Appendix — Strickland v. Washington

82-1554

Office Supreme Court, US.

FILED

weds ' MAR 21 1963

IN THE * | ALEXANDER L. STEVAS, |

Supreme Court of the Whited States

October Term, 1982~—..

CHARLES E. STRICKLAND,

Superintendent '

Florida State Prison;

JIM SMITH, Attorney General

of Florida, and LOUIE L. WAINWRIGHT

Secretary, Flotida Department

of Corrections,

Petitioners,

vs.

DAVID LEROY WASHINGTON,

Respondent.

On Petition for a Writ of Certiorari

to the United States

Court of Appeals for the

Former Fifth Circuit (Unit B)

APPENDIX OF PETITIONER ON JURISDICTION

JIM SMITH

Attorney General

Calvin IL. FOX

Assistant Attorney General

401 N. W. 2nd Avenue (820)

Miami, Florida 33128

(305) 377-5441

TABLE OF CONTENTS

ITEM PAGE

Opinion of Eleventh Circuit

sitting en banc as the Former

Fifth Circuit (Unit B), in

Washington v. Strickland, filed

December 23, 1962. . «© « « se Al-204

Opinion of the Florida Circuit

Court of the Eleventh Judicial

Circuit, in and for Dade County

(Miami) Florida, State v.

Washington, filed March 27,

ERS Sal ase, Ata Ye ce eh ee A205-

A240

Opinion of the Supreme Court of Florida,

in Washington v. State,

filed April 6, 1981). . . ° . . A241-

A249

Opinion of the United States

District Court for the Southern

District of Florida, in Washington

v. Strickland, filed April 15,

MS eS a coke se eae A250-

A292

Ys pie of the Supreme Court of

Florida in Armstrong v. State, _ So.2d_

(Fla. 1982), S.Ct. Case

No. 61,781, Opinion filed. ... A293-

eee ae BOOS. vb oa si cease ee A321

Al

David Leroy WASHINGTON,

Petitioner-Appellant,

Vv.

Charles E. STRICKLAND, Superin-

tendent, Florida State Prison,

Louie L. Wainwright, Secretary

Florida Department of Correc-

tions, and Jim Smith, Attorney

General of the State of Florida,

Respondents-Appellees.

No. 81-5379.

United States Court of Appeals,

Fifth Circuit.*

Unit B

Dec. 23, 1982.

Appeals from the United States District

Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, RONEY, TJO-

FLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON,

HENDERSON, ANDERSON and CLARK, Circuit

Judges. **

*Pormer Fifth Circuit Case, Section 9(1)

of Public Law 96-452--October 14, 1980.

**Judge Hatchett did not participate in

the consideration or decision of this case.

A2

PER CURIAM:

There follows the opinion of Judge

Vance concurred in by Chief Judge Godbold

and Judges Kravitch and Henderson. Judge

Tjoflat specially concurs by separate opin-

oin in which Judge Clark concurs in part.

By separate opinion Judge Johnson joined

by Judge Anderson concurs in the substan-

tive portions (Parts I, II-A, III-A, III-B

and III-C) of Judge Vance's opinion, but

dissents from Parts II-B and III-D, which

relate to the disposition of this specific

case on remand. As reflected in their re-

spective opinions and concurrences a major-

ity of the court, consisting of Chief Judge

Godbold and Judges Tjoflat, Vance, Kravitch,

Johnson, Henderson, Anderson and Clark,

agree and it is therefore the judgment of

the court that the district court's judgment

be reversed and the case remanded.

A3

On remand the further proceedings in the

district court shall be controlled by Parts

I, II-A, III-A, III-B and III-C of Judge

Vance's opinion, all of which constitute

the opinion of the court.

Judge Roney dissents in a separate opin-

ion concurred in by Judges Hill and Fay.

Judge Hill also filed a separate dissenting

opinion.

REVERSED and REMANDED.

VANCE, Circuit Judge:

In this opinion the en banc court ad-

dresses the proper standards for evaluating

a claim of ineffective assistance of coun-

sel based upon allegations of inadequate

trial preparation. Petitioner-appellant

David Leroy Washington appeals from the

district court's denial of his petition for

a writ of habeas corpus under 28 U.S.C. §

2254. Washington has two primary conten-

tions: (1) that his trial counsel did not

AS

render effective assistance because he

failed to investigate, procure, and pre-

sent character evidence relevant to the

sentencing stage of his trial, and (2) that

this failure prejudiced Washington in the

conduct of his defense. We remand this

case to the district court to determine

whether trial counsel was ineffective under

constitutional standards, and if so, wheth-

er Washington suffered actual and substan-

tial prejudice.

I. Factual and Procedural Background

A. State Criminal Proceedi: 4s

During a ten-day period in September

1976 Washington committed a series of crimes

which included three brutal murders. On

September 20, 1976 Washington and an accom-

plice stabbed to death a minister, David

Pridgen. Three days later Washington broke

into the house of Mrs. Katrina Birk. After

binding Mrs. Birk and her three elderly

A5

sisters-in-law, he shot and stabbed each

of them, killing Mrs. Birk and inflicting

severe injuries upon the others.1 Finally,

on September 29 Washington kidnapped Frank

Meli, a twenty-year-old college student,

and tied him to a bed with the help of two

accomplices. After an attempt to extort

ransom money from Meli's family failed,

Washington stabbed him to death. Each of

these criminal episodes involved a substan-

tial degree of preparation and each includ-

ed acts of theft.

On October 1, 1976 Washington surren-

dered to Dade County police after his two

accomplices were arrested for the murder

of Frank Meli. He voluntarily confessed to

the crime in a lengthy statement to the

police. On October 7 the state indicted

Washington for the Meli murder and ap-

1. One of the injured women remained uncon-

scious for over a year before she died.

A6

pointed William Tunkey, and experienced

criminal lawyer, 2 to act as his attorney.

On November 5 Washington, acting against

Tunkey's advice, confessed to the Pridgen

and Birk murders. Additional indictments

were returned, and Washington's trial was

set for December 1 before Judge Richard

Fuller. 2 Washington waived his right to a

jury trial and, again acting against the

advice of Tunkey, pleaded guilty to all

charges when he went before Judge Fuller.

During the plea colloquy Washington stated

that he did not have a significant prior

criminal record and explained to Judge

Fuller that his actions were the result of

2. In its order denying Washington's motion

for postconviction relief, the court for

the eleventh judicial circuit of Florida

characterized Tunkey as "one of the lead-

ing criminal defense attorneys in Dade

County. « « «”

3. Tunkey anticipated that the state would

attempt to use Washington's conviction

in connection with the Pridgen murder to

furnish an additional aggravating circumstance

A7

extreme stress and anxiety due to his unem-

ployment and his corresponding inability to

provide for his family. Washington stated,

however, that he accepted responsibility

for his crimes. Judge Fuller responded

that he had "a great deal or respect for

people who are willing to step forward and

admit their responsibility."

Washington also waived his right to have

a sentencing jury. At the sentencing hear-

ing on December 6 Tunkey adopted the testi-

money that Washington had given during the

plea colloquy and argued that Washington's

evident remorse and his willingness to face

the consequences of his actions should per-

suade the court to impose life imprisonment

rather than death. Tunkey also successfully

(Footnote 3 continue) in Birk and Meli cases

pursuant to section 921.141(5)(b) of the

Florida Statutes. He successfully moved to

prevent use of the Pridgen case in this man-

ner. Tunkey also made a motion for a con-

tinuance which was denied by Judge Fuller.

Ag

of the motion was upon Tunkey's failure to

investigate fully and develop character

evidence that might have been presented to

Judge Fuller as a matter in mitigation. In

support of the motion, Washington attached

fourteen affidavits from various friends,

relatives, and acquaintances who stated

that they would have testified on Washing-

ton's behalf if his attorney had requested

them to do so. He also attached reports

from two psychiatrists who stated that

"while [Washington] was not under the in-

fluence of extreme mental or emotional dis-

turbance, he was chronically frustrated and

depressed because of his economic dilemma

wherein he was unable to find employment

and provide for his wife and children."

The Florida circuit court denied the mo-

tion without holding an evidentiary hear-

ing.4 It found that Washington had failed

4. With respect to the affidavits, the

court found that "the best that could be

Al0

to satisfy the test for ineffective assi-

stance of counsel test established in

Knight v. State, 394 So.2d 997 (Fla. 1981),

which requires a defendant to prove that

his attorney's failure was a "substantial

and serious deficiency measurably below

that of competent counsel," and that the

failure caused "prejudice to the defendant

(Footnote 4 continue) said. .. is that

these individuals could have testified that

the Defendant was a basically good person

who had not been in trouble with the law on

prior occasions and that he was worried

about his family because of his financial

difficulties at the time of these murders,

a fact that was testified to by the defen-

dant himself at the plea colloquy." The

court also found that the new psychiatric

reports might actually have harmed Washing-

ton's case because they conclusively esta-

blished the absence of the statutory miti-

gating circumstance of extreme mental or

emotional disturbance. The court stated

that the course actually pursued by Tunkey,

to put on evidence of emotional distress

only during the plea colloquy, served Wash-

ington's interests by preventing the state

from presenting more damaging evidence in

cross-examination or rebuttal. The court

particularly noted that numerous assertions

in the affidavits that Washington had never

committed a crime before the ten-day period

in September 1976 could have been throughly

rebutted by the state.

All

to the extent that there is a likelihood

that the deficient conduct affected the

outcome of the court proceedings." Id. at

1001 (citation omitted).> On appeal the

Florida Supreme Court affirmed, finding

that "the appellant has failed under the

Knight criteria to make a prima facie show-

ing of substantial deficiency or possible

prejudice and has failed to such a degree

that we believe, to the point of moral cer-

tainty, that he is entitled to no relief

under rule 3.850." Washington v. State,

397 So.2d 258, 287 (Fla. 1981).

5. In Knight the Florida Supreme Court

drew heavily upon the plurality opinion

in United States v. Decoster, 624 F.2d

196 (D.C.Cir. 1979) (en banc), in which

the court stated:

[T}he accused must bear the initial bur-

den of demonstrating a likelihood that

counsel's inadequacy affected the out-

come of the trial.

Id. at 208.

6. The panel opinion inadvertently mis-

quoted the Florida Supreme Court and gave

the impression that the Supreme Court had

only affirmed the circuit court's finding

Al2

C. Federal Habeas Proceedings in

District Court

Having exhausted his state remedies,

Washington sought habeas corpus relief from

the district court below.’ Again, the peti-

tion attached Tunkey's preparation for the

sentencing phase of Washington's trial.

Petitioner called Tunkey as a witness at

the evidentiary hearing. Tunkey testified

that after Washington confessed to the

Pridgen and Birk murders, he experienced a

(Footnote 6 continue) that no prejudice re-

sulted from Tunkey's conduct. See Washing-

ton v. Strickland, 673 F.2d 879, 884 (5th

Cir. 1982). In fact the Supreme Court af-

firmed the circuit court's decision on both

of its stated grounds: that Tunkey's repre-

sentation was not seriously deficient and

that in any case Washington was not preju-

diced.

7. The grounds for relief in addition to

the ineffectiveness claim are recounted

in the panel opinion. See Washington v.

Strickland, 673 F.2d 879, 885-86 n.3 (5th

Cir. 1982). One further claim for relief,

based upon Gardner v. Florida, 430 U.S.

349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977),

was raised for the first time at the evi-

dentiary hearing in the district court

below. Arguably, therefore, Washington's

petition is a "mixed petition” that con- .

Al3

feeling of "hopelessness" regarding the

case, and that he believed there was little

chance of Washington avoiding the death

penalty. His strategy at that point was to

introduce evidence of Washington's emo-

tional distress only during Washington's

plea colloguy with Judge Fuller, and there

after to rely premarily upon an "attempt to

(Footnote 7 continue) tains both exhausted

and unexhausted claims. Generally, mixed

petitions must be dismissed without preju-

dice while the petitioner pursues his unex-

hausted claims in state court. Rose v.

Lundy, 455 U.S. , 102 §.Ct. 1198,

1199, 71 L.Ed. 247379 (1982); Galtieri v.

Wainwright, 582 F.2d 348, 355 (5th Cir. 19

78) (en banc). There are, however, excep-

tions to the exhaustion doctrine. Id. at

354. In this case the district court found

that Washington's petition came within such

an exception, and the State of Florida does

not dispute the district court's finding on

appeal. Since the exhaustion requirement is

a matter of comity rather than a matter of

jurisdiction, see Rose v. Lundy, 455 U.S.

at , 102 S.Ct. at 1203-04; Stinson v.

Alabama, 585 F.2d 748, 748 (5th Cir. 1978),

the court of appeals will not dismiss the

petition sua sponte in this case. We adopt

the conclusion of the panel that the dis-

trict court properly found that the Gardner

claim was without merit. See Washington v.

Strickland, 673 F.2d at 889 n.5.

Al4

convince the judge of Washington's sinceri-

ty and frankness in pleading guilty."8

Tunkey believed that this strategy might

succeed in avoiding the death penalty be-

cause Judge Fuller had in other cases ac-

knowledge his respect for people who un-

qualifiedly admitted their responsibility.

Tunkey also testified that he made lit-

tle attempt to develop evidence of Washing-

ton's emotional distress apart from conver-

sations with Washington in connection with

his plea colloquy. Specifically, Tunkey

did not follow up on initial telephone con-

versations with Washington's wife and

mother after they had failed to keep ap-

pointments with him. Additionally, he did

not request a presentence report or a psy-

chiatric investigation because he anticipat-

ed that they might reveal information more

harmful than helpful to his client.

8. Opinion of district court at 7.

Al15

The state called Judge Fuller as a wit-

ness. Over the strenuous objection of

Washington's counsel, the judge testified

that evidence of the type contained in pe-

titioner's fourteen affidavits and two psy-

chiatric reports would not have altered his

determination that Washington deserved the

death penalty.

The district court stated that the "cen-

tral issue raised by the allegations is the

assertion by petitioner that an adequate

independent investigation by trial counsel

would have revealed information and wit-

nesses relevant to circumstances which may

have mitigated the death sentence imposed."9

Relying upon the decision of the former

fifth circuit in Beavers v. Balkcom, 636

F.2d 114, 116 (5th Cir. 1981), the court

held that defense counsel in a capital case

has a duty to investigate mitigating evi-

9. Id. at 9.

Al6

dence irrespective ot whether counsel's

strategy at trial would require the use of

evidence. The court therefore found that

Tunkey had made an "error in judgment" by

failing to conduct such an investigation

thoroughly. It stopped short, however, of

finding that Tunkey was ineffective, stat-

ing that the Constitution does not require

errorless counsel. Rather than deciding

vel non whether Tunkey was ineffective,

the court found that Washington was not

prejudiced by Tunkey's error. In reaching

that conclusion, the court held that Judge

Fuller's testimony demonstrated that there

was no “likelihood that counsel's inaction

affected the outcome of the sentence" (Cit-

ing United States v. Decoster, 624 F.2d

196, 208 (D.C. Cir. 1979) (en banc)).10

10. Id. at 16-17. The court also stated

that it did not consider the testimony

of Judge Fuller to be determinative on

the issue of prejudice:

{[R]ecognizing the potential weakness

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D. The Panel Opinion

Washington appealed the judgment be-

low to this court. The majority panel

Opinion contained three major holdings:

(1) the district court should determine on

remand whether Washington's trial counsel

(Footnote lv continue) of hindsight analy-

sis, I have not treated Judge Fuller's

testimony as determinative on the issue

of prejudice. Rather, reviewing the

proposed character and psychiatric testi-

mony, and weighing it against the de-

tailed record of petitioner's conduct in

initiating and carrying out three sepa-

rate episodes of planned robbery, kid-

napping and murder, there does not appear

to be a likelihood, or even a signifi-

cant possibility that the balancing of

aggravating against mitigating circum-

stances under the Florida death penalty

statute would have been altered in peti-

tioner's favor. Critically, the charac-

ter and medical testimony cannot reason-

ably be characterized as evidence of ex-

treme mental or emotional disturbance.

Nor does it provide persuasive rationali-

zation for petitioner's extended and cal-

culate course of violence. Therefore,

it is my determination on the critical

legal issue, that petitioner was not pre-

judiced by the inaction which did occur,

and was not denied his Constutitional

right to effective assistance of counsel,

as that standard is defined under pre-

sent case law.

Als

was ineffective without regard to the pre-

judicial effect that may have resulted

from consel's errors; (2) the district

court, if it finds trial counsel was inef-

fective, should grant relief if petitioner

proves that "but for his counsel's inef-

fectiveness his trial, but not necessarily

its outcome, would have been altered in a

way helpful to him," and the state fails

to prove that the error was harmless be-

yond a reasonable doubt; and (3) in assess-

ing the prejudicial impact of the counsel's

ineffectiveness, the district court should

disregard Judge Fuller's testimony that the

additional evidence would not have affected

his verdict.

This court chose to reconsider the case

en banc in order to determine important

questions regarding the duty of trial coun-

sel to investigate and the burden upon a

habeas petitioner to demonstrate prejudice

Al9

resulting from ineffectiveness of counsel.

We determine that under some circumstances

when a strategic choice by counsel makes

unnecessary a certain line of investiga-

tion, it is not required that effective

counsel pursue that investigation. We

also determine that a habeas petitioner

must show that his counsel's ineffective-

ness caused "actual and substantial dis-

advantage" to the conduct of his defense.

We remand this case to the district court

for further proceedings consistent with

this opinion.

II. Ineffectiveness of Counsel

The sixth amendment guarantees to crimi-

nal defendants the right to assistance of

counsel. Gideon v. Wainwright, 372 U.S.

335, 83 S.Ct. 792, 9 L.Ed.2da 799 (1963).

A vital corollary to this guarantee is the

requirement of effective assistance of

counsel, that is counsel reasonably likely

A20

to render and render reasonably effec-

tive assistance given the totality of the

circumstances. See, e.g., Herring v.

Estelle, 491 F.2d 125, 127 (5th Cir. 19

74); MacKenna v. Ellis, 280 F.2d 592, 599

(5th Cir. 1960), adhered to en banc, 289

F.2d 928 (5th Cir.), cert. denied, 368 U.

§. 877, 82 §.Ct. 121, 7 L.Ed.2d 78 (1961).

See also McMann v. Richardson, 397 U.S.

759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d

763 (1970). A petitioner who seeks to

overturn his conviction on grounds of inef-

fective assistance of counsel must prove

his entitlement to relief by a preponderance

of the evidence.11 United States v. Kil-

lian, 639 F.2d 206, 210 (5th Cir.) cert.

ll. This burden of persuasion can be

phrased alternatively as the burden to

rebut the presumption of attorney compe-

tence. See Michael v. Louisiana, 350

U.S. 91, 101 76 S.Ct. 158, 164, 100 L.

Ed.2d 83 (1955); Cox v. Wyrick, 642 F.

2d 222, 226 (8th Cir.), cert. denied,

451 U.S. 1021, 101 S.Ct. 3013, 69 L.Ed.

2d 394 (1981); United States v. Garcia,

A21

denied, 451 U.S. 1021, 101 S.Ct. 3014,

69 L.Ed.2d 394 (1981); Mays v. Balkcom,

631 F.2d 48, 52 n. 1 (5th Cir. 1980);

Marino v. United States, 600 F.2d 462,

464 (5th Cir. 1979).12

A. The Duty to Investigate

Although the fate of a criminal defen-

dant is determined at trial, the course of

that trial can be decisively affected by

actions of defense counsel in preparing

the case. See, e.g., Moore v. United

States, 432 F.2d 730, 739 (3d Cir. 1970)

(Footnote 1l continue) 625 F.2d 162, 170

(7th Cir.), cert. denied, 449 U.S. 923,

101, S.Ct. 325, 66 L.Ed.2d 152 (1980).

12. Washington urges us to apply a special

set of rules regarding ineffective

assistance of counsel to capital cases.

The court has rejected similar advice

from another petitioner in Washington

v. Watkins, 655 F.2d 1346, 1356-57 (5th

Cir. 1981), cert. denied, _U.S.

102 S.Ct. 2021, 72 L.Ed.2d-474 (1582),

and we do so again here. The relevant

inguiry in all cases involving claims

of ineffectiveness of counsel, irrespec-

tive of the degree of punishment that

the state seeks to impose, is whether

A22

(en banc). The courts have therefore in-

sisted that effective counsel conduct a

reasonable amount of pretrial investiga-

tion. See, e.g., Washington v. Watkins,

655 F.2d 1346, 1355-56 (5th Cir. 1981),

(Footnote 12 continue) counsel rendered

reasonably effective assistance given the

totality of the circumstances. The degree

of punishment is but one of the totality

of circumstances. See also Gray v. Lucas,

677 F.2d 1086, 1092 (5th Cir. 1982).

Washington also argues that Tunkey's

failure to investigate and present charac-

ter evidence rendered the imposition of the

death penalty unconstitutional under Loc-

kett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954,

57 L.Ed.2d 973 (1978). In Lockett the Su-

preme Court struck down a procedure which

prevented the sentencer from considering

aspects of the defendant's character and

record as nonstatutory mitigating factors.

Id. at 604, 98 S.Ct. at 2964. As noted by

the court in Washington v. Watkins, the Su-

preme Court cases on the death penalty deal

with "procedural flaw[s] in the system of

justice," not with alleged flaws in the

judgment of counsel. 655 F.2d at 1356.

Therefore, Tunkey's failure to investigate

or present extensive character evidence

does not render the imposition of the

death penalty unconstitutional.

A23

cert. denied, U.S. __, 102 S.Ct. 2021,

72 L.Ed.2d 474 (1982); Davis v. Alabama,

596 F.2d 1214, 1217 (5th Cir. 1979), vacat-

ed as moot, 446 U.S. 903, 100 S.Ct. 1827,

64 L.Ed.2d 256 (1980); Rummel v. Estelle,

590 F.2d 103, 104 (5th Cir. 1979); Gaines

v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.

1978). Ultimately, the courts are concerned

that counsels’ decisions reflect "informed,

professional deliberation” rather than "“in-

excusable ignorance or senseless disregard

of their clients' rights." United States

v. Bosch, 584 F.2d 1113, 1122 (lst Cir. 19

78).

The amount of pretrial investigation that

is reasonable defies precise measurement.

It will necessarily depend upon a variety

of factors including the number of issues

in the case, the relative complexity of

those issues, the strength of the govern-

ment's case, and the overall strategy of

A24

trial counsel. See, e.g., Washington v.

Watkins, 655 F.2d at 1357; Wolfs v. Brit-

ton, 509 F.2d 304, 309 (8th Cir. 1975).

In Making that determination, courts

should not judge the reasonableness of

counsel's efforts from the omniscient

perspective of hindsight, but rather "from

the perspective of counsel, taking into

account all of the circumstances of the

case, but only as those circumstances

were known to him at the time in question."

Washington v. Watkins, 655 F.2d at 1356.

The role of strategy in the calculus of

reasonableness is of particular importance

to this case. Tunkey testified that he

made a strategic choice to introduce limit-

ed character evidence during the plea collo-

guy and thereafter to rely upon expressions

of frankness, sincerity, and remorse to per-

suade the judge to impose a sentence of

life imprisonment. In light of that

A25

strategy, Tunkey would have viewed as un-

necessary an extensive investigation into

Washington's character. The district

court did not evaluate the credibility of

Tunkey's testimony or the reasonableness

of his strategy in light of available al-

ternatives. Rather, the court concluded

that Tunkey was obliged to conduct an ex-

tensive investigation of Washington's

character irrespective of whether his trial

strategy would benefit from such investiga-

tion, and cited Beavers v. Balkcom, 636 F.

2d at 116, in support of that conclusion.

In his dissent from the panel opinion,

Judge Roney relied, inter alia, upon Plant

v. Wyrick, 636 F.2d 188, 189-90 (8th Cir.

1980), for an apparently contrary proposi-

tion:

When a strategic choice of action

makes unnecessary a certain line of in-

vestigation, it should not be necessary

A26

for effective counsel to pursue that

investigation.

Washington v. Strickland, 673 F.2d 879,

908 (5th Cir. 1982) (Roney, J., dissenting).

The conflicting language in cases such

as Beavers and Plant reflects the different

factual situations in those cases. Upon

close examination, however, the rules of

law contained in those cases are broadly

consistent. In cases such as Plant, the

trial counsel substantially investigated

one plausible line of defense which he pre-

sented at trial, but did not investigate

another line which he had chosen not to

pursue at trial.13 In this class of cases,

counsel made strategic choices of the

13. The allegations of the petitioner in

Plant are somewhat confusing. The peti-

tioner apparently alleged that his coun-

sel was ineffective for failing to pre-

pare an alibi defense and relying in-

stead on a defense that conceded peti-

tioner's proximity to the crime but al-

leged nonparticipation. See also cases

cited infra note 21.

A27

general type that courts have traditional-

ly respected in order to avoid undue inter-

ference with the adversary process. See,

é.g., United States v. Decoster, 624 F.2d

at 208. In cases such as Beavers, how-

ever, the trial counsel failed to conduct

a substantial investigation into any plau-

sible line of defense. In this class of

cases counsel did not choose, strategically

or otherwise, to pursue one line of defense

over another. Instead, counsel simply ab-

dicated his responsibility to advocate his

client's cause. See, e.g., Gomez v. Beto,

462 F.2d 596, 597 (Sth Cir. 1972).

In our canvass of the case law, we have

indentified five major lines of cases in-

volving the duty to conduct adequate in-

vestigation before proceeding to trial.14

14. Since the focus of the analysis in

this opinion is the extent of investi-

gation appropriate before proceeding to

trial, we do not specifically discuss

the duty to investigate before advis-

ing a client to plead guilty. See, e.g.,

A28

For the benefit of district courts that

will confront future claims of ineffective

assistance of counsel, we will discuss se-

parately each line of cases and identify

the proper role that counsel's strategy

plays in the evaluation of the reasonable-

ness of pretrial investigation.

1. Counsel fails to conduct substan-

tial investigation into the one

plausible line of defense in the

case.

In numerous cases effective counsel

would discern only one plausible line of de-

fense to serve his client's interests. Whe-

ther that one line of defense is insanity,

alibi, or simply putting the government to

its proof, effective counsel is obliged to

(Footnote 14 continue) McMann v. Richardson,

397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763

(1970). We do, however, draw upon the rea-

soning of these cases for certain general

principles. See infra note 21.

A29

conduct a reasonably substantial investi-

gation into that line before proceeding to

trial. ‘The failure to perform such an in-

vestigation is a clear example of a breach

of the duty to investigate.

In Gomez v. Beto, 462 F.2d at 596, the

defendant was prosecuted for a burglary

that took place in Houston. The defendant

contended that he was in San Antonio on

the day of the crime and gave his attorneys

the names of alibi witnesses. The attorneys

failed to contact the witnesses and defen-

dant was convicted. The court granted his

motion for habeas corpus relief, stanting:

These counsel knew that Gomez had

only one possible defense to the charge:

that he was in another city when the

crime was committed.

When a defense counsel fails to in-

vestigate his client's only possible

A30

defense, although requested by him to

do so ... it can hardly be said that

the defendant has had the effective

assistance of counsel.

Id. at 597.15

It is ovbious that an attorney can no

more make a strategic decision that renders

unnecessary an investigation of a defen-

dant's one plausible line of defense than

he can make a strategic decision to plead

guilty against his client's wishes. See,

e.g., Wiley v. Sowders, 647 F..d 642, 649

(6th Cir.), cert. denied, 454 U.S. 1091,

15. See also Beavers v. Balkcom, 636 F.2d

114, 116 (5th Cir. 1981); Davis v. Ala-

bama, 596 F.2d 1214, 1218 (5th Cir. 19

79), vacated as moot, 446 U.S. 903, 100

S.Ct. 1827, 64 L.Ed.2d 256 (1980); Wood

v. Zahradnick, 578 F.2d 980, 982 (4th

Cir. 1978); United States v. Moore, 554

F.2d 1086, 1092-93 (D.C. Cir. 1976), Bren-

nan v. Blankenship, 472 F.Supp. 149, 155-

57 (W.D.Va. 1979), aff'd mem., 624 F.2d

1093 (4th Cir. 1980). Cf. Michel v. Loui-

Siana, 350 U.S. 91, 105, 76 S.Ct. 158,

166, 100 L.Ed. 83 (1955) (Douglas, J.,dis-

senting) (where state procedure deprived

counsel of opportunity to raise one dis-

positive issue, defendant was denied

A31

102 S.Ct. 656, 70 L.Ed.2d 630 (1981); Mul-

lins v. Evans, 473 F.Supp. 1321, 1325 (D.

Colo. 1979), aff'd, 622 F.2d 504 (10th Cir.

1980). Cf. Wright v. Estelle, 572 F.2d

1071, 1082 (5th Cir.) (en banc) (Godbold,

J., dissenting) (strategic choice by coun-

sel that deprives defendant of his consti-

tutional right to testify, absent knowing

waiver by defendant, is not effective assi-

stance of counsel), cert. denied, 439 U.

S. 1004, 99 S.Ct. 617, 58 L.Ed.2d 680 (19

78). Therefore, permissible trial strategy

can never include the failure to conduct a

reasonably substantial investigation into

a defendant's one plausible line of defense.

See Ewing v. Williams, 596 F.2d 391, 398-

99 (9th Cir. 1979) (Ely, J., dissenting)

("a complete lack of preparation and in-

vestigation [cannot] be deemed to be a ‘'tac-

tical decision' made by the attorney");

(Footnote 15 continue) his constitutional |

rights).

A32

Wood v. Zahradnick, 430 F.Supp. 107, 112

(E.D.Va. 1977) (where defenses based upon

mental condition were the only plausible

line of defense, "the [cJourt can envision

no tactical reason why these defenses were

not explored"). aff'd in relevant part,

578 F.2d 980 (4th Cir. 1978).

2. Counsel conducts a reasonably sub-

stantial investigation into the one

line of defense that is presented at

trial.

In this class of decisions we again deal

with cases in which effective counsel would

discern only one plausible line of defense

or in which he chooses to rely upon only

one major line of defense. An attorney who

conducts a reasonably substantial investiga-

tion into that line of defense proves un-

successful for not having conducted a more

extensive investigation. Courts have em-

phasized that "counsel for a criminal defen-

A33

dant is not required to pursue every path

until it bears fruit or until all conceiv-

able hope withers.” Lovett v. Florida,

627 F.2d 706, 708 (Sth Cir. 1980); Baty v.

Balkcom, 661 F.2d 391, 395 n. 8 (5th Cir.

1981); Williams v. Maggio, 679 F.2d 381,

393 (5th Cir. 1982) (Unit A en banc); Cox

v. Wyrick, 642 F.2d 222, 226-27 (8th Cir.),

cert. denied, 451 U.S. 1021, 101 S.Ct. 30

13, 69 L.Ed.2d 394 (1981); United States v.

Decoster, 624 F.2d at 210-1ll. Rather,

attorneys must conduct a substantial in-

vestigation which includes "an independent

examination of the facts, circumstances,

pleadings and laws involved." Rummel v.

Estelle, 590 F.2d at 104; United States v.

Moore, 554 F.2d 1086, 1092-93 (D.C. Cir.

1976).

The question whether counsel conducted

a reasonable amount of investigation prior

to presenting the one line of defense at

A34

trial does not typically involve strate-

gic choices. Once the choice has been

made to rely upon one defense at trial,

counsel is of course obliged to make a

reasonable, though not necessarily exhaus-

tive, investigation before trial,16

3. Counsel conducts a reasonably sub-

stantial investigation into all plau-

sible lines of defense and choose to

rely upon fewer than all of them at

trial.

16.

The scope of duty to conduct an in-

vestigation into defendant's one line of

defense may be affected, howeyer, by fac-

tors such as the strength of the govern-

ment's case. See, e.g., United States

v. Katz, 425 F.2d 928, 930 (2d Cir. 19

70). Also, strategy may play a role when

counsel reasonably determines that inter-

viewing a certain witness or obtaining a

certain report may prove to be more harm-

ful to the defendant's case than it is

helpful. See, e.g., Easter v. Estelle,

609 F.2d 756, 759 (5th Cir. 1980) (Stra-

tegic choice not to open the door to

prior crime evidence excuses failure to

interview certain witnesses).

A35

In this class of cases effective coun-

sel would discern more than one plausible

line of defense to serve his client's in-

terests. Certain of the lines might be

presented at trial in tandem. For instance,

an attorney might challenge the racial com-

position of the grand jury venire and raise

an alibi defense where both appear to be

plausible. Other lines of defense may be

contradictory and thus incapable of being

presented persuasively in tandem. For in-

stance, an attorney might not present an

alibi defense in conjunction with a justi-

fiable homicide defense.’

17. In this case, for instance, Tunkey

testified to the effect that he saw two

plausible lines of defense: One based

upon emotional distress and the other

based upon expressions of sincerity cal-

culated to play upon the judge's known

inclination to view such expressions with

favor. According to his testimony, he

presented a limited version of the first

line at the plea colloquy and a full ver-

sion of the second line at the sentenc-

ing hearing.

A36

Before making a strategic choice as to

which lines of defense to employ at trial,

counsel should ideally conduct a substan-

tial investigation into each potential

line. In this way he would be able to

assess with a considerable degree of pro-

fessional accuracy which lines are most

likely to succeed at trial. He would be

able to discuss thoroughly the options

with his client. For these reasons, the

American Bar Association has suggested

that criminal defense counsel "conduct

appropriate investigations, both factual

and legal, to determine what matters of

defense can be developed." American Bar

Association, Project on Standards for Cri-

minal Justice, Standards Relating to the

Defense Function (App.Draft 1971) [herein-

after referred to as American Bar Associa-

tion Standards]; see Coles v. Peyton, 389

F.2d 224, 226 (4th Cir.) (applying identical

A37

standard), cert. denied, 393 U.S. 849, 89

S.Ct. 80, 21 L.Ed.2d 120 (1968).

When an attorney makes a strategic

choice after satisfying this rigorous an

extensive duty to investigate, courts will

seldom if ever find that the choice was the

result of ineffective assistance of counsel.

Our adversary system of justice requires

that attorneys be permitted to exercise

informed discretion in the conduct of the

Client's defense. United States v. Deco-

ster, 624 F.2d at 208; United States v.

Guerra, 628 F.2d 410, 413 (5th Cir. 1980),

cert. denied, 450 U.S. 934, 101 S.Ct. 1398,

67 L.Ed.2d 369 (1981); Marino v. United

States, 600 F.2d at 463; Williams v. Mag-

gio, 679 F.2d at 393.28 rf an attorney

18. Apart from this reluctance to inter-

fere with the adversary process, there

are concrete and sensible reasons why

courts will almost invariably defer to

the fully informed strategic choice of

counsel. No two attorneys will present

A38

makes a strategic choice to rely upon one

line of defense rather than another, and

that choice is based upon the exercise of

professional judgment after a reasonably

substantial investigation into all plausi-

ble lines of defense, the courts will find

ineffective assistance of counsel only if

the choice was so patently unreasonable

that no competent attorney would have made

it. Cf. United States ex rel. Robinson v.

Pate, 312 F.2d 161, 162 (7th Cir. 1963)

(counsel not ineffective because strategic

(Footnote 18 continue) an identical defense,

even if they are equipped with perfect know-

ledge. Advocacy is the art of persuasion;

it is not a science. A court in a habeas

corpus proceeding. Several stages removed

from the heat of battle, is seldom able to

determine whether the strategic choices made

by counsel were the right ones. See United

States v. Bosch, 584 F.2d 1113, 1131 (lst

Cir. 1978). See also Wiley v. Sowders, 647

F.2d 642, 648 (6th Cir.), cert. denied, 454

U.S. 1091, 102 S.Ct. 656, 70 L.Ed.2d 630

(1981); United States v. Thomann, 609 F.2d

560, 566 (lst Cir. 1979); United States

ee 425 F.2d 928, 930-31 (2d Cir. 19

70).

A39

choice was one about which competent at-

torneys might honestly disagree).

4. Counsel fails to conduct a substan-

tial investigation into one plausi-

ble line of defense because of his

reasonable strategic choice to rely

upon another plausible line of de-

fense at trial.

As observed above, when effective coun-

sel would discern several plausible lines

of defense he should ideally perform a sub-

stantial investigation into each line before

making a strategic decision as to which

lines he will employ at trial. This ideal,

as expressed in the American Bar Association

Standards, is an aspiration to which all de-

fense counsel should strive. It does not,

however, represent the constitutional mini-

mum for reasonably effective assistance of

counsel. See United States v. Decoster, 624

P.2d at 205, 210-11. See also Cooper v.

A4O

Fitzharris, 586 F.2d 1325, 1330 (9th Cir.

1978) (en banc), cert. denied, 440 U.S.

974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979);

United States v. Moore, 554 F.2d at 1093

(Robb, J., concurring) (both opinions criti-

cize checklist approach to evaluating per-

formance of counsel). Realistically, given

the finite resources of time and money that

are available to defense counsel, fewer than

all plausible lines of defense will be the

subject of substantial investigation. Often,

counsel will make a choice of trial strategy

relatively early in the representation pro-

cess after conferring with his client, re-

viewing the state's evidence, and bringing

to bear his experience and professional judg-

ment. 19 Thereafter he will concentrate his

19. We assume here, without deciding, that

conferring with one's client and reviewing

the state's case constitute the bare mini-

mum amount of investigation that counsel

must conduct before he forms his trial

strategy.

A41

finite resources on investigating those

lines of defense upon which he has chosen

to rely.

The choice by counsel to rely upon

certain lines of defense to the exclusion

of others before investigating all such

lines is a strategic choice. See, e.g.,

Gray v. Lucas, 677 F.2d 1086, 1093 (5th

Cir. 1982). The basis for judicial defer-

ence to such a choice, however, is eroded

measurably. See Note, Effective Assistance

of Counsel for the Indigent Defendant, 78

Harv.L.Rev. 1434, 1439 (1965). Whereas a

strategy chosen after full investigation is

entitled to almost automatic approval by

the courts, a strategy chosen after partial

investigation must be scrutinized more |

closely in order to safeguard the rights of

criminal defendant.

A strategy chosen without the benefit of

a reasonably substantial investigation into

A42

all plausible lines of defense is generally

based upon counsel's professional assump-

tions regarding the prospects for success

offered by the various lines. The cases

generally conform to a workable and sensi-

ble rule: when counsel's assumptions are

reasonable given the totality of the cir-

cumstances and when counsel's strategy re-

presents a reasonable choice based upon

those assumptions, counsel need not investi-

gate lines of defense that he has chosen

not to employ at trial.2°

20. Just as the case law contains apparent-

ly contradictory statements regarding

trial strategy, see supra slip op. at 15

849, at _—_, so it contains differing

statements regarding the legitimate role

of assumptions in the course of represen-

tation. In Powell v. Alabama, 287 U.S.

45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), two

attorneys were appointed to represent the

defendants on the morning of trial. The

Court found that they were thereby denied

assistance of counsel:

It is not enough to assume that coun-

sel thus precipitated into the case

thought there was no defense, and exer-

cise their best judgment in proceeding

A43

In Washington v. Watkins the attorney

for a defendant charged with capital mur-

der relied primarily upon an alibi defense.

(Footnote 21 continue) to trial without

preparation .... No attempt was made to

investigate. No opportunity to do so

was given.

Id. at 58, 53 S.Ct. at 60. See also United

States v. Moore, 554 F.2d 1086, 1092-93 (D.

C.Cir. 1976) (counsel's failure to interview

witnesses because of their expected response

"does not excuse the failure to find out;

speculation cannot substitute for certain-

ty"). (footnote omitted).

Clearly, an attorney cannot excuse his

total failure to investigate simply because

he assumes that there is no way to defend

his client. However, when an attorney is in

the process of choosing the lines of defense

on which he will concentrate his investiga-

tive effort, he will often have to use his

professional judgment to form assumptions

regarding the prospects for success from a

certain line of defense. See Gray v. Lucas,

677 F.2d 1086, 1093 & n. 4 (Sth Cir. 1982)

(assumptions regarding the best evidence

likely to be derived from interviewing cer-

tain character witnesses justified strategic

choice not to pursue that investigation);

Plant v. Wyrick, 636 F.2d 188, 189-90 (8th

Cir. 1980) (decision not to pursue a certain

line of inquiry was arrived at by "an ex-

perienced criminal attorney exercising his

professional judgment"). See also cases

cited infra note 21.

A44

When that defense proved unsuccessful and

defendant was sentenced to death, the de-

fendant sought habeas corpus relief be-

cause, inter alia, his attorney failed "to

investigate the apparent under-representa-

tion of blacks on the relevant jury panels

----" 655 F.2d at 1364. At the evidentiary

hearing in district court, the attorney was

asked why he failed to conduct this investi-

gation. He responded that based upon his

prior experience with juries in Columbus,

Mississippi and based upon his observation

of the tactics of other attorneys, he assum-

ed that a challenge based upon the racial

composition of the jury panels would be

“without merit." Id. at n. 36. The court

found that in light of these circumstances,

counsel's strategic decision to devote his

efforts to the alibi defense "was not so

ill-chosen that it made [his] overall repre-

sentation constitutionally ineffective."

oa

A45

655 F.2d at 1364. In numerous other cases,

courts have similarly found that a reasona-

ble strategic choice based upon reasonable

assumptions makes it unnecessary to inves-

tigate other plausible lines of defense

that counsel does not rely upon at trial.21

21. See, e.g., Jones v. Kemp, 678 F.2d

929, 931-32 (llth Cir. 1982) (strategic

choice to investigate line of defense

based upon lack of possession excuses

failure to investigate defense based

upon absence of knowledge); Wilkerson v.

United States, 591 F.2d 1046, 1047 (5th

Cir. 1979) (strategic choice to concen-

trate upon legal challenges where govern-

ment's evidence was overwhelming excuses

failure to perform "fruitless legwork");

Gray v. Lucas, 677 F.2d 1086, 1093-94

(5th Cir. 1982) (strategic choice to in-

vestigate psychiatric evidence at the ex-

pense of character evidence was justified

by reasonable assumptions regarding pro-

babilities of success); Plant v. Wyrick,

636 F.2d 188, 189-90 (8th Cir. 1980)

(failure to interview certain witnesses

was a matter of professional judgment

where counsel pursued the only defense

that offered a significant possibility of

success); Gustave v. United States, 627

F.2d 901, 906 (9th Cir. 1980) (strategic

choice regarding proper allocation of

time excuses failure to inquire into ra-

cial bias of jury during voir dire); Rey-

nolds v. Mabry, 574 F.2d 978, 981 (8th

Cir. 1978) (strategic choice to rely upon

insanity defense excuses failure to

A46

On the other hand, courts have not hesi-

tated to find counsel ineffective when his

(Footnote 21 continue) investigate defenses

relating to circumstances of arrest); Unit-

ed States v. Ladley, 517 F.2d 1190, 1194

(9th Cir. 1975) (strategic choice not to

pursue certain lines of investigation ex-

cused where counsel presented forceful de-

fense); United States v. Hearst, 466 F.

Supp. 1068, 1087 (N.D.Cal. 1978) (failure to

investigate effects of pretrial publicity

excused by strategic choice to conduct

trial in San Francisco), aff'd in part, va-

cated in part, 638 F.2d 1190, 1195-96 (9th

Cir. 1980) (failure by attorney to investi-

gate substantially possibility that hallu-

cinogens affected defendant's behavior ex-

cused where on the basis of trial strategy

"he devoted his energies to other aspects

of [the] defense"), cert. denied, 451 U.S.

938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981).

Cf. McMann v. Richardson, 397 U.S. 759, 769-

70, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763

(1970) (in advising client whether to plead

guilty, counsel necessarily relies upon his

"best judgment" of possible defenses and the

strength of the state's case); Bradbury v.

Wainwright, 658 F.2d 1083, 1087-88 (5th Cir.

1981) (failure to investigate fully insanity

defense before advising client to plead guil-

ty is not ineffective assistance where par-

tial investigation led attorney to reasona-

ble conclusion that the defense had little

chance to succeed); Jackson v. Estelle, 548

F.2d 617, 618 (5th Cir. 1977) (same conclu-

sion); Benson v. United States, 552 F.2d 223,

225 (8th Cir.) (failure to make independant

investigation of facts before advising client

to plead guilty is not ineffective assistance

when the case against defendant was over-

A47

failure to investigate is not based upon a

reasonable set of assumptions or when the

strategic choices made by counsel on the

basis of those assumptions are not reasona-

ble. The California case of In re Saun-

ders, 2 Cal.3d 1033, 88 Cal.Rptr. 633, 472

P.2d 921 (1970), furnishes an excellent

illustration. In Saunders the defendant

participated in an armed robbery which re-

sulted in the murder of a store clerk. He

was tried for capital murder and ocunsel was

appointed to defend him. Two months before

trial the defendant and his mother informed

counsel that the defendant had previously

suffered head injuries that resulted in or-

ganic brain damage. Although the attorney

was aware that this information was relevant

to the diminished capacity defense under

California law, he never investigated the

(Footnote 21 continue) whelming), cert. ©

denied, 434 U.S. 851 98 S.Ct. 164, 54 L.Ed.

24 120 (1977).

A48

matter. Instead, he relied exclusively

upon an argument that defendant did not

actually commit the shooting.

The attorney later testified that he

failed to investigate the diminished capa-

city line of defense before trial because

he had made a strategic choice to preserve

that argument for the clemency hearing.

The California Supreme Court overturned the

conviction. It found that a reasonable at-

torney would have recognized that diminished

capacity was a very promising line of inves-

tigation in light of the information fur-

nished to counsel by defendant and his moth-

er. It also found that a reasonable at-

torney would not have made the strategic

choice to rely upon the weak defense used

to the exclusion of the diminished capicity

defense. 22

22. See, e.g., Young v. Zant, 677 F.2d 792,

798-800 (llth Cir. 1982); Kemp v. Leggett,

635 F.2d 453, 454-55 (5th Cir. 1981); Bru-

baker v. Dickson, 310 F.2d 30, 38-39 (9th

A49

In sum, an attorney who makes a strate-

gic choice to channel his investigation

into fewer than all plausible lines of de-

fense is effective so long as the assump-

tions upon which he bases his strategy are

reasonable and his choices on the basis of

those assumptions are reasonable. 23

(Footnote 22 continue) Cir. 1962), cert.

denied, 372 U.S. 978, 83 S.Ct. 1110, 10 L.

Ed.2d 143 (1963).

23. The determination whether strategic

choices based upon a set of assumptions

are reasonable is a question of fact for

the district courts. We suggest only a

few factors to inform that determination.

First, the experience of the attorney is

relevant. An attorney who has handled

numerous cases in the criminal field will

have formed a more accurate picture of

which lines of defense are most likely

to succeed. Compare Kemp v. Leggett, 635

F.2d 453, 454 (5th Cir. 1981) (attorney

with little previous experience fails to

interview witnesses and adopts a line of

defense "not the most compatible with

the facts") with Washington v. Watkins,

655 F.2d 1346, 1364 & n. 36 (5th Cir. 19

81) (attorney who had observed the tac-

tics of other lawyers in comparable cases

reasonably chose not to investigate racial

composition of jury venire). Second, when

the line of defense actually pursued by

- counsel was inconsistent with the line

A50

5. Counsel fails to conduct a substan-

tial investigation into plausible

lines of dexvense for reasons other

than strategic choice.

(Footnote 23 continue) that was not pur-

sued, counsel's strategic choice to in-

vestigate one rather than the other is more

likely to be reasonable. When the lines of

defense are consistent so that both could

be presented at trial, there may be a less

compelling reason not to have pursued both

prior to trial. Compare Jones v. Kemp, 678

F.2d 929, 931-32 (llth Cir. 1982) (strategic

choice not to investigate one line of de-

fense is acceptable when presentation of

that line at trial would have contradicted

defendant's testimony) and Gray v. Lucas,

677 F.2d 1086, 1094 (5th Cir. 1982) (strate-

gic choice not to investigate fully one line

of defense justified when lawyers could rea-

sonably determine that a jury would find it

inconsistent with line actually presented at

trial) with In re Saunders, 2 Cal.3d 1033,

88 Cal.Rptr. 633, 472 P.2d 921 (1970) (stra-

tegic choice not to investigate diminished

capacity defense was unreasonable when that

defense was stronger than and consistent with

the defense actually pursued). Finally, the

degree of possible prejudice that might fore-

seeably result from the strategic choice is a

relevant factor. See Cooper v. Fitzharris,

586 F.2d 1325, 1330 N. 10 (9th Cir. 1978)

(en banc), cert. denied, 440 U.S. 974, 99

S.Ct. 1542, 59 L.Ed.2d 793 (1979). Thus, a

choice that was "likely to result in preju-

dice which was foreseeably less severe than

that resulting from the chosen course" might

A51

When an attorney fails to conduct a

substantial investigation into any of his

client's plausible lines of defense, the

attorney has failed to render effective

assistance of counsel. The attorney equal-

ly fails to render effective assistance

when he chooses among several plausible

lines of defense, thereby excluding certain

of them, for no strategic reason.

The clearest example of this breach of

the duty to investigate appears in Gaines

v. Hopper, 575 F.2d at 1147. In that case

the attorney's policy against interviewing

any witnesses before trial left him "in no

(Footnote 23 continue) be more reasonable

than the chosen course. Id.

The listed factors are neither exhaustive

nor individually determinative in the reason-

ableness inquiry. Cf. Washington v. Watkins,

655 F.2d at 1364 & N. 36 (strategic choice

not to investigate racial composition of

grand jury venire was reasonable even though

that line of defense was not inconsistent

with the presented at trial).

A52

better position than his jailed client to

evaluate the legal and factual realities

of the case ...." Id. at 1149. The attor-

ney did not channel his investigation on

the basis of a professional assessment of

the prospects for success. Rather, he

abandoned his obligation to develop a case

for his client. See also Powell v. Alaba-

ma, 287 U.S. 45, 58, 53 S.Ct. 55, 60, 77

L.Ed. 158 (1932); United States v. Hinton,

631 F.2d 769, 780 (D.C. Cir. 1980); United

States v. Porterfield, 624 F.2d 122, 125

(10th Cir. 1980); United States v. Bosch,

584 F.2d at 1122.24

24. A finding by the district court as to

whether a choice was strategic is a find-

ing of fact that will be accepted by the

court of appeals unless clearly erroneous.

Beckham v. Wainwright, 639 F.2d 262-66

(Sth Cir. 1981). See also Pullman-Stan-

dard v. Swint, 456 U.S. __ , __—s_, 102 S.

Ct. 1781, 1789-91, 72 L.Ed.2d 66 (1982);

United States v. Cruz, 581 F.2d 535, 540-

41 (5th cir. 1978) (en banc).

A53

In many cases it will not be clear whe-

ther the failure to investigate a line of

defense is based upon trial strategy or

upon neglect of counsel's professional ob-

ligations. Courts presume, in accordance

with the general presumption of attorney

competence, that counsel's actions are stra-

tegic. See, e.g., Micheli V. Louisiana, 350

U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed.

83 (1955); Marino v. United States, 600 F.

2d at 463; Tuttle v. Decker, 386 F.2d 814,

816 n. 1 (5th Cir. 1967); Cowens v. Wain-

wright, 373 F.2d 34, 34 (5th Cir.), cert.

denied, 387 U.S. 913, 87 S.Ct. 1701, 18 L.

Ed.2d 635 (1967); United States v. Aulet,

618 F.2d 182, 189 (2d Cir. 1980). Cf. The

Supreme Court, 1976 Term. 91 Harv.L.Rev. 70,

219 (1977) (noting the presumption of stra-

tegic choice in sixth amendment cases and

suggesting another rule in cases involving

the determination of "deliberate bypass").

A54

This presumption can be rebutted, however,

when trial counsel testifies credibly at

an evidentiary hearing that his choice was

not strategic, see, e.g., Beckham v. Wain-

wright, 639 F.2d 262, 265-66 (5th Cir. 19

81); Marzullo v. Maryland, 561 F.2d 540,

547 (4th Cir. 1977), cert. denied, 435 U.

S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (19

78), or when certain of counsel's actions

do not conform to a general pattern of a

rational trial strategy. See, e.g., Batty

v. Balkcom, 661 F.2d at 395; Nero v. Black-

burn, 597 F.2d 991, 994 (5th Cir. 1979);

United States v. Bosch, 584 F.2d at 1121-22.

B. The Need for a Remand

In this case the district court stated

that Tunkey was obligated to investigate sub-

stantially a line of defense based upon emo-

tional distress irrespective of whether Tun-

key's trial strategy made that investigation

necessary. The district court's legal pre-

A55

mise was incomplete. If, in fact, there

was more than one plausible line of defense

in the case; if Tunkey made a strategic

choice based upon reasonable assumptions

to pursue one line of defense at the ex-

pense of another; and if that strategic

choice was reasonable, Tunkey did not breach

his duty to investigate.

When district courts fail to make find-

ings or do so on the basis of an erroneous

perception of the law, courts of appeals

ordinarily remand the case "unless the re-

cord permits only one resolution of the fac-

tual issue." Pullman-Standard v. Swint, 456

U.S. , _, 102 &.Ct. 1781, 1791-92, 72

L.Ed.2d 66 (1982). In this case numerous

factual issues remain to be resolved by the

district court before it can be determined

with certainty whether counsel was reason-

ably effective. We therefore remand this

case for it to make findings on these factual issues.

A56

III. The Showing of Prejudice

If the district court finds on remand

that Washington's right to effective assis-

tance of counsel was violated, it should

then separately determine whether Washing-

ton suffered prejudice of sufficient magni-

tude to warrant granting the writ of ha-

beas corpus. We decide that the petitioner

has the burden of persuation to demonstrate

that the ineffective assistance created not

only "a possibility of prejudice, but that

[it] worked to his actual and substantial

disadvantage." See United States v. Frady,

456 U.S. __, ___, - 102 S.Ct. 1584, 1596, 71

L.Ed.2d 816 (1982) (emphasis in original) .25

25. In Frady Justice O'Connor employed that

test to determine whether the petitioner

had established prejudice within the mean-

ing of the "cause and prejudice" formula-

tion of Wainwright v. Sykes, 433 U.S. 72,

87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594

(1977). For reasons discussed infra, we

decide that this formulation of the peti-

tioner's burden is an equitable alloca-

tion of the burden of proof between the petitioner

and the state in cases of ineffective assistance

of counsel.

A57

If he successfully satisfies this burden,

the writ must be granted unless the state

proves that counsel's ineffectiveness was

harmless beyond a reasonable doubt. See

Chapman v. California, 386 U.S. 18, 87

S.Ct. 824, 17 L.Ed.2d 705 (1967). Wé pro-

ceed to examine the basis for this holding.

A. The Need for a Prejudice Requirement

We are confronted at the outset with

Washington's contention that the court

should find ineffective assistance of coun-

sel prejudicial per se. Under petitioner's

proposed rule, the writ would issue auto-

matically upon petitioner's showing of inef-

fective assistance. In support of this rule,

Washington cites numerous cases including

Gideon v. Wainwright 372 U.S. at 335, 83 S.

Ct. 729, Geders v. United States, 425 U.S.

80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976),

and Cuyler v. Sullivan, 446 U.S. 335, 100

S.Ct. 1708, 64 L.Ed.2d 333, (1980). We

A58

find that these cases are instantly distin-

guishable.

In Gideon v. Wainwright the state refus-

ed to appoint counsel to assist in the de-

fense of an indigent defendant. This abso-

lute deprivation of the right to counsel is

so inherently prejudicial that the courts

will not conduct a particularized inquiry

into whether harm was realized in a particu- »

lar case. See Chapman v. California, 386

U.S. at 43, 87 S.Ct. at 837 (Stewart, J.,

concurring).

In Geders the trial court ordered a de-

fendant not to consult with his attorney

during an overnight recess after his direct

examination and before his cross-examina-

tion. While the defendant did not suffer a

total deprivation of the right to counsel,

the trial court's action constituted direct

state interference with important aspects

of the attorney's representation of his

A59

client. See also Herring v. New York, 422

U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593

(1975); Brooks v. Tennessee, 406 U.S. 605,

92 S.Ct. 1891, 32 L.Ed.2d 358 (1972); Fer-

guson v. Georgia, 365 U.S. 570, 81 S.Ct.

756, 5 L.Ed.2d 783 (1961); Powell v. Alaba-

ma, 287 U.S. at 45, 53 S.Ct. 55. Although

such limited interference is not inherently

prejudicial, a rule of automatic reversal

serves to deter the state from engaging in

action that poses a direct threat to the de-

fendant's right to effective assistance of

counsel. See United States v. Decoster,

624 F.2d at 201.

Finally, in cases such as Cuyler the de-

fendant was represented by an attorney who

functioned under an actual conflict of

interest. This impediment to effective re-

presentation was neither inherently prejudi-

cial nor the product of direct state inter-

ference in the representation process. The

-..

A60

Supreme Court granted automatic reversal,

however, because the subtle and pervasive

effect of conflicting loyalties upon an

attorney would necessarily make any inquiry

into prejudice an exercise in "unguided spe-

culation." Holloway v. Arkansas, 435 U.S.

475, 491, 98 S.Ct. 1173, 1182, 55 L.Ed.2d

426 (1978); see Glasser v. United States,

315 U.S. 60, 75-76, 62 S.Ct. 457, 467, 86

L.Ed. 680 (1942).

In this case Washington did not suffer

the inherent prejudice that attended the

total deprivation of counsel in Gideon. Nor

does he complain of state interference in

the attorney-client relationship as was evi-

dent in Geders. Rather, he contends that

the attorney provided to him by the state,

a competent and experienced criminal lawyer,

rendered assistance that was below the stan-

dard of reasonably effective counsel. Un-

like the defendant in Cuyler, Washington

A61

does not contend that this ineffective-

ness resulted from any subtle or pervasive

impediment to Tunkey's performance. Rather,

he contends that Tunkey committed several

discrete errors of omission and commission

that reasonably effective counsel would not

have committed. The process of identifying

and the evaluating the effect of these in-

dividual errors is not an exercise in "un-

guided speculation." Rather, the inquiry

into whether these errors resulted in harm

is a task that the district courts are well

suited to perform. See Davis v. Alabama,

596 F.2d at 1222-23; United States v. De-

coster, 624 F.2d at 201-03 (plurality opin-

ion), 257-58 (Robinson, J., concurring);

Cooper v. Fitzharris, 586 F.2d at 1332;

United States ex rel. Green v. Rundle, 434

F.2d 1112, 1115 (3d Cir. 1970). See also

Chambers v. Maroney, 399 U.S. 42, 54, 90

S.Ct. 1975, 1982, 26 L.Ed.2d 419 (1970)

A62

(relief for ineffective assistance of coun-

sel denied where "the claim of prejudice

was without substantial basis").2® Accord-

ingly, we conclude that no Supreme Court

decision requires a finding of per se pre-

judice in this type of case. We also per-

ceive several strong considerations that

militate against creating such a rule.

First, a rule of per se prejudice would

be contrary to the teachings of United

States v. Morrison, 449 U.S. 361, 364-65,

101 S.Ct. 665, 668, 66 L.Ed.wd 564 (1981),

that the remedy for a violation of defen-

dant's right to adequate assistance of coun-

sel should be tailored to the harm caused

by that violation. The defendant in Morri-

son demonstrated "no prejudice of any kind"

26. There may be cases in which the inef-

fectiveness of counsel is so pervasive

that a particularized inguiry into pre-

judice would be "unguided speculation."

See, e.g., United States v. Porterfield,

624 F.2d 122, 125 (10th Cir, 1980). This

is certainly not such a case.

A63

and the Court found:

There is no effect of a constitutional

dimension which needs to be purged to

make certain that respondent has been

effectively represented and not unfair-

ly convicted. The Sixth Amendment vio-

lation, if any, accordingly provides no

justification for interfering with the

criminal proceedings against [defen-

dant].

Id. at 366-67, 101 S.Ct. at 669. Washing-

ton's proposed rule of per se prejudice

would require the unwarranted interference

in criminal proceedings that Morrison ex-

pressly forbids.2?

27. It is not difficult to imagine the ab-

surd and unjust results of a rule of

automatic reversal. In United States v.

Winston, 613 F.2d 221 (9th Cir. 1980),

the court found that petitioner's trial

counsel was arguably ineffective because

of his failure to obtain a psychiatric

report. The petitioner had been acquit-

ted, however, on the one court to which

the report was relevant. The court found,

therefore, that petitioner had not been

A64

Additionally, a rule of per se preju-

dice is especially inappropriate in the

case of ineffective assistance becaus®é the

state is not responsible for the violation

of the petitioner's rights. Since the rule

would not serve to deter the state from any

unconstitutional course of action, the sole

effect of the rule would be to bestow an un-

deserved windfall upon criminal defendants

who were not harmed by the errors of their

attorneys. See Note, supra, at 1436-37. 78

(Footnote 27 continue) prejudiced by coun-

sel's ineffectiveness, and refused to grant

the writ. Id. at 223. Washington's propos-

ed rule would require granting the writ in

thac situation.

28. See also McQueen v. Swenson, 498 F.2d

207, 219 (8th Cir. 1974). Indeed, even

when the state shares responsibility for

interfering with the effectiveness of pe-

titioner's counsel or with the presenta-

tion of his case, the courts will often

require an inguiry into whether prejudice

resulted. See, e.g., United States v.

Valenzuela-Bernal, 458 U.S. , 102

S.Ct. 3440, 3449-50, 73 L.Ed.2d 1193 “

82); Hopper v. Evans, 456 U.S.

n. *, 102 S.Ct. 2049, 2054 & n. *,. Tt.

Ed.2d 367 (1982); United States v. Morrison,

465

Finally, the proposed rule would dis-

tort the function of the writ of habeas

corpus uncer 28 U.S.C. § 2254. The writ

exists to redress fundamental unfairness

in state criminal proceedings. Rose v.

Lundy, 455 U.S. __, __, 102 S.Ct. 1198,

1216, 71 L.Ed.2d 379 (1982) (Stevens, J.,

dissenting). See also Lehman v. Lycoming

County Children's Services Agency, 458 U.

S.___, __, 102 §.Ct. 3231, 3239-40, 73 L.

Ed.2d928 (1982). A particularized inquiry

must be made in cases of ineffective assis-

tance of counsel to determine whether the

fundamental unfairness that the writ was

intended to redress exists in an individual

case. See Nelson v. Estelle, 642 F.2d 903,

906 (5th Cir. 1981); United States v. Deco-

ster, 624 F.2d at 207.

B. Allocation of the Burden of Proof

(Footnote 28 continue) 449 U.S. 361, 364-66

&n. 2, 101 S.Ct. 665, 667-69 & n. 2, 66 L.

Ed.2d 564 (1981).

A66

1. The Chapman Standard

Having determined that there must be a

showing of prejudice, it remains for us to

allocate the burden of proof on this issue.

For many constitutional violations the ex-

istence of prejudice is presumed, and the

state can rebut it only upon a showing of

harmlessness beyond a reasonable. doubt.

See Chapman v. California, 386 U.S. at 24,

87

g, 29

S.Ct. at 82 In certain respects,

29.

At least one judge has suggested that

Chapman itself requires some showing of

prejudice by the defendant before the

burden of showing harmlessness beyond a

reasonable doubt shifts to the state.

See United States v. Decoster, 624 F.2d

196, 237 (D.C. Cir. 1979) (en banc) (Mac-

Kinnon, J., concurring).

The supreme Court has in some instances

required a positive showing of prejudice

by a defendant before it will grant re-

lief for an alleged violation of a consti-

tutional right. See, e.g., United States

v. Valenzuela-Bernal, 458 L.Ed.2d 1193

(1982) (compulsory process clause); Unit-

ed States v. Agurs, 427 U.S. 97, 104, 96

S.Ct. 2392, 2397-98, 49 L.Ed.2d 342 (1976)

(due process clause); see Coles v. Peyton,

389 F.2d 224, 230 (4th Cir.) (Craven, J.,

dissenting) (discussing Estes v. Texas, 381

~

A67

however, the violation of a defendant's

right to effective assistance of counsel

is sui generis. See, e.g., McQueen v.

Swenson, 498 F.2d 207, 218 (8th Cir. 1974).

The violation is not caused by the state.

Consequently, the harsh burden of proof in

Chapman, which is meant to prevent the

state from benefiting from its own wrongs,

does not serve the same equitable and deter-

rent function in cases of ineffective assis-

tance of counsel. Id. at 219. Additionally,

where ineffectiveness is predicated upon the

failure of counsel to raise certain objec-

tions, application of the Chapman rule would

relieve petitioner of the requirement that

he show prejudice before he can raise those

(Footnote 29 continue) U.S. 532, 85 S.Ct.

1628, 14 L.Ed.2da 543 (1965)), cert. denied,

393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120

(1968). Cf. Chambers v. Maroney, 399 U.S.

42, 54 90 S.Ct. 1975, 1982, 26 L.Ed.2da 419

(1970) (alleged violation of right to effec-

tive assistance of counsel denied where "the

Claim of prejudice ... was without substan-

tial basis").

A68

objections on collateral review. Cooper

v. Fitzharris, 586 F.2d at 1333. See gen-

erally United States v. Frady, 456 U.S. at

__, 102 S.Ct. at 1596.29 Alternatively,

when counsel is faulted for his failure to

30. If this court were to offer a signi-

ficantly more favorable procedural post-

ure to claims of ineffective assistance

than to other habeas claims, we would

establish a perverse incentive to present

alleged trial errors as ineffective assis-

tance claims. This incentive would tend

to undermine the "cause and prejudice"

requirement in Wainwright and Frady, see

Tague, Federal Habeas Corpus and Ineffec-

tive Representation of Counsel: The Su-

preme Court Has Work To Do, 31 Stan.L.

Rev. 1, 63-64 (1978); Strazzella, Ineffec-

tive Assistance of Counsel Clains: New

Uses, New Problsms, 19 Ariz.L.Rev. 443,

479 (1977), and encourage the filing of

frivolous ineffectiveness claims in an

attempt to obtain enhanced procedural ad-

vantages. See Cooper v. Fitzharris, 586

F.2d 1325, 1329-30 (9th Cir. 1978) (en

banc), cert. denied, 440 U.S. 974, 99 S.

Ct. 1542, 59 L.Ed.2d 793 (1979).

The case law has generally recognized

a rough congruence between the showing of

prejusice necessary to avoid procedural

default under Wainwright and the showing

of prejuduce necessary to obtain a new

trial for ineffective assistance of coun-

sel. See, e.g., Jurek v. Estelle, 593 F.

2d 672, 680-84 (5th Cir.), vacated, 597

F.2d 590 (5th Cir. 1979), rehearing en

A69

develop and present a certain line of evi-

dence, application of the Chapmen rule

would require the state to prove that the

failure to produce certain evidence was

harmless beyond a reasonable doubt, even

though the evidence is more readily accessi-

ble to the petitioner. See United States

v. Valenzuela-Bernal, 458 U.S. _, __e,

102 S.Ct. 3440-3448-49, 73 L.Ed.2d 1193 (19

82); United States v. Decoster, 624 F.2d

at 228 (MacKinnon, J., concurring); Coles

v. Peyton, 389 F.2d at 230 (Craven, J., dis-

senting) . 21

(Footnote 30 continue) banc, 623 F.2d 929

(Sth Cir. 1980) (issue of interplay between

Wainwright and substantive prejudice re-

quirement not reached), cert. denied, 450

U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203

(1981); Canary v. Bland, 583 F.2d 887, 890

(6th Cir. 1978). See also Wainwright v.

Sykes, 433 U.S. 72, 98, 97 S.Ct. 2497, 2512,

53 L.Ed.2d 594 (1977) (White, J., concurring).

31. If in a given case the petitioner does

not have access to the information ne-

cessary to sustain his burden of proof,

the district court is of course free to

make appropriate adjustments in the allo-

cation of the burden. See, e.g., United

A70

For these reasons, we believe that ap-

plication of the Chapman standard without

an initial showing of harm by the petitioner

would be ill-advised.

2. The Decoster Standard

In Wright v. Estelle, Chief Judge God-

bold stated:

In this circuit, we have consistently

held that one suffering inadequate coun-

sel need not show to receive a new trial

that adequate counsel would change the

result on retrial.

572 F.2d at 1084 (Godbold, J., dissenting).

The plurality opinion in United States v.

Decoster, however, requires the petitioner

to prove precisely that. 624 F.2d at 208,

211-12; see supra note 5. We reject the

outcome-determinative test in Decoster for

reasons analogous to those that lead us to

(Footnote 31 continue) States ex rel. Green

Caer 434 F.2d 1112, 1115 (3d Cir.

y

A71

reject the Chapman standard. First, in

cases where the allegation of ineffective

assistance is based upon counsel's failure

to raise certain objections, the Decoster

test requires the petitioner to carry a

burden of showing prejudice that is differ-

ent from and greater than the analogous

burden in the "cause and prejudice" formu-

lation of Wainwright v. Sykes, 433 U.S. 72,

87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (19

77). Application of the Decoster rule may

thus have the surprising result of holding

a petitioner who has established a depriva-

tion of his constitutional right to effec-

tive assistance of counsel to a greater show-

ing of prejudice than if he was merely trying

to present a claim of constitutional error

not raised in the state courts. 22

32. See supra note 25 regarding the general

congruence between the showing of preju-

dice to avoid procedural default and the

showing necessary to obtain a new trial

for violation of the right to effective

A72

Additionally, when counsel is faulted

for failing to develop a certain line of

evidence, Decoster would require the peti-

tion to demonstrate, first, what evidence

would have been produced and, second, that

in the context of the entire case the addi-

tional evidence would have altered the re-

sult. While the first showing is properly

allocated to the petitioner because he is

better situated to show what evidence could

be uncovered in his favor, he is no better

situated than the state to demonstrate that

the new evidence was likely to alter the

outcome of the case. We believe that where

the petitioner has shouldered the considera-

ble burden of showing a violation of his

sixth amendment rights that resulted in

actual and substantial disadvantage to his

case, it is inequitable to encumber him with

(Footnote 32 continue) assistance of coun-

sel. See also the Supreme Court, 1976 Term,

91 Har.L.Rev. 70, 219-21 (1977).

A73

the further responsibility of showing

that the disadvantage determined the out-

come of the entire case. See McQueen v.

Swenson, 498 F.2d at 220.

3. The Panel Majority

The panel majority attempted to steer

between the Scylla and Charybdis of Chap-

man and Decoster by imposing upon the peti-

tioner the burden of showing that "but for

his counsel's ineffectiveness his trial,

but not necessarily its outcome, would have

been altered in a way helpful to him.”

Washington v. Strickland, 673 F.2d at 902.

We are now convinced that this standard does

nto represent a significant improvement upon

the Chapman standard. A decision of the Su-

preme Court handed down shortly after the

publication of the panel opinion discussed

the practical effect of a prejudice standard

Similar to the panel majority's standard.

In United States v. Valenzuela-Bernal the

A74

defendant claimed that the government vio-

lated his rights under the compulsory pro-

cess clause of the sixth amendment by de-

porting individuals who would have offered

testimony in his defense. The court of

appeals overturned his conviction after the

defendant made a showing that the witnesses'

expected testimony was of "conceivable bene-

fit" to the defendant. The Supreme Court

characterized this test as a virtual per se

rule:

Given the vagaries of a typical jury

trial, it would be a bold statement in-

deed to say that the testimony of any

missing witness could not have "conceiva-

bly benefited" the defense. To us, the

number of situations which will satisfy

this test is limited only by the imagi-

nations of judges or defense counsel.

458 U.S. at __, 102 S.Ct. at 3446 (foot-

note omitted).

A75

We believe it is equally true given the

"vagaries of a typical jury trial" that

virtually any new piece of favorable evi-

dence produced by a petitioner at a habeas

hearing may be "helpful to him." We there-

fore reject the test of the panel majority.

4. Actual and Substantial Detriment

The test for prejudice in Frady suggests

the proper allocation of the burden of proof

on the issue of prejudice. In order to sus-

tain that burden, the petitioner must show

that ineffectiveness of counsel resulted in

actual and substantial disadvantage to the

course of his defense. This burden is of

sufficient magnitude to discourage the fil-

ing of insubstantial claims and to focus the

attention of the district court on the

actual harm suffered by the petitioner as

a result of his counsel's performance. At

the same time, the burden does not require

A76

the petitioner to produce evidence to

which he is unlikely to have access. It

also properly reserves for the state the

ultimate burden of showing that any consti-

tutional error that did occur was harmless

beyond a reasonable doubt. Thus, even if

the defense suffered actual and substantial

disadvantage, the state may show in the

context of all the evidence that it remains

certain beyond a reasonable doubt that the

outcome of the proceedings would not have

been altered but for the ineffectiveness of

counsel. See generally Chapman v. Califor-

nia, 386 U.S. at 24, 87 S.Ct. at 828.

C. Testimony of Judge Fuller

In reaching its decision that Washington

did not suffer prejudice, the district court

considered testimony from Judge Fuller, the

state trial judge who imposed the death pe-

nalty. The district court could properly

consider that testimony to the extent that

A77

it contains personal knowledge of histori-

cal facts or expert opinion. See 10 J.

Moore & H. Bendix, Moore's Federal Practice

§ 605.02 (1982). \We decide, however, that

the portion of Judge Fuller's testimony in

which he explained his reasons for impos-

ing the death sentence and his probable re-

sponse to the evidence adduced at the habeas

hearing is inadmissible evidence that may

not be considered by the district court.

It is a firmly established rule in our

jurisprudence that a judge may not be asked

to testify about his mental processes in

reaching a judicial decision. In Fayer-

weather v. Ritch, 195 U.S. 276, 25 S.Ct.

58, 49 L.Ed. 193 (1904), the Supreme Court

held:

[T]he testimony of the trial judge, given

six years after the case had been disposed

of, in respect to matters he considered

and passed upon, was obviously imcompetent.

A78

True, the reasoning of the court for

the rule [prohibiting testimony by ju-

rors] is not wholly applicable, for as

the case was tried before a single judge

there were not two or more minds coming

by different processes to the same re-

sult. Nevertheless no testimony should

be received except of open and tangible

facts--matters which are susceptible of

evidence on both sides. A judgment is a

solemn record. Parties have a right to

rely upon it. It should not lightly be

disturbed, and ought never to be over-

thrown or limited by the oral testimony

of a judge or juror of what he had in

mind at the time of the decision.

Id. at 306-07, 25 S.Ct. at 67-68. See also

United States v. Crouch, 566 F.2d 1311, 1316

(Sth Cir. 1975).

There are several strong policy reasons

that counsel continued adherence to this rule.

A79

First, such testimony poses special risks

of inaccuracy. The testimony is often

given several years after the fact and a

judge is unlikely to be able to reconstruct

his though processes accurately over such a

span of time. Second, the finality and in-

tegrity of judgments would be threatened by

a rule that enabled parties to attack a judg-

ment by probing the mental processes of a

judge. Similar considerations underlie the

rule against probing the mental processes

or jurors. See United States v. D'Angelo,

598 F.2d 1002, 1004-05 (5th Cir. 1979); Fed.

R.Evid. 606(b).

Finally, a rule that allows the probing

of the mental processes of a state judge

would exacerbate certain problems that are

already inherent in the habeas corpus con-

text. The tendency of the habeas proceeding

to detract from "the perception of the trial

of a criminal case in state court as a deci-

A80

Sive and portentous event," Wainwright v.

Sykes, 433 U.S. at 90, 97 S.Ct. at 2508,

is enhanced by the prospect that the state

trial judge may be called into federal

court several years later to recreate his

though processes at the criminal trial.

Additionally, the friction between the

state and federal systems of justice can

hardly be alleviated by a rule that permits

the parties to interrogate a state judge

in federal court regarding the basis for

his decision. See, e.g., Rose v. Lundy, 455

U.S. at ___, 102 S.Ct. at 1203; Sumner v.

Mata, 449 U.S. 539, 550 & n. 3, 101 S.Ct.

764, 771 & n. 3, 66 L.Ed.2d 722 (1981).

D. The Need for a Remand

The district court purported to apply the

test in Decoster to determine that the peti-

tioner failed to sustain his burden of show-

ing prejudice. It also considered testimony

from Judge Fuller regarding his mental pro-

A8l

cesses in reaching his verdict. Since we

reject the Decoster rule and find that one

portion of Judge Fuller's testimony was in-

admissible, it is necessary to remand the

case to the district court for further find-

ings. See Pullman-Standard v. Swint, 456

U.S. at , 102 S.Ct. at 1791-92.

V. Conclusion

On remand, the district court should ini-

tially determine whether Washington's right

to effective assistance of counsel was vio-

lated. If the district court finds a vio-

lation, it should then determine whether

the petitioner suffered actual and substan-

tial detriment to the conduct of his de-

fense. >? Finally, if the petitioner meets

33. Our acceptance of the rule that the in-

effective counsel question and the preju-

dice question are distinct inquiries,

Washington v. Watkins, 655 F.2d at 1359

n. 23, may seem to imply that there is a

bright line between the two. We recog-

nize, however, that such is not always

the case. Claimed errors of omission or

A82

this twin burden, the district court must

determine whether, in the context of the

entire case, the detriment suffered was

(Footnote 33 continue) commission arise in

a wide variety of circumstances sometimes

resulting in substantial imbrication.

On occasion it may be perfectly clear

that an omitted act or a potential line of

inquiry would not have benefited the defen-

dant. The evinced absence of prejudice then

mitigates the need for inquiry into the ef-

fectiveness of counsel. (Indeed, manifest

absence of benefit to defendant may have

been the reason for its abandonment by ef-

fective counsel). We do not suggest that

when it is apparent that no prejudice re-

sulted from a claimed act or omission, and

a habeas court so finds, that it commits re-

versible error by failing to record speci-

fic findings with respect to the effective-

ness inquiry. We also do not suggest that

under all circumstances the stated order

or consideration of the two issues will be

the more orderly or logical.

As we have determined above, however,

constitutional deprivation of the assistance

of counsel is not shown until prejudice also

is shown, when as here the claimed ineffec-

tiveness consists of counsel's errors of

omission or commission.

In additional to being analytically sound,

separate and distinct findings on the two

issues provide a practical advantage during

the apparently inevitable appeal. In many

cases they may avoid the necessity of a re-

mand for further findings.

A83

harmless beyond a reasonable doubt.34 The

district court may, in its discretion, con-

duct further proceedings.

34. As noted above the petitioner raised

fourteen legal challenges to the death

sentence in addition to his ineffective-

ness claim. We have already affirmed

the district court's disposition of one

of those claims. See supra note 7. The

remaining thirteen challenges were dis-

missed by the district court without ela-

boration because, in its view, "indepen-

dant review of these issues reveals them

to be meritless.

The panel opinion correctly stated

that it is the preferred practice for the

district courts to include a brief expla-

nation of its disposition of each indivi-

dual claim. This practice is not manda-

tory, however, when the court "reject([s]

claims which it regards as frivolous or

totally without merit." Sumner v. Mata,

449 U.S. 539, 548, 101 S.Ct. 764, 770, 66

L.Ed.2d 722 (1981). The district court

found the remaining thirteen grounds to

be devoid of merit and our review of

those grounds persuades us that the dis-

tric court could appropriately reject

those grounds without elaboration. We

therefore affirm the dismissal of the re-

maining thirteen grounds.

Additionally, the state cross-appealed

the district court's refusal to dismiss

Washington's petition as untimely and

therefore as an abuse of the writ. We af-

firm the district court's decision. See

Jackson v. Estelle, 570 F.2d 546, 547

(Sth Cir. 1978).

A84

TJOFLAT, Circuit Judge, specially con-

curring:

This case comes before this en banc

court as an appeal from the district

court's decision to deny petitioner a

writ of habeas corpus. A divided panel

of this court voted to vacate in part the

district court's decision and to remand

the case. I agree with the panel that

this case must be remanded, but do so for

different reasons.

Petitioner's main contention in support

ot his application for a writ and the only

contention with which this en banc court

is concerned, is that he was denied his

federal constitutional right, under the

sixth and fourteenth amendments to the

effective assistance of counsel. In sup-

port thereof, petitioner alleges that his

counsel incompetently failed to produce

certain mitigating evidence at his state

capital-sentencing trial. Petitioner also

A85

alleges, as he must to support his claim,

that he was prejudiced by his counsel's

imcompetent omission.

To prevail on his claim, petitioner

must sustain both aspects of it: incom-

petence and prejudice arising therefrom.

It is only the latter aspect of his claim

with which this opinion is concerned. Be-

cause I believe petitioner cannot prevail

on the prejudice aspect of his claim, I

do not reach the issue whether counsel was

incompetent.

My discussion proceeds as follows.

First, I discuss the facts and the proce-

dural history of this case. Second, I

announce the proper standard for deter-

mining prejudice arising from counsel's

allegedly incompetent failure to produce

mitigating evidence at a state capital-

sentencing trial. Third, I discuss the way

in which the standard I propose must be

applied. And fourth, I described the

A86

errors the district court co-mitted in

this case.

Before beginning my discussion, I note

the central themes running throughout this

Opinion. The first theme is the most

basic and all the other follow from it-

that prejudice must be determined as a

matter of state law. Although the ulti-

mate question of ineffectiveness must be

decided based on federal constitutional

standards, the threshold, and in this case

dispositive, question of prejudice is a

State law question. The second theme

follows directly from the first-federal

courts should not interfere in this state

law area unless it is absolutely necessary

to resolve the claim of ineffectiveness.

Le I note immediately that because the

issue of prejudice arising from counsel's

failure to produce evidence at a state

capital-sentencing trial must be deter-

mined within the context of the state's

death penalty scheme, my discussion of

prejudice in this opinion may pertain

only to death sentences imposes under

A87

For this reason, I propose a test for pre-

judice that minimizes federal court intru-

sion on state law. The third, and final,

theme is that federal courts need not even

engage in sensitive determinations of pre-

judice if state collateral attack courts

clearly articulate the state law, in this

case states sentencing policy, and if

federal courts are aware of their duty to

dismiss unexhausted habeas claim. I now

begin my discussion.

I.

On September 20, 1976, the petitioner

and an accomplice robbed and mur@ered

Daniel Pridgen, a minister; petitioner

stated that they killed Pridgen because he

believed that a minister who engaged in

homosexual activities, as he alleges

Pridgen did, is a "hypocrite." Qn September

23, petitioner broke into the house of

(Footnote l continue) Florida law.

A88

Katrina Birk with an intent to rob. Find-

ing ws. Birk and her three elderly sister-

in-law, and experiencing difficulty during

the course of the robbery, petitioner shot

and stabbed each victim, killing Ms. Birk

and gravely injuring the others. On

September 26, petitioner and two accom-

plice kidnapped Frank Meli. Petitioner

killed Meli on September 29, when a ransom

demand failed.?

A. The State Proceedings.

On October 1, 1976, petitioner surren-

dered to police after the apprehension of

his accomplices in the Meli case. He

confessed and was indicted in the Dade

County Circuit Court for that murder and

related, lesser offenses on October 7.

William Tunkey, the counsel whose effec-

2. For a fuller account of these crimes,

see Washington v. State, 362 So.2d 658,

660-61 (Fla. 1978).

A8&9

tiveness at the sentencing phase of

petitioner's trial is in question here,

was appointed at that time.3

Acting against the advice of counsel,

petitioner confessed to the other crimes

described above on November 5, 1976, and

was indicted for them on November 17.

Again acting against the advice of coun-

sel, petitioner pled guilty to all charges

in all three cases on December 1, 1976.

The circuit judge conducted a thorough

and extensive colloguy to ensure the vo-

luntariness of the guilty plea and then

accepted it. Petiticner then waived his

right to a jury at the sentencing hearing.

At the sentencing hearing, the state

opened by detailing the circumstances of

the three murders. Tunkey waived an

3. I note that Tunkey's general compe-

tence as a lawyer, or the quality of his

representation at any point until the

sentencing phase of the trial, is not

at issue here.

A90

opening statement, relying on a sentencing

memorandum filed with the court. The

state then called nine witnesses who testi-

fied about the aggravated nature of the

offenses. It also introduced fifteen ex-

hibits that portrayed the aggravated na-

ture of the crimes.

Tunkey did not introduce any new evi-

dence in mitigation; instead, he adopted

petitioner's prior statement at the guilty

plea colloquy, thus shielding his client

from cross-examination. This previous

statement dealt primarily with matters

germane to the guilty plea; it also con-

tained some very limited information pe-

titioner volunteered about his dire econo-

mic situation, his remorse, and his emo-

tional state. The circuit judge foreclosed

the petitioner's attempt to make a more

detailed explanation of his actions at

the plea hearing, and stated that the

court would consider such information at

A91

sentencing. Tunkey, however, declined

this explicit invitation to introduce evi-

dence in nitigation at the sentencing hear-

ing.

The state then made a closing argument.

Tunkey followed, briefly emphasizing the

defendant's honesty in admitting his guilt,

Stressing the existence of the possibility

of life imprisonment without option for

parole, and asking the court for mercy.

The state then made a brief rebuttal argu-

ment.

The court imposed three sentences of

death for the three murders.‘ In imposing

these sentences, the court followed the

procedures the Florida death penalty

Statute, Fla.Stat. § 921.141, mandated.

First, it arrived at petitioner's sen-

tencing profile. It did this by finding

and then weighing statutory aggravating

4. The judge also sentenced Washington

to lesser, consecutive terms of impri-

A92

circumstances, id. § 921.141(5), and

Statutory, id. § 921.141(6), and nonsta-

tutory mitigating circumstances. It then

combined these circumstances to arrive at

a comprehensive profile of the defendant

and his crime.> Second, the court dis-

cerned the state's sentencing policy was

expressed in sentencing decisions in cases

presenting profiles similar to petition-

er's. Third, the court applied such po-

licy to petitioner's profile and determined

that death wes the appropriate sentence in

ail three cases. The Florida Supreme Court

affirmed all three death sentences on

(Footnote 4 continue) sonment for the

other offenses involved.

5. Both aggravating and mitigating cir-

cumstances fall into two categories:

those that aggravate, Fla.Stat. § 921.141

(5) (c-i), or mitigate, id. § 921.141(6)

(c-e), the offense, and those that

aggravate, id. § 921.141(5) (a) & (b), or

mitigate, id. § 921.141(6) (a), (b), (£),

& (g), the offender.

A93

statutorily-mandated direct appeal.

Washington v. State, 362 So.2d 658 (Fla.

1978), cert. denied, 441 U.S. 937, 99 S.Ct.

2063, 60 L.Ed.2d 666 (1979).

On March 19, 1981, petitioner, with

different counsel, moved for post-convic-

tion relief in the Dade County Circuit

Court pursuant to Fla.R.Crim.P. 3.850.6

Since the sentencing judge, Richard

Fuller, had retired, Circuit Judge Mario

Goderich heard the motion. The core of

this collateral attack on the death sen-

tences was that Tunkey's failure to inves-

tigate and adduce mitigating evidence at

the sentencing hearing denied petitioner

his constitutional right to the effective

assistance of counsel.

6. An earlier Fla.R.CrimP. 3.850 motion

was denied October 2, 1980, without pre-

judice to refile, due to a lack of

verification. Clemency proceedings en-

sued, but Governor Graham signed peti-

tioner's death warrant on March 13, 1981,

setting execution for the week April

6-10. Washington then refiled his rule

A94

Petitioner's motion incorporated all

the mitigating evidence that -he alleged

was incompetently omitted at his sentencing

hearing. Although he did not attempt to

show that sentencing profiles similar to

the one he presented in his motion had

received life imprisonment in the past,’

he did offer psychiatric evidence of his

broken and violent home, one marked by

extensive child abuse and incest; his

panic, frustration, and depression at his

economic circumtances; and his remorse for

his crimes. He also offered affidavits

(Footnote 6 continue) 3.850 motion,

appropriately verified.

7. Thus, petitioner argued neither that

his "new" sentencing profile required

a sentence of life imprisonment as a

matter of state sentencing policy nor

that it did as a matter of federal

constitutional law. tor a discussion

of the crucial difference between the

two, see note 21 infra.

A95

from family, friends, former employers,

and teachers. These affidavits portrayed

a young man under intense emotional pre-

sure because of his inability to provide

for himself, his wife, and his infant.

They described petitioner as a responsi-

ble and nonviolent, active in his church,

and devoted to his family. They also

emphasized that there was an inexplicable

difference between the person the affiants

knew and the one who committed these crimes.

The affiants stated that they would have

testified at the sentencing hearing but

were never contacted for that purpose. 8

After reviewing the record and hearing

arguments of counsel, but without holding

an evidentiary hearing, the court denied

8. For amore extensive discussion of

these affidavits, see Washington v.

Strickland, 673 F.2d at 888 n.4.

A96

all relief on March 27, 1981.9 In so doing,

the court assumed arguendo that the

9.

The state's claim that the Florida

state court's rejection of the ineffec-

tive assistance claim is entitled to

28 U.S.C. § 2254(d)'s (1976) presumption

of validity requires no extensive dis-

cussion. Ineffective assistance claims

are mixed questions of law and fact, and

section 2254(d) is therefore wholly in-

applicable. Baty v. Balkcom, 661 F.2d

391, 394 n.5 (5th Cir. 1981) cert.

denied, U.S.___, 102 S.Ct. 2307, 73

L.Ed.2d 1308 (1982); Harris. v. Oliver,

645 F.2d 327, 330 n.3 (5th Cir.). cert.

denied, __U.S.__—,_ 102 S.Ct. 687, 70

L.Ed.2d 650 (1981); Mason v. Balkcom,

531 F.2d 717, 721-22 (5th Cir. 1976).

Moreover, the absence of an eviden-

tiary hearing in state court on his

claim disposes of the state's contention.

The presumption referred to, 28 U.S.C.

§ 2254(d) (1976), applies only to

determination(s) after a hearing on

the merits of a factual issue, made

by a State court of competent juris-

diction in a proceeding to which the

applicant for the writ and the State

or an officer ... thereof were parties,

evidenced by a written finding, written

opinion, or other reliable and ade-

quate written indicia

The Florida court disposed of this claim

on the pleadings for failure to state a

A97

aliegations of petitioner's motion and

the affidavits he presented in mitigation

were true but held, nonetheless, that he

failed to establish a prima facie showing

of prejudice arising from ineffective

assistance of counsel, which showing is

a necessary component of a claim of inef-

fectiveness.19 In effect, the court dis-

missed the motion for failure to state

(Footnote 9 continue) claim on which re-

lief could be granted; therefore, section

2254(d)'s presumption is irrelevant.

10. The state collateral attack court

applied the standards the Florida

Supreme Court enunciated in Knight v.

State, 394 So.2d 997 (Fla. 1981), to

analyze the prejudice issue. Knight

v. State, in turn, relied heavily on

a plurality opinion of the Court of

Appeals for the District of Columbia

Circuit. See United States v. De-

coster, 624 F.2d 916, 208 (D.C.Cir.

1979) (en banc) (opinion of Leventhal,

J., for four members of the court).

The "outcome determinative" test set

forth in Decoster may not now command

a majority of the Court of Appeals

for the District of Columbia Circuit,

and it does not command a majority of

this court. See not 18 infra. Our

determination of prejudice will be

A98

a claim on which relief could be granted.

The court stated that

as a matter of law, the record affirma-

tively demonstrates beyond any doubt

that even if Mr. Tunkey had [presented

the new mitigating evidence] at the

(Footnote 10 continue) guided by the stan-

dard we articulate today. See Part III

infra.

I do not mean to criticize, however,

the Florida Supreme Court for adopting

the outcome-determinative test. As I

discuss in Parts II & III infra, there

are reasons why a federal court should not

adopt such a test that do not appdy to the

state courts. In particular, state collat-

eral attack courts may promulgate state

sentencing policy, but federal courts have

no power to do so. Because the outcome-

determinative test requires federal courts

to make provisional state sentencing policy,

we must reject it. Nevertheless, the state

is free to adopt any test for prejudice

it chooses, subject to federal constitu-

tional limitations. No claim is made in

this case that the Florida courts may not

constitutionally adopt an outcome-deter-

minative test to determine whether a law-

yer's failure to introduce mitigating

evidence at the sentencing hearing pre-

judiced his client, and I intimate no

opinion thereon.

A99

time of sentencing, there is not even

the remotest chance that the outcome

would have been any different. The

plain fact is that the aggravating

circumstances proved in this case were

completely overwhelming, and that even

to this date the Defendant cannot show

that any statutory mitigating circum-

stances existed. The non-statutory

mitigating circumstances exited. The

non-statutory mitigating circumstances

which he claims his attorney failed to

investigation and present at the time

of sentencing would as a matter of law,

be insufficient to outweigh the multi-

ple aggravating circumstances present

in this case.

Order Denying Post-Conviction Relief Filed

Pursuant to Fla.R.Crim.P. 3.850 at 12

(emphasis in original).

On April 6, 1981, the Florida Supreme

A100

Court affirmed this denial of relief, con-

cluding that "({appellant's] claims are

shown conclusively to be without merit

so aS to obviate the need for an eviden-

tiary hearing.... [W]e can find no pre-

jJudice caused to appellant, even if we

assume that every allegation he has made

in his petition is true." Washington v.

State, 397 So.2d 285, 286 (Fla. 1981).

B. The Federal Habeas Corpus Proceed-

ings.

The same day the Florida Suprepe Court

handed down its decision, two dane prior

to his scheduled execution, petitioner

applied to the federal district court for

a writ of habeas corpus. He presented

the same inefffective assistance of coun-

sel claim he had presented in state court.

On April 7, the district court conferred

with counsel to determine whether an

evidentiary hearing would be necessary

and thus a temporary stay of execution.

A101

The court inquired whether the Dade

County Circuit Court had held an eviden-

tiary hearing on petitioner's claim, and,

if so, which issues had been resolved.21

The state replied that the state court

had denied petitioner's claims on the

pleadings, without an evidentiary hearing,

concluding as a matter of law that peti-

tioner had failed to allege a sixth, and

fourteenth, amendment violation. Peti-

tioner's counsel insisted that the court

had to hold an evidentiary hearing to

dispose of each element of petitioner's

claim. The stated noted that petitioner's

habeas petition, including his allegation

of prejudice, merely replicated the Fla.

R.Crim.P. 3.850 motion, which the state

court had denied on the pleadings. It

Il. This is the crucial information re-

quired to determine the relevance of

28 U.S.C. § 2254(d) and the need for an

evidentiary hearing. See note 9 supra.

A102

urged the court therefore to dismiss the

petition without a further hearing, for

failure to state a claim on which relief

could be granted. The district court

concluded this conference with counsel

without ruling on the sufficiency of the

petition. Shortly thereafter, the court

notified counsel that it would convene an

evidentiary hearing on April 10.

When the hearing began on April 10, the

court announced that it was going to

expedite the proceedings. As a starting

point, 1}? the court stated that it would

consider the mitigating evidence that

petitioner contended his trial counsel

should have produced at the sentencing

hearing. The court stated that it would

12. The foundation for the hearing, as

in all habeas cases, was the record

of the sentencing and collateral attack

proceedings in the Dade County Circuit

Court, and the two opinions of the

Florida Supreme Court reviewing those

proceedings, together with copies of

petitioner's briefs. See Federal

A103

receive that evidence in the form of

the affidavits and psychiatric reports

attached to the habeas petition. Record,

vol 2, at 4-5. It is worth emphasizing

that these affidavits and psychiatric

reports were identical to those the state

collateral attack court had considered

and rejected. The court would not, how-

ever, permit the affiants to testify.

Petitioner's counsel objected to this pro-

cedure and argued that the affidavits

were merely illustrative and did not

contain everything the affiants and oth-

ers would say in mitigation of the death

penalty if permitted to testify in open

court. The court overruled this objection,

and instructed counsel to proceed with his

case.

Counsel then called petitioner's

TFootnote 12 continue) Habeas Rule 2,

4, and 5.

A104

trial attorney, William Tunkey, to the

stand. Tunkey testified that the court

had appointed him in October 1976 to

represent petitioner against charges

that petitioner had kidnapped and murder-

ed Frank Meli. He then testified that

after seeing his client's confessions

he "had a hopeless feeling,” id. at 22,

and that "the investigation ..., the

work that was done to locate prospective

witnesses to testify on his behalf [was]

minimal and that is using hindsight.” Id

at 25-26. Tunkey stated that his know-

ledge of the sentencing judge, Judge

Richard Fuller, dictated his trial stra-

tegy for the sentencing hearing. Tunkey

believed that Judge Fuller respected a

defendant who candidly admitted his guilt.

Therefore, Tunkey presented his client's

case in a manner that he thought would

convince the judge that the defendant had

pled guilty to all charges with candor

A105

and sincerity.

Petitioner rested his case after Tunkey's

testimony, and the state moved for an in-

voluntary dismissal, under Fed.R.Civ.P.

41(b). The court announced that it would

defer ruling on the motion until the close

of all the evidence and directed the state

to proceed with its case.+4 The state's

case consisted primarily of the testimony

13. My resolution of the prejudice issue

makes it unnecessary for me to decide

the question of incompetence. I inti-

mate no opinion thereon.

14. When a district court presented with

a sixth amendment claim such as the one

in this case elects to rule on a Fed.

R.Civ.P. 41(b) motion at the close of

the petitioner's case, it must decide:

(1) whether petitioner has produced

mitigating evidence that would have

caused the sentencing court to recon-

Sider its decision, see Part II infra;

and (2) whether the evidence indicates

that lawyer incompetence-that is, in-

effectiveness of constitutional magni-

tude-was the cause of the omission of

this evidence at sentencing rather than,

for example, a competent strategic

choice. Both issues present mixed

guestions of law and fact. In answer-

ing these questions at the close of

A106

of Judge Fuller. The state presented

Judge Fuller as "an expert witness with

regard to his experience on the Bench.”

Record, vol. 2, at 80. Over petitioner's

objection on relevancy and other grounds,

the state elicited Judge Fuller's opinion

that petitioner's new mitigating evidence

would have mace no difference in the sen-

tence imposed at trial. Judge Fuller

stated that the murders petitioner com-

mitted were so aggravated that even if

petitioner had produced the witnesses

identified in his habeas petition at

the sentencing hearing and they had testi-

fied as petitioner represented they would

have, they "would not have changed my

opinion then nor would it have changed my

sentencing were I to give it today.” Id.

(Footnote 14 continue: petitioner's case,

the district court of course does not make

credibility choices, weigh the evidence,

and decide facts; it only determines

whether the petitioner has established a

prima facie case.

Al07

at 96.

The district court denied the writ on

the ground that petitioner had failed to

prove prejudice arising from Tunkey's

failure to produce mitigating evidence

at the state sentencing hearinc. In its

opinion, the court indicated that it did

not consider Judge Fuller's testimony as

"determinative on the issue of prejudice"

because his testimony had "the potential

weakness of hindsight analysis"; never-

theless, the court reached the identical

result that Judge Fuller said he would

have reached. It concluded that "there

does not appear to be a likelihood, or

even a significant possibility that the

balance of aggravating against mitigating

circumstances under the Florida death

penalty statute would have produced

generally favorable information from

family, friends, former employers, and

A108

and medical experts." ta.15

An appeal was taken, and a divided

panel of this court vacated in part the

district court's decision and remanded

the case. Washington v. Strickland,

673 F.2d 879 (5th Cir. 1982). The majo-

rity held that the district court had

applied an erroneous standard to deter-

mine prejudice; the dissent argued that

15. The court also summarily rejected

fourteen additional alleged deficiencies

in the state proceedings and the Flori-

da sentencing statute, noting that

although the issues had not been fully

briefed, "my independent review of

these [claims] reveals them to be

meritless." Record, vol. I, at 20.

The district court did not explain why

these additional claims were merit-

less; consequently, the panel was un-

able to carryout its appellate review

function. The panel directed the dis-

trict court, on remand, to address and

dispose of each claim separately.

Washington v. Strickland, 673 F.2d at

907. I concur in the panel's instruc-

tion to the district court.

A109

no prejudiced could be shown under any

test, and that counsel had made compe-

tent, strategic choices. The case is

now before us en banc.

II.

I now consider the degree of prejudice

a petitioner must prove to obtain federal

habeas corpus relief on a claim that his

counsel incompetently failed to produce

mitigating evidence at his state capital-

sentencing trial. My discussion proceeds

as follows. First, I note that there is

no generally accepted test in this area.

Therefore, I treat this case as one of

first impression. Second, I reject the

test on which the district court relied,

the outcome-determinative test, for

two reasons: it results in the most

onerous federal intrusion on state

sentencing policy, and it is incongruous

with the goal underlying the right to

A110

counsel-to ensure fairness in the criminal

process. Third, I reject the test the

panel proposed, whether the mitigating

evidence counsel failed to produce would

have "altered [petitioner's trial] in a

way helpful to [petitioner] ,"' 763 F.2d at

902 because it is too vague. Finally, I

propose a test that ensures fairness in

the criminal process, and is neither too

intrusive on state sentencing policy nor

too vague; whether the mitigating evidence

counsel failed to produce would have sub-

Stanitally or materially affected the

decision-making process of a rational

sentencer.

Initially, I note "(t]he law of our

circuit is as yet unclear as to the pre-

cise degree of prejudice that a defendant

must demonstrate before he is entitled

to habeas corpus relief on grounds that

he received ineffective assistance of

counsel ...." Washington v. Watkins,

Alll

665 F.2d 1346, 1362 n. 32 (5th Cir.

1981), cert. denied, __ U.S. __—_—s:102

S.Ct. 2021, 72 L.Ed.2d 474 (1982)

(emphasis in original) .1 It is clear,

however, that "some degree of prejudice

must be shown." Id. at 1362 (emphasis

in original) .1?? I now proceed to deter-

mine what that degree of prejudice should

be in the case before us.

16. Although the Watkins court made

that observation, it had no reason

to clarify the law because in that

case petitioner failed to demonstrate

any prejudice whatsoever. 655 F.2d

at 1362-63.

17. Accord Beavers v. Balkcom, 626 F.2d

114, 116 (5th Cir. 1981); Mendiola v.

Estelle, 635 F.2d 487, 491 (5th Cir.

1981); Lovett v. Florida, 627 F.2d

706, 709-10 (5th Cir. 1980); Davis v.

Alabama, 596 F.2d 1214, 1221 (5th Cir.),

vacated as moot, 446 U.S. 903, 100

S.Ct. 1827, 64 L.Ed.2d 256 (1979),

vacated on remand, 623 F.2d 366 (5th

Cir. 1980); Buckelew v. United States,

575 F.2d 515, 521 (5th Cir. 1978);

United States v. Doran, 564 F.2d 1176-

78 (5th Cir. 1977), cert. denied, 435

U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d

524 (1978); see United States v.

Morrison, 449 U.S. 361, 364, 101 S.Ct.

665, 668, 66 L.Ed.2d 564 (1981);

A112

In formulating the proper standard,

it is helpful to recognize the defici-

encies of the two tests the federal

courts have used in this case. The first

(Footnote 17 continue)

The premises of our prior cases is

that the constitutional infringement

identified has had or threatens some

adverse effect upon the effectiveness

of counsel's representation or has

produced some other prejudice to the

Gefense. Absent such impact on the

criminal proceeding, however, there

is no basis for imposing a remedy in

that proceeding, which can go forward

with full recognition of the defen-

dant's right to counsel and to a fair

trial.

But cf. Holloway v. Arkansas, 435 U.S.

475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)

(when court improperly requires the same

attorney to represent two defendants with

conflicting interests at same trial, re-

versal is automatic without a showing of

prejudice); Geders v. United States, 425

U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592

(1976) (when trial court prohibits defen-

dant from consulting his attorney during

overnight recess separating his direct

testimony from his cross-examination,

reversal is automatic); Herring v. New

York, 422 U.S. 853, 95 S.Ct. 2550, 45

L.Ed.2d 593 (1975) (refusal to permit

counsel to make a closing argument is a

denail of effective assistance of counsel,

and no showing of prejudice is required).

A113

is the outcome-determinative test, which

the district court used. The Court of Ap-

peals for the District of Columbia Circuit

first formulated the outcome-determinative

test in United States v. Decoster, 624

F.2d 196 (D.C.Cir. 1979): "[T]he accused

must bear the initial burden of demonstrat-

ing a likelihood that counsel's inade-

quacy affected the outcome of the trial."

Id. at 208 (en banc; plurality opinion;

emphasis added.) 18

A majority of the panel in this case

rejected the outcome-determinative test

because it

would require that the court hearing

the ineffective assistance claim put

itself in the place of the trial-court

factfinder in an attempt to predict

18. It is significant to note that the

outcome-determinative test advocated by

the plurality in Decoster v. United

State, 624 F.2d at 208, was developed

to assess the effectiveness of counsel

in the guilt phase of an armed robbery

A114

with some considerable degree of accu-

racy what that factfinder would have

done had it been presented with dif-

ference evidence. We think that a

framework of analysis which would in-

evitably require us, in determining

whether the petitioner has made out a

prima facie case for habeas relief,

(Footnote 18 continue) trial. This court

has found no case, other than the one be-

fore use, in which a federal court applied

the outcome-determinative test to the

sentecning phase of a capital trial. Fur-

thermore, the plurality oponion in Decos-

ter may not even be the controlling stand-

ard in the District of Columbai Circuit

today. See United States v. Wood, 628 F.2d

554, 559 (D.C.Cir. 1980) (en banc; per

curiam) ("In order to secure a reversal,

appellant must establish some basis for

believing that a different kine of pre-

paration would have resulted in the pre-

sentation of a contrary line of testimony

for the jury's consideration"). Subse-

quent panel opinions file to resolve the

question precisely. Compare United States

v. Hinton, 631 F.2d 769, 782 (D.C.Cir.

1980) ("likely prejudice" required) with

United States v. Patterson, 652, F.2d 1046,

1048 (D.C.Cir.), cert. denied, 454 U.S.

904, 102 S.Ct. 412, 70 L.Ed.2d 223 (1981)

(suggesting an "outcome determinative"

test might be controlling).

A115

to engage in such highly speculative

recreations and revisions of trial court

proceedings is to be avoided rather

embraced.

Washington v. Strickland, 673 F.2d at

901.49

An even more important reason for re-

jecting the outcome-determinative test is

its invidious effect on the state sen-

tencing process. As I discuss supra Part

I, in Florida the decision whether to im-

pose the death penalty involves a three-

step process. First, the sentencer finds

aggravating and mitigating circumstances,

and weighs them to arrive at a sentencing

19. Cf. Holloway v. Arkansas, 435 U.S.

475, 98 S.Ct. 1173, 55 L.Ed.2d 426

(1978):

In the normal case where a harmless-

error rule is applied, the error

occurs at trial and its scope is

readily identifiable.... But ina

case of joint representation of con-

flicting interests the evil-it bears

repeating-is in what the advocate

finds himself compelled to refrain

A116

profile. ?° Second, the sentencer ex-

amines cases presenting profiles similar

to petitioner's to find the relevant state

sentencing policy. Third, the sentencer

applies the state policy to petitioner's

sentencing profile, and decides whether

the death penalty should be imposed.

This process results in a normative deter-

mination whether the circumstances of the

(Footnote 19 continue)

from doing... It may be possible

in some cases to identify from the

record the prejudice resulting from

an attorney's failure to undertake

certain trial tasks, but even with

a record of the sentencing hearing

available it would be difficult to

judge intelligently the impact of a

conflict on the attorney's represen-

tation of a client... Thus, an in-

guiry into a claim or harmless error

here would require, unlike most

cases, unguided speculation.”

Id. 435 U.S. at 490-91, 98 S.Ct. at 1182

(first emphasis in the original, second

emphasis added; citations omitted).

20. When I refer to the sentencer I

mean the sentencing circuit judge,

but I note that he takes into account

the recommendation of the advisory jury.

Fla.Stat. § 921.141(2).

All17

crime and the characteristics of the

defendant warrant a sentence of life im-

prisonment or of death. This norm, which

embraces the given sentencing profile,

then becomes a part of the state sen-

tencing policy to which other sentencers

must look in the future.

As applied in this context, the out-

come-determinative test requires the fe-

deral habeas judace to determine whether

the omission of certain evidence in pe-

titioner's state sentencing trial sub-

Stantially affected the outcome of that

trial. This determination requires the

habeas judge to engage in the three-step

process described above, and thus to fore-

cast the appropriate sentence in light of

the new evidence. The federal habeas

judge must, therefore, promulgate state

sentencing policy. Although the state

would always be free to reject the federal

judge's determination of such policy, the

A118

federal judge still would have entered

a provisional sentencing norm. The exis-

tence of such provisional sentencing norms

could lead to some truly anomalous results,

as the following two examples show.

First, poist that a federal habeas

judge denies the writ of a petitioner

sentenced to death because he concludes

that the new evidence would not have

affected the outcome of petitioner's sen-

tencing trial. In so doing, the court

must have found that the applicable state

sentencing policy, which takes into ac-

count the new evidence, requires that pe-

titioner receive the death sentence. Now,

poist a second case, this one in state

court, which presents a sentencing profile

identical to the one the petitioner pre-

sented in federal court. Clearly, the

state is free to reject the federal judge's

interpretation of the state sentencing po-

licy and sentence the defendant to life

A119

imprisonment. If, however, the state court

imposes such a sentence, the unbelievable

result is that a federal court has upheld

a death sentence on the basis of a provi-

sional norm which the state later rejects

as an erroneous forecast of state sen-

tencing policy. This court must not

adopt a test that miacht produce such a

result.

A second example further shows the

anomalous results of using an outcome-

determinative test. Posit a federal

habeas judge who grants the writ of a

petitioner sentenced to death because the

new evidence requires the application of

state sentencing policy that calls for a

sentence of life imprisonment. Now, poist

that a resentencing trial occurs in state

court. There, the state court considers

the identical sentenceing profile that

the haebas judge considered. As in the

first example, the state sentencer is free

A120

to reject the federal court's promulga-

tion of a temporary state sentencing norm

and to sentence petitioner to death. If

the state sentencer does impose the death

penalty, the federal court's provisional

decision may create needless confusion,

and a perception of injustice arising

from the conflicting decisions of two

courts.

Because the outcome-determinative test

could produce these inconsistent results, ‘*

it must be rejected. This court cannot

countenance any test for prejudice that

requires the federal court to intrude so

G@eeply into the promulgation of state

sentencing norms, an area in which the state

courts have the primary authority.22-

21. I must emphasize that although state

courts are the primary promulgators of

state sentencing policy, they are, of

course, subject to the Federal Constitu-

tion. Federal courts are, of course,

the ultimate interpreters of that venera-

ble document. Therefore, if a claim is

made that a state sentencing decision is

Al21

The result of allowing the federal judi-

ciary to intrude on such an area is that

the federal courts must make provisional

forecasts of state sentencing norms. As

(Footnote 21 continue) unconstitutional,

because, for example, it is arbitrarily

disparate with other sentences, the

federal court must decide that claim.

Petitioner raises no such claim in this

case, and I intimate no opinion thereon.

In this case, petitioner claims only

that he was prejudiced as a matter of state

law because he may have received a life

sentence had his counsel produced the

omitted mitigating evidence at his sen-

tencing hearing. Although petitioner's

incompetency claim is based on the sixth

and fourtheenth amendments to the Federal

Constitution, he attempts to show pre-

judice only as a matter of state law.

Because we are dealing with a claim one

aspect of which, incompetency, is based

on federal law, and the other aspect,

prejudice, on state law, unfortunately we

may have to concern ourselves with state

sentencing policy somewhat. Aside from

this intrusion, which, as I discuss in

Part III infra, is within the state's

power to prevent, we as federal courts

have no business involving ourselves

with state sentencing policy unless, of

course, a constitutional claim arises.

a F

Al22

the above examples illustrate, such provi-

sional decision making must be avoided. 22

The outcome-determinative test must

also be rejected because it is incongruous

with the rationale underlying the right to

counsel. The Supreme Court recently stat-

ed this rationale in United State v. Morri-

son, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.

2d 564 (1981): "The Sixth Amendment pro-

vides that an accused shall enjoy the right

‘to have the assistance of counsel for his

defense.’ This right, fundamental to our

system of justice is meant to assure

fairness in the adversary criminal process."

22. The use of the outcome-determinative

test creates a situation analogous to

the situation the Supreme Court sought

to avoid by fashioning the abstention

doctrine in Railroad Commission v.

Pullman Co., 312 U.S. 496, 61 S.Ct.,

643, 85 L.Ed. 971 (1941):

In this [case] a federal court of

equity is asked to decide an issue

by making a tentative answer which

may be displaced temorrow by a state

adjudication.... The reign of law

A123

Id. at 363, 101 S.Ct. at 667. The

Supreme Court has thus intimated that the

test for determining prejudice arising

from the ineffective assistance of coun-

sel should focus on whether the fairness

of the "adversary criminal process" was

affected. Thus, we should not adopt a

test that measures prejudice by looking

to the outcome of the criminal proceeding,

as opposed to the fairness of the proceed-

ing itself, because such a test focuses

on the wrong issue and therefore is not

suited to schieving the underlying goal

of the right to counsel. For the reasons

(Footnote 22 continue)

is hardly promoted if an unnecessary

ruling of a federal court is thus

supplanted by a controlling decision

of a state court. The resources of

equity are equal to an adjustment

that will avoid the waste of a tenta-

tive decision.... '

312 U.S. at 500, 61 S.Ct. at 645 (cita-

tions omitted).

A124

described above, we must reject the out-

come determinative test as the standard

for determining prejudice in federal

habeas proceedings.

In rejecting the outcome-determinative

test, the panel suggested an alternative:

"this prejudice requirement is satisfied

by demonstrating that but for his counsel's

ineffectiveness his trial, but not ne-

cessarily its outcome, would have been

altered in a way helpful to him....

[T]he change [in the trial] must be some-

thins more than insubstantial or de mini-

mus. See Washington v. Watkins, 655 F.2d

Ge 2s0e, Be 32.452" 673 F.2d at 902.

This standard is however, also problematic.

It is vague in the extreme and, therefore,

of little utility. It simply provides no

standard at all to guide courts in assess-

ing prejudice. Any additional evidence

would alter a trial somewhat; what consti-

tutes more than insubstantial or de minimus

Al25

alteration is obscure. Therefore, this

test too must be rejected.

Having described the shortcomings of

the tests propsoed thus far, it is clear

that the proper standard for determining

prejudice must satisfy the following

concerns: it must provide the courts with

some definitive guidance to assess pre-

judice; it must be responsive to the goal

of ensuring "fairness in the adversary

criminal process"; and it must not require

the federal courts to engage in provi-

sional decision making. I believe the

following test satisfies these concerns:

to show prejudice in a case like the one

before us petitioner must prove that the

decision-making process of a rational

sentencer would have been substantially

or materially altered had counsel proper-

ly produced the omitted mitigating

A126

evidence. 23 If the district court deter-

mintes that the new evidence would not have

made a substantial difference on the de-

cision-making process of the state sen-

tencer, the prejudice test is not satisfied.

23.

The petitioner must carry his burden

of proof by a preponderance of the evi-

dence. See Walker v. Johnston, 312

U.8. 275, 266, 61 8.Ct. 574, 579, 85

L.Ed. 830 (1941) (a habeas case in

which the Supreme Court required

petitioner to bear "the burden of sus-

taining his allegations by the prepon-

derance of the evidence"). This

traditional civil burden of proof

and its allocation are used because

habeas corpus proceedings are civil

proceedings. See Browder v.

Director, Department of Corrections,

434 U.S. 257, 269, 98 S.Ct. 556, 563,

54 L.Ed.2d 521 (1978) ("It is well

settled that habeas corpus is a civil

proceeding").

Judge Vance disagrees with this

traditional burden and its allocation

as applied in this case. He would

change the model in habeas corpus

cases based on an ineffective assistance

of counsel claim to the following: the

petitioner bears the burden of proving

by a preponderance of the evidence

that the ineffective assistance of

counsel worked to his actual and sub-

stantial disadvantage. If petitioner

satisfies this initial burden, then

Al27

This test provides the federal courts

with definitive guidance because it re-

quires them not merely to determine

(Footnote 23 continue) the burden of proof

shifts to the state who must prove that

counsel's ineffectiveness was harmless

beyond a reasonable doubt.

I reject Judge Vance's proposed burden

and its allocation for several reasons.

First, Judge Vance's proposal clearly

flies in the face of the traditional

standards of proof used in civil pro-

ceedings. In addition, Judge Vance's

proposed burden and its allocation are

totally inconsistent-if either the peti-

tioner or the state satisfies their re-

spective burdens, then the other party

cannot, as a matter of law, satsify its

burden. For example, if at the conclusion

of the habeas proceeding, the petitioner

has carried his burden of proving prejudice

(i.e., that the ineffective assistance of

counsel worked to his actual and sub-

stantial disadvantage), then it is logi-

cally impossible also to find that this

prejudice was harmless beyond a reason-

able doubt, then it cannot also find that

petitioner proved his prejudice by a pre-

ponderance of the evidence.

I also reject Judge Vance's proposed

allocation of the burden of proof for

strong policy reasons. Generally, the

burden of proof is allocated to that party

who has control of the evidence required

to prove the claim raised in the action.

In an action based on a claim of ineffective

A128

whether the trial process was "affected,"

but whether it was "Substantially affect-

ed." Although such terms as "substantial"

and "material" still do not attain the

(Footnote 23 continue) assistance of

counsel due to a failure to produce evi-

dence, this mitigating evidence is pe-

culiarly within the control of the peti-

tioner. Therefore, it is appropriate in

such cases to allocate the burden of

proof to the petitioner.

Finally, I note that Judge Vance's

reliance on Chapman v. California, 386

U.S. 18, 87 &8.Ct. 824, 17 L.EG.2d 705

(1967), to shift the allocation of the

burden of proof is misplaced. Chapman

arose from a direct appeal of a decision

by the California Supreme Court. This

case arises from a collateral attach of

a sentence of death by a state trial

court. The different proceedings re-

guire different burdens as well as differ-

ent allocations of cu See United

States v. Frady, 8. , 102

S.Ct. 1584, 1593, a 1.Eas2a B16 (1982)

(differences between collateral attack

and direct review require differing stand-

ards of review); cf. henderson v. Kibbe,

431 U.S. 145, 154, 97 S.Ct. 1730, 1736-

37, 52 L.Ed.2d 203 (1977) (burden of pro-

ving that an erroneous instruct was pre-

judicial greater on collateral attack

than on direct review). Thus Judge

Vance is wrong when he suggests that fe-

deral district courts in their trial of

habeas corpus cases should use the standards the

Supreme Court uses in his appellate review.

A129

III.

Having articulated the proper standard

for determining prejudice, I now explain

how a federal habeas court must apply it.

The overriding message of this explanation

is that because prejudice must be deter-

mined as a matter of state law, the court

must first identify the relevant state sen-

tencing profiles and norms applicable to

petitioner's case. Furthermore, once it

is understood that a court can determine

prejudice only by discerning state sen-

tencing policy, it becomes clear that if

state courts clearly articulate such policy

and if federal courts are sensitive to

dismissing unexhausted petitions, no room

is left for federal courts to interfere

with such policy. In fact, the prejudice

test I propose need be applied only whtn

the state collateral attack court has fail-

ed to articulate clearly the state sen-

tencing policy applicable to the sentencing

A130

level of guidance desired, they are

terms which court apply daily in testing

abstract concepts. Moreover, these terms

become more meaningful when applied in

light of tre underlying goal of ensuring

fairness in the criminal process. As

such, this test provides the federal

courts with as much guidance in assessing

prejudice as is possible in this area.

This test also properly focuses cn the

trial process, rather than on its outcome.

Therefore, it is responsive to the goal

of ensuring a fair criminal process, the

underlying purpose of the right to counsel.

Finally, because this test does not re-

quire the court to concern itself with the

outcome of a hypothetical case, the court

need not engage in provisional decision

making. In sum, the test remedies the

shortcomings of the tests previously

discussed.

Al31

profile petitioner has presented to the

federal court. Thus, a major concern

the state has expressed in this case, that

of federal court intrusion on state sen-

tencing policy, is addressed. I now dis-

cuss these points in greater detail.

I begin my analysis by observing that

the question of prejudice from counsel's

failure to produce mitigating evidence is

a question of determining the effect the

omitted evidence would have had on the

Original sentencer. Of course, no colla-

teral attack court can say with certainty

what this effect would have been. It

Simply cannot read the mind of a shypothe-

tical sentencer in a hypothetical case.

The best the court can do is look to

those considerations the sentencer would

have looked to had it been presented with

the omitted evidence. By examining the

same considerations the sentencer would

have examined, the court is able to make a

A132

rough judgment how the new evidence

would have affected the sentencer.

As I discuss in Parts I and II supra,

in Florida the decision whether to im-

pose the death penalty involves a three-

step process. First, the sentencer con-

siders all the relevant evidence pre-

sented concerning the offense and the

offender. The sentencer evaluates this

evidence and arrives at a sentencing pro-

file.24 Second, the sentencer looks for

other sentencing decisions presenting

sentencing profiles similar to the one

before it. From these decisions, it

gleans the state sentencing norms promul-

gated in those cases. Third, having deter-

mined both the sentencing profile in the

24. As I discuss supra in Part I, in

making its findings of fact and con-

clusions of law the sentencer classi-

fies the offense and the offender in

terms of the statutory aggravating

and the statutory and nonstatutory

mitigating circumstances. It then

A133

case before it and the relevant policy

as expressed in norms, the sentencer

applies the policy to the profile and

arrives at its decision. This decision

involves the sentencer's judgment about

how clearly state policy addresses defen-

dant's case. If state policy is clear,

the sentencer has less discretion within

which to impose its sentence. If state

policy is unclear, however, because the

sentencing profile before it is materailly

different from those presented to state

sentencers in previous cases, the sentencer

has more discretion within which to make

its sentencing decision. In making its

decision, the sentencer promulgates a new

sentencing norm which becomes part of

state sentencing policy.

(Footnote 24 continue) combines these

characteristics into a sentencing profile

that presents a comprehensive picture of

all aspects relevant to the sentence.

A134

I discuss in more detain in this Part

infra, if petitioner has presented his

new profile to the state collateral

attack court, therefore exhausting his

claim, the federal court should have to

look no further than the state collateral

attack court's dispositive order to find

the norm governing petitioner's case.

Thus, if that state court has articulated

this norm clearly, the federal court's

task in engaging in the third step

becomes simple.

At the thrid step the similarity be-

tween the role of the sentencer and that

of the federal court ends. The federal

court has no role in determining whether

existing state sentencing policy dictates

the outcome in a petitioner's case. This

is a state policy determination and, as

I discuss in Part II supra in rejecting

the outcome-determinative test, an area

into which federal courts must not intrude.

A135

Once the above description of the

sentencing process is understood clearly,

the task of federal courts in deciding

the issue of prejudice in connection

with claims of ineffective assistance of

counsel based on counsel's failure to pro-

duce evidence becomes simple. The federal

court must go through the first two steps

just as the original sentencer would have

done. First, it identifies the sentencing

profile petitioner claims he would have

presented to the sentencing court had his

counsel not been incompetent. It does

this by starting with the profile the sen-

tencer described when it imposed sentence,

and then altering that profile to account

for the omitted evidence.

Having identified the profile, the

court next engages in the second step-

finding those profiles similar to peti-

tioner's in order to find what sentencing

norms were applied to those profiles. As

A136

Rather, under the test I propose, the

federal court's role is to determine only

whether state sentencing policy is clear

enough that the sentencer would have had

not sudstantial discretion to impose a

sentence of life imprisonment. If the

state police leaves the sentencer with

substantial discretion to impose either

a sentence of death or life imprisonment,

the federal court must find that preju-

dice exists. In practical terms, this

is what I mean when I say that prejudice

exists when the new evidence would have

materially altered the decision-making

process of a rational sentencer.

Having described the way in which the

federal court applies the test for pre-

judice in terms of three concrete steps,

my next observations is that if the state

courts clearly articulate state sentencing

policy and if federal courts are sensitive

to dismissing unexhausted habeas petitions,

A137

the federal court's performance of the

third step is simple. In approaching the

third step, one of three things should

become obvious to the federal uabeas

judge: he must dismiss petitioner's

Claim because state policy, as promul-

gated by the state collateral attack court,

is clear that death is the appropriate

sentence; he must proceed to make the

determination dictated by the third step

because the state collateral attack court

has not clearly articulated state sen-

tencing policy; or he must dismiss the

petition because petitioner has presented

an unexhausted claim. Only in the second

scenario is the federal habeas court

forced to apply the prejudice test I pro-

pose and thus engage in the potentially

difficult canvass of state sentencing

policy the test dictates. The occurrence

of this scenario is, however, within the

state's power to prevent. This becomes

A138

apparent when one realizes the function

of the state collateral attack court

in resolving the issue of prejudice.

I review this function briefly before

returning to a discussion of these three

scenarios.

In deciding a claim of attorney

incompetence based on counsel's failure

to produce evidence, the state collateral

attack court must also engage in a three-

step process to determine whether the

petitioner was prejudiced. The first

two steps are identical to those per-

formed by the state sentencer and the

federal habeas judge: the court must find

the offense and offender characeteristics

and describe the new sentencing profile

the petitioner presents and it must identify

the sentencing norms promulgated in simi-

lar cases. The crucial distinction for

our purposes between a state collateral

attack court and a federal collateral

A139

attack court becomes apparent at the

third step. At this stage, the state

collateral attack court acts like the

Original state sentencer in the sense

that it promulgates state sentencing po-

licy by discerning the norm in the case

before it. This norm becomes part of the

state sentencing policy the federal

court must look to in engaging in its

third step. 2°

25. I note that the state collateral

attack court promulgates state

sentencing policy no matter what test

for prejudice it uses in engaging in

the third step. For example, if the

state court uses an outcome-determi-

native test, and finds no prejudice,

it determines that state policy is

such that the new evidence would not

have affected the outcome of the

sentencer's decision. Therefore, state

policy dictates the death sentence.

If the state court uses a test such as

the one I propose, and finds no pre-

judice, it determines that state po-

licy is such that the new evidence

would not even have materally affected

the decision-making process of a ra-

tional sentencer. Again, state policy

dictates the death sentence. In

either case, the state collateral attack

A140

Once it is understood that state

collateral attack courts play a crucial

role in promulgating state sentencing

policy, it becomes clear that the federal

court should have to look no further than

the state collateral attack court's

promulgation of state policy to find the

norm controlling petitioner's case.

Therefore, the federal court need not

engage in the sensitive canvass of state

policy the third step might otherwise

have called for. The simplest way to

demonstrate this point is to consider the

three ways in which a claim such as the

one petitioner here presents can come to

federal court.

(Footnote 25 continue) court has clearly

articulated state sentence policy, and

that is all the federal court is looking

for. Therefore, it mkae no difference

to the federal court ofr purposes of

determining state policy which prejudice

test the state court uses. As I discuss

at note 10 supra, no constitutional attack

is made on the state's test for prejudice

and I intimate no opinion thereon.

Al41

The first possible scenario is that

the petitioner, in alleging prejudice,

presents the same sentencing profile to

the federal court as he did to the state

collateral attack court has clearly

articulated state sentencing policy in

determining that petitioner had failed

to prove prejudice. In making that

determination, the state collateral

attack court decided that the death

penalty is required in a case presenting

(Footnote 25 continue) I note parentheti-

cally one possible scenario, however, in

which the state court's test for prejudice

may affect the third step of the federal

court's process. This stituation would

occur when the state court finds prejudice

under a test more nebulous than the fe-

deral test, such as the panel's “altering

the trial" standard, but finds no in-

effectiveness. Thus, the state court would

deny the claim. Again, assuming the fe-

deral test for prejudice is clearer than

the state court's test, the state court's

promulgation of state policy might be un-

clear to the federal court. If the fe-

deral court is true to its test, it must

question the state court's finding of pre-

judice, and this involves a sensitive can-

vass of state sentencing policy. I note

that this problem does not arise strictly

A142

the petitioner's new sentence profile.

This interpretation of state sentencing

policy is binding on the federal court.

Consequently, the petitioner cannot

possibly sustain his allegation of pre-

judice in federal court. The federal

court must deny the claim because it has

identified the state sentencing policy

that directly controls petitioner's case

and this policy dictates the penalty of

death. As I discuss in Part IV infra,

this scenario occurred in this case, but

the district court failed to realize that

its decision was dictated by clear state

policy.

(Footnote 25 continue) from the state court

test itself, but rather from the possible

unclear articulation of state policy re-

Sulting from the state court's use of the

test. I raise this scenario parentheti-

cally, but I note that it involves the

unlikely confluence of three factors: a

state court finding of prejudice, a state

court finding of no ineffectiveness, and

a state test for prejudice more nebulous

than the federal test.

A143

The second possible scenario occurs

when the federal court is presented with

the identical sentencing profile presented

to the state collateral attack court, and

the state court has denied petitioner's

claim without clearly articulating state

sentencing policy. For example, the state

court may have denied petitioner's claim

without giving reasons therefor. Thus,

the federal court would be unable to dis-

cern whether the petitioner failed to

prove prejudice or incompetence or both.

Because it could not tell whether peti-

tioner proved prejudice, it would have to

engage in its own determination of pre-

judice without the benefit of a clearly

controlling state norm. Obviously, this

determination should be avoided if pos-

sible. Fortunately, it can be avoided

26. See also the situation discussed in

the second paragraph of note 25 supra.

A144

easily enough if state collateral attack

courts carefully and clearly articulate

sentencing policy in their decisions.

This second scenario is, therefore, with-

in the state collateral attack court's

power to prevent.

The final scenario occurs when the

petitioner comes to federal court with a

sentencing profile materially different

from that present to the state collateral

attack court.*7 The state collateral

attack court has therefore not been given

the opportunity to apply state sentencing

policy to the profile petitioner presents

to the federal court. Because the state

27. I note that a fourth possible scenario

exists. The petitioner, in alleging

prejudice, presents the same sentencing

profile to the federal court as he did

to the state collateral attack court,

which held that petitioner proved pre-

judice but did not prove ineffective

assistance of counsel. I do not dis-

cuss this scenario in the text because

it is identical to the first scenario

in that the state collateral attack

court's finding of prejudice is binding

A145

has not been given this opportunity, the

federal court must dismiss the claim for

want of exhaustion. Thus, if the federal

court is sensitive to dismissing unex-

hausted claims, this third scenario can

be avoided. 28

In sum, I have described how the state

sentencing court, the state collateral

attack court, and the federal habeas

court all engage in a three-step inquiry,

to impose sentence in the case of the first

court, and to determine prejudice in the

case of the latter two courts. Although

the first two steps are the same for all

three counts, the third step varies among

them. It is this crucial third step which

may present difficulty for federal courts.

(TFootnote 27 continue) on the federal

court. The federal court need concern

itself only with the incompetency aspect

of the claim.

28. I note that the state, as party to

the habeas petition, can do its part '

by rising petitioner's failure to ex-

A146

This difficulty can be, however, avoided.

Federal courts can dismiss unexhausted

Claims. State collateral attack courts

can do their part by clearly articulating

state sentencing policy.29 Through this

cooperative effort among federal and state

(Footnote 28 continue) haust his claim

to the federal court.

29. State sentencing courts can also

to their part by ensuring that all

revelant sentencing evidence is before

them before they impose sentence. The

state sentencing court can ensure this

by performing two simple tasks. First,

after receiving the advisory jury's

recommended sentence but before con-

vening the parties for sentencing,

it can request a presentence investi-

gation report. This will enable the

court to impose sentence with consider-

able knowledge of the crime and the

defendant's background. Second, the

sentencing court, prior to imposing

sentence, cas ask both the defendant

and his counsel whether any investiga-

tion of the defendant's background

remains to be done, and whether there

is additional relevant information in

mitigation of the death penalty that

might be presented to the court.

This discussion is not meant to

suggest, however, that the sentencing

court bears the primary responsibility

for ensuring that all relevant sentencing

A147

courts much needless and detrimental liti-

gations can be avoided.

I now turn to the errors the district

court committed in this case.

IV.

In addition to applying the wrong test

for prejudice, the outcome-determinative

test, the district court committed three

fundamental errors, each of which alone

constituted reversible error. Before

examining these errors, I note that each

error arose from the court's failure to

apply the three-step process I have de-

scribed in Part III supra. To reiterate,

(Footnote 29 continue) evidence is before

it prior to imposing sentence. In an ad-

versary sentencing hearing, this respon-

sibility remains with defense counsel who

should look for guidance to the American

Bar Association Standards for Criminal

Justice. More specifically, defense coun-

sel should consider American Bar.Associa-

tion Standard for Criminal Justice 18-6.3

(£) (ii) (2d ed. 1980), which provides that

counsel

should take particular care to make

certain that the record of the sentencing

W"

A148

first the district court should have

identified petitioner's sentencing

profile. Second, it should have discern-

ed the relevant state sentencing policy.

Third, it should have determined whether

state policy was such that the sentencer

would have had substantial discretion to

impose life sentence. Had the district

court engaged in this process, it most

likely would not have committed the errors

described below.

The first ruling in which it was

essential that the district court engage

in the above process, but failed to do so,

was its ruling, implicit in the scheduling

of an evidentiary hearing, that the

petitioner stated a claim of prejudice

(Footnote 29 continue)

proceedings will accurately reflect

all revelant mitigating circumstances

relating either to the offense or to

the characteristics of the defendant

which were not disclosed during the

guilt phase of the case and to en-

sure that such record will be ade-

quately preserved ....

A149

arising from counsel's alleged incompe-

30

tence. Had the court engaged in the

three-step process described above, it

30. In a typical federal habeas corpus

proceeding, a state prisoner begins the

procedure by filing a petition pursu-

ant to Federal Habeas Rules 2 and 3.

The district court must examine this

petition and any attached exhibits to

determine whether it states a claim

for relief. Federal Habeas Rule 4.

If the facts as pled do not state a

Claim for relief, the court must sua

sponte dismiss the petition. Id.; 28

U.S.C. § 2243 (1976). If the facts as

pled do not state a claim for relief,

the court should then examine whether

dismissal is appropriate on procedural

grounds, i.e., failure to exhaust

State remedies, a decision pending in

State court, petitioner not in custody

within meaning of 28 U.S.C. § 2254

(1975), etc. If dismissal is appro-

priate on procedural grounds, the court

must request the state to move for dis-

missal on such grounds. See Advisory

Committee Note to Federal Habeas Rule 4.

If the facts as pled do state a claim

for relief and dismissal is not appro-

priate on procedural grounds, the court

must order the state to file an answer.

Federal Habeas Rule 5. In its answer,

the state must rebut petitioner's

allegations, indicate whether state

remedies have been exhausted, and ap-

pend relevant portions of the tran-

Scripts of the state proceedings. Id.

A150

would have realized that petitioner alleg-

ed the same sentencing profile that the

state collateral attack court had held

warranted the death penalty. As I dis-

cuss supra Part I, the state collateral

attack court stated that

(Footnote 30 continue) With the petition,

answer, and supporting documents before

it, the district court must redetermine

whether a claim for relief is stated. If

the court now determines that a claim for

relief is not stated, it must sua sponte

dismiss the petition. If the court de-

termines, pursaunt to 28 U.S.C. § 2254(d),

which factual issues, if any, raised by

the petition require an evidentiary hear-

ing. Therefore, when a district court

orders an evidentiary hearing in a habeas

case, it implicity holds that from its

examination of the pleadings and exhibits

before it, petitioner has stated a claim

for relief and only factual issues need

be resolved.

The district court did not adhere to

this procedure in the instant case because

of time constraints. As I discuss in Part

I supra, petitioner filed his habeas peti-

tion in the district court on April 6,

1981, just two days prior to his scheduled

execution. The district court, therefore,

was unable initially to examine the peti-

tion to determine (1) if it stated a claim

for relief, (2) if it should be dismissed

on procedural grounds, (3) if the state

should file an answer, and (4) if an evi-

Al51

as a matter of law, the record affirma-

tively demonstrates beyond any dcubt

that even if Mr. Tunkey had [presented

the new mitigating evidence] at the

time of the sentencing, there is not

even the remotest chance that the out-

come would have been any different.

The plain fact is that the aggravating

cricumstances proved in this case were

completely overwhelming, and that even

to this date the Defendant cannot show

(Footnote 30 continue) dentiary hearing

should be .eli. Instead, the court had to

combine these functions in an expedited

con.erence of counsel held on April 7,

1981. There, counsel argued whether the

petition stated a claim for relief and

whether an evidentiary hearing was required.

Based on these arguments and the state

court record subsequently supplied to the

district court, the district court order-

ed an evidentiary hearing for April 10,

1981. In ordering this hearing, the dis-

trict court implicitly held that the pe-

tition stated a claim for relief and only

factual issues remained to be resolved.

The district court later made this holding

explicit when it stated: "It is a close

question, but I was unable to find from

the records before me priot to the hearing

that petitioner's allegations raised legal

A152

than any statutory mitigating cir-

cumstances existed. The non-statutory

mitigating circumstances which he

claims his attorney filed to investi-

gate and present at the time of sen-

tencing would as a matter of law, be

insufficient tc outweigh the multiple

aggravating circumstances present in

this case.

Order Denying Post-Conviction Relief Filed

Pursuant to Fla.R.Crim.P. 3.850 at 12

(emphasis in original). The Florida

Supreme Court affirmed this denial of re-

lief, concluding that "({appellant's] claims

are shown conclusively to be without merit

so as to obviate the need for an eviden-

tiary hearing.... [W]Je can find no pre-

judice caused to appellant, even if we

(Footnote 30 continue) questions only, or

that assuming all factual allegations were

true, that petitioner could not have pre-

vailed as a matter of law." Record, vol.

1, at 52.

A153

assume that every allegation he has made

in his petition is true." Washington v.

State, 397 So.2d 285, 286 (Fla. 1981).

Because the state collateral attack

court's normative decision, as affirmed

by the Florida Supreme Court, that death

was the appropriate sentence for petitioner

based on his sentencing profile, is bind-

ing on federal courts, the district court

should have held that eptitioner could not

possibly sustain his claim of prejudice.

The norm as promulgated by the state

collateral attack court governed petition-

er alleged sentencing profile and dictated

a sentence of death. The district court

should have, therefore, dismissed the peti-

tioner for failure to state a claim for re-

lief.31 Its holding of an evidentiary hear-

ing was its first error.

31. If petitioner had modified his petition

by reciting "new" sentencing facts that

materially changed the sentencing pro-

file he had presented to the state

A154

Having improperly determined that an

evidentiary hearing was necessary, the

court committed its second error during

the hearing when it prevented petitioner

from introducing all of his evidence on

prejudice. Instead, the court relied

only on the affidavits and psychiatric

reports petitioner provided in support of

the petition. As I noted in Part I, supra,

the petitioner's counsel objected to this

procedure and argued that the affidavits

were merely illustrative and that he would

call additional witnesses to testify on

mitigation. Petitioner thus needed to

introduce all of his evidence to estab-

lish his sentencing profile, from which

he would then argue prejudice. Without

(Footnote 31 continue) collateral attack

court, or if he had recited in his petition

other relevant sentencing norms not re-

cited to the state courts that allegedly

demonstrated that his sentence was dis-

parate, the state would no doubt had moved

to dismiss his petition for want to exhaustion and

the district court would have been compelled to

dismiss on that ground. See the discussion of the

third scenario in Part III supra.

A155

engaging in the first step, determining

petitioner's sentencing profile, the

court's search for the relevant sen-

tencing policy from which it could evalu-

ate the petitioner's claim of prejudice,

was impossible. Because the court did not

understand the three-step process and thus

the importance of the evidence petitioner

sought to introduce to the proper resolu-

tion of the first step, it excluded the

evidence. In so doing, the court ruled

on the issue of prejudice by looking at

an incomplete sentencing profile presum-

ably different from that which petitioner

alleged competent counsel would have

established at his state sentencing trial.

This clearly was error; the court should

have provided petitioner the opportunity

to establish his alleged sentencing pro-

file.32

32. Alternatively, the court could have

instructed counsel to proffer his

A156

The court committed its third error

when it allowed the original state sen-

tencing judge, Judge Fuller, to testify

at the hearing on the issue of prejudice.

The inadmissibility of Judge Fuller's

testimony is obvious when one considers

the three-step process described above.

Each step of the process involves ques-

tions the federal habeas court is compe-

tent to decide independently. A federal

habeas court can hear evidence and find

the sentencing profile petitioner alleges

his counsel should have presented to the

state sentencer. It can examine the find-

ings of fact and conclusions of law of

sentencers, see Fla.Stat. § 921.141(3),

and collateral attack courts, and the deci-

Sions of the Florida Supreme Court, to

identify the relevant sentencing policy.

(Footnote 32 continue) mitigating evidence

This text is long and has been trimmed here. Open the source document for the complete record.