The opinion
MOORE,
concurring in the result.
I concur in the court’s decision to affirm the district court’s denial of Thompson’s petition for the writ of habeas corpus. However, I write separately to state that in regard to Thompson’s claim that his counsel was constitutionally ineffective at sentencing, I reach the decision to deny his petition solely on the basis of the facts in this case.
Thompson claims that his trial counsel was constitutionally ineffective in presenting mitigating factors at his sentencing because his counsel did not present appropriate psychological evidence of his mental condition. Both Thompson and the dissent contend that had Thompson’s trial counsel hired a more appropriate psychological or psychiatric expert, they would have been able to present evidence of Thompson’s mental illness, or at least of his deteriorating mental condition; While I have sympathy for the view expounded in the dissent regarding the general propriety of using industrial psychologists as expert witnesses in capital cases, I cannot conclude that Thompson’s trial counsel was constitutionally ineffective in hiring Dr. Copple in this case because Thompson has presented no evidence that his counsel knew or should have known either that Thompson was mentally ill or that his mental condition was deteriorating at the time of his trial or at the time of his crime. Without any evidence that a more appropriate psychological or psychiatric expert would have testified to Thompson’s mental *595 illness or his deteriorating mental condition, I cannot conclude that the hiring by Thompson’s trial counsel of Dr. Copple— however flawed his testimony seems in hindsight — constituted constitutionally ineffective assistance of counsel.