that courts have recognized such
claims, there has been no indication that the system is overwhelmed
or that defendants are receiving windfalls as a result of strategically
timed Strickland claims. In addition, the prosecution and trial courts
may adopt measures to help ensure against meritless claims. See
Frye, ante, at ___. Pp. 11–14.
   3. This case arises under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), but because the Michigan Court of Ap­
peals’ analysis of respondent’s ineffective-assistance-of-counsel claim
was contrary to clearly established federal law, AEDPA presents no
bar to relief. Respondent has satisfied Strickland’s two-part test.
4                           LAFLER v. COOPER

                                  Syllabus

    The parties concede the fact of deficient performance. And respond­
    ent has shown that but for that performance there is a reasonable
    probability he and the trial court would have accepted the guilty plea.
    In addition, as a result of not accepting the plea and being convicted
    at trial, he received a minimum sentence 3½ times greater than he
    would have received under the plea. As a remedy, the District Court
    ordered specific performance of the plea agreement, but the correct
    remedy is to order the State to reoffer the plea. If respondent accepts
    the offer, the state trial court can exercise its discretion in determin­
    ing whether to vacate respondent’s convictions and resentence pur­
    suant to the plea agreement, to vacate only some of the convictions
    and resentence accordingly, or to leave the conviction and sentence
    resulting from the trial undisturbed. Pp. 14–16.
376 Fed. Appx. 563, vacated and remanded.

   KENNEDY, J., delivered the opinion of the Court, in which GINSBURG,
BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dissent­
ing opinion, in which THOMAS, J., joined, and in which ROBERTS, C. J.,
joined as to all but Part IV. ALITO, J., filed a dissenting opinion.
                        Cite as: 566 U. S. ____ (2012)                              1

                             Opinion of the Court

     NOTICE: This opinion is subject to formal revision before publication in the
     preliminary print of the United States Reports. Readers are requested to
     notify the Reporter of Decisions, Supreme Court of the United States, Wash­
     ington, D. C. 20543, of any typographical or other formal errors, in order
     that corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
                                   _________________

                                   No. 10–209
                                   _________________


BLAINE LAFLER, PETITIONER v. ANTHONY COOPER
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

            APPEALS FOR THE SIXTH CIRCUIT

                                [March 21, 2012]


  JUSTICE KENNEDY delivered the opinion of the Court.
  In this case, as in Missouri v. Frye, ante, p. ___, also
decided today, a criminal defendant seeks a remedy when
inadequate assistance of counsel caused nonacceptance of
a plea offer and further proceedings led to a less favorable
outcome. In Frye, defense counsel did not inform the
defendant of the plea offer; and after the offer lapsed the
defendant still pleaded guilty, but on more severe terms.
Here, the favorable plea offer was reported to the client
but, on advice of counsel, was rejected. In Frye there was
a later guilty plea. Here, after the plea offer had been
rejected, there was a full and fair trial before a jury. After
a guilty verdict, the defendant received a sentence harsher
than that offered in the rejected plea bargain. The instant
case comes to the Court with the concession that counsel’s
advice with respect to the plea offer fell below the stand­
ard of adequate assistance of counsel guaranteed by the
Sixth Amendment, applicable to the States through the
Fourteenth Amendment.
                           I
  On the evening of March 25, 2003, respondent pointed a
gun toward Kali Mundy’s head and fired. From the rec­
2                    LAFLER v. COOPER

                     Opinion of the Court

ord, it is unclear why respondent did this, and at trial it
was suggested that he might have acted either in self­
defense or in defense of another person. In any event the
shot missed and Mundy fled. Respondent followed in pur-
suit, firing repeatedly. Mundy was shot in her buttock,
hip, and abdomen but survived the assault.
   Respondent was charged under Michigan law with as-
sault with intent to murder, possession of a firearm by a
felon, possession of a firearm in the commission of a fel-
ony, misdemeanor possession of marijuana, and for being a
habitual offender. On two occasions, the prosecution
offered to dismiss two of the charges and to recommend a
sentence of 51 to 85 months for the other two, in exchange
for a guilty plea. In a communication with the court re­
spondent admitted guilt and expressed a willingness to
accept the offer. Respondent, however, later rejected the
offer on both occasions, allegedly after his attorney con­
vinced him that the prosecution would be unable to estab­
lish his intent to murder Mundy because she had been
shot below the waist. On the first day of trial the prosecu­
tion offered a significantly less favorable plea deal, which
respondent again rejected. After trial, respondent was
convicted on all counts and received a mandatory mini­
mum sentence of 185 to 360 months’ imprisonment.
   In a so-called Ginther hearing before the state trial
court, see People v. Ginther, 390 Mich. 436, 212 N. W. 2d
922 (1973), respondent argued his attorney’s advice to
reject the plea constituted ineffective assistance. The trial
judge rejected the claim, and the Michigan Court of Ap­
peals affirmed. People v. Cooper, No. 250583, 2005 WL
599740 (Mar. 15, 2005) (per curiam), App. to Pet. for Cert.
44a. The Michigan Court of Appeals rejected the claim
of ineffective assistance of counsel on the ground that re-
spondent knowingly and intelligently rejected two plea
offers and chose to go to trial. The Michigan Supreme
Court denied respondent’s application for leave to file an
                 Cite as: 566 U. S. ____ (2012)            3

                     Opinion of the Court

appeal. People v. Cooper, 474 Mich. 905, 705 N. W. 2d 118
(2005) (table).
  Respondent then filed a petition for federal habeas relief
under 28 U. S. C. §2254, renewing his ineffective­
assistance-of-counsel claim. After finding, as required by
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), that the Michigan Court of Appeals had un-
reasonably applied the constitutional standards for effective
assistance of counsel laid out in Strickland v. Washington,
466 U. S. 668 (1984), and Hill v. Lockhart, 474 U. S. 52
(1985), the District Court granted a conditional writ.
Cooper v. Lafler, No. 06–11068, 2009 WL 817712, *10 (ED
Mich., Mar. 26, 2009), App. to Pet. for Cert. 41a–42a. To
remedy the violation, the District Court ordered “specific
performance of [respondent’s] original plea agreement, for
a minimum sentence in the range of fifty-one to eighty-five
months.” Id., at *9, App. to Pet. for Cert. 41a.
  The United States Court of Appeals for the Sixth Circuit
affirmed, 376 Fed. Appx. 563 (2010), finding “[e]ven full
deference under AEDPA cannot salvage the state court’s
decision,” id., at 569. Applying Strickland, the Court of
Appeals found that respondent’s attorney had provided
deficient performance by informing respondent of “an
incorrect legal rule,” 376 Fed. Appx., at 570–571, and that
respondent suffered prejudice because he “lost out on an
opportunity to plead guilty and receive the lower sentence
that was offered to him.” Id., at 573. This Court granted
certiorari. 562 U. S. ___ (2011).
                              II

                              A

  Defendants have a Sixth Amendment right to counsel,
a right that extends to the plea-bargaining process. Frye,
ante, at 8; see also Padilla v. Kentucky, 559 U. S. ___, ___
(2010) (slip op., at 16); Hill, supra, at 57. During plea
negotiations defendants are “entitled to the effective assis­
4                     LAFLER v. COOPER

                       Opinion of the Court

tance of competent counsel.” McMann v. Richardson, 397
U. S. 759, 771 (1970). In Hill, the Court held “the two­
part Strickland v. Washington test applies to challenges to
guilty pleas based on ineffective assistance of counsel.”
474 U. S., at 58. The performance prong of Strickland
requires a defendant to show “ ‘that counsel’s representa­
tion fell below an objective standard of reasonableness.’ ”
474 U. S., at 57 (quoting Strickland, 466 U. S., at 688). In
this case all parties agree the performance of respondent’s
counsel was deficient when he advised respondent to reject
the plea offer on the grounds he could not be convicted at
trial. In light of this concession, it is unnecessary for this
Court to explore the issue.
   The question for this Court is how to apply Strickland’s
prejudice test where ineffective assistance results in a re-
jection of the plea offer and the defendant is convicted at
the ensuing trial.
                               B
   To establish Strickland prejudice a defendant must
“show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceed­
ing would have been different.” Id., at 694. In the context
of pleas a defendant must show the outcome of the plea
process would have been different with competent advice.
See Frye, ante, at 12 (noting that Strickland’s inquiry, as
applied to advice with respect to plea bargains, turns on
“whether ‘the result of the proceeding would have been
different’ ” (quoting Strickland, supra, at 694)); see also
Hill, 474 U. S., at 59 (“The . . . ‘prejudice,’ requirement . . .
focuses on whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process”). In
Hill, when evaluating the petitioner’s claim that ineffec­
tive assistance led to the improvident acceptance of a
guilty plea, the Court required the petitioner to show “that
there is a reasonable probability that, but for counsel’s
                  Cite as: 566 U. S. ____ (2012)            5

                      Opinion of the Court

errors, [the defendant] would not have pleaded guilty and
would have insisted on going to trial.” Ibid.
   In contrast to Hill, here the ineffective advice led not to
an offer’s acceptance but to its rejection. Having to stand
trial, not choosing to waive it, is the prejudice alleged. In
these circumstances a defendant must show that but for
the ineffective advice of counsel there is a reasonable prob-
ability that the plea offer would have been presented
to the court (i.e., that the defendant would have accepted
the plea and the prosecution would not have withdrawn it
in light of intervening circumstances), that the court
would have accepted its terms, and that the conviction or
sentence, or both, under the offer’s terms would have been
less severe than under the judgment and sentence that in
fact were imposed. Here, the Court of Appeals for the
Sixth Circuit agreed with that test for Strickland preju­
dice in the context of a rejected plea bargain. This is
consistent with the test adopted and applied by other
appellate courts without demonstrated difficulties or
systemic disruptions. See 376 Fed. Appx., at 571–573; see
also, e.g., United States v. Rodriguez Rodriguez, 929 F. 2d
747, 753, n. 1 (CA1 1991) (per curiam); United States v.
Gordon, 156 F. 3d 376, 380–381 (CA2 1998) (per curiam);
United States v. Day, 969 F. 2d 39, 43–45 (CA3 1992);
Beckham v. Wainwright, 639 F. 2d 262, 267 (CA5 1981);
Julian v. Bartley, 495 F. 3d 487, 498–500 (CA7 2007);
Wanatee v. Ault, 259 F. 3d 700, 703–704 (CA8 2001);
Nunes v. Mueller, 350 F. 3d 1045, 1052–1053 (CA9 2003);
Williams v. Jones, 571 F. 3d 1086, 1094–1095 (CA10 2009)
(per curiam); United States v. Gaviria, 116 F. 3d 1498,
1512–1514 (CADC 1997) (per curiam).
   Petitioner and the Solicitor General propose a different,
far more narrow, view of the Sixth Amendment. They
contend there can be no finding of Strickland prejudice
arising from plea bargaining if the defendant is later
convicted at a fair trial. The three reasons petitioner and
6                     LAFLER v. COOPER

                      Opinion of the Court

the Solicitor General offer for their approach are unper­
suasive.
   First, petitioner and the Solicitor General claim that
the sole purpose of the Sixth Amendment is to protect the
right to a fair trial. Errors before trial, they argue, are not
cognizable under the Sixth Amendment unless they affect
the fairness of the trial itself. See Brief for Petitioner 12–
21; Brief for United States as Amicus Curiae 10–12. The
Sixth Amendment, however, is not so narrow in its reach.
Cf. Frye, ante, at 11 (holding that a defendant can show
prejudice under Strickland even absent a showing that the
deficient performance precluded him from going to trial).
The Sixth Amendment requires effective assistance of
counsel at critical stages of a criminal proceeding. Its
protections are not designed simply to protect the trial,
even though “counsel’s absence [in these stages] may
derogate from the accused’s right to a fair trial.” United
States v. Wade, 388 U. S. 218, 226 (1967). The constitu­
tional guarantee applies to pretrial critical stages that are
part of the whole course of a criminal proceeding, a pro­
ceeding in which defendants cannot be presumed to make
critical decisions without counsel’s advice. This is con­
sistent, too, with the rule that defendants have a right to
effective assistance of counsel on appeal, even though that
cannot in any way be characterized as part of the trial.
See, e.g., Halbert v. Michigan, 545 U. S. 605 (2005); Evitts
v. Lucey, 469 U. S. 387 (1985). The precedents also estab­
lish that there exists a right to counsel during sentencing
in both noncapital, see Glover v. United States, 531 U. S.
198, 203–204 (2001); Mempa v. Rhay, 389 U. S. 128
(1967), and capital cases, see Wiggins v. Smith, 539 U. S.
510, 538 (2003). Even though sentencing does not concern
the defendant’s guilt or innocence, ineffective assistance of
counsel during a sentencing hearing can result in Strick-
land prejudice because “any amount of [additional] jail
time has Sixth Amendment significance.” Glover, supra,
                 Cite as: 566 U. S. ____ (2012)            7

                     Opinion of the Court

at 203.
   The Court, moreover, has not followed a rigid rule that
an otherwise fair trial remedies errors not occurring at the
trial itself. It has inquired instead whether the trial cured
the particular error at issue. Thus, in Vasquez v. Hillery,
474 U. S. 254 (1986), the deliberate exclusion of all
African-Americans from a grand jury was prejudicial be-
cause a defendant may have been tried on charges that
would not have been brought at all by a properly constituted
grand jury. Id., at 263; see Ballard v. United States, 329
U. S. 187, 195 (1946) (dismissing an indictment returned
by a grand jury from which women were excluded); see
also Stirone v. United States, 361 U. S. 212, 218–219
(1960) (reversing a defendant’s conviction because the jury
may have based its verdict on acts not charged in the
indictment). By contrast, in United States v. Mechanik,
475 U. S. 66 (1986), the complained-of error was a viola­
tion of a grand jury rule meant to ensure probable cause
existed to believe a defendant was guilty. A subsequent
trial, resulting in a verdict of guilt, cured this error. See
id., at 72–73.
   In the instant case respondent went to trial rather than
accept a plea deal, and it is conceded this was the result of
ineffective assistance during the plea negotiation process.
Respondent received a more severe sentence at trial, one
3½ times more severe than he likely would have received
by pleading guilty. Far from curing the error, the trial
caused the injury from the error. Even if the trial itself is
free from constitutional flaw, the defendant who goes to
trial instead of taking a more favorable plea may be preju­
diced from either a conviction on more serious counts or
the imposition of a more severe sentence.
   Second, petitioner claims this Court refined Strickland’s
prejudice analysis in Fretwell to add an additional re­
quirement that the defendant show that ineffective assis­
tance of counsel led to his being denied a substantive or
8                    LAFLER v. COOPER

                      Opinion of the Court

procedural right. Brief for Petitioner 12–13. The Court
has rejected the argument that Fretwell modified Strick-
land before and does so again now. See Williams v. Tay-
lor, 529 U. S. 362, 391 (2000) (“The Virginia Supreme
Court erred in holding that our decision in Lockhart v.
Fretwell, 506 U. S. 364 (1993), modified or in some way
supplanted the rule set down in Strickland”); see also
Glover, supra, at 203 (“The Court explained last Term [in
Williams] that our holding in Lockhart does not supplant
the Strickland analysis”).
   Fretwell could not show Strickland prejudice resulting
from his attorney’s failure to object to the use of a sentenc­
ing factor the Eighth Circuit had erroneously (and tempo­
rarily) found to be impermissible. Fretwell, 506 U. S., at
373. Because the objection upon which his ineffective­
assistance-of-counsel claim was premised was meritless,
Fretwell could not demonstrate an error entitling him to
relief. The case presented the “unusual circumstance
where the defendant attempts to demonstrate prejudice
based on considerations that, as a matter of law, ought not
inform the inquiry.” Ibid. (O’Connor, J., concurring). See
also ibid. (recognizing “[t]he determinative question—
whether there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceed­
ing would have been different—remains unchanged” (in­
ternal quotation marks and citation omitted)). It is for
this same reason a defendant cannot show prejudice based
on counsel’s refusal to present perjured testimony, even if
such testimony might have affected the outcome of the
case. See Nix v. Whiteside, 475 U. S. 157, 175 (1986)
(holding first that counsel’s refusal to present perjured
testimony breached no professional duty and second that
it cannot establish prejudice under Strickland).
   Both Fretwell and Nix are instructive in that they
demonstrate “there are also situations in which it would
be unjust to characterize the likelihood of a different
                  Cite as: 566 U. S. ____ (2012)            9

                      Opinion of the Court

outcome as legitimate ‘prejudice,’ ” Williams, supra, at
391–392, because defendants would receive a windfall as a
result of the application of an incorrect legal principle or
a defense strategy outside the law. Here, however, the
injured client seeks relief from counsel’s failure to meet a
valid legal standard, not from counsel’s refusal to violate
it. He maintains that, absent ineffective counsel, he would
have accepted a plea offer for a sentence the prosecution
evidently deemed consistent with the sound administra­
tion of criminal justice. The favorable sentence that elud­
ed the defendant in the criminal proceeding appears to be
the sentence he or others in his position would have re­
ceived in the ordinary course, absent the failings of coun­
sel. See Bibas, Regulating the Plea-Bargaining Market:
From Caveat Emptor to Consumer Protection, 99 Cal. L.
Rev. 1117, 1138 (2011) (“The expected post-trial sentence
is imposed in only a few percent of cases. It is like the
sticker price for cars: only an ignorant, ill-advised con­
sumer would view full price as the norm and anything less
a bargain”); see also Frye, ante, at 7–8. If a plea bargain
has been offered, a defendant has the right to effective
assistance of counsel in considering whether to accept it.
If that right is denied, prejudice can be shown if loss of the
plea opportunity led to a trial resulting in a conviction on
more serious charges or the imposition of a more severe
sentence.
   It is, of course, true that defendants have “no right to be
offered a plea . . . nor a federal right that the judge accept
it.” Frye, ante, at 12. In the circumstances here, that is
beside the point. If no plea offer is made, or a plea deal
is accepted by the defendant but rejected by the judge, the
issue raised here simply does not arise. Much the same
reasoning guides cases that find criminal defendants have
a right to effective assistance of counsel in direct appeals
even though the Constitution does not require States to
provide a system of appellate review at all. See Evitts, 469
10                   LAFLER v. COOPER

                     Opinion of the Court

U. S. 387; see also Douglas v. California, 372 U. S. 353
(1963). As in those cases, “[w]hen a State opts to act in a
field where its action has significant discretionary ele­
ments, it must nonetheless act in accord with the dictates
of the Constitution.” Evitts, supra, at 401.
   Third, petitioner seeks to preserve the conviction ob­
tained by the State by arguing that the purpose of the
Sixth Amendment is to ensure “the reliability of [a] convic­
tion following trial.” Brief for Petitioner 13. This argu­
ment, too, fails to comprehend the full scope of the Sixth
Amendment’s protections; and it is refuted by precedent.
Strickland recognized “[t]he benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having pro­
duced a just result.” 466 U. S., at 686. The goal of a just
result is not divorced from the reliability of a conviction,
see United States v. Cronic, 466 U. S. 648, 658 (1984); but
here the question is not the fairness or reliability of the
trial but the fairness and regularity of the processes that
preceded it, which caused the defendant to lose benefits he
would have received in the ordinary course but for coun­
sel’s ineffective assistance.
   There are instances, furthermore, where a reliable trial
does not foreclose relief when counsel has failed to assert
rights that may have altered the outcome. In Kimmelman
v. Morrison, 477 U. S. 365 (1986), the Court held that an
attorney’s failure to timely move to suppress evidence
during trial could be grounds for federal habeas relief.
The Court rejected the suggestion that the “failure to
make a timely request for the exclusion of illegally seized
evidence” could not be the basis for a Sixth Amendment
violation because the evidence “is ‘typically reliable and
often the most probative information bearing on the guilt
or innocence of the defendant.’ ” Id., at 379 (quoting Stone
v. Powell, 428 U. S. 465, 490 (1976)). “The constitutional
                 Cite as: 566 U. S. ____ (2012)           11

                     Opinion of the Court

rights of criminal defendants,” the Court observed, “are
granted to the innocent and the guilty alike. Consequent­
ly, we decline to hold either that the guarantee of effective
assistance of counsel belongs solely to the innocent or that
it attaches only to matters affecting the determination of
actual guilt.” 477 U. S., at 380. The same logic applies
here. The fact that respondent is guilty does not mean
he was not entitled by the Sixth Amendment to effective
assistance or that he suffered no prejudice from his attor­
ney’s deficient performance during plea bargaining.
   In the end, petitioner’s three arguments amount to one
general contention: A fair trial wipes clean any deficient
performance by defense counsel during plea bargaining.
That position ignores the reality that criminal justice
today is for the most part a system of pleas, not a system
of trials. Ninety-seven percent of federal convictions and
ninety-four percent of state convictions are the result of
guilty pleas. See Frye, ante, at 7. As explained in Frye,
the right to adequate assistance of counsel cannot be
defined or enforced without taking account of the central
role plea bargaining plays in securing convictions and
determining sentences. Ibid. (“[I]t is insufficient simply
to point to the guarantee of a fair trial as a backstop that
inoculates any errors in the pretrial process”).
                            C
  Even if a defendant shows ineffective assistance of
counsel has caused the rejection of a plea leading to a trial
and a more severe sentence, there is the question of what
constitutes an appropriate remedy. That question must
now be addressed.
  Sixth Amendment remedies should be “tailored to the
injury suffered from the constitutional violation and
should not unnecessarily infringe on competing interests.”
United States v. Morrison, 449 U. S. 361, 364 (1981).
Thus, a remedy must “neutralize the taint” of a constitu­
12                    LAFLER v. COOPER

                      Opinion of the Court

tional violation, id., at 365, while at the same time not
grant a windfall to the defendant or needlessly squander
the considerable resources the State properly invested in
the criminal prosecution. See Mechanik, 475 U. S., at 72
(“The reversal of a conviction entails substantial social
costs: it forces jurors, witnesses, courts, the prosecution,
and the defendants to expend further time, energy, and
other resources to repeat a trial that has already once
taken place; victims may be asked to relive their disturb­
ing experiences”).
   The specific injury suffered by defendants who decline a
plea offer as a result of ineffective assistance of counsel
and then receive a greater sentence as a result of trial can
come in at least one of two forms. In some cases, the sole
advantage a defendant would have received under the plea
is a lesser sentence. This is typically the case when the
charges that would have been admitted as part of the plea
bargain are the same as the charges the defendant was
convicted of after trial. In this situation the court may
conduct an evidentiary hearing to determine whether the
defendant has shown a reasonable probability that but for
counsel’s errors he would have accepted the plea. If the
showing is made, the court may exercise discretion in
determining whether the defendant should receive the
term of imprisonment the government offered in the plea,
the sentence he received at trial, or something in between.
   In some situations it may be that resentencing alone
will not be full redress for the constitutional injury. If, for
example, an offer was for a guilty plea to a count or counts
less serious than the ones for which a defendant was
convicted after trial, or if a mandatory sentence confines a
judge’s sentencing discretion after trial, a resentencing
based on the conviction at trial may not suffice. See, e.g.,
Williams, 571 F. 3d, at 1088; Riggs v. Fairman, 399 F. 3d
1179, 1181 (CA9 2005). In these circumstances, the
proper exercise of discretion to remedy the constitutional
                 Cite as: 566 U. S. ____ (2012)           13

                     Opinion of the Court

injury may be to require the prosecution to reoffer the plea
proposal. Once this has occurred, the judge can then
exercise discretion in deciding whether to vacate the con­
viction from trial and accept the plea or leave the convic­
tion undisturbed.
   In implementing a remedy in both of these situations,
the trial court must weigh various factors; and the bound­
aries of proper discretion need not be defined here. Prin­
ciples elaborated over time in decisions of state and feder­
al courts, and in statutes and rules, will serve to give more
complete guidance as to the factors that should bear upon
the exercise of the judge’s discretion. At this point, how­
ever, it suffices to note two considerations that are of
relevance.
   First, a court may take account of a defendant’s earlier
expressed willingness, or unwillingness, to accept respon­
sibility for his or her actions. Second, it is not necessary
here to decide as a constitutional rule that a judge is re-
quired to prescind (that is to say disregard) any infor­
mation concerning the crime that was discovered after the
plea offer was made. The time continuum makes it diffi­
cult to restore the defendant and the prosecution to the
precise positions they occupied prior to the rejection of the
plea offer, but that baseline can be consulted in finding a
remedy that does not require the prosecution to incur the
expense of conducting a new trial.
   Petitioner argues that implementing a remedy here will
open the floodgates to litigation by defendants seeking to
unsettle their convictions. See Brief for Petitioner 20.
Petitioner’s concern is misplaced. Courts have recognized
claims of this sort for over 30 years, see supra, at 5, and
yet there is no indication that the system is overwhelmed
by these types of suits or that defendants are receiving
windfalls as a result of strategically timed Strickland
claims. See also Padilla, 559 U. S., at ___ (slip op., at 14)
(“We confronted a similar ‘floodgates’ concern in Hill,” but
14                   LAFLER v. COOPER

                     Opinion of the Court

a “flood did not follow in that decision’s wake”). In addi­
tion, the “prosecution and the trial courts may adopt some
measures to help ensure against late, frivolous, or fabri­
cated claims after a later, less advantageous plea offer
has been accepted or after a trial leading to conviction.”
Frye, ante, at 10. See also ibid. (listing procedures cur­
rently used by various States). This, too, will help ensure
against meritless claims.
                             III
  The standards for ineffective assistance of counsel when
a defendant rejects a plea offer and goes to trial must now
be applied to this case. Respondent brings a federal col­
lateral challenge to a state-court conviction.         Under
AEDPA, a federal court may not grant a petition for a writ
of habeas corpus unless the state court’s adjudication on
the merits was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as deter­
mined by the Supreme Court of the United States.” 28
U. S. C. §2254(d)(1). A decision is contrary to clearly
established law if the state court “applies a rule that con-
tradicts the governing law set forth in [Supreme Court]
cases.” Williams v. Taylor, 529 U. S. 362, 405 (2000)
(opinion for the Court by O’Connor, J.). The Court of
Appeals for the Sixth Circuit could not determine whether
the Michigan Court of Appeals addressed respondent’s
ineffective-assistance-of-counsel claim or, if it did, “what
the court decided, or even whether the correct legal rule
was identified.” 376 Fed. Appx., at 568–569.
  The state court’s decision may not be quite so opaque as
the Court of Appeals for the Sixth Circuit thought, yet the
federal court was correct to note that AEDPA does not
present a bar to granting respondent relief. That is be­
cause the Michigan Court of Appeals identified respond­
ent’s ineffective-assistance-of-counsel claim but failed to
apply Strickland to assess it. Rather than applying
                 Cite as: 566 U. S. ____ (2012)         15

                     Opinion of the Court

Strickland, the state court simply found that respondent’s
rejection of the plea was knowing and voluntary. Cooper,
2005 WL 599740, *1, App. to Pet. for Cert. 45a. An in­
quiry into whether the rejection of a plea is knowing and
voluntary, however, is not the correct means by which to
address a claim of ineffective assistance of counsel. See
Hill, 474 U. S., at 370 (applying Strickland to assess a
claim of ineffective assistance of counsel arising out of
the plea negotiation process). After stating the incorrect
standard, moreover, the state court then made an irrele­
vant observation about counsel’s performance at trial and
mischaracterized respondent’s claim as a complaint that
his attorney did not obtain a more favorable plea bargain.
By failing to apply Strickland to assess the ineffective­
assistance-of-counsel claim respondent raised, the state
court’s adjudication was contrary to clearly established
federal law. And in that circumstance the federal courts
in this habeas action can determine the principles neces­
sary to grant relief. See Panetti v. Quarterman, 551 U. S.
930, 948 (2007).
   Respondent has satisfied Strickland’s two-part test.
Regarding performance, perhaps it could be accepted that
it is unclear whether respondent’s counsel believed re­
spondent could not be convicted for assault with intent to
murder as a matter of law because the shots hit Mundy
below the waist, or whether he simply thought this would
be a persuasive argument to make to the jury to show lack
of specific intent. And, as the Court of Appeals for the
Sixth Circuit suggested, an erroneous strategic prediction
about the outcome of a trial is not necessarily deficient
performance. Here, however, the fact of deficient perfor­
mance has been conceded by all parties. The case comes to
us on that assumption, so there is no need to address this
question.
   As to prejudice, respondent has shown that but for
counsel’s deficient performance there is a reasonable
16                   LAFLER v. COOPER

                      Opinion of the Court

probability he and the trial court would have accepted the
guilty plea. See 376 Fed. Appx., at 571–572. In addition,
as a result of not accepting the plea and being convicted at
trial, respondent received a minimum sentence 3½ times
greater than he would have received under the plea. The
standard for ineffective assistance under Strickland has
thus been satisfied.
   As a remedy, the District Court ordered specific perfor­
mance of the original plea agreement. The correct remedy
in these circumstances, however, is to order the State to
reoffer the plea agreement. Presuming respondent accepts
the offer, the state trial court can then exercise its discre­
tion in determining whether to vacate the convictions and
resentence respondent pursuant to the plea agreement, to
vacate only some of the convictions and resentence re­
spondent accordingly, or to leave the convictions and
sentence from trial undisturbed. See Mich. Ct. Rule
6.302(C)(3) (2011) (“If there is a plea agreement and its
terms provide for the defendant’s plea to be made in ex­
change for a specific sentence disposition or a prosecuto-
rial sentence recommendation, the court may . . . reject
the agreement”). Today’s decision leaves open to the trial
court how best to exercise that discretion in all the cir­
cumstances of the case.
   The judgment of the Court of Appeals for the Sixth
Circuit is vacated, and the case is remanded for further
proceedings consistent with this opinion.

                                             It is so ordered.
                 Cite as: 566 U. S. ____ (2012)             1

                     SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
                         _________________

                          No. 10–209
                         _________________


BLAINE LAFLER, PETITIONER v. ANTHONY COOPER
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

            APPEALS FOR THE SIXTH CIRCUIT

                       [March 21, 2012]


  JUSTICE SCALIA, with whom JUSTICE THOMAS joins, and
with whom THE CHIEF JUSTICE joins as to all but Part IV,
dissenting.
    “If a plea bargain has been offered, a defendant has
    the right to effective assistance of counsel in consider-
    ing whether to accept it. If that right is denied, preju-
    dice can be shown if loss of the plea opportunity led
    to a trial resulting in a conviction on more serious
    charges or the imposition of a more severe sentence.”
    Ante, at 9.
       “The inquiry then becomes how to define the duty
    and responsibilities of defense counsel in the plea bar-
    gain process. This is a difficult question. . . . Bargain-
    ing is, by its nature, defined to a substantial degree by
    personal style. . . . This case presents neither the ne-
    cessity nor the occasion to define the duties of defense
    counsel in those respects . . . .” Missouri v. Frye, ante,
    at 8.
  With those words from this and the companion case, the
Court today opens a whole new field of constitutionalized
criminal procedure: plea-bargaining law. The ordinary
criminal process has become too long, too expensive, and
unpredictable, in no small part as a consequence of an
intricate federal Code of Criminal Procedure imposed on
the States by this Court in pursuit of perfect justice. See
2                    LAFLER v. COOPER

                     SCALIA, J., dissenting

Friendly, The Bill of Rights as a Code of Criminal Proce­
dure, 53 Cal. L. Rev. 929 (1965). The Court now moves to
bring perfection to the alternative in which prosecutors
and defendants have sought relief. Today’s opinions deal
with only two aspects of counsel’s plea-bargaining in­
adequacy, and leave other aspects (who knows what they
might be?) to be worked out in further constitutional
litigation that will burden the criminal process. And it
would be foolish to think that “constitutional” rules gov­
erning counsel’s behavior will not be followed by rules
governing the prosecution’s behavior in the plea­
bargaining process that the Court today announces “ ‘is the
criminal justice system,’ ” Frye, ante, at 7 (quoting approv­
ingly from Scott & Stuntz, Plea Bargaining as Contract,
101 Yale L. J. 1909, 1912 (1992) (hereinafter Scott)). Is it
constitutional, for example, for the prosecution to with­
draw a plea offer that has already been accepted? Or to
withdraw an offer before the defense has had adequate
time to consider and accept it? Or to make no plea offer at
all, even though its case is weak—thereby excluding the
defendant from “the criminal justice system”?
   Anthony Cooper received a full and fair trial, was found
guilty of all charges by a unanimous jury, and was given
the sentence that the law prescribed. The Court nonethe­
less concludes that Cooper is entitled to some sort of ha­
beas corpus relief (perhaps) because his attorney’s allegedly
incompetent advice regarding a plea offer caused him to
receive a full and fair trial. That conclusion is foreclosed
by our precedents. Even if it were not foreclosed, the
constitutional right to effective plea-bargainers that it
establishes is at least a new rule of law, which does not
undermine the Michigan Court of Appeals’ decision and
therefore cannot serve as the basis for habeas relief. And
the remedy the Court announces—namely, whatever the
state trial court in its discretion prescribes, down to and
including no remedy at all—is unheard-of and quite ab­
                  Cite as: 566 U. S. ____ (2012)            3

                      SCALIA, J., dissenting

surd for violation of a constitutional right. I respectfully
dissent.
                               I
   This case and its companion, Missouri v. Frye, ante,
p. ___, raise relatively straightforward questions about the
scope of the right to effective assistance of counsel. Our
case law originally derived that right from the Due Pro­
cess Clause, and its guarantee of a fair trial, see United
States v. Gonzalez-Lopez, 548 U. S. 140, 147 (2006), but
the seminal case of Strickland v. Washington, 466 U. S.
668 (1984), located the right within the Sixth Amendment.
As the Court notes, ante, at 6, the right to counsel does not
begin at trial. It extends to “any stage of the prosecution,
formal or informal, in court or out, where counsel’s ab­
sence might derogate from the accused’s right to a fair
trial.” United States v. Wade, 388 U. S. 218, 226 (1967).
Applying that principle, we held that the “entry of a guilty
plea, whether to a misdemeanor or a felony charge, ranks
as a ‘critical stage’ at which the right to counsel adheres.”
Iowa v. Tovar, 541 U. S. 77, 81 (2004); see also Hill v.
Lockhart, 474 U. S. 52, 58 (1985). And it follows from this
that acceptance of a plea offer is a critical stage. That, and
nothing more, is the point of the Court’s observation in
Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at
16), that “the negotiation of a plea bargain is a critical
phase of litigation for purposes of the Sixth Amendment
right to effective assistance of counsel.” The defendant in
Padilla had accepted the plea bargain and pleaded guilty,
abandoning his right to a fair trial; he was entitled to
advice of competent counsel before he did so. The Court
has never held that the rule articulated in Padilla, Tovar,
and Hill extends to all aspects of plea negotiations, requir­
ing not just advice of competent counsel before the defend­
ant accepts a plea bargain and pleads guilty, but also the
advice of competent counsel before the defendant rejects a
4                        LAFLER v. COOPER

                         SCALIA, J., dissenting

plea bargain and stands on his constitutional right to a
fair trial. The latter is a vast departure from our past
cases, protecting not just the constitutionally prescribed
right to a fair adjudication of guilt and punishment, but a
judicially invented right to effective plea bargaining.
   It is also apparent from Strickland that bad plea bar­
gaining has nothing to do with ineffective assistance of
counsel in the constitutional sense. Strickland explained
that “[i]n giving meaning to the requirement [of effective
assistance], . . . we must take its purpose—to ensure a fair
trial—as the guide.” 466 U. S., at 686. Since “the right to
the effective assistance of counsel is recognized not for its
own sake, but because of the effect it has on the ability of
the accused to receive a fair trial,” United States v. Cronic,
466 U. S. 648, 658 (1984), the “benchmark” inquiry in
evaluating any claim of ineffective assistance is whether
counsel’s performance “so undermined the proper func­
tioning of the adversarial process” that it failed to produce
a reliably “just result.” Strickland, 466 U. S., at 686.
That is what Strickland’s requirement of “prejudice” con­
sists of: Because the right to effective assistance has as its
purpose the assurance of a fair trial, the right is not in­
fringed unless counsel’s mistakes call into question the
basic justice of a defendant’s conviction or sentence. That
has been, until today, entirely clear. A defendant must
show “that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is relia­
ble.” Id., at 687. See also Gonzalez-Lopez, supra, at 147.
Impairment of fair trial is how we distinguish between
unfortunate attorney error and error of constitutional
significance.1
——————
   1 Rather than addressing the constitutional origins of the right to

effective counsel, the Court responds to the broader claim (raised by no
one) that “the sole purpose of the Sixth Amendment is to protect the
right to a fair trial.” Ante, at 6 (emphasis added). Cf. Brief for United
States as Amicus Curiae 10–12 (arguing that the “purpose of the Sixth
                      Cite as: 566 U. S. ____ (2012)                     5

                          SCALIA, J., dissenting

  To be sure, Strickland stated a rule of thumb for meas­
uring prejudice which, applied blindly and out of context,
could support the Court’s holding today: “The defendant
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the pro­
ceeding would have been different.” 466 U. S., at 694.
Strickland itself cautioned, however, that its test was not
to be applied in a mechanical fashion, and that courts
were not to divert their “ultimate focus” from “the funda­
mental fairness of the proceeding whose result is being
challenged.” Id., at 696. And until today we have followed
that course.
  In Lockhart v. Fretwell, 506 U. S. 364 (1993), the defi­
cient performance at issue was the failure of counsel for a
defendant who had been sentenced to death to make an
objection that would have produced a sentence of life
——————
Amendment right to counsel is to secure a fair trial” (emphasis added));
Brief for Petitioner 12–21 (same). To destroy that straw man, the
Court cites cases in which violations of rights other than the right to
effective counsel—and, perplexingly, even rights found outside the
Sixth Amendment and the Constitution entirely—were not cured by a
subsequent trial. Vasquez v. Hillery, 474 U. S. 254 (1986) (violation of
equal protection in grand jury selection); Ballard v. United States, 329
U. S. 187 (1946) (violation of statutory scheme providing that women
serve on juries); Stirone v. United States, 361 U. S. 212 (1960) (violation
of Fifth Amendment right to indictment by grand jury). Unlike the
right to effective counsel, no showing of prejudice is required to make
violations of the rights at issue in Vasquez, Ballard, and Stirone com­
plete. See Vasquez, supra, at 263–264 (“[D]iscrimination in the grand
jury undermines the structural integrity of the criminal tribunal itself,
and is not amenable to harmless-error review”); Ballard, supra, at 195
(“[R]eversible error does not depend on a showing of prejudice in an
individual case”); Stirone, supra, at 217 (“Deprivation of such a basic
right is far too serious to be treated as nothing more than a variance
and then dismissed as harmless error”). Those cases are thus irrele­
vant to the question presented here, which is whether a defendant can
establish prejudice under Strickland v. Washington, 466 U. S. 668
(1984), while conceding the fairness of his conviction, sentence, and
appeal.
6                        LAFLER v. COOPER

                          SCALIA, J., dissenting

imprisonment instead. The objection was fully supported
by then-extant Circuit law, so that the sentencing court
would have been compelled to sustain it, producing a life
sentence that principles of double jeopardy would likely
make final. See id., at 383–385 (Stevens, J., dissenting);
Bullington v. Missouri, 451 U. S. 430 (1981). By the time
Fretwell’s claim came before us, however, the Circuit law
had been overruled in light of one of our cases. We deter­
mined that a prejudice analysis “focusing solely on mere
outcome determination, without attention to whether the
result of the proceeding was fundamentally unfair or
unreliable,” would be defective. Fretwell, 506 U. S., at
369. Because counsel’s error did not “deprive the defend­
ant of any substantive or procedural right to which the
law entitles him,” the defendant’s sentencing proceeding
was fair and its result was reliable, even though counsel’s
error may have affected its outcome. Id., at 372. In Wil-
liams v. Taylor, 529 U. S. 362, 391–393 (2000), we ex­
plained that even though Fretwell did not mechanically
apply an outcome-based test for prejudice, its reasoning
was perfectly consistent with Strickland. “Fretwell’s
counsel had not deprived him of any substantive or pro­
cedural right to which the law entitled him.” 529 U. S.
at 392.2
——————
   2 Kimmelman v. Morrison, 477 U. S. 365 (1986), cited by the Court,

ante, at 10–11, does not contradict this principle. That case, which
predated Fretwell and Williams, considered whether our holding that
Fourth Amendment claims fully litigated in state court cannot be
raised in federal habeas “should be extended to Sixth Amendment
claims of ineffective assistance of counsel where the principal allegation
and manifestation of inadequate representation is counsel’s failure to
file a timely motion to suppress evidence allegedly obtained in violation
of the Fourth Amendment.” 477 U. S., at 368. Our negative answer to
that question had nothing to do with the issue here. The parties in
Kimmelman had not raised the question “whether the admission of
illegally seized but reliable evidence can ever constitute ‘prejudice’
under Strickland”—a question similar to the one presented here—and
                      Cite as: 566 U. S. ____ (2012)                      7

                          SCALIA, J., dissenting

  Those precedents leave no doubt about the answer to
the question presented here. As the Court itself observes,
a criminal defendant has no right to a plea bargain. Ante,
at 9. “[T]here is no constitutional right to plea bargain;
the prosecutor need not do so if he prefers to go to trial.”
Weatherford v. Bursey, 429 U. S. 545, 561 (1977). Coun­
sel’s mistakes in this case thus did not “deprive the de­
fendant of a substantive or procedural right to which the
law entitles him,” Williams, supra, at 393. Far from be-
ing “beside the point,” ante, at 9, that is critical to correct
application of our precedents. Like Fretwell, this case
“concerns the unusual circumstance where the defendant
attempts to demonstrate prejudice based on considerations
that, as a matter of law, ought not inform the inquiry,”
506 U. S., at 373 (O’Connor, J., concurring); he claims
“that he might have been denied ‘a right the law simply
does not recognize,’ ” id., at 375 (same). Strickland,
Fretwell, and Williams all instruct that the pure outcome­
based test on which the Court relies is an erroneous
measure of cognizable prejudice. In ignoring Strickland’s
“ultimate focus . . . on the fundamental fairness of the
proceeding whose result is being challenged,” 466 U. S., at
696, the Court has lost the forest for the trees, leading it to
accept what we have previously rejected, the “novel argu­
ment that constitutional rights are infringed by trying the
defendant rather than accepting his plea of guilty.”
Weatherford, supra, at 561.
——————
the Court therefore did not address it. Id., at 391 (Powell, J., concur­
ring in judgment); see also id., at 380. Kimmelman made clear, how­
ever, how the answer to that question is to be determined: “The essence
of an ineffective-assistance claim is that counsel’s unprofessional errors
so upset the adversarial balance between defense and prosecution that
the trial was rendered unfair and the verdict rendered suspect,” id., at 374
(emphasis added). “Only those habeas petitioners who can prove under
Strickland that they have been denied a fair trial . . . will be granted the
writ,” id., at 382 (emphasis added). In short, Kimmelman’s only rele­
vance is to prove the Court’s opinion wrong.
8                   LAFLER v. COOPER 


                    SCALIA, J., dissenting 


                             II

   Novelty alone is the second, independent reason why the
Court’s decision is wrong. This case arises on federal
habeas, and hence is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). Since, as
the Court acknowledges, the Michigan Court of Appeals
adjudicated Cooper’s ineffective-assistance claim on the
merits, AEDPA bars federal courts from granting habeas
relief unless that court’s decision was “contrary to, or
involved an unreasonable application of, clearly estab­
lished Federal law, as determined by the Supreme Court
of the United States.” 28 U. S. C. §2254(d)(1). Yet the
Court concludes that §2254(d)(1) does not bar relief here,
because “[b]y failing to apply Strickland to assess the
ineffective-assistance-of-counsel claim respondent raised,
the state court’s adjudication was contrary to clearly
established federal law.” Ante, at 15. That is not so.
   The relevant portion of the Michigan Court of Appeals
decision reads as follows:
       “To establish ineffective assistance, the defendant
    must demonstrate that his counsel’s performance fell
    below an objective standard of reasonableness and
    that counsel’s representation so prejudiced the de­
    fendant that he was deprived of a fair trial. With
    respect to the prejudice aspect of the test, the defend-
    ant must demonstrate a reasonable probability that,
    but for counsel’s errors, the result of the proceed-
    ings would have been different, and that the at-
    tendant proceedings were fundamentally unfair and
    unreliable.
       “Defendant challenges the trial court’s finding after
    a Ginther hearing that defense counsel provided effec­
    tive assistance to defendant during the plea bargain­
    ing process. He contends that defense counsel failed
    to convey the benefits of the plea offer to him and ig­
    nored his desire to plead guilty, and that these fail­
                 Cite as: 566 U. S. ____ (2012)            9

                     SCALIA, J., dissenting

    ures led him to reject a plea offer that he now wishes
    to accept. However, the record shows that defendant
    knowingly and intelligently rejected two plea offers
    and chose to go to trial. The record fails to support de­
    fendant’s contentions that defense counsel’s represen­
    tation was ineffective because he rejected a defense
    based on [a] claim of self-defense and because he did
    not obtain a more favorable plea bargain for defend­
    ant.” People v. Cooper, No. 250583 (Mar. 15, 2005),
    App. to Pet. for Cert. 45a, 2005 WL 599740, *1
    (per curiam) (footnote and citations omitted).
   The first paragraph above, far from ignoring Strickland,
recites its standard with a good deal more accuracy than
the Court’s opinion. The second paragraph, which is
presumably an application of the standard recited in the
first, says that “defendant knowingly and intelligently
rejected two plea offers and chose to go to trial.” This can
be regarded as a denial that there was anything “funda­
mentally unfair” about Cooper’s conviction and sentence,
so that no Strickland prejudice had been shown. On the
other hand, the entire second paragraph can be regarded
as a contention that Cooper’s claims of inadequate repre­
sentation were unsupported by the record. The state
court’s analysis was admittedly not a model of clarity, but
federal habeas corpus is a “guard against extreme mal­
functions in the state criminal justice systems,” not a
license to penalize a state court for its opinion-writing
technique. Harrington v. Richter, 562 U. S. ___, ___ (2011)
(slip op., at 13) (internal quotation marks omitted). The
Court’s readiness to find error in the Michigan court’s
opinion is “inconsistent with the presumption that state
courts know and follow the law,” Woodford v. Visciotti, 537
U. S. 19, 24 (2002) (per curiam), a presumption borne out
here by the state court’s recitation of the correct legal
standard.
   Since it is ambiguous whether the state court’s holding
10                    LAFLER v. COOPER

                      SCALIA, J., dissenting

was based on a lack of prejudice or rather the court’s
factual determination that there had been no deficient
performance, to provide relief under AEDPA this Court
must conclude that both holdings would have been unrea­
sonable applications of clearly established law. See Premo
v. Moore, 562 U. S. ___, ___ (2011) (slip op., at 7). The first
is impossible of doing, since this Court has never held that
a defendant in Cooper’s position can establish Strickland
prejudice. The Sixth Circuit thus violated AEDPA in
granting habeas relief, and the Court now does the same.
                              III
   It is impossible to conclude discussion of today’s ex­
traordinary opinion without commenting upon the remedy
it provides for the unconstitutional conviction. It is a
remedy unheard-of in American jurisprudence—and, I
would be willing to bet, in the jurisprudence of any other
country.
   The Court requires Michigan to “reoffer the plea agree­
ment” that was rejected because of bad advice from coun­
sel. Ante, at 16. That would indeed be a powerful remedy—
but for the fact that Cooper’s acceptance of that re-
offered agreement is not conclusive. Astoundingly, “the
state trial court can then exercise its discretion in deter­
mining whether to vacate the convictions and resentence
respondent pursuant to the plea agreement, to vacate only
some of the convictions and resentence respondent accord­
ingly, or to leave the convictions and sentence from trial
undisturbed.” Ibid. (emphasis added).
   Why, one might ask, require a “reoffer” of the plea
agreement, and its acceptance by the defendant? If the
district court finds (as a necessary element, supposedly, of
Strickland prejudice) that Cooper would have accepted the
original offer, and would thereby have avoided trial and
conviction, why not skip the reoffer-and-reacceptance
minuet and simply leave it to the discretion of the state
                  Cite as: 566 U. S. ____ (2012)           11

                      SCALIA, J., dissenting

trial court what the remedy shall be? The answer, of
course, is camouflage. Trial courts, after all, regularly
accept or reject plea agreements, so there seems to be
nothing extraordinary about their accepting or rejecting
the new one mandated by today’s decision. But the ac­
ceptance or rejection of a plea agreement that has no
status whatever under the United States Constitution is
worlds apart from what this is: “discretionary” specifi­
cation of a remedy for an unconstitutional criminal
conviction.
   To be sure, the Court asserts that there are “factors”
which bear upon (and presumably limit) exercise of this
discretion—factors that it is not prepared to specify in full,
much less assign some determinative weight. “Principles
elaborated over time in decisions of state and federal
courts, and in statutes and rules” will (in the Court’s rosy
view) sort all that out. Ante, at 13. I find it extraordinary
that “statutes and rules” can specify the remedy for a
criminal defendant’s unconstitutional conviction. Or that
the remedy for an unconstitutional conviction should ever
be subject at all to a trial judge’s discretion. Or, finally,
that the remedy could ever include no remedy at all.
   I suspect that the Court’s squeamishness in fashioning a
remedy, and the incoherence of what it comes up with, is
attributable to its realization, deep down, that there is no
real constitutional violation here anyway. The defendant
has been fairly tried, lawfully convicted, and properly
sentenced, and any “remedy” provided for this will do
nothing but undo the just results of a fair adversarial
process.
                            IV
  In many—perhaps most—countries of the world, American­
style plea bargaining is forbidden in cases as serious
as this one, even for the purpose of obtaining testimony
that enables conviction of a greater malefactor, much less
12                    LAFLER v. COOPER

                      SCALIA, J., dissenting

for the purpose of sparing the expense of trial. See, e.g.,
World Plea Bargaining 344, 363–366 (S. Thaman ed.
2010). In Europe, many countries adhere to what they
aptly call the “legality principle” by requiring prosecutors
to charge all prosecutable offenses, which is typically
incompatible with the practice of charge-bargaining. See,
e.g., id., at xxii; Langbein, Land Without Plea Bargaining:
How the Germans Do It, 78 Mich. L. Rev. 204, 210–211
(1979) (describing the “Legalitätsprinzip,” or rule of com­
pulsory prosecution, in Germany). Such a system reflects
an admirable belief that the law is the law, and those who
break it should pay the penalty provided.
   In the United States, we have plea bargaining a-plenty,
but until today it has been regarded as a necessary evil. It
presents grave risks of prosecutorial overcharging that
effectively compels an innocent defendant to avoid massive
risk by pleading guilty to a lesser offense; and for guilty
defendants it often—perhaps usually—results in a sen­
tence well below what the law prescribes for the actual
crime. But even so, we accept plea bargaining because
many believe that without it our long and expensive pro­
cess of criminal trial could not sustain the burden imposed
on it, and our system of criminal justice would grind to a
halt. See, e.g., Alschuler, Plea Bargaining and its History,
79 Colum. L. Rev. 1, 38 (1979).
   Today, however, the Supreme Court of the United
States elevates plea bargaining from a necessary evil to
a constitutional entitlement. It is no longer a somewhat
embarrassing adjunct to our criminal justice system;
rather, as the Court announces in the companion case to
this one, “ ‘it is the criminal justice system.’ ” Frye, ante, at
7 (quoting approvingly from Scott 1912). Thus, even
though there is no doubt that the respondent here is guilty
of the offense with which he was charged; even though he
has received the exorbitant gold standard of American
justice—a full-dress criminal trial with its innumerable
                    Cite as: 566 U. S. ____ (2012)                 13

                        SCALIA, J., dissenting

constitutional and statutory limitations upon the evidence
that the prosecution can bring forward, and (in Michigan
as in most States3) the requirement of a unanimous guilty
verdict by impartial jurors; the Court says that his convic­
tion is invalid because he was deprived of his constitution-
al entitlement to plea-bargain.
   I am less saddened by the outcome of this case than I
am by what it says about this Court’s attitude toward
criminal justice. The Court today embraces the sporting­
chance theory of criminal law, in which the State functions
like a conscientious casino-operator, giving each player a
fair chance to beat the house, that is, to serve less time
than the law says he deserves. And when a player is
excluded from the tables, his constitutional rights have
been violated. I do not subscribe to that theory. No one
should, least of all the Justices of the Supreme Court.
                        *      *    *
   Today’s decision upends decades of our cases, violates a
federal statute, and opens a whole new boutique of consti­
tutional jurisprudence (“plea-bargaining law”) without
even specifying the remedies the boutique offers. The
result in the present case is the undoing of an adjudicatory
process that worked exactly as it is supposed to. Released
felon Anthony Cooper, who shot repeatedly and gravely
injured a woman named Kali Mundy, was tried and con­
victed for his crimes by a jury of his peers, and given a
punishment that Michigan’s elected representatives have
deemed appropriate. Nothing about that result is unfair
or unconstitutional. To the contrary, it is wonderfully
just, and infinitely superior to the trial-by-bargain that
today’s opinion affords constitutional status. I respectfully
dissent.
——————
  3 See People v. Cooks, 446 Mich. 503, 510, 521 N. W. 2d 275, 278

(1994); 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure
§22.1(e) (3d ed. 2007 and Supp. 2011–2012).
                 Cite as: 566 U. S. ____ (2012)            1

                     ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
                         _________________

                          No. 10–209
                         _________________


BLAINE LAFLER, PETITIONER v. ANTHONY COOPER
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

            APPEALS FOR THE SIXTH CIRCUIT

                       [March 21, 2012]


   JUSTICE ALITO, dissenting.
   For the reasons set out in Parts I and II of JUSTICE
SCALIA’s dissent, the Court’s holding in this case mis-
applies our ineffective-assistance-of-counsel case law and
violates the requirements of the Antiterrorism and Effec-
tive Death Penalty Act of 1996. Respondent received a
trial that was free of any identified constitutional error,
and, as a result, there is no basis for concluding that
respondent suffered prejudice and certainly not for grant-
ing habeas relief.
   The weakness in the Court’s analysis is highlighted by
its opaque discussion of the remedy that is appropriate
when a plea offer is rejected due to defective legal repre-
sentation. If a defendant’s Sixth Amendment rights are
violated when deficient legal advice about a favorable plea
offer causes the opportunity for that bargain to be lost, the
only logical remedy is to give the defendant the benefit of
the favorable deal. But such a remedy would cause seri-
ous injustice in many instances, as I believe the Court
tacitly recognizes. The Court therefore eschews the only
logical remedy and relies on the lower courts to exercise
sound discretion in determining what is to be done.
   Time will tell how this works out. The Court, for its
part, finds it unnecessary to define “the boundaries of
proper discretion” in today’s opinion. Ante, at 13. In my
view, requiring the prosecution to renew an old plea offer
2                   LAFLER v. COOPER

                    ALITO, J., dissenting

would represent an abuse of discretion in at least two
circumstances: first, when important new information
about a defendant’s culpability comes to light after the
offer is rejected, and, second, when the rejection of the
plea offer results in a substantial expenditure of scarce
prosecutorial or judicial resources.
   The lower court judges who must implement today’s
holding may—and I hope, will—do so in a way that miti-
gates its potential to produce unjust results. But I would
not depend on these judges to come to the rescue. The
Court’s interpretation of the Sixth Amendment right to
counsel is unsound, and I therefore respectfully dissent.
