# Appendix — Strickland v. Washington > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0655%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1984 - **Citation:** 466 U.S. 668 ## Text 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 Al7 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0655%3A02. Public record. Not legal advice.