                                                                                [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT

                       -------------------------------------------
                                     No. 97-6365
                      --------------------------------------------

                       D. C. Docket Nos. 95-08005-CV-E
                                        CR 90-H-266-E


DAVID RONALD CHANDLER,

                                                        Petitioner-Appellant,

    versus


UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.




             ----------------------------------------------------------------
                  Appeal from the United States District Court
                       for the Northern District of Alabama
             ----------------------------------------------------------------
                                    (July 21, 2000)



Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH,
DUBINA, BLACK, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.
EDMONDSON, Circuit Judge:

      Petitioner, David Ronald Chandler, was sentenced to death for murder in

furtherance of a continuing criminal enterprise under 21 U.S.C. § 848(e)(1)(A).

We affirmed Petitioner’s murder conviction and death sentence on direct appeal.

United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993). Petitioner then filed a

section 2255 petition challenging his conviction and sentence on several grounds.

Among other things, Petitioner, invoking the Sixth Amendment, claimed that he

received ineffective assistance of counsel -- during the sentencing phase of trial --

because his trial counsel failed to investigate and to present character witnesses.

The district court rejected Petitioner’s claims and denied relief. We affirm.1



                                  BACKGROUND



      Petitioner ran an extensive marijuana growing and distribution operation in

Northern Alabama. In January 1990, Petitioner had offered Charles Ray Jarrell,

Sr., one of Petitioner’s marijuana couriers, $500 to eliminate Marlin Shuler, a


      1
       We conclude that only Petitioner’s claim of ineffectiveness at sentencing
warrants more discussion. Therefore, for the reasons set out by the district court
and in our earlier, but now-vacated, panel decision, we affirm the district court’s
denial of habeas relief for Petitioner’s other claims.
                                          2
suspected informant; Jarrell has said he thought Petitioner was joking. On 8 May

1990,2 Petitioner saw Shuler at Jarrell’s house. Petitioner warned Jarrell that

Shuler was going to cause them trouble and stated: “You need to go on and take

care of him and I still got that $500.” Jarrell understood Petitioner to be referring

to Petitioner’s earlier offer to pay Jarrell should he eliminate Shuler. Petitioner

left; Jarrell and Shuler spent the morning drinking heavily. The two men then

drove to a lake for some target practice with two guns. During target practice,

Jarrell turned a gun on Shuler, shot him twice, and killed him. Jarrell went to and

informed Petitioner that he had killed Shuler; the two men returned to the scene

and disposed of the body. Jarrell asked for, but did not receive, the $500.

      In 1991, a nine-count indictment charged Petitioner with various drug,

continuing criminal enterprise, and conspiracy offenses, including procuring

Shuler’s murder in furtherance of a continuing criminal enterprise.

      Petitioner retained Drew Redden, a prominent Alabama criminal defense

lawyer, to defend him at trial.3 Redden actively pursued acquittal, especially on the


      2
       In March 1990, state law enforcement officers executed a search warrant at
the home of one of Petitioner’s dealers, based on information provided by Shuler.
      3
       Redden had tried over 1000 cases, had formerly been a prosecutor at the
U.S. Attorney’s Office, was formerly president of the Alabama Bar, was a member
of the American College of Trial Lawyers and the International Society of
Barristers. He is listed in America’s Best Lawyers for his criminal defense work.
                                           3
charge of procuring a murder.4 In preparation, trial counsel, among other things,

observed the trial of a codefendant and reviewed material from the defense

attorneys of the other defendants to the CCE charge. He consulted a jury selection

expert. And trial counsel interviewed at least 67 witnesses in the Piedmont and

Esom Hill area, Petitioner’s small community. Believing his client not to be a true

drug kingpin, counsel also spent time trying to find the “real” drug kingpin. Trial

counsel, throughout the case, was in frequent contact with Petitioner, Petitioner’s

brother, and Petitioner’s wife.

      To contest the murder charge, trial counsel introduced evidence at trial to

show the weaknesses in the Government’s case: that is, trial counsel attacked the

idea that Petitioner had in reality caused, on the pertinent day, Shuler to be killed.

A history of animosity existed between Jarrell and Shuler as a result of Shuler’s

former marriage to Jarrell’s sister. Shuler had abused his ex-wife and mother-in-

law (Jarrell’s sister and mother respectively), which provided Jarrell with his own


For further background, including academic honors, see the Martindale-Hubble
Law Directory. By the way, the prosecutor said during the trial that Redden is an
“extremely talented defense counsel, probably the best in the state [of Alabama].”
      4
       At the section 2255 hearing, trial counsel testified that in his view “the guilt
of murder to a capital degree . . . was the weakest part of the [Government’s] case.”
And he stated that, based on the circumstances of the Government’s case, he
believed “there was a fair chance” his client would be found not guilty and it was
even “less likely” that he would get the death penalty.
                                           4
motives for killing Shuler. Jarrell -- on an earlier occasion and for his own reasons

-- had actually attempted to kill Shuler: Jarrell had placed a gun to Shuler’s head

and pulled the trigger, but the loaded gun had just not gone off. In addition, trial

counsel stressed that the key Government witnesses in this case, including Jarrell

himself, testified in exchange for lesser sentences. Furthermore, Jarrell, over time,

had made inconsistent statements about Petitioner’s responsibility for the murder:

stating that he (Jarrell) did not do it; stating that he (Jarrell) alone did it

intentionally because of personal animosity; admitting that he (Jarrell) did it but

claiming it was an accident; and, at last, implicating Petitioner.

       Nevertheless, the jury convicted Petitioner on all nine counts of the

indictment, including the murder charge. The jury implicitly found that the

Government proved beyond reasonable doubt that Petitioner had offered to pay,

and induced, Jarrell to kill Shuler. A separate death penalty sentencing hearing on

the murder count was held the next day.

       At sentencing, the Government alleged three statutory aggravating factors:

(1) that Petitioner had intentionally engaged in conduct resulting in the death of

another, (2) that Petitioner procured the killing of another for money, and (3) that

Petitioner committed the murder after substantial planning and premeditation. The




                                             5
Government offered no new evidence at the sentencing phase and relied on the

evidence it had presented at the guilt phase.

      Defense counsel did present evidence as well as arguments for mitigation,

among other things, stressing residual doubt.5 He reminded the jury -- using a

stipulation about the date of the death of the victim -- that a taped statement, made

by Petitioner about having to kill somebody (a tape the jury had requested to

review at the guilt-stage deliberations), was made three months after the murder of

Shuler and did not indicate that Petitioner was talking about Shuler. Trial counsel

also entered into evidence two other stipulations: (1) that Petitioner had no prior

criminal record, and (2) that Jarrell, the actual killer, and Jarrell’s son (who was



      5
         In response to a question, trial counsel testified at the section 2255 hearing
that, based on his “reasonable professional judgment,” he had not believed that a
reasonable jury would impose the death penalty given the weak case against his
client:
        I did not feel that a reasonable minded jury would impose the death
        penalty on him, given not only the testimony as to what had occurred
        in November when Jarrell, Sr. undertook to kill Shuler, but also what
        occurred on the day that he did kill him. And that is, that they had
        consumed a tremendous amount of beer, been out there at Snow’s
        Lake for a good while. I think they had given out of beer and gone
        back and gotten more beer. And that even if one assumed that Ronnie
        Chandler had offered him $500, well, this was still the act of a
        drunken mind overwhelmed by other things than a $500 offer.
And this view supports the argument (an argument mainly based on residual doubt
about Petitioner’s responsibility for the shooting) trial counsel pressed at the
sentencing phase.
                                           6
also implicated in the murder) would never be prosecuted for Shuler’s murder.

Both of these latter stipulations were mitigating factors as a matter of law under the

pertinent statute. In addition, trial counsel called as character witnesses and

presented to the jury the humanizing testimony of Petitioner’s wife and mother.6

      Given that the evidence was unconverted that Jarrell (not Petitioner) had

actually killed the victim, trial counsel argued again at sentencing that the evidence

was not absolutely conclusive about whether Jarrell, especially in his drunken

state, was truly induced by Petitioner when Jarrell shot Shuler. Trial counsel

pointed to evidence that Jarrell earlier, in November 1989, had -- completely

independent of Petitioner -- put “a pistol to the nose of [Shuler] and pull[ed] the

trigger intending to kill him”: the gun had misfired. Trial counsel reiterated the


      6
       Trial counsel explained to the jury the mitigating nature of the women’s
testimony this way:
      [The testimony of Petitioner’s wife and mother] was here to show that
      there was a life here that has had a stability to it, that has had some
      quality to it and I think that is apparent when you looked at those two
      ladies . . . and the fact that here is a family that had tremendous
      stability . . . . He’s got three children, they are all by his wife. Here is
      a man who apparently has some skill of his hands who has worked in
      building his house and his parents’ house, his brothers’ houses and
      they’ve worked with him and this springs off the 80-acre farm that his
      father had with his father, way back. They built a sawmill, they cut
      trees, they made lumber, they collected rocks, they built houses and
      lives demonstrating lives with some purpose as opposed to life
      worthless. So that that is a mitigating factor that I think that you have
      certainly not just the right but the obligation to consider.
                                          7
independent malice Jarrell harbored for the victim as a result of their personal

history. Trial counsel asked the jury how Petitioner could have motivated Jarrell at

the time of the killing, when Jarrell (after Petitioner had left) had consumed

“twenty-three beers on that date, twenty-three beers before he shot the man.”7

Trial counsel stressed that imposing the death penalty in this case would be “cruel

and unusual punishment” and a “tremendous mistake . . . considering every

circumstance of this case.”

      The jury, however, found that the first two aggravating factors existed and

unanimously recommended that Petitioner be sentenced to death. The district

court, Judge Hancock, did so.

      After exhausting his direct appeals, Petitioner moved to vacate his

convictions and sentence under 28 U.S.C. § 2255 and moved for a new trial in

accordance with Fed. R. Crim. P. 33 on many grounds, including ineffective

assistance of counsel at sentencing. In the light of Petitioner’s claims, the district

court, Judge Hancock, conducted a series of evidentiary hearings.




      7
        Counsel also pointed out that Petitioner’s alleged statements to Jarrell about
killing Shuler, if made at all, were made only twice – the first occasion Jarrell
himself characterized as a joke. Counsel reiterated to the jury, “if it took place, it
was a thing that was not precipitated.” The jury did not find extensive planning to
be an aggravating factor.
                                           8
      On the ineffectiveness claim, Petitioner asserted that counsel was ineffective

for failing to investigate and to present character witnesses at the sentencing

hearing. At the section 2255 evidentiary hearing, Petitioner presented 27 witnesses

who testified to specific good acts by Petitioner.8 Petitioner also presented the

testimony of defense counsel Redden.

      Judge Hancock found that the mitigating value of the proffered witnesses

was undercut on cross-examination: (1) the good character evidence related to a

time remote from that of Petitioner’s crimes; (2) many of the witnesses were

ignorant of Petitioner’s criminal activities altogether, showing an ignorance of

Petitioner’s character; and (3) all of the witnesses showed a strong bias in favor of

Petitioner.9



      8
        For example, witnesses testified that Petitioner had bought shoes for a boy
who did not have any; had given money to a family to help them bury their son;
had bought groceries for people he thought needed them; had bought dinner for
members of his construction crew who did not have the money to buy their own;
had given lunch money to a neighbor’s children; and had offered to allow a woman
to stay at his house when her husband died.
      9
         When cross-examined, the witnesses testified that knowledge of Petitioner’s
drug dealing, attempt to turn a gun on a police officer, and statement about having
to kill someone if he were set up again, would not change their opinion of
Petitioner. The district court found that this testimony “largely nullified the
persuasive value” of this character testimony because the jury would not be likely
to credit witnesses who “believed that drug dealing and violent crimes were
irrelevant to a person’s character.”
                                          9
      The district court then considered the aggravating circumstances and found

that the jury had determined that two aggravating factors existed based on a

“particularly egregious crime”: encouraging another, dependant upon him, to kill a

police informant and then assisting in disposing of the body. The district court --

“[w]eighing this weak character evidence against the strong aggravating evidence

that the jury accepted” -- concluded that prejudice was not proved. Therefore, the

district court denied relief on the ineffectiveness claim.



                                    DISCUSSION



      Petitioner argues that he received ineffective assistance of counsel during the

sentencing phase of his trial. We review Petitioner’s claim of ineffective assistance

de novo. Williams v. Head, 185 F.3d 1223, 1227 (11th Cir. 1999). To succeed on a

claim of ineffective assistance, Petitioner must show both incompetence and

prejudice: (1) “[P]etitioner must show that ‘counsel’s representation fell below an

objective standard of reasonableness,’” and (2) “[P]etitioner must show that ‘there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Darden v. Wainwright, 106 S. Ct. 2464, 2473

(1986); accord Williams v. Taylor, 120 S. Ct. 1495, 1511 (2000). Petitioner says that


                                           10
his trial counsel was incompetent because his trial counsel failed to investigate and to

present character evidence. And, Petitioner says that -- but for his trial counsel’s

failure to investigate and to present the evidence -- a reasonable probability exists that

the jury would not have voted for a death sentence.



              SOME PRINCIPLES GOVERNING PERFORMANCE



      To aid courts in assessing claims of ineffective assistance under the Sixth

Amendment, the Supreme Court and this court, particularly sitting en banc, have

set out certain principles and presumptions.10 We have recognized that, given these

principles and presumptions, “the cases in which habeas petitioners can properly

prevail . . . are few and far between.” Waters v. Thomas, 46 F.3d 1506, 1511 (11th




      10
        Most of these principles and presumptions were expressly set out in three
ineffective assistance cases in which the Supreme Court specifically addressed the
issue of ineffective assistance of counsel at the sentencing stage for failure to
investigate and to present mitigating evidence. In each case, the Court determined
counsel was not ineffective. See Burger v. Kemp, 107 S. Ct. 3114 (1987) (death
penalty case); Darden v. Wainwright, 106 S. Ct. 2464 (1986) (death penalty case);
Strickland v. Washington, 104 S. Ct. 2052 (1984) (death penalty case).
                                           11
Cir. 1995) (en banc). A review of the principles and presumptions seems

appropriate.11



      I. The standard for counsel’s performance is “reasonableness under

prevailing professional norms.” Strickland v. Washington, 104 S. Ct. 2052, 2065

(1984); accord Williams v. Taylor, 120 S. Ct. 1495, 1511 (2000) (most recent

decision reaffirming that merits of ineffective assistance claim are squarely

governed by Strickland). The purpose of ineffectiveness review is not to grade

counsel’s performance. See Strickland, 104 S. Ct. at 2065; see also White v.

Singletary, 972 F.2d 1218, 1221 (11th Cir. 1992) (“We are not interested in

grading lawyers’ performances; we are interested in whether the adversarial

process at trial, in fact, worked adequately.”). We recognize that “[r]epresentation

is an art, and an act or omission that is unprofessional in one case may be sound or

even brilliant in another.” Strickland, 104 S. Ct. at 2067. Different lawyers have

different gifts; this fact, as well as differing circumstances from case to case, means

the range of what might be a reasonable approach at trial must be broad. To state



      11
       There are different kinds of ineffective assistance claims. Here, Petitioner
does not allege that his trial counsel’s performance was impaired by an incapacity
(mental or physical), a conflict of interest, bad faith, or an unreasonable mistake of
law. Therefore, we decide nothing today about these other kinds of cases.
                                          12
the obvious: the trial lawyers, in every case, could have done something more or

something different. So, omissions are inevitable. But, the issue is not what is

possible or “what is prudent or appropriate, but only what is constitutionally

compelled.”12 Burger v. Kemp, 107 S. Ct. 3114, 3126 (1987).



      II. The burden of persuasion is on a petitioner to prove, by a preponderance

of competent evidence, that counsel’s performance was unreasonable. See

Strickland, 104 S. Ct. at 2064; see also Williams, 120 S. Ct. at 1511 (“[D]efendant

must show that counsel’s representation fell below an objective standard of

reasonableness.”) (internal citations and quotations omitted). The petitioner must

establish that particular and identified acts or omissions of counsel “were outside

the wide range of professionally competent assistance.” Burger, 107 S. Ct. at

3126; see also Strickland, 104 S. Ct. at 2064-65 (stating that petitioner must show

“counsel’s representation fell below an objective standard of reasonableness”– that

is, that counsel’s performance was unreasonable “under prevailing professional

norms . . . considering all of the circumstances”).


      12
        “The test for ineffectiveness is not whether counsel could have done more;
perfection is not required. Nor is the test whether the best criminal defense
attorneys might have done more. Instead the test is . . . whether what they did was
within the ‘wide range of reasonable professional assistance.’” Waters, 46 F.3d at
1518 (en banc) (citations omitted).
                                          13
      III. “Judicial scrutiny of counsel’s performance must be highly

deferential.”13 Strickland, 104 S. Ct. at 2065. We must avoid second-guessing

counsel’s performance: “[I]t does not follow that any counsel who takes an

approach we would not have chosen is guilty of rendering ineffective assistance.”14

Waters, 46 F.3d at 1522 (en banc). Nor does the fact that a particular defense

ultimately proved to be unsuccessful demonstrate ineffectiveness.



      IV. Courts must “indulge [the] strong presumption” that counsel’s

performance was reasonable and that counsel “made all significant decisions in the


      13
        “It is important to note that judicial scrutiny of an attorney’s performance
is appropriately highly deferential because the craft of trying cases is far from an
exact science; in fact, it is replete with uncertainties and obligatory judgment
calls.” Bolender v. Singletary, 16 F.3d 1547, 1557 (11th Cir. 1994).
      14
        In accordance with this principle, courts must recognize that counsel does
not enjoy the benefit of unlimited time and resources. See Rogers v. Zant, 13 F.3d
384, 387 (11th Cir. 1994). Every counsel is faced with a zero-sum calculation on
time, resources, and defenses to pursue at trial.
       And, a court must not second-guess counsel’s strategy. Waters, 46 F.3d at
1518-19 (en banc). By “strategy,” we mean no more than this concept: trial
counsel’s course of conduct, that was neither directly prohibited by law nor
directly required by law, for obtaining a favorable result for his client. For
example, calling some witnesses and not others is “the epitome of a strategic
decision.” Id. at 1512 (en banc); see also id. at 1518-19 (en banc); Felker v.
Thomas, 52 F.3d 907, 912 (11th Cir. 1995) (whether to pursue residual doubt or
another defense is strategy left to counsel, which court must not second-guess);
Stanley v. Zant, 697 F.2d 955, 964 (11th Cir. 1983) (stating that reliance on line of
defense to exclusion of others is matter of strategy).
                                          14
exercise of reasonable professional judgment.” Strickland, 104 S. Ct. at 2065-66;

accord Williams v. Head, 185 F.3d 1223, 1227-28 (11th Cir. 1999) (presuming

counsel rendered effective assistance). Thus, counsel cannot be adjudged

incompetent for performing in a particular way in a case, as long as the approach

taken “might be considered sound trial strategy.” Darden v. Wainwright, 106 S.

Ct. 2464, 2474 (1986). Given the strong presumption in favor of competence, the

petitioner’s burden of persuasion -- though the presumption is not insurmountable -

- is a heavy one.15 Kimmelman v. Morrison, 106 S. Ct. 2574, 2586 (1986); see also


      15
         The presumption impacts on the burden of proof and continues throughout
the case, not dropping out just because some conflicting evidence is introduced.
“Counsel’s competence . . . is presumed, and the [petitioner] must rebut this
presumption by proving that his attorney’s representation was unreasonable under
prevailing professional norms and that the challenged action was not sound
strategy.” Kimmelman v. Morrison, 106 S. Ct. 2574, 2588 (1986) (emphasis
added) (citations omitted). An ambiguous or silent record is not sufficient to
disprove the strong and continuing presumption. Therefore, “where the record is
incomplete or unclear about [counsel]’s actions, we will presume that he did what
he should have done, and that he exercised reasonable professional judgment.”
Williams, 185 F.3d at 1228; see also Waters, 46 F.3d at 1516 (en banc)(noting that
even though testimony at habeas evidentiary hearing was ambiguous, acts at trial
indicate that counsel exercised sound professional judgment).
       The presumption about which we write here is not some presumption that
the particular defense lawyer in reality focused on and, then, deliberately decided
to do or not to do a specific act. Instead, the presumption to which we refer is the
presumption that what the particular defense lawyer did at trial – for example, what
witnesses he presented or did not present – were acts that some reasonable lawyer
might do.
       The Supreme Court has instructed that there is “a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
                                         15
Williams, 120 S. Ct. at 1511 (“[T]he defendant must show that counsel’s

performance was deficient.” (quoting Strickland, 104 S. Ct. at 2064)).




assistance.” Strickland, 104 S. Ct. 2065. This presumption is like the
“presumption of innocence” in a criminal trial, in which “the defendant is not
required to come forward with proof of his innocence once evidence of guilt is
introduced to avoid a directed verdict of guilty.” Black’s Law Dictionary 823 (6th.
ed. 1991). This presumption of competence must be disproved by a petitioner.
Petitioner continually bears the burden of persuasion on the constitutional issue of
competence and further, (adding the prejudice element) on the issue of ineffective
assistance of counsel. See Strickland, 104 S. Ct. at 2064 (stating that “defendant
must show that counsel’s performance was deficient” and that defendant must also
show prejudice). Never does the government acquire the burden to show
competence, even when some evidence to the contrary might be offered by the
petitioner.
                                         16
      V. The reasonableness of a counsel’s performance is an objective inquiry.16

See Darden, 106 S. Ct. at 2474 (noting that counsel’s performance did not fall


      16
          To uphold a lawyer’s strategy, we need not attempt to divine the lawyer’s
mental processes underlying the strategy. “There are countless ways to provide
effective assistance in any given case.” Strickland, 104 S. Ct. at 2065. No lawyer
can be expected to have considered all of the ways. If a defense lawyer pursued
course A, it is immaterial that some other reasonable courses of defense (that the
lawyer did not think of at all) existed and that the lawyer’s pursuit of course A was
not a deliberate choice between course A, course B, and so on. The lawyer’s
strategy was course A. And, our inquiry is limited to whether this strategy, that is,
course A, might have been a reasonable one. See generally Harich v. Dugger, 844
F.2d 1464, 1470-71 (11th Cir. 1988) (en banc) (concluding -- without evidentiary
hearing on whether counsel’s strategy arose from his ignorance of law -- that trial
counsel’s performance was competent because hypothetical competent counsel
reasonably could have taken action at trial identical to actual trial counsel),
replacing vacated panel opinion, 813 F.2d 1082 (11th Cir. 1987) (2-1 opinion)
(remanding for evidentiary hearing on whether pursuit at trial of actual innocence
defense, instead of intoxication defense or a combination of defenses, was
informed strategic decision); Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir. 1995)
(holding -- where petitioner alleged that trial counsel’s mental processes were
impaired by drug use -- that, because an objective standard is used to evaluate
counsel’s competence, “once an attorney’s conduct is shown to be objectively
reasonable, it becomes unnecessary to inquire into the source of the attorney’s
alleged shortcomings”). See also Roe v. Flores-Ortega, 120 S. Ct. 1029, 1037
(2000) (“The relevant question is not whether counsel’s choices were strategic, but
whether they were reasonable.”).
        We look at the acts or omissions of counsel that the petitioner alleges are
unreasonable and ask whether some reasonable lawyer could have conducted the
trial in that manner. Because the standard is an objective one, that trial counsel (at
a post-conviction evidentiary hearing) admits that his performance was deficient
matters little. See Tarver v. Hopper, 169 F.3d 710, 716 (11th Cir. 1999) (noting
that “admissions of deficient performance are not significant”); see also Atkins v.
Singletary, 965 F.2d 952, 960 (11th Cir. 1992) (“[I]neffectiveness is a question
which we must decide, [so] admissions of deficient performance by attorneys are
not decisive.”).
                                          17
below “an objective standard of reasonableness”); see also Williams, 120 S. Ct. at

1511 (same); Darden, 106 S. Ct. at 2474 (noting that “there are several reasons

why counsel reasonably could have chosen to rely on” the defense that he did

(emphasis added)); United States v. Fortson, 194 F.3d 730, 736 (6th Cir. 1999)

(determining -- without district court findings or even evidentiary hearing -- that

defendant had not overcome presumption of effective assistance because court

“[could] conceive of numerous reasonable strategic motives” for counsel’s actions

at trial). And because counsel’s conduct is presumed reasonable, for a petitioner to

show that the conduct was unreasonable, a petitioner must establish that no

competent counsel would have taken the action that his counsel did take.17 See

Waters, 46 F.3d at 1512 (en banc) (“The test has nothing to do with what the best

lawyers would have done. Nor is the test even what most good lawyers would

have done. We ask only whether some reasonable lawyer at the trial could have

acted, in the circumstances, as defense counsel acted at trial.”); see also Harich v.

Dugger, 844 F.2d 1464, 1470 (11th Cir. 1988) (en banc) (“It is not enough for



      17
          If some reasonable lawyer might have not pursued a certain defense or not
called a certain witness, we fail to understand why we would order a new trial on
the ground that the actual lawyer had not used the defense or witness in the first
trial: at the new trial, a different lawyer (even a reasonable one) might again not
use the witness or defense. If two trials are identical, one should not be
constitutionally inadequate and the other constitutionally adequate.
                                          18
petitioner to claim his counsel was ignorant of the Florida law. Petitioner must

prove that the approach taken by defense counsel would not have been used by

professionally competent counsel”); Provenzano v. Singletary, 148 F.3d 1327,

1332 (11th Cir. 1998) (noting that counsel’s conduct is unreasonable only if

petitioner shows “that no competent counsel would have made such a choice”);

Burger, 107 S. Ct. at 3124 (in concluding that defense counsel’s not using

character witnesses met reasonableness standard, Court pointed out that district

court judge -- presumably a reasonable lawyer -- who heard the proffered

mitigating evidence did not think it would have aided petitioner’s case).



      VI. When courts are examining the performance of an experienced trial

counsel, the presumption that his conduct was reasonable is even stronger.18 See

Provenzano, 148 F.3d at 1332 (stating that “strong reluctance to second guess

strategic decisions is even greater where those decisions were made by experienced

criminal defense counsel” and that “[t]he more experienced an attorney is, the more



      18
        We accept that even the very best lawyer could have a bad day. No one’s
conduct is above the reasonableness inquiry. Just as we know that an
inexperienced lawyer can be competent, United States v. Cronic, 104 S. Ct. 2039,
2050 (1984) (inexperienced does not mean ineffective), so we recognize that an
experienced lawyer may, on occasion, act incompetently. Our point is a small one:
Experience is due some respect.
                                         19
likely it is that his decision to rely on his own experience and judgment in rejecting

a defense” is reasonable); see also Burger, 107 S. Ct. at 3118 (reciting counsel’s

impressive credentials in opinion finding that counsel rendered effective

assistance).19



      VII. In reviewing counsel’s performance, a court must avoid using “the

distorting effects of hindsight” and must evaluate the reasonableness of counsel’s

performance “from counsel’s perspective at the time.” Strickland, 104 S. Ct. at

2065. “[I]t is all too easy for a court, examining counsel’s defense after it has

proved unsuccessful, to conclude that a particular act or omission of counsel was

unreasonable.”20 Id.; see Waters, 46 F.3d at 1514 (en banc) (“The widespread use


      19
        “[Counsel] had been practicing law in Wayne County for about 14 years,
had served as the county’s attorney for most of that time, and had served on the
Board of Governors of the State Bar Association. About 15 percent of his practice
was in criminal law, and he had tried about a dozen capital cases. It is apparent
that he was a well-respected lawyer, thoroughly familiar with practice and
sentencing juries in the local community.” Burger, 107 S. Ct. at 3118.
      20
         For example, “[i]t is common practice for petitioners attacking their death
sentences to submit affidavits from witnesses who say they could have supplied
additional mitigating [] evidence, had they been called or . . . had they been asked
the right questions.” Waters, 46 F.3d at 1514 (en banc). But “[t]he mere fact that
other witnesses might have been available or that other testimony might have been
elicited from those who testified is not a sufficient ground to prove ineffectiveness
of counsel.” Id. (noting that such witnesses show nothing more than that, “with the
luxury of time and the opportunity to focus resources on specific parts of a made
                                          20
of the tactic of attacking trial counsel by showing what ‘might have been’ proves

that nothing is clearer than hindsight--except perhaps the rule that we will not

judge trial counsel's performance through hindsight.”).



      VIII. No absolute rules dictate what is reasonable performance for lawyers.

Strickland, 104 S. Ct. at 2065 (“No particular set of detailed rules for counsel’s

conduct can satisfactorily take account of the variety of circumstances faced by

defense counsel or the range of legitimate decisions regarding how best to

represent a criminal defendant.”); see also Roe v. Flores-Ortega, 120 S. Ct. 1029,

1036-37 (2000) (rejecting bright-line rule that counsel “almost always” has duty to

consult with defendant about appeal, reaffirming that the Court has “consistently

declined to impose mechanical rules on counsel -- even when those rules might

lead to better representation”). “Any such set of rules would interfere with the

constitutionally protected independence of counsel and restrict the wide latitude

counsel must have in making tactical decisions.” Strickland, 104 S. Ct. at 2065;


record, post-conviction counsel will inevitably identify shortcomings”). And,
basing the inquiry on whether an investigation (if one had been undertaken) would
have uncovered mitigating evidence (or witnesses) is an example of judging
counsel’s acts from the benefit of hindsight. The proper inquiry was articulated in
Rogers v. Zant: “Once we conclude that declining to investigate further was a
reasonable act, we do not look to see what a further investigation would have
produced.” 13 F.3d 384, 388 (11th Cir. 1994).
                                          21
see also id. at 2066 (stating that “ rigid requirements [would] dampen the ardor and

impair the independence of defense counsel, discourage the acceptance of assigned

cases, and undermine the trust between attorney and client”); Waters, 46 F.3d at

1511 (en banc) (noting that Supreme Court has prohibited “[i]ntensive scrutiny of

counsel and [the creation of] rigid requirements for acceptable assistance”). The

law must allow for bold and for innovative approaches by trial lawyers. And, the

Sixth Amendment is not meant “to improve the quality of legal representation,” but

“simply to ensure that criminal defendants receive a fair trial.” Strickland, 104 S.

Ct. at 2065.



      IX. Thus, no absolute duty exists to investigate particular facts or a certain

line of defense. Under Strickland, counsel’s conducting or not conducting an

investigation need only be reasonable to fall within the wide range of competent

assistance. 104 S. Ct. at 2066 (stating that counsel “has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations

unnecessary”); cf. Kimmelman, 106 S. Ct. at 2588 (failure to file timely motion to

suppress unlawfully obtained evidence amounts to constitutionally ineffective

assistance when failure is based on counsel’s unreasonable mistake of law about

the Government’s duty to supply certain information to defense counsel before


                                         22
trial) (emphasis added); Williams, 120 S. Ct. at 1514 (failure to conduct

investigation ineffective because based, in part, on lawyer’s mistake of law that

information not discoverable).21


      21
          We do not read Williams to declare a per se rule of law that a defense
lawyer must present character witnesses at the sentencing phase or that a defense
lawyer (no matter what his client may have informed or instructed him) must in
every case investigate purely to see if character witnesses might exist who might be
of help at the sentencing phase.
        We understand Williams to create no mechanistic rule of law at all for
investigation or for presentation of evidence in capital cases. See generally Cohens
v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821) (Marshall, C.J.) (“It is a maxim not
to be disregarded, that general expressions, in every opinion, are to be taken in
connection with the case in which those expressions are used.”); Crawford-El v.
Britton, 118 S. Ct. 1584, 1590 (1998) (“There is, of course, an important difference
between the holding in a case and the reasoning that supports that holding.”). In
particular, we do not understand the Supreme Court to make the ABA Standards
part of the highest law of the land, even if one accepts that those standards reflect a
good policy. We remember that these ABA Standards were also mentioned in
Strickland; but the Court went on to shun per se rules. Strickland, 104 S. Ct. at
2065; accord Roe, 120 S. Ct. at 1036-37.
        We read Williams to decide this question about lawyer performance: where
a capital defendant (with a significant criminal record) has repeatedly admitted
before trial that he, in fact, did kill the victim in the course of a theft so that a
defense of factual innocence hardly existed and where, at the sentencing phase, the
defense counsel, while repeatedly telling the jury that it was hard to explain why
the jury should spare defendant’s life, presents no evidence of the defendant’s
“nightmarish” childhood (criminal neglect by his parents, repeated severe beatings
by his father, and abuse in a foster home) -- not because defense counsel thought
such evidence would not be compelling (defense counsel testified at a habeas
hearing that it was important evidence which he would have used had he known of
it), but because he “incorrectly thought” that state law barred his access to the
juvenile and social services records in which such information could be found --
the defense lawyer’s performance at sentencing was deficient.
        But the present case is different from Williams not only in the kinds of
                                          23
      And counsel need not always investigate before pursuing or not pursuing a

line of defense. Investigation (even a nonexhaustive, preliminary investigation) is

not required for counsel reasonably to decline to investigate a line of defense

thoroughly.22 See Strickland, 104 S. Ct. at 2066 (“[S]trategic choices made after

less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation.”); id.

(“In any ineffectiveness case, a particular decision not to investigate must be


evidence that are involved, but in its other material facts: for example, here
defendant’s factual guilt was strongly disputed (and still is); here no one contends
that the defense counsel’s not presenting more character witnesses was due to a
mistaken view of the law (he did not think a search for such witnesses was
prohibited by law or that character witnesses would, as a matter of law, be
excluded); here defense counsel has never said that character witnesses would be
very helpful or that he would have used them if he had known of them (and the
trial judge who has heard and seen the pertinent character witnesses has said that,
in his opinion, they would not have been helpful if introduced); here defense
counsel did raise mitigating factors unavailable in Williams.
        Williams cannot command the outcome for this case; the cases’ facts are
materially different, allowing different outcomes under Strickland.
      22
        As we have recognized, Strickland’s approach toward investigation
“reflects the reality that lawyers do not enjoy the benefit of endless time, energy or
financial resources.” Rogers, 13 F.3d at 387. How a lawyer spends his inherently
limited time and resources is also entitled to great deference by the court. See
White, 972 F.2d at 1224 (“[G]iven the finite resources of time and money that face
a defense attorney, it simply is not realistic to expect counsel to investigate
substantially all plausible lines of defense. A reasonably competent attorney often
must rely on his own experience and judgment, without the benefit of a substantial
investigation, when deciding whether or not to forego a particular line of defense. .
. .”).
                                          24
directly assessed for reasonableness in all the circumstances, applying a heavy

measure of deference to counsel's judgments.” (emphasis added)); Williams, 185

F.3d at 1236-37 (noting that this circuit has rejected idea that “strategic decisions

can be considered reasonable only if they are preceded by a ‘thorough

investigation’” and stating that, to be effective, counsel is not “required to ‘pursue

every path until it bears fruit or until all hope withers’”); Rogers v. Zant, 13 F.3d

384, 387 (11th Cir. 1994) (“By its nature, ‘strategy’ can include a decision not to

investigate . . . [and] a lawyer can make a reasonable decision that no matter what

an investigation might produce, he wants to steer clear of a certain course.”); see

also Holladay v. Haley, 209 F.3d 1243, 1252 (11th Cir. 2000) (noting that our

circuit has rejected “a per se rule of ineffective assistance where counsel does not

consult family members”). For example, counsel’s reliance on particular lines of

defense to the exclusion of others -- whether or not he investigated those other

defenses -- is a matter of strategy and is not ineffective unless the petitioner can

prove the chosen course, in itself, was unreasonable.23




      23
        Requiring that counsel always do certain acts to be found effective (for
example, interviewing some of petitioner’s neighbors for mitigation evidence)
would contravene the Supreme Court’s directive that no set of detailed rules for
counsel’s conduct should be used to evaluate ineffectiveness claims. See
Strickland, 104 S. Ct. 2065.
                                          25
      X. Because the reasonableness of counsel’s acts (including what

investigations are reasonable) depends “critically” upon “information supplied by

the [petitioner]” or “the [petitioner]’s own statements or actions,” evidence of a

petitioner’s statements and acts in dealing with counsel is highly relevant to

ineffective assistance claims. Strickland, 104 S. Ct. at 2066. “[An] inquiry into

counsel’s conversations with the [petitioner] may be critical to a proper assessment

of counsel’s investigation decisions, just as it may be critical to a proper

assessment of counsel’s other litigation decisions.”24 Id. (“[W]hen a defendant has

given counsel reason to believe that pursuing certain investigations would be

fruitless or even harmful, counsel’s failure to pursue those investigations may not

later be challenged as unreasonable.”).



      XI. Counsel is not required to present every nonfrivolous defense; nor is

counsel required to present all mitigation evidence, even if the additional


      24
         And, when the circumstances of a claim make these conversations relevant,
the petitioner can rarely (if ever) satisfy his burden to disprove the presumption of
effective assistance without disclosing the substance of these attorney-client
conversations. Cf. Laughner v. United States, 373 F.2d 326, 327 (5th Cir. 1967)
(refusing to allow petitioner, who requested a section 2255 evidentiary hearing, to
invoke attorney-client privilege to “eliminate the one source of evidence likely to
contradict his allegations”); Williams, 185 F.3d at 1235 (“Given the lack of clarity
of the record, we presume that [counsel] talked with [petitioner] as part of his effort
to ascertain whether there was any mitigating circumstance evidence. . . .”).
                                          26
mitigation evidence would not have been incompatible with counsel’s strategy.

See Waters, 46 F.3d at 1511 (en banc) (noting that no absolute duty exists to

present all possible mitigating evidence available: “Our decisions are inconsistent

with any notion that counsel must present all available mitigating circumstance

evidence.”). Considering the realities of the courtroom, more is not always better.

Stacking defenses can hurt a case. Good advocacy requires “winnowing out” some

arguments, witnesses, evidence, and so on, to stress others. See Rogers, 13 F.3d at

388 (citing Jones v. Barnes, 103 S. Ct. 3308, 3313 (1983)); see also Waters, 46

F.3d at 1512 (en banc) (“There is much wisdom for trial lawyers in the adage about

leaving well enough alone.”).



      XII. No absolute duty exists to introduce mitigating or character evidence.25

See Tarver v. Hopper, 169 F.3d 710, 715 (11th Cir. 1999) (noting that counsel is



      25
         While Petitioner is correct that capital defendants have a right to present
just about any evidence in mitigation at the sentencing phase, this right is the right
to be free of governmental interference with the presentation of evidence. See
generally Hitchcock v. Dugger, 107 S. Ct. 1821, 1824 (1987). The question of
admissibility of evidence is different from whether counsel acted reasonably in not
introducing the evidence. See Burger, 107 S. Ct. at 3123 n.7. And the cases
concerning the constitutional right of defendants not to be precluded or limited by
the state or the court in their presentation of mitigation evidence at sentencing do
not support the proposition that, if counsel does not present all possible mitigation
at sentencing, then defendant has been denied some constitutional right.
                                          27
not “required to investigate and present all available mitigating evidence to be

reasonable”) (citing Burger, 107 S. Ct. at 3126); Stanley v. Zant, 697 F.2d 955, 961

(11th Cir. 1983) (no duty to present general character evidence); see also Waters,

46 F.3d at 1511 (en banc) (noting this court and Supreme Court have held

counsel’s performance to be constitutionally sufficient when no mitigation

evidence was produced even though it was available). See, e.g., Burger, 107 S. Ct.

at 3126 (finding counsel effective even though counsel presented no mitigation

evidence at all); Darden, 106 S. Ct. at 2474 (same).



      These principles guide the courts on the question of “reasonableness,” the

touchstone of a lawyer’s performance under the Constitution.



                        PERFORMANCE IN THIS CASE



      Petitioner says that his trial counsel’s performance during the sentencing

phase of his trial was unreasonable. Trial counsel at the sentencing phase called

Petitioner’s mother and wife to testify, advanced two statutory mitigating factors,

and stressed lingering doubt about Petitioner’s true guilt. Our court’s proper

inquiry is limited to whether this course of action might have been a reasonable


                                         28
one. And, we begin with the strong presumption that it was. We conclude that --

given the record in this case and taking in the principles for ineffective assistance

claims -- Petitioner has failed, as a matter of law, to overcome the presumption.

      Although Petitioner’s claim is that his trial counsel should have done

something more, we first look at what the lawyer did in fact. Trial counsel focused

on obtaining an acquittal and then, at sentencing, on lingering doubt.26 This defense

was a reasonable one.27 We have said before that focusing on


      26
          In his sentencing argument, defense counsel did not use the words
“lingering doubt” or “residual doubt.” But, as the government pointed out in its
first brief filed in this court, defense counsel’s argument at sentencing attacked the
government’s aggravating factors: the factors expressly included that Petitioner
“intentionally engaged in conduct intending that [the victim] be killed and resulting
in [the victim’s] death.” And, trial counsel did argue at some length that the
evidence showing that defendant in fact had caused the actual killer to shoot the
victim was disputed evidence; and he pointed to the weakness of the evidence as a
ground for a sentence other than death: for example, the lawyer argued “What
prompted [the killer] in his actions. How much did anything that was said to him
on that day by [Petitioner] impel him, motivate him to do what he did after twenty-
three beers on that date, twenty-three beers before he shot the man.”
        In the context of the trial and sentencing proceeding, defense counsel’s
argument, stressing the lack of strong evidence of guilt, cannot be said to be
unconnected to “lingering doubt.” We recognize the argument as a lingering-doubt
argument and would not approve a district court’s finding otherwise.
      27
         At least when guilt in fact is denied, a “lawyer’s time and effort in
preparing to defend his client in the guilt phase of a capital case continues to count
at the sentencing phase.” Tarver v. Hopper, 169 F.3d 710, 715 (11th Cir. 1999);
see also Darden v. Wainwright, 106 S. Ct. 2464, 2473 (1986) (rejecting petitioner’s
argument that counsel had only spent the time between conviction and sentencing
preparing the case for mitigation because “counsel engaged in extensive
                                           29
acquittal at trial and then on residual doubt at sentencing (instead of other forms of

mitigation) can be reasonable. See Tarver v. Hopper, 169 F.3d 710, 715-16 (11th

Cir. 1999). Especially when -- as in this case -- the evidence of guilt was not




preparation prior to trial, in a manner that included preparation for sentencing”)
(emphasis added); Lockhart v. McCree, 106 S. Ct. 1758, 1769 (1986) (“[I]t seems
obvious to us that in most, if not all, capital cases much of the evidence adduced at
the guilt phase of the trial will also have a bearing on the penalty phase. . . .”).
       Trial counsel, at the section 2255 hearing, testified that he had believed
“there was a fair chance” his client would be found not guilty, and it was even
“less likely” that he would get the death penalty given the circumstances of the
murder case. These views are reasonable considering the evidence at the trial.
       In this case, when we refer to trial counsel’s testimony explaining his
personal mental processes (assessing the strengths of the prosecution’s case,
opining on the value of character witnesses and so on), we are not accepting that
his words represent his heartfelt views, that is we are not crediting his testimony as
absolutely true; but we point to this lawyer’s testimony as illustrating the kinds of
thoughts some lawyer in the circumstances could -- we conclude -- reasonably
have had. The trial counsel’s testimony is not essential to today’s affirmance.
                                          30
overwhelming,28 we expect that petitioners can rarely (if ever) prove a lawyer to be

ineffective for relying on this seemingly reasonable strategy to defend his client.




      28
        We have accepted that residual doubt is perhaps the most effective strategy
to employ at sentencing. See Tarver, 169 F.3d at 715-16 (citing law review study
concluding that “the best thing a capital defendant can do to improve his chances
of receiving a life sentence . . . is to raise doubt about his guilt”). Counsel cannot
be held to be ineffective when he has taken a line of defense which is objectively
reasonable.
       The jury in this case was instructed at the guilt phase this way: “[I]t is not
necessary that the defendant’s guilt be proven beyond all possible doubt. It is only
required that the Government’s proof exclude any reasonable doubt concerning the
defendant’s guilt.” As this instruction shows, the law recognizes that jurors who
have found a person guilty of a crime may well still have doubt about his true guilt.
Thus, the law itself points to and lays the foundation for a good argument based on
lingering doubt when the jury is later asked to impose death, the ultimate and most
irremediable punishment. Nothing about this argument signals submissiveness or
fatalism; stressing residual doubt is a straightforward and sound defense.
                                          31
       Trial counsel did not pursue character witnesses for mitigation;29 but he had

other mitigators in hand. That trial counsel’s approach (preparing and presenting a

case for doubt about Petitioner’s guilt instead of focusing on mitigating character

evidence) was reasonable is even more clear in the light of the questionable value of

the mitigating character evidence.

      A lawyer reasonably could have determined that character evidence would

not be compelling in this case. And a lawyer reasonably could also fear that

character evidence might, in fact, be counterproductive: it might provoke harmful

cross-examination and rebuttal witnesses.30 Misgivings about hurtful cross-


      29
         Petitioner tries to make much of trial counsel’s asking Petitioner’s wife --
after the guilty verdict -- to find witnesses and of trial counsel’s saying at the
section 2255 hearing that he had a hope that some character witnesses might be
presented to him (though he stated that it was not a hope “that I really spent a lot of
time or effort on or felt that there was that much time to spend on”). Petitioner
claims this request of his wife shows that trial counsel really wanted character
witnesses but had not invested the time and energy to find them. This
circumstance, even if true, would not be decisive: recall especially that our inquiry
is an objective one and that we are not attempting to grade this counsel’s
performance, but are looking at the trial just to see if the trial (as it was) was
adequate. Moreover, the evidence of a request to the wife -- at least, as strongly --
shows the laudable fact that trial counsel, like most good trial lawyers, was flexible
and opportunistic: he did not think character witnesses would be helpful or a good
use of his time to pursue, but a reasonable lawyer might not foreclose himself
altogether from considering some if they were presented to him. In fact, one such
character witness was presented to trial counsel; counsel did not use him.
      30
        Two character witnesses were presented at the sentencing stage:
Petitioner’s wife and mother. Petitioner also argues that trial counsel was
                                          32
examination and rebuttal witnesses have been decisive to the Supreme Court when

it determined that counsel was effective. See, e.g., Burger v. Kemp, 107 S. Ct.

3114, 3124-25 (1987) (concluding that failure to introduce character evidence was

effective performance because witnesses could have been subjected to harmful

cross-examination or invited other damaging evidence); Darden v. Wainwright, 106

S. Ct. 2464, 2474 (1986) (same); Strickland v. Washington, 104 S. Ct. 2052, 2057

& 2071 (1984) (same). Trial counsel in this case has testified that he had these

thoughts and concerns.

      At the section 2255 hearing, trial counsel testified that, although he knew that

testimony about Petitioner’s character would be admissible as mitigation evidence,

he thought that character witnesses would not be very helpful or compelling, in this


ineffective for his limited preparation of and for his limited questioning of the wife
and mother. Petitioner contends that, if trial counsel had asked the right questions,
the lawyer could have elicited more mitigation testimony from them. But see
Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995) (en banc) (counsel not
ineffective for failing to elicit more testimony from the witnesses because
perfection is not required). Considering concerns about opening the door, a
reasonable lawyer might well limit his questioning of the wife and mother: as it
was, the wife and mother did escape cross-examination altogether.
       The testimony that was elicited reminded the jury that Petitioner was a
husband, a father, and a son: humanizing circumstances. The wife and mother
addressing the jury also reminded the jury that innocent people would suffer if this
man was put to death. Bringing the family’s existence and pain to the attention of
the jury is powerful in and of itself. See id. at 1519 (noting that, sometimes, just
having a witness on the stand can humanize petitioner in eyes of jury). We cannot
say the Constitution demanded that more be done with these witnesses.
                                          33
case. “[I]t would be at least questionable whether a sufficient impact of character

type testimony could overcome a fixed opinion based on the other evidence . . .

[whether it] could change it from life to death. Or death to life.”31 The trial record

indicates that counsel used other evidence and stressed lingering doubt. He thought

character evidence (even evidence of specific good acts by Petitioner) would not

prevent the jury -- if they were sure Petitioner had procured this murder -- from

giving Petitioner the death penalty.32 And trial counsel also questioned whether

evidence of instances of Petitioner’s specific good acts would have been


      31
        Trial counsel testified:
             Q:And that specific instances of the defendant helping people is
      probably the most compelling of that type of evidence, a mere opinion
      that he’s a good person is one thing, but to say he did this for me is
      even better. You recognized that, did you not?
             A: Well, I recognize its admissibility as a compelling nature, I
      wouldn’t test it.
             Q: You didn’t think that type of testimony would be very
      helpful, is that your testimony?
             A: Well I’m -- if that’s your question, I say in the whole picture
      of things as it existed at that time, if that jury was going to give him
      the death penalty based on what they had heard, their minds were
      made up as to that, I doubted that compelling would be an appropriate
      word.
      32
        Trial counsel stated that he did not need to know what a witness would say
to determine whether the witness would be compelling at mitigation. He stated that
you assume what a piece of testimony might be and “assume the most favorable
testimony that you might get and then form some judgment, not the most reliable
judgment in the world, but some judgment about how compelling it might be.” We
agree.
                                          34
compelling, considering that the Government was not arguing that Petitioner was in

all ways a bad man, but arguing that he had committed specific criminal acts,

including offering to pay for a murder.33

      As every reasonable trial lawyer knows, character witnesses that counsel

called could be cross-examined by the Government. And as trial counsel said, such

cross-examination might not be helpful to his case. It is uncontroverted that, based

on his earlier interviews with people in the pertinent community, he knew that

“some individuals in the community considered [Petitioner] to be a drug dealer” and

“that there were people in the community [who] were afraid of him.”

      Trial counsel also had seen at this very trial how a character witness’s

testimony could be twisted by cross-examination and the arguments of opposing

counsel. A witness at the guilt phase testified that Petitioner had given him some

property for a house after the witness was newly married, even though the witness



      33
        The record shows:
             [Habeas Counsel] Q: . . . [I]nstances like that [of good acts],
      would have been something to refute the government’s claim that
      [Petitioner] was just a bad person, wouldn’t it?
             [Trial Counsel] A: If that had been the claim, yes.
             Q: All right. But they did claim that, did they not?
             A: Well, I don’t think they claimed that he was just a bad
      person. I think that they claimed that he was guilty of a specific
      offense with which I disagreed, but I can’t say that the case was just
      that he was a bad person.
                                            35
did not have the money to pay for the land. Trial counsel then had attempted to

paint the story as good-act evidence. Trial counsel accurately noted that the

Government, however, used this testimony to argue that Petitioner’s gift to this man

was, in reality, part of a money laundering operation.34

      That counsel’s concerns about using character evidence were reasonable is

confirmed by the transcript of the evidentiary hearing for section 2255 relief. At the

hearing, the Government did effectively cross-examine the proffered character

witnesses. The district court judge -- the same, very experienced judge who

presided at the murder trial itself -- after seeing and hearing these witnesses, did not



      34
         To anyone familiar with popular books and films about organized crime,
such as Mario Puzo’s The Godfather, the idea that a criminal was helpful to many
people in his community (perhaps on account of his goodness or perhaps out of
maintaining the very helpful goodwill of the community in which the defendant is
operating a criminal enterprise) would be familiar. In fact, the generosity of a man,
convicted of being a drug kingpin, might reenforce those stereotypes. For a lawyer
to worry about counterargument even to evidence of good deeds is not
unreasonable.
       The record from the evidentiary hearing provides other examples of how the
character evidence could be considered aggravating. One man testified that
Petitioner had donated $10,000 to the church, but the Government brought out on
cross that Petitioner’s entire reported income for the year was $10,000. And even
those who testified that Petitioner was a regular churchgoer, admitted on cross that
his attendance had dropped off in the years preceding his arrest. See Stanley v.
Zant, 697 F.2d 955, 970 (11th Cir. 1983) (questionable whether evidence would
have been perceived as mitigating by the jury because church attendance could be
perceived as aggravating: “if [he] went to the church, then he should have known
the extreme culpability of his conduct”).
                                           36
think they were helpful to Petitioner’s case because they were nullified on cross-

examination. See Burger, 107 S. Ct. at 3124 (concluding that trial counsel acted

reasonably in not calling witness at sentencing that district judge later heard fully at

habeas hearing and found not to be helpful); see also White v. Singletary, 972 F.2d

1218, 1225 (11th Cir. 1992) (questioning whether counsel would even have

presented evidence had he possessed it because it had substantial internal

weaknesses).

      Trial counsel also testified that he was “fearful” of rebuttal witnesses: “I felt

that the law enforcement community in Piedmont, in that part of the county, was

hostile to [Petitioner], antagonistic to him. And that they certainly could have

produced witnesses of that sort.”35 A reasonable lawyer could decide to limit


      35
         Trial counsel testified that deciding whether to put on character evidence
requires a balancing determination, which he made in this case, and that he “[had]
to evaluate the impact of that along with everything else that you evaluate.” The
record contains the following exchange:
              Q: And I believe you stated that in determining whether or not
       to put on a character witness in view of the possibility of cross-
       examination by the government concerning various bad acts requiring
       a balancing act on your part, to determine whether or not the value of
       the witness, character witness would outweigh that possible damage
       done by that cross examination; is that correct?
              [Trial Counsel] A: Well, balancing of the factors favorable and
       unfavorable and what I am saying is that that normally doesn’t back
       you off putting on a character witness, but it’s a fact that they might
       be asked have you heard about so and so.
              Q: Did you perform this balancing in this case?
                                          37
reliance on character testimony instead of exposing the jury (right at sentencing) to

a new string of Government witnesses who could testify to Petitioner’s bad acts.36


             A: I would think more of what might have been produced and I
      think I had said that not just on cross-examination of witnesses. [] But
      by rebuttal witnesses.
      36
         Petitioner argues that counsel’s worries about opening the door on cross-
examination and the presentation of rebuttal witnesses were unreasonable because
negative information about Petitioner had come out earlier at the guilt stage of the
trial. Apart from the point that the timing of when evidence comes in may be as
important as the evidence itself, we make these points.
       We note the Government, on appeal in response to questioning, pointed out
two examples of evidence from the section 2255 hearing, not introduced at trial,
which might have come out at sentencing: (1) Petitioner had given a .357 magnum
handgun to his fifteen-year-old son, and (2) the testimony of a witness (Scottie
Surrett) -- kept out at the guilt phase by Petitioner’s trial counsel -- implicating
Petitioner in the murder of a missing “dope stealer.”
       More important, Petitioner, who bears the burden in this case, never
presented evidence that the fears of trial counsel about hurtful rebuttal witnesses
were imaginary and baseless. For example, Petitioner’s habeas counsel, at the
evidentiary hearing, could have asked trial counsel precisely what trial counsel
feared and why, but the questions were not asked. We must not just assume that
defense counsel’s worries were baseless. For all we know, trial counsel actually
discussed this issue with his client; and the client informed him of potentially
harmful witnesses or information.
       Furthermore, even a competent trial lawyer may be unable to articulate
exactly what cross-examination and rebuttal witnesses he fears because the scope
of discovery in federal criminal cases is limited. See, e.g., United States v. Fischel,
686 F.2d 1082, 1090 (5th Cir. 1982) (“Discovery in criminal cases is narrowly
limited.”). But the lack of articulation does not make his performance at trial
incompetent. The fear of the unknown may, itself, be reasonable. For a defense
lawyer to be a bit risk averse in a capital case is no indicator of incompetence. And
recall in this case, trial counsel had (and did use) other mitigators; so, it was not a
case of his having only one way to go. Compare Williams, 120 S. Ct. at 1514
(deeming counsel incompetent because failure to introduce voluminous mitigation
                                          38
We must conclude that trial counsel’s approach to the sentencing proceedings was

a reasonable one.

      Petitioner, on this record, has given us no cause to doubt this conclusion.

Petitioner never testified at his section 2255 hearing. The reasonableness of a trial

counsel’s acts, including lack of investigation or excluding character witnesses

from the sentencing phase, depends “critically” upon what information the client

communicated to counsel. Strickland, 104 S. Ct. at 2066. In this case, Petitioner

and trial counsel shrouded the conversations between themselves in attorney-client

privilege;37 so we do not know to what extent Petitioner informed trial counsel’s


evidence, even if it contained some unfavorable evidence about defendant’s
juvenile record, was unreasonable when only alternative was to rely on the
mitigating value of a voluntary confession to brutal murder and when counsel’s
mistake of law impacted on the omission of other evidence).
      37
         Trial counsel censored himself; and given Petitioner’s objections, the
district court shielded the attorney-client conversations. At the 2255 hearing, the
Government asked trial counsel if he had discussed Petitioner’s arrest in Georgia
with Petitioner. The following colloquy then occurred:
               [Trial Counsel]: I’m aware of Your Honor’s order with
       reference to waiver of a confidentiality and this is not a –
               [Habeas Counsel]: Your Honor, I would, for the record object
       to going into any attorney/client conversations in light of the fact that
       we have not gone into any of those on the direct so I think it’s beyond
       the scope of direct and I do not think that any of our examination
       touched on those issues which would constitute a waiver of the
       attorney/client privilege. Our examination dealt solely with his
       investigation with regard to other witnesses and with regard to
       specific particular witnesses. Not anything with regard to
       conversations with his client. I haven’t gone into that one whit. And I
       don’t think I’ve waived the privilege in that regard nor do I believe
       that it is within the scope of the direct examination.
                                         39
acts.38 Therefore, given the absence of evidence in the record, we must assume

counsel carried out his professional responsibility and discussed mitigation with




             [U.S. Attorney]: Your Honor, the very basis of their allegations
      deal with what [trial counsel] knew or should have known at the time
      that this trial took place. And I think very clearly what his client told
      him or may have advised him concerning this information is relevant
      to cross-examination.
      ...
             The Court: I think this is going to be an area that on a situation
      by situation, case-by-case basis, we may have to make rulings.

(Emphasis added). The district court then sustained habeas counsel’s objection.
And trial counsel, from the stand, at the end of this exchange told the judge: “I’m
not raising an objection. I’m going to do what the court directs. But I want to be
sure where we are. I think that there might be situations in which an answer to a
question like that might implicitly indicate what was said.”
      38
         The judge disallowed the substance of conversations based on attorney-
client privilege and said he would make further rulings on an instance-by-instance
basis. Habeas counsel argues that he had only objected to issues outside of the
scope of the hearing. We observe, however, that an objection was made and
sustained on whether counsel discussed a piece of evidence with his client even
though Petitioner was challenging trial counsel’s failure to investigate sufficiently
the author of this piece of evidence for trial. We also observe that trial counsel was
careful himself not to touch on the conversations with his client. We find it
troubling when a petitioner thinks he can meet his burden to show ineffectiveness
even though he shielded and avoided pertinent conversations which would allow
the courts to assess what trial counsel had learned from his client.
        Habeas counsel claims he did not shield Petitioner’s conversations with the
trial counsel about mitigation; habeas counsel says that no one asked about it.
Even if habeas counsel had not raised an objection to shield the pertinent
conversations, we stress he should have asked about them because Petitioner bears
the burden of showing that trial counsel’s acts were unreasonable. And, as
Strickland says, what the client said and did is critical to that proof.
                                         40
his client.39 See Williams v. Head, 185 F.3d 1223, 1235 (11th Cir. 1999). In

addition, the section 2255 transcript is clear on two points: trial counsel testified --

without dispute -- that he frequently met with Petitioner before and during trial

and that no one who spoke with trial counsel ever came forward with facts about

character evidence that he thought would be helpful.40

      In short, trial counsel, based on his professional judgment as an experienced

trial lawyer, determined (or some reasonable lawyer could have) that his client had

a fair chance for acquittal, saw (or some reasonable lawyer could have) character

witnesses -- with the potential dangers associated with cross-examination and

rebuttal witnesses -- as less than compelling in mitigation, and allocated (or some

      39
         The effect of attorney-client privilege was argued by the Government in its
briefs, and both sides addressed this issue at oral argument. This issue was
sufficiently argued, see FSLIC v. Haralson, 813 F.2d 370, 373 n.3 (11th Cir. 1987)
(“briefs are read liberally to ascertain the issues raised on appeal”), especially
considering that we make no new law on this issue, but merely apply the existing
case law from this circuit.
      40
        Trial counsel (without contradiction) testified: “what I was preparing to do
was to try to defend the case and there was not volunteered at that – in any of that
among the people I talked with or presented to me anything that I considered
would be helpful on a sentencing phase.” And “nobody had ever come forward
and said such things [examples of good acts] and the only example of that type of
thing that we had was in evidence.” He stated further, “nothing was volunteered to
me that I considered of value in there.” See generally Collins v. Francis, 728 F.2d
1322, 1349 (11th Cir. 1984) (counsel not ineffective for not investigating witnesses
in mitigation when defendant failed to alert counsel to their existence). See also
Strickland, 104 S. Ct. at 2066 (“[W]hen a defendant has given counsel reason to
believe that pursuing certain investigations would be fruitless or even
harmful, counsel’s failure to pursue those investigations may not later be
challenged as unreasonable.”).
                                           41
reasonable lawyer could have) his time and resources accordingly. Trials are full

of imponderables. Nothing in the record indicates with force that this lawyer’s

conduct was outside of the range of reasonable conduct.

      When the guiding principles are applied to the record, the record will allow

only one legal conclusion: Petitioner is due no relief.41 In the light of the


      41
         It certainly would have been less work for us to remand. And, we
understand that appellate courts should not resolve genuine issues of disputed facts
when those facts are material, in the light of the applicable law, to the outcome of
the case; so, we do not do that. But, in our view, if we take seriously the principles
that we have set out in this opinion, especially those dealing with objective
reasonableness, no need for a remand arises. About remand, this principle of law
is particularly important: We are not reviewing the quality of the specific lawyer’s
judgment processes that underlie his conduct at trial. (We must remember that
Strickland passed through this court on its way to the Supreme Court and that some
of our judges -- who believed that the lawyer’s performance in Strickland was
inadequate under the Constitution -- said they held that view because they were not
convinced that the particular trial lawyer in that case had actually made a thought-
out decision; the Supreme Court, however, determined the lawyer to be effective
applying an objective standard. Strickland v. Washington, 693 F.2d 1243, 1283-84
(5th Cir. Unit B 1982) (en banc) (Johnson, J., concurring in part and dissenting in
part), rev’d by 104 S. Ct. 2052, 2070-71 (1984).) We are reviewing the lawyer’s
conduct at trial and asking only whether some reasonable lawyer could have acted
that way. In the light of the legal standards for lawyers’ performance, we know
enough to decide this case. We cannot honestly remand when, if the district court
concluded that the trial lawyer’s performance was deficient, we already know that
we would reverse that judgment because it would be contrary to law, given the
record.
        The record in this case -- even when read in Petitioner’s favor -- presents
this legal question: Has a defendant proved his lawyer’s performance to be
deficient -- that is, totally beyond the outside border of the “wide range” of
reasonable performance -- at sentencing when the defendant (with no prior
criminal record) is convicted of procuring a murder and his lawyer has invested
most of his time and energy in defending against conviction; when the evidence of
guilt is not overwhelming, relying largely on the testimony of the actual killer who
                                          42
strong presumption that counsel was effective and the circumstances of the case,

Petitioner has not met his heavy burden to prove that counsel’s acts -- at

sentencing, focusing largely on residual doubt and not investigating or presenting

mitigating character witnesses -- were unreasonable.42 Nothing more needs to be


has told a variety of stories and who has been promised that he will not be
executed; when defense counsel did present witnesses as well as other evidence in
mitigation; when defense counsel did not present other character witnesses who
would have testified to his past good works; when no one knows what instructions
and information about the availability and use of character witnesses were supplied
by defendant to defense counsel; when defense counsel has never said that the
pertinent character witnesses would be compelling or that he would have used
them; when nothing indicates that defense counsel’s act in not presenting more
character witnesses was caused by his having some erroneous view of the law;
when defense counsel argued to the jury at sentencing that the evidence that
defendant actually prompted the admitted killer to do the killing was in dispute (an
argument that we say must be seen as a lingering-doubt argument given the
context); when defense counsel stressed the lack of a criminal record for his client
and that the actual killer would not be executed?
        As we understand the law, we must conclude the answer is “no.”
Considering these circumstances, we believe that some lawyer could reasonably
have not presented the character witnesses, although we also accept that other
lawyers could reasonably have presented the witnesses.
        To us, the basic disagreement in this case among the court’s judges is not
about facts -- what happened, happened -- but about law and what kinds of facts
are legally important given the objective legal standard. In a less academic sense,
our disagreement also reminds us that lawyers (for we are lawyers, too) can easily
disagree on almost any point about how to proceed in a trial and that, because
trying cases is no exact science, no level of skill or excellence can exist at which a
trial lawyer (who has been unsuccessful in a case) can be removed from intelligent
criticism in hindsight. There is no end to what might have been done differently.

      42
        The district court, having concluded that no prejudice was proved in this
case, did not specifically address whether counsel’s performance was deficient.
But no remand is required in this case given (1) the developed record complete
with an evidentiary hearing (which Petitioner does not argue was inadequate and at
                                         43
which no one testified about what Petitioner had said to his trial counsel about the
benefit and danger of using character witnesses), (2) the strong presumption that
counsel’s acts at trial were acts that a reasonable lawyer could have taken, and (3)
the reality that Petitioner bears the heavy burden of proof on ineffectiveness.
Remand is not required when the record is sufficiently developed and a “complete
understanding of the issues is possible in the absence of separate findings.” Tejada
v. Dugger, 941 F.2d 1551, 1555 (11th Cir. 1991) (considering habeas issue not
addressed by district court); see Black, et al., Federal Appellate Procedure -- 11th
Circuit, § 12:189 (1996) (“The trial court’s failure to make necessary findings of
fact constitutes harmless error when the facts necessary to the judgment have been
incontestably demonstrated based on uncontroverted evidence.”); see also
Strickland, 104 S. Ct. at 2070-71 (Court applying different legal standard than
applied by lower courts to record and declaring – without remand for more
factfinding – defense counsel’s conduct not to be ineffective), rev’g, 693 F.2d 1243
(11th Cir. 1982) (en banc) (remanding to district court because more district court
findings needed to reach conclusion on ineffective assistance issue); Harich v.
Dugger, 844 F.2d 1464, 1470 (11th Cir. 1988) (en banc) (deciding question of
ineffectiveness without remanding for district court factfindings). And we note
that, neither party, in the briefs, contended that the record is insufficient and
requires remand.
       Moreover, courts have decided ineffective assistance claims on direct
appeal, without the benefit of district court factfinding. See, e.g., United States v.
Shukri, 207 F.3d 412, 418 (7th Cir. 2000) (denying ineffective assistance of
counsel relief on direct appeal even though issue was not raised to district court
below because both parties requested it and claim of incompetence could be
rejected considering record of trial); United States v. Fortson, 194 F.3d 730, 736
(6th Cir. 1999) (on direct appeal, deciding no deficient performance because record
was adequately developed to allow the court to assess the merits of the issue,
government did not contend that record was insufficient, court concluded further
factual development was unnecessary and because court could “conceive of
numerous reasonable strategic motives” for counsel’s actions at trial (emphasis
added)). And any alleged lack of evidence in this record necessitates neither a
remand nor a ruling for Petitioner, but must be considered in the light of
Petitioner’s burden to overcome the presumption of competence, that is, to show
ineffective assistance. Cf. United States v. Montes-Mercado, __ F.3d ___ (9th Cir.
2000) (unpublished opinion) (refusing to conclude counsel ineffective for failing to
provide reasons for his acts at the evidentiary hearing in part because petitioner
never asked for an explanation); United States v. Torres, 845 F.2d 1165, 1172 (2d
                                         44
said. The Constitution did not demand that trial counsel, in this case, use more

character witnesses.43



                                    CONCLUSION



       Petitioner’s evidence was insufficient to prove that his trial counsel’s acts

were outside the wide range of professionally competent assistance. Thus,

Petitioner has not met his burden under the law to prove ineffective assistance of

counsel in this case. Because Petitioner cannot properly be granted relief, we

affirm the district court’s denial of the writ.44


Cir. 1988) (rejecting ineffective assistance claim, not considered by district court,
as matter of law because proffered evidence of deficient performance did not “rise
to the level necessary to overcome the strong presumption that counsel’s
performance was reasonable under [Strickland]”).
       43
        Never do we even hint that this course was either the best way or the only
reasonable way to proceed in this case. To decide the constitutional question, we
do not need to decide such things.
       44
         About the question of prejudice, the court decides nothing. We need not.
But several judges would be inclined to affirm on account of no prejudice, even if
trial counsel’s performance was deficient.
        About today’s dissenting opinions, we refrain from commenting, except that
some of them bring to mind the words of Justice Jackson:
              There has been much undiscriminating eulogy of dissenting opinions.
              It is said they clarify the issues. Often they do the exact opposite.
              The technique of the dissenter often is to exaggerate the holding of the
              Court beyond the meaning of the majority and then to blast away at
              the excess. So the poor lawyer with a similar case does not know
              whether the majority opinion meant what it seemed to say or what the
                                            45
     AFFIRMED.




            minority said it meant.
Robert H. Jackson, The Supreme Court in the American System of Government,
18-19 (1995).


                                     46
COX, Circuit Judge, specially concurring, in which DUBINA, BLACK, HULL
and MARCUS, Circuit Judges, join:


      I join Judge Edmondson’s opinion in full. I write separately because I

would also affirm the denial of Chandler’s § 2255 petition because Chandler has

not shown prejudice from his counsel’s alleged deficient performance.

      The district court assumed (without deciding) that Chandler’s counsel’s

performance at sentencing had been deficient, but denied relief, concluding that

Chandler had failed to establish prejudice. The district court’s ultimate conclusion

as to prejudice answers a mixed question of law and fact, and we review that

conclusion de novo, but we review the district court’s subsidiary factual findings

only for clear error. See Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct.

2052, 2070 (1984).

      The district court, after hearing the testimony of 27 character witnesses at

the hearing on the ineffective assistance claim, found that the value of their

testimony was severely undercut by three factors. First, most of the character

witnesses’ knowledge of Chandler was “stale;” that is, their knowledge of

Chandler’s good character pre-dated Chandler’s illegal activities, and the

witnesses had little familiarity with him in the years leading up to the murder.

Second, many witnesses also evidenced a lack of knowledge about Chandler’s

character by testifying that they were unaware that, as the jury heard, Chandler


                                          47
bought, grew, and sold large quantities of marijuana. Third, the district court

found that most of the character witnesses exhibited a strong bias for Chandler

because they testified that, even if Chandler had committed certain bad acts,1 their

opinions of Chandler would not have changed. As the district court found, “a

witness’s high opinion of Chandler would have been of little moment to the jury if

the witness believed that drug dealing and violent crimes were irrelevant to a

person’s character.” United States v. Chandler, 950 F. Supp. 1545, 1571 (N.D.

Ala. 1996). In summation, the district court found that “the mitigation evidence

that Chandler’s trial counsel could have offered was of tenuous value.” Id.

      The district court’s findings about the value of this testimony are factual

findings, subject to review only for clear error. A court's factual finding is clearly

erroneous only if “‘although there is evidence to support it, the reviewing court on

the entire evidence is left with the definite and firm conviction that a mistake has

been committed.’” University of Georgia Athletic Assoc. v. Laite, 756 F.2d 1535,


      1
           These included:
                 (1) Chandler’s arrest in Georgia while attempting to purchase
                 100 pounds of marijuana;
                 (2) Chandler’s flight from Georgia Bureau of Investigation
Agent Skinner
                  and Chandler’s attempt to turn Skinner’s gun back on Skinner
during a
                  scuffle; and
                 (3) Chandler’s tape-recorded statement to a confidential
                 informant that if he were “set up” again, he would have to kill
                 someone.
                                          48
1543 (11th Cir. 1985) (quoting United States v. United States Gypsum Co., 333

U.S. 364, 395, 68 S. Ct. 525, 542 (1948)). The district court made findings about

the value of this testimony after seeing and hearing the witnesses, and those

findings have support in the record. I cannot conclude that those findings are

clearly erroneous.

      Accordingly, in addressing the question of prejudice de novo, I give little

weight to the character evidence that could have been introduced at sentencing.

The ultimate question is whether Chandler has shown that any deficient

performance prejudiced him such that, without the errors, there is a reasonable

probability that the balance of aggravating and mitigating circumstances would

have been different. See Bolender v. Singletary, 16 F.3d 1547, 1556-57 (11th Cir.

1994) (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). Weighing anew the

aggravating and mitigating factors, I note that the jury found two aggravating

factors: (1) Chandler intentionally engaged in conduct intending that Shuler be

killed and resulting in Shuler’s death, 21 U.S.C. § 848(n)(1)(C); and (2) Chandler

procured Shuler’s killing by promising to pay something of pecuniary value, 21

U.S.C. § 848(n)(6).2 The two statutory mitigating factors, admitted by stipulation

,were that (1) Chandler had no prior criminal record, 21 U.S.C. § 848(m)(6); and


      2
             The Government presented evidence that Chandler committed the
murder after substantial planning and premeditation, 21 U.S.C. § 848(n)(8), but the
jury rejected that factor.
                                         49
(2) the triggerman would not receive the death penalty, 21 U.S.C. § 848(m)(8).

Chandler’s counsel also presented mitigating evidence in the testimony of

Chandler’s wife and mother at sentencing.

      On balance, whether Chandler was prejudiced is, as the district court noted,

a close question. The jury had convicted Chandler of a particularly egregious

crime. It does not appear to me, given the strong aggravating factors, that the

addition of weak character evidence would have tipped the balance in favor of

mitigation. I conclude, therefore, that the district court was correct in its

determination that Chandler has failed to establish prejudice, and would affirm on

that ground as well.




                                          50
ANDERSON, Chief Judge, dissenting:

      I agree with Judge Barkett that Chandler has satisfied the prejudice prong of

Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052 (1984). I agree with

Judge Tjoflat that the performance prong should be remanded to the district court.

Because the district court found that the prejudice prong was not satisfied, it did

not address the performance prong. As Judge Tjoflat correctly explains, the

district judge who heard the evidence should make the fact findings and resolve

the material facts which are in dispute. I agree with Judge Tjoflat that, in this case,

an appropriate resolution of the performance prong cannot be made without such

fact findings by the district court. Accordingly, I respectfully dissent.




                                          51
TJOFLAT, Circuit Judge, concurring, in part, and dissenting, in part:



                                          I.

      The question before the en banc court is whether the district court erred in

rejecting petitioner’s claim that his lawyer, L. Drew Redden, rendered ineffective

assistance of counsel in the sentencing phase of this case by failing to obtain

evidence in mitigation of the death penalty and present it to the jury. The district

court assumed that counsel’s performance was constitutionally deficient; it

nevertheless rejected petitioner’s claim because, in the court’s view, the mitigating

evidence that Redden would have found (had he looked for it)1 would not have

prompted the jury to recommend a sentence of life imprisonment instead of death.

See United States v. Chandler, 950 F. Supp. 1545, 1569 (N.D. Ala. 1996) (“In

fact, the Court is convinced that there is no reasonable probability that the result of

the sentencing hearing would have been different if the proffered evidence had

been presented.”); see also Strickland v. Washington, 466 U.S. 668, 694, 104 S.

Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984) (To prove prejudice, the second prong of

the Sixth Amendment test for ineffective assistance of counsel, “[t]he defendant




      1
        The evidence Redden could have uncovered is the testimony petitioner’s
habeas counsel presented to the district court during the proceedings on petitioner’s
application for relief under 28 U.S.C. § 2255 (Supp II. 1996).
                                          52
must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”).

      A divided panel of this court vacated the district court’s decision denying

relief on petitioner’s ineffective assistance of counsel claim, and remanded the

case for resentencing. See Chandler v. United States, 193 F.3d 1297, 1310 (11th

Cir. 1999). It held that the mitigating evidence Redden should have uncovered,

and which habeas counsel proffered to the district court in support of petitioner’s

application for relief under 28 U.S.C. § 2255 (Supp II. 1996), if presented to the

jury, would probably have made a difference in the outcome of the sentencing

phase. Id. at 1308 (“[T]he quality and quantity of this evidence, almost all of

which was available at the time of trial . . . creates a reasonable probability that,

but for counsel’s failure to present even a small portion of this evidence,

[petitioner] would not have received the death sentence.”) (footnote omitted). In

addition to deciding that petitioner had satisfied the prejudice prong of

Strickland’s Sixth Amendment test, the panel also addressed the question of

whether petitioner had satisfied the performance prong of that test. See Strickland,

466 U.S. at 687, 104 S. Ct. at 2064 (“This requires showing that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.”). After examining the record, it concluded

that Redden’s performance in the sentencing phase failed that part of the test as a


                                           53
matter of law, and (after refusing to set aside petitioner’s convictions) vacated his

death sentence and ordered (assuming that the Government still wished to pursue a

death sentence on the murder conviction) the district court to afford petitioner a

new sentencing proceeding. See Chandler, 193 F.3d at 1310. Judge Edmondson,

dissenting, did not address the question of whether petitioner had shown

Strickland prejudice. Instead, he focused solely on Redden’s performance, and,

disagreeing with the panel’s reading of the record, concluded as a matter of law

that Redden’s performance passed constitutional muster. Id. at 1315 (Edmondson,

J., dissenting). Today, the court sitting en banc reaches the same conclusion and

thus finds it unnecessary to remand the case to the district court for findings of fact

and conclusions of law on the performance prong of Strickland’s test for

ineffective assistance of counsel.2


      2
         It is not disputed that Redden failed to look for mitigating evidence for use
in the sentencing phase of petitioner’s trial (except two circumstances, to which the
Government stipulated, that petitioner lacked a substantial criminal history and that
someone equally culpable would not be receiving a death sentence). Therefore,
when the sentencing phase arrived, Redden had nothing to present to the jury
except the testimony of two witnesses, whose testimony he did not anticipate until
an hour or so before the sentencing phase began. The majority holds that Redden’s
failure to look for mitigating evidence and his performance during the sentencing
phase passed Sixth Amendment muster because four years later the district court,
in ruling on petitioner’s motion for section 2255 habeas relief, concluded that
Redden’s failure to call any, or all, of the witnesses that habeas counsel were able
to uncover caused petitioner no prejudice. In other words, the majority’s holding
today is: counsel’s failure to seek mitigating evidence constitutes competent
performance, if, on habeas corpus, it appears that the petitioner cannot satisfy
Strickland’s prejudice prong.
                                          54
      I dissent because the material facts concerning Redden’s investigation and

presentation of mitigating evidence are in dispute.3 An evidentiary hearing on an

application for section 2255 relief is, in all respects, a bench trial; the tasks of

resolving the conflicts in the testimony, finding the facts, and then weighing such

facts and according them their appropriate weight under the applicable rule of law

is assigned to the district court.4 In this case, the court of appeals has put aside

institutional tradition and taken over the district court’s role. On a cold record

from which various inferences of fact can reasonably be drawn – some in favor of

      3
       At the same time, I concur in the court’s disposition of petitioner’s
remaining claims for section 2255 relief.
      4
         It cannot be disputed that the fact-finding function lies with the district
court. See United States v. Griffin, 699 F.2d 1102, 1108 & n.14 (11th Cir. 1983).
In Griffin, this court explained, in a footnote, why it is procedurally improper for
an appellate court to decide a claim when the underlying facts have not been found
by the district court:
       If an appellate court elects to consider the issue and study the record
       on appeal in relation to it, an assertion of ineffective assistance may
       appear totally without merit in light of that record. The temptation is
       strong in such instances to go ahead and decide the issue against
       appellant on the presumption that doing so will reduce the workload
       of the district court. Succumbing to the temptation, however (1) adds
       unnecessarily to the workload of the appellate court; (2) may be
       fruitless, where the appellant would not have elected to present the
       issue to the district court under 28 U.S.C. § 2255; (3) may deny
       appellant an opportunity to develop the issue on a proper record; (4)
       encourages future first-time presentations on appeal; and most
       importantly; (5) undercuts everything the courts . . . have said against
       its presentation for the first time on direct appeal.
Griffin, 699 F.2d at 1108-09 n.14. See generally Gulf Power Co. v. United States,
187 F.3d 1324, 1334 (11th Cir. 1999) (“To be sure, an appellate court is not the
usual forum in which factual issues . . . are resolved . . . .”).
                                           55
petitioner, some in favor of the Government – the court has judged the demeanor

of the witnesses, determined their credibility, found and weighed the facts, and

then, applying Strickland’s performance standard, has concluded that Redden

discharged his Sixth Amendment duty to petitioner. I have searched in vain for a

habeas proceeding – especially in a capital case – whether brought under 28

U.S.C. § 2254 or § 2255, in which a United States Court of Appeals took it upon

itself to resolve the issues of fact rather than remanding the fact-finding task to the

district court, which previously had held an evidentiary hearing, heard from

witnesses on both sides of the case, and observed their demeanor.5


      5
        There may be occasions, as in a case whose appropriate disposition turns on
documentary or other tangible evidence, where the material facts are so clear and
settled that a remand for fact-finding is unnecessary; this, however, is not such an
occasion. See, e.g., Jackson v. Leonardo, 162 F.3d 81, 86 (2d Cir. 1998) (stating
that the usual practice is to remand, but that remand “might not be necessary in a
highly unusual case where no plausible explanation for an attorney’s actions
exists”); United States v. Gaviria, 116 F.3d 1498, 1512 (D.C. Cir. 1997) (stating
that remand is the normal practice unless “the trial record alone conclusively shows
that the defendant is entitled to no relief and when the record conclusively shows
the contrary”) (internal quotation marks omitted).
       To support its proposition that it is within the province of a court of appeals
to resolve issues of fact in a case where the district court held an evidentiary
hearing but failed to find the facts, the majority cites several cases. None of them,
however, stands for the majority’s proposition. In United States v. Shukri, 207
F.3d 412 (7th Cir. 2000), the Seventh Circuit disposed of the defendant’s claims of
ineffective assistance of counsel in the defendant’s direct appeal from his
convictions for conspiring to possess and possession of stolen property. The
claims, which had not been presented to the district court, were that (1) counsel
failed to cite United States v. Garcia, 897 F.2d 1413 (7th Cir. 1990), in support of
his motion in limine to suppress certain out-of-court statements the prosecution
intended to introduce as having been made against the witness’ penal interest; (2)
                                          56
counsel failed to renew his objection to the statements at trial, when it presumably
became apparent that the statements had not been made against the witness’ penal
interest; and (3) counsel failed to object to questions the prosecutor put to the
defendant on cross examination. Shukri, 207 F.3d at 418-19. In his brief, the
defendant cited as district court error the court’s denial of the motion in limine.
The Seventh Circuit found no error, much less an abuse of discretion, in the district
court’s denial of the motion in limine or its admission of the statements into
evidence at trial; therefore, the defendant’s claim that his attorney’s performance
was constitutionally defective was patently meritless. Id. at 419. The same was
true regarding the defendant’s third point; the questions the prosecutor asked the
defendant on cross examination were appropriate. Id. The court of appeals
disposed of the defendant’s ineffective assistance claims because the trial court
record conclusively showed that, even if the defendant was given an evidentiary
hearing in a section 2255 proceeding (brought following the affirmance of his
conviction), he could not possibly establish either prong of Strickland’s standard
for ineffective assistance. Id. at 419.
        In United States v. Fortson, 194 F.3d 730, 736 (6th Cir. 1999), another direct
appeal from the defendant’s convictions, the Sixth Circuit entertained the
defendant’s challenge to his attorney’s performance at trial. In that case, the
defendant, Fortson, a Michigan resident, was charged with four other gentlemen
for conspiring to transport cocaine from New York to Michigan. Id. at 733.
Fortson’s co-conspirators brought eight kilograms of cocaine to Michigan in a van;
when they arrived, the local police, who had been monitoring the activities of one
of the co-conspirators, Paulino, spotted the van, and followed it and a Camry
sedan, driven by Fortson, which was traveling in front of the van. Id. When it
appeared that the occupants of the van and the Camry were working together, the
police stopped the van, and searched it, finding the cocaine. Id. Moments later,
the police approached the Camry, which was parked in an adjacent lot, and arrested
Fortson, Paulino, and a co-conspirator. Id. at 734. At his trial, Fortson’s defense
was that, even though he had been arrested at the scene of the crime, the jury
should acquit him because all that the evidence showed was “mere presence.” Id.
The jury, of course, rejected his “mere presence” defense. In his brief on appeal, in
addition to challenging the sufficiency of the evidence, Fortson alleged that his
trial attorney’s performance had been constitutionally deficient because he had not
“introduced evidence demonstrating Paulino’s ties to the state of Michigan.” Id. at
736. He did not explain, however, how evidence of Paulino’s ties to Michigan
would have established his “mere presence” defense. The Sixth Circuit,
concluding that the evidence was more than sufficient to convict, made an
                                         57
exception to its rule that ineffective assistance of counsel claims are not to be heard
on direct appeal and decided to address Fortson’s ineffective assistance claim
because the record conclusively demonstrated that the claim had no merit. Id.
       United States v. Torres, 845 F.2d 1165, 1167, 1172 (2d Cir. 1988), another
drug case, is likewise a case in which the challenged actions of counsel were
clearly established in the trial record, so that the court of appeals was confident that
it could decide the ineffective assistance of counsel claim while reviewing the
defendant’s conviction on direct appeal. Torres and two accomplices were arrested
at the conclusion of a drug transaction involving two kilograms of cocaine. In
searching Torres at the scene, a DEA agent found $3,871on his person. Id. at
1168. In his brief on appeal, Torres claimed that he was denied the effective
assistance of counsel because, prior to trial, his attorney failed to move to suppress
money the agent had seized and, at trial, failed to request a missing witness
instruction, so that the jury would understand why a confidential informant had not
been called as a defense witness. Id. at 1172. It was obvious that counsel’s
performance fell clearly within the range of what any court would consider
adequate performance, and the Second Circuit therefore rejected Torres’
ineffective assistance claim out of hand.
       Next, Bonin v. Calderon, 59 F.3d 815, 822-23 (9th Cir. 1995), involving two
28 U.S.C. § 2254 (1994 & Supp. II 1996) petitions challenging sixteen murder
convictions in two counties (Los Angeles and Orange), provides absolutely no
support for the majority’s proposition. In Bonin, the district court held a three-day
evidentiary hearing and made comprehensive findings of fact and conclusions of
law in disposing of the petitioner’s ineffective assistance of counsel claim. Id. at
823 (9th Cir. 1995) (“In separate published opinions, the district court denied both
of Bonin’s petitions.”) (citing Bonin v. Vasquez, 807 F. Supp. 589 (C.D. Cal.
1992) and Bonin v. Vasquez, 794 F. Supp. 957 (C.D. Cal. 1992)). United States v.
Montes-Mercado, No. 99-15282 (9th Cir. May 15, 2000) (unpublished), a section
2255 proceeding in which the petitioner’s ineffective assistance claim was that
counsel should have advised petitioner that he could plead guilty, but still maintain
his innocence, is equally unhelpful to the majority. Putting aside the question
whether we should rely on an unpublished opinion from a sister circuit, we note
that, unlike the situation in the instant case, the district court held an evidentiary
hearing and made findings of fact in rejecting the petitioner’s claim.
       Finally, the majority relies on two Supreme Court cases, Roe v. Flores-
Ortega, __ U.S. __, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000), and Darden v.
Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986), for the
proposition that it is appropriate for a court of appeals to make findings of fact in
                                          58
      Judge Barkett’s dissent, after canvassing the evidence relating to Redden’s

performance, shows quite convincingly why petitioner has satisfied the first prong

of Strickland’s test. I agree with her dissent’s analysis of the evidence, but I

disagree that the dispositive issue can, and should, be decided by this court in the

first instance. If nothing else, that the judges of this court are fairly split on

whether the historical facts demonstrate ineffective assistance of counsel

highlights the necessity of remanding the issue to the district court.

      The majority concludes that Redden provided effective assistance as a

matter of law.6 Because the district court made no findings of historical fact on his


the absence of findings made by the court that originally entertained the ineffective
assistance of counsel claim. In Roe, the Court emphasized that the deficient
performance inquiry is a fact-intensive one, the determination of which requires
“courts . . . [to] take into account all the information counsel knew or should have
known.” Roe, __ U.S. at __, 120 S. Ct. at 1036. Because the “Magistrate Judge’s
findings d[id] not provide [the Court] with sufficient information to determine
whether Ms. Kops rendered constitutionally inadequate assistance,” id. at 1040, the
Court vacated the court of appeals decision and remanded the case. In Darden, the
district court held an evidentiary hearing and made findings of fact; the Court cites
to the habeas proceeding, Darden 477 U.S. at 184, 106 S. Ct. at 2473, and
concludes that “[w]e agree with both the District Court and the Court of Appeals
that petitioner was not deprived of the effective assistance of counsel.” id. at 187,
106 S. Ct. at 2474.
       In sum, I am simply at a loss as to how any of the cases cited above could be
considered supportive of the majority’s proposition that a court of appeals should
assume the district court’s fact-finding role in a case of this magnitude.
      6
        The majority draws this conclusion without acknowledging the full import
of the Supreme Court’s recent decision in Williams v. Taylor, __ U.S. __, 120 S.
Ct. 1495, 1514-15, 146 L. Ed. 2d 435 (2000). As Judge Barkett’s dissent explains,
                                           59
performance in the sentencing phase of the case, the majority, in order to hold that

petitioner failed to show that Redden’s performance was deficient, must view the

evidence in the light most favorable to petitioner.7 In this dissent, I also consider

the evidence in that light, and then lay out the facts that a reasonable fact finder

could find by a preponderance of the evidence.

      Before doing so, however, I deem it necessary to comment on the majority’s

strong reliance on the “presumption” that defense attorneys are acting

competently, in the Sixth Amendment sense, when they make strategic choices,8

and to consider the time frame in which Redden prepared petitioner’s case for

trial, a time frame the majority opinion fails to mention.



the majority’s analysis of Redden’s “strategic choice” to forego any investigation
into the petitioner’s background in an effort to find mitigating evidence cannot be
squared with the Court’s holding in Williams.
      7
         Absent findings of fact by the district court, this court is in the same
position it would occupy in reviewing a summary judgment, a judgment as a matter
of law, or a judgment entered following a bench trial without the findings of fact
and conclusions of law required by Fed. R. Civ. P. 52(a) (as occurred in the instant
case). In conducting such reviews, we consider the evidence, and the inferences it
yields, in the light most favorable to the nonmovant. In the case at hand,
petitioner is, for our purposes, the nonmovant. Although the majority opinion does
not indicate that, in assessing Redden’s performance, the court viewed the
evidence in the light most favorable to the petitioner, I must assume that it did.
      8
        The majority opinion cites this presumption at least eleven times, ante at 14
n.14, 15, 16 n.15, 17, 18, 22-23, 24 n.23, 26, 38, and 39. In footnote 15, ante, the
majority seems to agree with the proper definition of a presumption; therefore, I do
not understand how it can continue to assert that we should presume that defense
counsel acted reasonably.
                                          60
                                         A.



      According to the majority, the Supreme Court and this court have

established certain “principles and presumptions” relating to ineffective assistance

of counsel claims. One such presumption is that counsel’s strategic choices are

competent. In a post-conviction proceeding in which the petitioner is claiming

that his lawyer rendered ineffective assistance, however, this “strategic choice”

presumption has no legal effect. In other words, it does not operate as a

presumption.

      Federal Rule of Evidence 301 explains how a presumption operates in a

case such as the one before us:

      In all civil actions and proceedings not otherwise provided for by Act

      of Congress or by these rules, a presumption imposes on the party

      against whom it is directed the burden of going forward with

      evidence to rebut or meet the presumption, but does not shift to such

      party the burden of proof in the sense of the risk of nonpersuasion,

      which remains throughout the trial upon the party on whom it was

      originally cast.




                                         61
See also Fed. R. Evid. 301 advisory committee’s note (“[W]hile evidence of facts

giving rise to a presumption shifts the burden of coming forward with evidence to

rebut or meet the presumption, it does not shift the burden of persuasion on the

existence of the presumed facts. The burden of persuasion remains on the party to

whom it is allocated . . . in the first instance.”). A Rule 301 presumption is the

same as a presumption at common law. Like its common law antecedent, a Rule

301 presumption is a device that aids the party with the burden of proof in

establishing the elements of its claim. (Or, on the defendant’s side of the case, a

presumption may aid in establishing the elements of an affirmative defense.) A

presumption is invoked when a party’s adversary possesses evidence that is

essential to the claim (or affirmative defense) but is, as a practical matter,

unavailable to all but the adversary.

      In giving petitioner’s adversary, the Government, the benefit of the

“strategic choice” presumption, the majority apparently overlooks the fact that the

Government needs no assistance in this case. The Government does not bear the

burden of establishing Redden’s competence; to the contrary, it is petitioner’s

burden to establish Redden’s incompetence.9 In sum, the “strategic choice”


      9
        For the same reason, the principle that a defendant is “presumed” innocent
until proven guilty beyond a reasonable doubt does not express a presumption in
the Rule 301/common law sense. That the defendant is presumed innocent is
merely a way of saying that the prosecution has the burden of proof on the issue of
the defendant’s guilt.
                                           62
presumption is not a presumption in the Rule 301/common law sense. It is simply

a short-hand way of saying that petitioner has the burden of proof on the issue of

the constitutional adequacy of his attorney’s performance.10



                                         B.

      The period of time during which Redden performed his service in the trial

court – from the day he undertook petitioner’s representation to the day the jury

recommended the death penalty – was relatively short. The petitioner retained

Redden early in January 1991 (the record does not disclose the precise date of

Redden’s employment). Petitioner and fifteen others had been under indictment in

the Northern District of Alabama on a charge of conspiring to traffic marijuana,

and the grand jury was in the process of returning a ten-count superceding

indictment that alleged a massive continuing criminal enterprise that spanned a

period of three years, 1987-1990, and included the murder charge that led to the

death sentence now under consideration. The grand jury returned the superceding

indictment on January 9; Redden appeared for petitioner at his arraignment the



      10
        A final observation about the “strategic choice” presumption the majority
invokes: even if the law were to accord it the status of a Rule 301 presumption, it
would not yield an inference that Redden acted competently in making the strategic
choice at issue. An inference has probative value. A presumption does not. It
simply shifts the burden of going forward with the evidence; once rebutted, it
disappears from the scene.
                                         63
next day. On January 24, the district court entered an order fixing February 12 as

the trial date. Six days later, on January 30, the prosecutor formally notified

petitioner, and Redden, that the Government would be seeking the death penalty

on the murder count. On February 1, the district court severed petitioner’s case

from the cases against the other (fifteen) defendants; their trial would commence

on February 12 as scheduled, and petitioner’s trial would begin on March 12.

Because Redden had previously committed himself to attending the annual

convention of the International Society of Barristers in London in the first week of

March, he moved the court to set another trial date. The court granted his request

and scheduled petitioner’s trial for March 19.

      Recapitulating, I conclude that, excluding the time Redden would spend

attending the Barristers’ convention, from the day the prosecutor notified him that

the Government would seek the death penalty until the day petitioner’s trial would

(and did) begin, he had forty days, weekends included, in which to prepare for

trial. During that time, he or his paralegal, Suzanne Brotherton, or both, attended

the February 12 trial of petitioner’s co-defendants, which lasted six days, and

interviewed nearly sixty-seven witnesses; some of the witnesses were interviewed

initially, or were re-interviewed, during petitioner’s trial. Most of the interviews

took place in or around Piedmont, Alabama, in Calhoun County, a two hour drive

from Birmingham, where Redden’s law firm had its office.


                                          64
      The guilt phase of petitioner’s trial began as scheduled on March 19, 1991.

The Government called over forty witnesses. Nine days later, on March 28, the

Government rested. In his defense (in the guilt phase), petitioner called twelve

witnesses, but did not take the stand himself.11 The parties’ closing arguments

took place on April 1. The court charged the jury the following morning, and at

10:25 a.m., the jury retired to deliberate. At 1:50 p.m., after three and a half hours

of deliberation, the jury reached a verdict; it found petitioner guilty on the nine

counts of the indictment in which he had been named as a defendant. The court

then asked the clerk to poll the jury; the poll indicated a unanimous verdict, and

the jury was dismissed until 9:00 a.m. the next day, at which time the sentencing

phase of the trial of the murder count would begin. Once the jurors had left the

courtroom, the court informed counsel that it wished to discuss what they intended

to do in the sentencing phase of the trial. Redden stated that he would prefer that

the discussion take place in chambers. The court agreed, and declared a half-hour

recess.

      At 2:30 p.m., the court and counsel met in chambers in the presence of a

court reporter who took down and transcribed the entire proceeding. The court

began the discussion by outlining the sentencing phase of the trial. That phase

would begin with the court instructing the jury on its sentencing role and how the


      11
           Petitioner also called one witness in surrebuttal.
                                            65
proceedings would be conducted. Thereafter, the prosecution and the defense

would make opening statements; the Government would present evidence of

aggravating circumstances; the defendant would be afforded the opportunity to put

on evidence of mitigating circumstances; the Government and the defendant

would present their closing arguments; and the court would charge the jury.

Regarding mitigating evidence, the court told Redden that the “world is open” to

the defendant; he has the right to introduce any evidence that might mitigate the

sentence.

      The court asked the prosecutor and Redden how long it would take to

present their evidence. The prosecutor stated that the Government would stand on

the record of the guilt phase and offer nothing further. Redden said that his

presentation of the defense “won’t be long . . . less than a day.” He stated that the

defense would rely on two statutory mitigating circumstances, which the

Government did not dispute. These were (1) that petitioner had no “substantial

criminal record,” and (2) that Charles Ray Jarrell, who was as responsible as

petitioner for Shuler’s death and had plead guilty to the marijuana conspiracy

charge, would not be receiving a death sentence. Redden was non-committal

concerning the witnesses, if any, he might call, although he did ask the court for a

ruling in limine as to the scope of the prosecutor’s cross-examination of

petitioner’s wife if he called her as a witness. Finally, the court and counsel


                                          66
discussed the instructions the court planned to give the jury and the verdict form.

The record does not indicate how long the court-counsel chambers conference

lasted. Although the clerk’s docket sheet and the court reporter’s transcript reveal

that the conference began at 2:30 p.m., neither reveal when it ended. The

transcript consists of twenty-nine pages; hence, drawing purely on experience, I

estimate that the conference lasted twenty-five to thirty minutes.

      With the foregoing time frames in mind, I turn to the facts a reasonable fact

finder could find from the evidence when that evidence is considered in the light

most favorable to petitioner. Stated another way, I review what the evidence,

when considered in that light, tells us about Redden’s investigation of mitigating

evidence and his decision to limit petitioner’s case to the two undisputed statutory

mitigating circumstances cited above and the testimony of petitioner’s wife,

Deborah Chandler, and his mother, Irene Chandler.



                                        II.



      The evidence bearing on petitioner’s claim that Redden rendered ineffective

performance by failing to seek mitigating evidence and present it to the jury comes

from four sources: (1) the testimony of Redden and petitioner’s wife, Deborah

Chandler, adduced during the section 2255 evidentiary hearing concerning


                                         67
Redden’s efforts to obtain favorable character witnesses; (2) the testimony of the

twenty-seven witnesses called to the stand by habeas counsel during that

proceeding to expound on petitioner’s character and to relate specific instances of

petitioner’s charity toward others; (3) the pre-trial and trial time tables I have set

out above; and (4) Redden’s opening statement and closing argument made to the

jury at the sentencing phase of the trial. If this evidence is viewed in the light

most favorable to petitioner – which means that he receives the benefit of the

doubt on all credibility and fact issues – a reasonable fact finder would be justified

in giving little, if any, credence to what Redden had to say, with the exception of

the statements that support petitioner’s claim. I say this because Redden’s

testimony, as indicated in the margin,12


      12
        The following passages are from Redden’s testimony during the section
2255 proceeding:

•     In response to when he entered a notice of appearance in the case, Redden
      stated “Well, I don’t – I don’t have any recollection of that act. I’m sure I
      did it.”
•     Responding to a question about when he received notice of the
      Government’s intent to seek the death penalty, Redden said, “I recall that
      subject. I do not recall the precise date.”
•     Regarding severance of Chandler’s trial, he stated “I don’t know what the
      Government’s position was. I don’t recall what it was.”
•     When asked why he sought a one-week continuance, Redden replied “It was
      that I had prior to being retained in this case committed myself by word and
      by money to attend the Convention of the International Society of Barristers
      that was to be held probably the first week in March, I’ve forgotten.”
•     When asked if he thought about requesting a continuance before the
      sentencing phase, Redden stated “I don’t think I did.”
                                           68
•   When asked whether the court would have granted a continuance, Redden
    said “I don’t know whether it would have been or not.”
•   When trying to recall when petitioner was arrested, Redden said “I believe,
    [he] had been arrested probably in around September, I’m not sure. . . .”
•   When asked if he knew that section 848(q) of the Anti-Drug Act provided
    resources for an investigator (whom he chose not to hire), Redden stated
    “I’m not sure whether I knew that at the time or not, but I knew I was
    retained counsel and I figured that [hiring an investigator] would be my
    obligation.”
•   When asked whether he remembered the jury asking to listen a second time
    to a tape recording in which petitioner said he’d have to kill somebody,
    Redden said “I don’t recall.”
•   When asked if the sentencing hearing was set for the day after the jury’s
    verdict (finding petitioner guilty of murder and eight other offenses) was
    announced, Redden said “Set it for the next day. I don’t – I don’t know the
    time.”
•   When asked what he did after the verdict came in to find some additional
    character witnesses, Redden replied “I know that I made the request of
    [Deborah] Chandler and whether other family members, I don’t know, and
    whether we had earlier had such conversations, I don’t know.” Then
    petitioner’s habeas counsel said, “All right. You don’t recall?” and Redden
    responded, “No.”
•   In response to a question about what he told Deborah Chandler on April 2
    about the kind of evidence they needed to put on in mitigation the next day,
    Redden said “I don’t recall what I told her or what she might have been told
    by Suzanne [Brotherton, his paralegal], except that it would be things that
    would demonstrate humanity, compassion, things of that sort.”
•   When asked if he asked any family members besides Deborah Chandler to
    find mitigation witnesses, Redden replied “That I’m not sure of.”
•   Regarding when he prepared Deborah and Irene Chandler to testify at
    sentencing, Redden said “We talked probably some that afternoon, I’m not
    sure, and probably in the morning.” When post-conviction counsel tried to
    be more specific, asking “[s]o it would have been after – sometime after 2:30
    before you talked to her?” Redden replied “It might have been. I don’t recall
    now.”
•   When asked if he remembered asking the court to bring petitioner in at 8:00
    a.m. on the day the sentencing proceeding was to begin, Redden said “I
    think that happened. I don’t remember it.”
                                     69
is riddled with “I don’t know,” or “I don’t recall,” or “I don’t have any

recollection,” or “I have forgotten.”13 Giving Redden’s testimony its due weight




•     In response to a question about if he knew what Deborah Chandler’s and
      Irene Chandler’s answers would be to the questions he would ask them
      before the jury, Redden said “I don’t think so.”
•     When asked if he knew that the sentencing hearing lasted less than an hour,
      Redden said “I don’t know.”
•     When the prosecutor asked Redden if he knew how many witnesses he
      talked to, Redden said “No, except as she [his paralegal, Brotherton] has
      advised me of a number that looked as if we had was 67.”
•     When asked by the prosecutor why he did not call Reverend McCoy as a
      mitigation character witness, Redden said “[t]hey came with – there was a
      minister who came that I made the decision not to use for the reason that he
      had been out of the community for a period of time, and as I recall – I’ve
      forgotten, you know, the contact was not a current thing and I felt that in the
      absence of some number of witnesses that that would not be a wise thing to
      do.”
•     When asked if he knew which of the 67 witnesses he and/or his paralegal,
      Brotherton, interviewed were interviewed prior to trial or during trial,
      Redden said “No. Of course, there was some that would have been in both
      categories.”

      13
         The majority states, ante at nn.27 & 41, that it is not “accepting that
[Redden’s] words represent his heartfelt views, that [it] is not crediting his
testimony as absolutely true” or reviewing “the quality of the specific lawyer’s
judgment process that underlie his conduct at trial;” rather, the majority accepts
Redden’s testimony as “illustrating the kinds of thoughts some lawyer in the
circumstances could – we conclude – reasonably have had.” It seems to me that in
determining whether a defense attorney provided ineffective assistance of counsel,
what the attorney did, and why he did it, is important. The majority seems to be
disregarding what Redden did, and why he did it; instead, imagining what a
hypothetical lawyer would have done under the circumstances. I am unfamiliar
with such an approach, which to me is quite novel, to the resolution of ineffective
assistance claims.
                                         70
and considering the rest of the evidence, a reasonable fact finder could find the

following facts:

             – Redden did not look for mitigating evidence or even

             give the matter serious thought until after the jury

             returned its verdict at the conclusion of the guilt phase of

             the trial.14



             – After the jury returned its verdict at the conclusion of

             the guilt phase of the case, Redden determined as a

             matter of sound trial strategy that mitigating evidence

             would be necessary. Having made no investigation, or

             other inquiry, into petitioner’s background, however, he

             had no idea of the sort of mitigating evidence that might

             be available.15

      14
          All of the 27 character witnesses who testified during the hearing on
petitioner’s ineffective assistance claim stated that neither Redden nor anyone
acting in his behalf contacted them at any time about testifying in petitioner’s
behalf at the sentencing phase of the trial. All of them also stated that they would
have been available to testify and would have done so if called. Deborah Chandler
testified that the first time Redden mentioned the subject of mitigating evidence
was after the jury returned its verdict on the afternoon of April 2.
      15
       In his opening statement to the jury at the sentencing phase of trial,
Redden described the mitigating evidence he would present as follows:
            Mitigating circumstances may include any of those mitigating
     circumstances that are identified by statute and may include also
                                          71
      anything else, any other circumstance that any juror wants to consider
      in mitigation. And by mitigation, we simply mean as tending to
      indicate to you that you should not recommend a death penalty.
              . . . [A]mong the statutory mitigating factors that the Court will
      identify to you are two at least that are very important in this case.
              One is – and this is in the statute for a jury to consider – that the
      defendant on trial has no, as the statute says, “substantial criminal
      record.” And we expect that to be demonstrated very clearly in this
      hearing, that that is true of David Ronald Chandler.
              Also, that another person or persons who participated in the
      killing of Marlin Shuler, which has been found, is not receiving and is
      not undertaken to receive the capital penalty. I think that’s already
      been demonstrated by the evidence in this case that that certainly is
      true with reference to the man that killed Marlin Shuler, Charles Ray
      Jarrell, Sr. But it will be demonstrated conclusively to you again in
      the course of this hearing.
Then, in his closing argument at the sentencing phase, Redden contended that the
mitigation evidence he had presented showed that a sentence of death was
inappropriate for Chandler’s crime. Specifically, he argued that,
              Now, certainly we would argue and we do argue that there are
      two very clear mitigating circumstances in this case. One is the
      absence of any substantial criminal record, as the statute says,
      “mitigating factors.” Number six, the defendant did not have a
      significant prior criminal record. And that stipulation which is in
      evidence is proof without contradiction that that is the case.
              Another is that another defendant or defendants equally
      culpable in the crime will not be punished by death. You can go
      further than that, not be punished at all, will not even be tried under an
      accusation of the murder of Marlin Shuler. Those two things. Well,
      what else mitigates.
              Well, for one thing, the testimony of his mother and of his wife
      was not here for a tear-jerking purpose. It was here to show that there
      was a life here that has had a stability to it, that has had some quality
      to it and I think that is apparent when you looked at those two ladies,
      contrasted to the character or nature of some of the people who
      testified in this case and it stands out in stark contrast and the fact that
      here is a family that had tremendous stability, here is a man who not
      to have lived around with this person, that person and the other. He’s
                                         72
            – Redden delegated to Deborah Chandler the task of

            finding witnesses who could portray petitioner’s

            character in a favorable light. He did so without asking

            her who might be available to testify or explaining the

            kinds of persons she should contact. Moreover, Redden

            knew that she was visibly shaken and distraught over the

            jury’s verdict and in no condition to carry out the task he

            had assigned her.16


      got three children, they are all by his wife. Here is a man who
      apparently has some skill of his hands who has worked in building his
      house and his parents’ house, his brother’s houses and they’ve worked
      with him and this springs off the 80-acre farm that his father had with
      his father, way back. They built a sawmill, they cut trees, they made
      lumber, they collected rocks, they built houses and lives
      demonstrating lives with some purpose as opposed to life worthless.
      So that that is a mitigating factor that I think that you have certainly
      not just the right but the obligation to consider.
A reasonable fact finder could find from these portions of Redden’s opening
statement and closing argument that Redden thought that mitigating evidence
would be necessary if the jury was to spare petitioner’s life.
      16
          After Redden spoke to Deborah Chandler about the need for witnesses to
testify for petitioner, she left the courthouse with members of her family and some
friends (all from Piedmont) and drove to Piedmont. Someone else drove the car
because, in her words, she was “numb” and was having difficulty functioning.
Foremost in her mind was what she would tell her three children, the oldest of
which was sixteen, about the day’s events.
       The trip to Piedmont took two and a half to three hours because they had to
                                        73
             – Notwithstanding these circumstances, Redden did not

             consider explaining his predicament to the district court

             and requesting a continuance. He could have done so

             during or following the chambers conference with the

             court on the afternoon of April 2, or before the

             sentencing phase of the trial began at 9:00 a.m. the next

             day.17


detour to drop some of the people off; thus, they arrived home somewhere between
4:45 p.m. to 5:15 p.m. Family members concerned about Deborah’s condition
summoned Rita Smith, a fellow member of Piedmont Church of God, to stay with
her. Several well-wishers stayed and prayed with Deborah throughout the night.
At some point during the evening, Deborah’s sister-in-law reminded her that “they
were supposed to get somebody to stand up for Ronnie tomorrow.” Rita Smith
thought of Reverend McCoy, who had been the pastor of Piedmont Church of God
from 1975 to 1981. McCoy, who lived in Piedmont, said he would testify, and
came to Birmingham the next day for that purpose.
      On the morning of April 3, between 8:00 a.m. and 9:00 a.m., Redden met for
a “few minutes” with petitioner, Deborah Chandler, Irene Chandler, and Reverend
McCoy. At 9:00 a.m., the sentencing phase of the trial began. Redden called
Deborah and Irene to the stand, and they testified as indicated in Judge Barkett’s
dissenting opinion.
      17
          During the chambers conference, after the court told Redden that “the
world [was] open to him,” Redden could have – indeed, should have – informed
the court that he had done nothing to prepare for the penalty phase of the case.
First, and foremost, his client’s life was at stake. Even though Redden had
satisfied his constitutional obligation to provide petitioner competent
representation during the guilt phase of the case, Redden had an ethical obligation
to cast petitioner’s character in the best possible light at the sentencing phase of the
trial. Second, as a highly experienced criminal defense attorney, Redden knew
that, if the jury recommended a death sentence and petitioner was sentenced to
death (1) petitioner would seek relief from the sentence under 28 U.S.C. § 2255 on
the ground that Redden had denied him effective assistance in the sentencing
                                          74
      The notion, expressed by the majority, that Redden did not call character

witnesses like those found by habeas counsel because he had “misgivings” about

what the prosecutor might be able to bring out on cross-examination, ante at 29,

has no foundation in the record.18 First, since Redden had no idea as to who might


phase of the trial, and (2) Redden would be back in court before the same district
judge and interrogated under oath as to why he did not seek a continuance in order
to prepare the sort of mitigation evidence petitioner’s habeas counsel was able to
uncover in the span of a few days.
       Habeas counsel, after receiving two weeks notice of the evidentiary hearing
the district court would hold on petitioner’s claim of ineffective assistance of
counsel, met with Deborah Chandler, explained the role of a mitigation witness,
and asked her to assemble a group of people who would have been available to
testify in petitioner’s behalf during the sentencing phase of the trial. On a Sunday
afternoon, after church, fifty or so people gathered at Irene Chandler’s house for a
meeting with habeas counsel. Of this group, nearly all, forty to fifty, came to the
evidentiary hearing in the district court. After hearing the testimony of 27 of these
witnesses, the district court stated that it had heard enough; it held that the
testimony of the remaining mitigation witnesses would simply be cumulative and
therefore would be unnecessary.
      18
        The majority draws its “misgivings” conclusion from the following
exchange that took place between Redden and the prosecutor at the evidentiary
hearing on petitioner’s ineffective assistance claim:
      Q: You’re also aware, were you not, that by calling character
      witnesses for Mr. Chandler you would have opened them up to cross-
      examination by the government, would you not?
      A: Yes, sir.
      Q: Were there some aspects of that that you believed might not have
      been helpful to your case?
      A. Certainly.
      Q: In fact, you knew or had some information that some individuals in
      the community considered Ronald Chandler to be a drug dealer, did
      you not?
      A: Yes.
      Q: And some information that there were people in the community
      that were afraid of him?
                                         75
be able to testify for petitioner, he could not have had misgivings about what a

particular witness might say on cross-examination. Second, other than his belief

that the Piedmont “law enforcement community” was “hostile” toward petitioner

and that some folks thought that petitioner was a drug dealer, Redden had nothing

to say on the subject of what the prosecutor might have been able to develop on

cross.19


      A: Not as much of that. I had heard that, but that was – I don’t know
      how many people would come and say that as opposed to the other.
      Q: You knew that was certainly available to the government or could
      be available to the government as cross-examination material?
      A: Well, I felt that the law enforcement community in Piedmont, in
      that part of the county, was hostile to him, antagonistic to him. And
      that they certainly could have produced witnesses of that sort.
Immediately after this exchange, Redden clarified that his real concern was not
what the prosecutor might bring out on cross-examination, but that the jury, by
finding petitioner guilty, had already set its mind against the petitioner such that
nothing would convince it not to recommend death:
      And so I felt that, to answer your question, that it would be at least
      questionable whether a sufficient impact of character type testimony
      could overcome a fixed opinion based on the other evidence, if they
      had such a fixed opinion, and could change it from life to death. Or
      death to life.
       19
         As the prosecutor conceded, petitioner had no “substantial” criminal
record; thus, the prosecutor could not have cross-examined petitioner’s mitigation
witnesses about petitioner’s past crimes. As far as we can tell from the record,
Redden had no idea as to the identity of any witness(es) the prosecutor could have
called to the stand to rebut the sort of mitigating evidence petitioner’s habeas
counsel were able to develop. Nor did the prosecutor reveal the identity of such
witness(es). As for Redden’s belief that the Piedmont law enforcement community
was “hostile” toward petitioner, neither Redden nor the prosecutor have explained
how this hostility would have been put to the mitigation witnesses on cross-
examination. Moreover, I have been unable to conjure a question that the
prosecutor could have put to a mitigation witness – such as, “Have you heard that
                                          76
      Also lacking a foundation in the record is the notion that Redden decided to

base his sentencing phase strategy on “lingering doubt” rather than mitigating

evidence (save the two stipulations, and the testimony of Deborah and Irene). I

say this for two reasons. First, when examined at the evidentiary hearing on

petitioner’s ineffective assistance of counsel claim, Redden did not say, or even

imply, that he pursued the “lingering doubt” strategy.20 From all appearances,

Redden had little idea as to what he would say to the jury when he rose to make

his opening statement. Second, the transcripts of Redden’s opening statement and

closing argument – copies of which are attached to this opinion – do not reflect a

“lingering doubt” strategy. In fact, in his closing argument, Redden told the jury:

      You’ve made a finding of guilt. I can’t argue against that because

      it’s already made, but I say to you in all sincerity that it would be a

      tremendous mistake, in my judgment, for you to return a


the Piedmont law enforcement community is hostile toward petitioner?” – that
would have survived a defense objection. Furthermore, neither Redden nor the
prosecutor, who defended Redden’s conduct at the evidentiary hearing, identified
any testimony that could have been admitted under the Federal Rules of Evidence.
The same is true with respect to the belief of some in the community that petitioner
was trafficking drugs.
      20
          The majority not only concludes, as a factual matter, that Redden
delivered a “lingering doubt” argument as a matter of trial strategy, but goes on to
hold that “we . . . would not approve a district court’s finding otherwise.” Ante at
n.26. In other words, Redden’s lingering doubt argument provides a bench mark
for the lawyers and courts of this circuit in future cases; any argument appearing to
fit hand-in-glove with Redden’s argument will be considered, as a matter of law, to
be a “lingering doubt” argument!
                                          77
      recommendation; that is, a verdict that would impose on this court the

      obligation to cause this man to be put to death considering every

      circumstance of this case.



Instead of relying on “lingering doubt,” Redden urged the jury to give due weight

to the fact that petitioner had no substantial criminal record, the fact that Charles

Ray Jarrell would not be receiving the death penalty, and the testimony of

Deborah and Irene Chandler. Regarding the women’s testimony, he said that he

had not presented “the testimony . . . for a tear-jerking purpose.” It was presented

“to show that there was a life here that has had a stability to it, that has had some

quality to it.” In other words, a reasonable fact finder could find that Redden

himself thought mitigating circumstances existed, which the jury should have

considered in deliberating on the sentence to recommend.



                                          III.



      In summary, the district court made no findings of fact regarding Redden’s

performance in the sentencing phase of the trial; rather, it disposed of petitioner’s

ineffective assistance claim by concluding that Redden’s performance, even if

constitutionally inadequate, caused petitioner no prejudice. What the majority and


                                          78
Judge Barkett in her dissent have done is to step into the district court’s shoes, find

the historical facts underpinning petitioner’s claim that Redden’s performance fell

short of constitutional minima, and decide the merits of the performance aspect of

petitioner’s ineffective assistance claim. I would eschew such fact finding at the

appellate level. Rather, I would remand the case to the district court, whose

habeas role is to find the facts underpinning a petitioner’s claims, with instructions

to enter findings of fact and conclusions of law concerning Redden’s performance

in the sentencing phase of petitioner’s trial.




                                           79
                                 Opening Statement



      Please the Court, ladies and gentlemen. Of course, the issue or there has

been put in issue the question of whether these aggravating factors exist by

evidence sufficient to convince beyond a reasonable doubt that they do exist. The

Court has told you I believe and will tell you again that the only aggravating

factors that could be considered are those that have been identified to you and that

will be identified to you, I’m sure, in his closing instructions.

      Mitigating circumstances may include any of those mitigating

circumstances that are identified by statute and may include also anything else,

any other circumstance that any juror wants to consider in mitigation. And by

mitigation, we simply mean as tending to indicate to you that you should not

recommend a death penalty.

      Of course, as the Court has stated to you, the word “recommend” is used

here but it’s more than that. In this respect, that if a jury recommends the death

penalty, the Court has no discretion to change that or to make another sentence or

penalty, but among the statutory mitigating factors that the Court will identify to

you are two at least that are very important in this case.

      One is – and this is in the statute for a jury to consider – that the defendant

on trial has no, as the statute says, “substantial criminal record”. And we expect


                                          80
that to be demonstrated very clearly in this hearing, that that is true of David

Ronald Chandler.

      Also, that another person or persons who participated in the killing of

Marlin Shuler, which has been found, is not receiving and is not undertaken to

receive the capital penalty. I think that’s already been demonstrated by the

evidence in this case that that certainly is true with reference to the man that killed

Marlin Shuler, Charles Ray Jarrell, Sr. But it will be demonstrated conclusively to

you again in the course of this hearing.

      Yesterday after you had commenced your deliberations you manifested an

interest in what was identified as Exhibit 45 of the government and that was a tape

that you asked to be played and you were allowed to have in your hands to read

along with the playing of the tape a document which had been identified as Exhibit

45-A, not in evidence but as an assist to you.

      The importance of that tape and of that document for purposes of this

hearing is this. I say that this hearing will establish without a doubt – again I think

it’s something already that has already been established, that the death of Marlin

Shuler occurred on May 8, 1990, that the statement that your foreman’s message

referred to to the Court which was in writing as the Court instructed and you did it

without knowledge of what numbered exhibit you were talking about, but the

statement in which you had an interest was capsulated in the foreman’s message.


                                           81
And that was Exhibit 45. And you manifested an interest in a statement that says,

in substance, I’ve got to kill somebody or words to that effect.

      The evidence has reflected and will reflect again that that statement was not

made until July 31, 1990, that it was made almost three months after the death of

Marlin Shuler. It could not have been made with reference to Marlin Shuler unless

the maker of the statement was unaware of the death of Marlin Shuler. But you

found contrary to that by your finding already. And I ask you – we will ask you to

consider the significance of that fact; that is, that Marlin Shuler was already

deceased at that time.

      There will be other evidence that we will offer briefly and at the conclusion

of this hearing and of the further instructions of the Court we urge and feel very

strongly that you will not recommend a death sentence under all the circumstances

of this case which you have heard and can take into consideration to the extent that

the Court has instructed you and what you will hear on this hearing.




                                          82
                                 Closing Argument




      Please the Court, I think that for the purposes that you’re here that part of

Mr. Davis’ argument goes outside the parameters of what is relevant to

determining what penalty you recommend for David Ronald Chandler. But I’ll

respond to part of it anyway. He talked of the great preparation, he talked about

Texas, he talked about many things, all of which he now attributes to David

Ronald Chandler, which the evidence did not attribute to David Ronald Chandler.

He sort of forgets Paul Watson when he talks about who was the person who over

a long period of time was the planner, was the contact with Treacy, was the

contact with Moncrief, all of this, forgets and I respond to it only to say, number

one, I think it’s outside the scope of what is relevant here but, number two, it

forgets what the evidence in this case was.

      And then he says to you that David Ronald Chandler says to Charles Ray

Jarrell, Sr., got $500.00, kill him, kill him, kill him, keep on and keep on until you

persuade that man to do that and wait a minute, if I misstate the evidence, you’ll

correct me and I hope you’ll correct Mr. Davis because Charles Ray Jarrell

testified, as I recall, that on an occasion three or four months before May the 8th,

David Ronald Chandler had made a statement to him which said, in substance,


                                          83
“This man is going to cause trouble, I’ll give you $500.00 to kill him.” And what

did he say about the statement. He said, “I thought he was joking, always off the

wall like that.” And that that’s the only time, the only time that was ever

mentioned up until the 8th day of May of 1990 when he said he had a conversation

with David Ronald Chandler which he stated two different ways in his prior

testimony. One time no money was mentioned, according to him. The other time

said I’ve still got the $500.00. Now, what does that show with reference to any

planning, scheming, deliberation by David Ronald Chandler. If that conversation

took place at all, if it took place at all, took place after a long lapse of time, after

one conversation that the man said was unimportant in my mind. Now, if it took

place, it was a thing that was not precipitated. His testimony was not that any nine

millimeter pistol had been given to him for the purpose of killing Marlin Shuler,

that he had that pistol. He said, in his truck, that he thought, as I recall his

testimony, that David Ronald Chandler was going to pick it up. David Ronald

Chandler was going to pick it up that morning when he came over and that the

thirty-eight he had was his own weapon.

       Well, then let’s go on. What prompted Charles Ray Jarrell, Sr. in his

actions. How much did anything that was said to him on that day by David

Ronald Chandler impel him, motivate him to do what he did after twenty-three

beers on that date, twenty-three beers before he shot the man. And his testimony,


                                            84
as I recall, was well, shot up all of the thirty-eight – I don’t know how many

rounds were left in the nine millimeter, didn’t even know whether he had any or

not. And he shot him. And, of course, when Mr. Davis states that he stated

unequivocally well, you know, this man again can be tested by what he had said

unequivocally on other occasions; that is, number one, that he didn’t shoot this

man; number two, he shot him, it was an accident and then he gets into the routine

of the statements that he made when it became profitable for him to make them.

      Well, here’s one thing that is undisputed. There was Jarrell’s family’s

malice toward Marlin Shuler. How is that demonstrated. No question about the

fights that both sons, Charles Ray, Jr., Billy Joe had with Shuler. Why. Because

of, number one, his abuse of Donna Shuler, Charles Ray’s half sister, abuse of her,

his abuse of the family generally and his abuse of Donna’s mother, Mrs. Johnson,

for whom he had an abhorrious name.

      Charles Ray Jarrell had plenty of malice, animosity, hostility toward Marlin

Shuler not engendered by David Ronald Chandler. David Ronald Chandler didn’t

have a thing to do with Charles Ray Jarrell putting a pistol to the nose of this man

and pulling the trigger intending to kill him and in November of 1989. So what

happened. He said well, the Lord must not have intended for him to die that night.

And the prosecutors would say to you yeah, but that was all over with, that was

over and done with, that was just one moment called the argument that well, he


                                         85
was looking him in the face at that time. That’s a different thing from shooting

him in the back of the head or wherever he was shot on a different occasion. But I

say you can’t attribute to David Ronald Chandler the compelling force of what that

man did on that occasion to the extent that a recommendation, in fact, a sentence

to death be justified.

      I submit to you that under all the circumstance of this case it would be cruel

and unusual punishment, which our constitution even says should not be the

subject of punishment in this country.

      Now, certainly we would argue and we do argue that there are two very

clear mitigating circumstances in this case. One is the absence of any substantial

criminal record, as the statute says, “mitigating factors”. Number six, the

defendant did not have a significant prior criminal record. And that stipulation

which is in evidence is proof without contradiction that that is the case.

      Another is that another defendant or defendants equally culpable in the

crime will not be punished by death. You can go further than that, not be punished

at all, will not even be tried under an accusation of the murder of Marlin Shuler.

Those two things. Well, what else mitigates.

      Well, for one thing, the testimony of his mother and of his wife was not here

for a tear-jerking purpose. It was here to show that there was a life here that has

had a stability to it, that has had some quality to it and I think that is apparent


                                           86
when you looked at those two ladies, contrasted to the character or nature of some

of the people who testified in this case and it stands out in stark contrast and the

fact that here is a family that had tremendous stability, here is a man who not to

have lived around with this person, that person and the other. He’s got three

children, they are all by his wife. Here is a man who apparently has some skill of

his hands who has worked in building his house and his parents’ house, his

brother’s houses and they’ve worked with him and this springs off the 80-acre

farm that his father had with his father, way back. They built a sawmill, they cut

trees, they made lumber, they collected rocks, they built houses and lives

demonstrating lives with some purpose as opposed to life worthless. So that that

is a mitigating factor that I think that you have certainly not just the right but the

obligation to consider.

      This is a case, of course, that’s extremely important. You’ve made a finding

of guilt. I can’t argue against that because it’s already made, but I say to you in

all sincerity that it would be a tremendous mistake, in my judgment, for you to

return a recommendation; that is, a verdict that would impose on this court the

obligation to cause this man to be put to death considering every circumstance of

this case. You are going to be told that any such recommendation must be

unanimous, that it has to be signed on, signed on judgment of each one of you.

And I say to you that there has been a lot of innuendo – where he says, well, now,


                                           87
this guy named McFry who is not her, Burrows who is not here – I say to you that

there is no evidence in this case that would justify any speculation on someone’s

part that hey, these people may be dead and he might have had something to do

with it. If you indulge in that, you will have committed, in my judgment, an

aggrievous wrong as far as the defendant is concerned.

      I think it is the certainly the inclination of our law and the safeguards that

even this statute attempts to wrap around the case and this defendant or any

defendant so charged that the recommendation of a death penalty is not considered

to be the normal act of a juror, certainly under circumstances of this case and

particularly where, as here, no prior record. And then the man who did it after

twenty-three beers not even prosecuted for that murder, has been indicted but that

will be dismissed, that’s the stipulation that’s in evidence. So we ask you to

consider the relevant evidence and when you’ve done so, we feel that you will

return a recommendation to the court that there be no death penalty imposed on

David Ronald Chandler.

      Thank you very much.




                                          88
BIRCH, Circuit Judge, dissenting:

      I join in Judge Barkett's comprehensive, persuasive, and record-relevant

dissent. Given the current and continuing concerns about the reliability and,

hence, the viability of the death penalty, it is critical for the courts to set a standard

of attorney performance which merits the public's confidence. In this case, the

majority places the acceptable level of attorney assistance so low as to risk

undermining the public's confidence in the criminal justice system. The result of

this opinion may be to make David Ronald Chandler the first federal prisoner

executed by the government of the United States in 37 years.1

      Chandler is the first person to be sanctioned with the death penalty as

enacted by Congress in 1988 under the Anti-Drug Abuse Act of 1988, 21 U.S.C.

§§ 848(e) et seq. Therefore, it represents a unique opportunity for the federal

courts to prescribe the minimum requirements for the Government's taking of a

life. Defense counsel's entire penalty phase effort, from the minute that he asked

Deborah Chandler to find mitigation witnesses until the arguments concluded,

consisted of less than 24 hours. Before we, as a civilized society, condemn a man

to death, we should expect and require more of an advocate.




      1
       See Linda Greenhouse, In Test of New U.S. Law, Death Sentence is
Upheld, N.Y. Times, June 22, 1999, at A22 (noting that last federal execution
occurred in 1963).
                                            89
      For all of the reasons that I set forth in the panel opinion in this case, see

United States v. Chandler, 193 F.3d 1297 (11th Cir. 1999), reh'g en banc granted

and opinion vacated, Dec. 3, 1999, I continue, as I did then, to be convinced that

the record in this case compels the conclusion that Chandler received ineffective

assistance of counsel during his penalty phase, in violation of the Sixth

Amendment guarantees as set forth in Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The Supreme Court's recent decision in

Williams v. Taylor, — U.S. —, 120 S. Ct. 1495, — L. Ed. 2d — (2000), only

strengthens my conviction that we should vacate Chandler's death sentence and

remand for re-sentencing.




                                          90
BARKETT, Circuit Judge, dissenting, in which BIRCH, Circuit Judge, joins:

      The issue in this case is whether a lawyer who has competently performed

in the guilt phase of a capital trial, but does nothing to investigate mitigating

evidence, has provided constitutionally effective representation at the sentencing

phase. The Supreme Court made clear in Williams v. Taylor, 120 S. Ct. 1495

(2000), decided on April 18, 2000, that he has not.

      To the extent that the majority’s opinion suggests that a defense lawyer has

no obligation, independent of his preparation for the guilt phase, to conduct even

the most minimal investigation into the existence of mitigating evidence in

preparation for the penalty phase of a capital case, it is contrary to and misstates

the specific dictates of the Supreme Court as well as this Circuit’s precedent. To

the extent that the majority’s opinion suggests that L. Drew Redden, Chandler’s

attorney, conducted a reasonable investigation into the availability of mitigating

evidence, or that he made a reasonable tactical choice not to investigate or present

mitigating evidence, it is in clear conflict with the record,1 which belies the

conclusion that Redden conducted any investigation or made any reasoned tactical

decisions with respect to the penalty phase of Chandler’s trial.



      1
         Notwithstanding the majority’s assertion, supra note 41, that the
disagreements in this case are about the law and not about factual matters, I in fact
do take issue with the majority’s reading of the record as well as its interpretation
of the law.
                                          91
      Although the majority devotes much of its opinion to facts relevant to

Redden’s professional qualifications and civic and bar activities as well as his

competent representation in the guilt phase, these facts have nothing to do with the

issue raised in this case. As to that issue, the majority glosses over the record

evidence of Redden’s complete lack of preparation for or effort in the crucial

penalty phase. Moreover, rather than remanding the case to the district court

judge, who is in the best position to assess testimony, to give him the opportunity

to decide first whether Redden’s performance was constitutionally adequate, the

majority arrogates this task to itself and, based on speculation, wrongfully holds

that Chandler’s sixth amendment right to counsel was not violated and Redden’s

performance was constitutionally adequate.2

I. Redden’s performance at the sentencing phase was constitutionally
ineffective.

      A. Redden does not dispute that he failed to investigate the
      availability of mitigating evidence.

      In Williams v. Taylor, the Supreme Court found ineffectiveness requiring a

new sentencing hearing where counsel “did not begin to prepare for [the penalty]

phase of the proceeding until a week before the trial.” 120 S. Ct. at 1514. In this


      2
         This dissent is in a different format than the majority’s 12 “principles and
presumptions.” I note that, while some of those principles and presumptions are
accurate statements of the law, others are extrapolations from dicta that cannot be
reconciled with the guidance provided in Strickland. Many, as pointed out infra,
are totally inapplicable to the facts of this case.
                                          92
case, counsel was even more remiss, failing to think about the penalty phase until

the night before the sentencing hearing.3 The guilt-innocence proceeding ended at

2:30 on the afternoon of April 2, 1991, and the penalty phase was set to begin at

9:00 the next morning. That afternoon, Redden “prepared” for the penalty phase

by asking Deborah Chandler, the defendant’s wife, to “find” some character

witnesses to “stand up for Ronnie” the next morning.4 In addressing the extent to

      3
        When asked what he did to prepare for sentencing, Redden admitted “I
would say basically not anything explicitly. I mean, what I was preparing to do
was to try to defend the case and there was not volunteered at that – in any of that
among the people I talked with or presented to me anything that I considered
would be helpful on a sentencing phase if that came to pass.” R13-433-331.
       At a later point, Redden again testified:
       Q. You testified earlier today that prior to trial, I think your exact words,
you had done essentially nothing to prepare a mitigation case in the event that your
client was convicted of the murder charge. Murder in furtherance of a continuing
criminal enterprise. At the – during trial, what, if any, efforts did you do to try to
put together a mitigation case?
       A. In connection with sentencing?
       Q. Mitigation case in connection with sentencing, yes, sir . . . .
       A. Very little.
R13-433-359.
      4
        Deborah Chandler testified that Redden first asked her to find character
witnesses for the sentencing hearing on the afternoon that Chandler was convicted.
See Exh.12 at 19. Redden explicitly corroborates Chandler’s testimony on this
point:
       Q. Did you go – when did you go prepare their testimony?
       A. We talked probably some that afternoon, I’m not sure, and probably the
       morning.
       Q. So it would have been after – sometime after 2:30 before you talked to
her?
       A. It might have been, I don't recall now.
       Q. Okay. Or it would have been sometime before 9:00 a.m. in the
       morning?
                                         93
which counsel must prepare for mitigation, our cases require that counsel, at the

very least, inform the defendant and the defendant’s relatives about the nature and

importance of character evidence in a capital sentencing trial,5 ask them for the

names of potential witnesses,6 and then follow up on whatever leads they provide.7


      A. We started at nine and we talked to them that morning, it would have
been before then.
      Q. . . . [H]ow much time did you have to prepare Ms. Irene Chandler and
Ms. Deborah Chandler for their testimony?
      A. Not much.
R13-433-371-72.
      5
        Tyler v. Kemp, 755 F.2d 741, 744-45 (11th Cir. 1985) (finding that,
although counsel contacted relatives, his performance was deficient because he
“did not tell them that their testimony was needed on any subject other than guilt or
innocence and did not explain the sentencing phase of the trial of that evidence of a
mitigating nature was needed”), rev’d in part on other grounds sub nom. Peek v.
Kemp, 784 F.2d 1479, 1494 & n.15 (11th Cir. 1986) (en banc).
      6
         Elledge v. Dugger, 823 F.2d 1439, 1445, modified on other grounds, 833
F.2d 250 (11th Cir. 1987) (stating that counsel must “at least interrogate [the
defendant’s] relatives”); see also Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.
1997) (finding effective assistance where counsel “obtained names” of potential
witnesses from defendant and defendant’s mother and sister); Bolender v.
Singletary, 16 F.3d 1547, 1558 (11th Cir. 1994) (counsel effective where he
“interviewed relatives concerning [defendant’s] family background”); White v.
Singletary, 972 F.2d 1218, 1224-25 (11th Cir. 1992) (counsel effective where he
“spoke[] with family members in preparing for the penalty phase”); cf. Stevens v.
Zant, 968 F.2d 1076, 1083-84 (11th Cir. 1992) (counsel effective where he tried to
secure in-court presence of defendant’s relatives by telling defendant of importance
of this, asking him for names, and speaking with the two relatives defendant
mentioned).
      7
         Compare Jackson, 42 F.3d at 1367 (deficient performance where counsel
aware of some “possible” mitigating evidence regarding defendant’s background
but failed to investigate); Blanco v. Singletary, 943 F.2d at 1500-01 (11th Cir.
1991) (deficient performance where counsel left messages with relatives mentioned
                                         94
      Even if it were appropriate for counsel to delegate the task of uncovering

migitating witnesses to a person without any legal training whose husband had just

been convicted and faced the possibility of being sentenced to death the next day,

Deborah Chandler hardly had time to comply. On that afternoon, she had to drive

approximately two hours to Piedmont where she and Chandler lived, and two

hours again the following morning to attend the penalty hearing. She thus had

approximately twelve hours to round up mitigation witnesses who would then be

called to testify with little or no preparation from trial counsel as Redden never

advised Deborah Chandler, or anybody else, regarding the nature of the testimony

he hoped to elicit at the penalty stage. See R13-433-364. Redden did not

consider or request a continuance in order to prepare for the next day’s penalty

phase. Id. at 324.

      When asked whether he thought he would have had some opportunity to

interview potential character witnesses, Redden responded: “Well, only a hope.


by defendant but neglected to contact them); Middleton v. Dugger, 849 F.2d 491,
493 (11th Cir. 1988) (deficient performance where counsel learned of mitigating
personal history evidence from defendant but failed to investigate); with
Cunningham v. Zant, 928 F.2d 1006, 1015-16 (11th Cir. 1991) (not deficient
performance for failing to locate more character witnesses where counsel
interviewed the three people defendant identified as well as several others). But cf.
Singleton v. Thigpen, 847 F.2d 668, 670 (11th Cir. 1988) (counsel not deficient for
failing to interview neighbors where he “asked [defendant’s] mother and girlfriend
to identify individuals who could testify on behalf of [defendant], but they could
not name anyone” and where defendant failed to proffer evidence which counsel
would have found had he searched neighborhood).
                                         95
And not one that I really spent a lot of time or effort on or felt that there was that

much time to spend on.” Id. at 398. The best he could do was suggest that he

would have been prepared to listen if anyone had volunteered anything useful.

When asked why he had not “done any specific preparation for the death penalty

phase,” id. at 395, Redden offered the following explanation:

             Well, I guess, number one, you do what’s coming up
             first, and you do what’s immediately on you. Number
             two, of course, if something happens in your
             interviewing of a witness or talking to a particular
             witness that could be of value ultimately in that, you’d
             make at least a mental note of that. But there wasn’t, as
             I’ve testified, anything specifically directed to that at that
             time and nothing was volunteered to me that I
             considered of value in there.

Although the majority notes that Redden interviewed 67 witnesses, it is clear that

those witnesses were interviewed only for purposes of the guilt phase of the trial

and not for purposes of mitigation.8 Moreover, the majority of these interviews



      8
        Q. Mr. Redden, on cross-examination you mentioned that there was some
interviews of witnesses prior to trial and during trial, and though you don't have an
independent recollection of how many were interviewed, you have been told by
Ms. Brotherton that y'all have 67 files, witness files, with information regarding
some contact with a witness; is that correct?
       A. I believe she said 67.
       Q. 67. And all of those witnesses, however, were witnesses that dealt with
the guilt/innocence issues in the trial, is that not correct?
       A. Those were.
       Q. All 67 were guilt/innocence type witnesses.
       A. I would say that's correct.
R13-433-406.
                                           96
were with government witnesses who were unlikely to offer unsolicited favorable

character evidence. There is no evidence that Redden asked a single question of

these witnesses with mitigation in mind.

      The majority insinuates, extrapolating from Redden’s use of the attorney-

client privilege as to one issue, that Redden did not investigate because Chandler

might not have wished him to do so. Although that suggestion is totally

unsupported by the record in this case,9 even if the majority’s interpretation of the


      9
         The majority speculates that Redden censored himself at the Section 2255
evidentiary hearing and that the district court shielded attorney-client conversations
from examination. On the contrary, the court did nothing to prevent the
prosecution from asking Redden whether he had discussed the existence or
presentation of mitigating evidence with Chandler. Indeed, when the prosecution
requested permission to ask Redden whether he had discussed certain topics with
his client, the district court instructed Redden to testify as to the fact of the
conversations but not to reveal what was said. R13-433-385. Far from halting
such inquiries or even chilling prosecutors from asking questions along those lines,
the court merely stated that it would make rulings on questions that might touch on
the attorney-client privilege “on a situation by situation, case-by-case basis.” Id.
Clearly, the prosecution could have asked Redden whether he had ever had
conversations with Chandler or his family members regarding possible mitigating
evidence. When the prosecution did ask Redden whether he had failed to mention
any preparation he had done for Chandler’s case, he indicated that all of his
preparation had been covered during direct examination:
        Q. A number of things that were described by [appellate counsel] Mr. Martin
or you were questioned by Mr. Martin concerning a number of things that you did
in preparation for this case. Were there any matters that, or any preparation that
you did that was not covered on direct examination that you can think of that
would be of significance or do you feel like you covered everything?
        A. I guess the nature of everything was covered. I don’t suggest that each
act of preparation was covered.
Id. at 386. The effect, if any, that invocation of the attorney-client privilege
should have on review of counsel’s effectiveness at the trial level is prematurely
                                           97
facts were correct, this Court has found that an attorney has a duty to investigate

possible mitigating evidence even where a defendant has specifically said to his

lawyer that he does not want to present any mitigating evidence. Dobbs v. Turpin,

142 F.3d 1383, 1387-88 (11th Cir. 1998). “Although the decision whether to use

mitigating evidence is for the client, this court has stated, ‘the lawyer first must

evaluate potential avenues and advise the client of those offering possible merit.’”

Id. (quoting Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986)); see

also Blanco, 943 F.2d at 1503 (finding ineffective assistance where “[t]he ultimate

decision that was reached not to call witnesses was not a result of investigation

and evaluation, but was instead primarily a result of counsels’ eagerness to latch

onto [the defendant’s] statements that he did not want any witnesses called”).

Again, Redden could not have intelligently counseled Chandler about the

availability or presentation of mitigating evidence because he had no knowledge

of its nature or its extent.

       B. A lawyer has an obligation to investigate mitigating evidence.

       In Williams v. Taylor, the Supreme Court, citing to the American Bar

Association’s Standards for Criminal Justice, specifically stated that a defense

lawyer in a capital case is “obligat[ed] to conduct a thorough investigation of the


addressed and decided by the majority, as the issue was not briefed or argued in
this case. Such an important question needs to be fully addressed prior to any
decision by this Court.
                                          98
defendant’s background.” 120 S. Ct. at 1514-15. The ABA standard recognizes

the lawyer’s substantial role in raising mitigating factors both to the prosecutor

initially and to the court at sentencing, that this task cannot be accomplished

simply on the basis of broad general emotional appeals or on the strength of

statements made to the lawyer by the defendant, and that investigation is essential

to discover facts about the defendant’s background, education, employment

record, mental and emotional stability, family relationships, and the like. It

concludes that, “without careful preparation, the lawyer cannot fulfill the

advocate’s role.” 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-

55 (2d ed. 1980).

      Dismissing Williams’ relevance to this case,10 the majority says that

“[i]nvestigation (even a nonexhaustive, preliminary investigation) is not required

for counsel reasonably to decline to investigate a line of defense thoroughly.” Not

only is this statement contrary to Williams and to prior Supreme Court precedent,



      10
          The majority treatment of Williams is at odds with the well-established
judicial practice of drawing general principles from specific cases as the majority
has done throughout its opinion. We certainly agree that Williams does not
establish a per se rule that “a defense lawyer must present character witnesses at
the sentencing phase or that a defense lawyer (no matter what his client may have
informed or instructed him) must in every case investigate purely to see if
character witnesses might exist who might be of help at the sentencing phase.”
Supra note 21. We do however read Williams as reinforcing the established rule
that defense counsel’s decision not to present mitigating evidence must be
reasonable.
                                          99
but the citations following this statement hold precisely the opposite, as

recognized in the parentheticals for the cited cases. Strickland v. Washington

states that counsel has a duty either to make a reasonable investigation or to make

a reasonable decision that no investigation is necessary. 466 U.S. 668, 691 (1984).

Strickland also states that counsel may make a “less than complete investigation”

if “reasonable professional judgment supports the limitations on the investigation.”

Id. at 690-91.11 As evidenced by the cases cited herein, as well as those cited by

the majority, it is axiomatic that counsel must perform at least a preliminary




      11
         Similarly, in Williams v. Head, this Court noted that a strategic decision
can be reasonable even if not preceded by a thorough investigation. 185 F.3d
1223, 1236-37 (11th Cir. 1999). As the majority points out, that Court also held
that counsel need not “pursue every path until to bears fruit or until all hope
withers.” Id. However, that statement does not support the conclusion that counsel
is not obligated to conduct any investigation at all. This Court has established that
defense counsel has a duty to undertake reasonable investigations. Failure to
conduct any investigation “because of the mistaken notion that mitigating evidence
is inappropriate is indisputably below reasonable professional norms.” Dobbs, 142
F.3d at 1388 (quoting Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991)).
Redden did not fail to present some of the available mitigating evidence; he failed
to present any of it. He did not make a strategic decision not to “stack defenses”;
he did not “winnow out” certain arguments, witnesses or evidence. Redden failed
completely to investigate the availability of mitigating evidence and then presented
no case for mitigation at all. He relied on Chandler’s wife to locate mitigation
witnesses at the eleventh hour, and his abbreviated examination of the two people
who should have known Chandler the best, his wife and mother, was so deficient
as to have been detrimental. See footnote 18, infra, addressing the prosecution’s
use of their testimony. No prior decision of this Court or the Supreme Court has
held that such a performance is constitutionally effective.
                                         100
investigation before he or she is able to make an informed or “strategic” decision

about whether or not to further pursue that investigation.

      In Williams, the Supreme Court emphasized that, regardless of whether

counsel’s failure to conduct a thorough background investigation was sufficiently

prejudicial to have affected the outcome of sentencing, it “clearly demonstrated

that trial counsel did not fulfill their obligation.” 120 S. Ct. at 1514-15. Likewise,

this Court previously has recognized that a defense attorney has a duty “to conduct

a reasonable investigation, including an investigation of the defendant’s

background, for possible mitigating evidence.” Porter v. Singletary, 14 F.3d 554,

557 (11th Cir. 1986).

       It is true that an attorney may, under some circumstances, make a strategic

choice to curtail a particular investigation. But the Supreme Court has tied the

reasonableness of such a choice to the amount of investigation backing that

choice:

      [S]trategic choices made after thorough investigation of law and facts
      relevant to plausible options are virtually unchallengeable; and
      strategic choices made after less than complete investigation are
      reasonable precisely to the extent that reasonable professional
      judgments support the limitations on investigation. In other words,
      counsel has a duty to make reasonable investigations or to make a
      reasonable decision that makes particular investigations unnecessary.

Strickland, 466 U.S. at 691; see also Dobbs, 142 F.3d at 1387-88 (advising that “a

particular decision not to investigate must be directly assessed for reasonableness


                                         101
in all the circumstances, applying a heavy measure of deference to counsel’s

judgments”) (quoting Strickland, 466 U.S. at 691).12 Thus, counsel’s failure to

conduct a thorough or complete investigation may be excused only where a

preliminary investigation has reasonably informed counsel’s determination that

further investigation is not warranted. “[T]he mere incantation of ‘strategy’ does

not insulate attorney behavior from review; an attorney must have chosen not to

present mitigating evidence after having investigated the defendant’s background,

and that choice must have been reasonable under the circumstances.” Stevens,


      12
         The majority suggests that experienced criminal trial lawyers are entitled
to some heightened standard of deference. Although counsel’s experience may be
relevant in assessing, for example, how he viewed a particular strategy, it cannot
carry over to excuse a case of incompetent performance, notwithstanding his
capable representation in any other case, or even in the guilt phase of this one. The
majority attempts to parlay the respect for the professional judgment of an
experienced trial lawyer that we expressed in Provenzano v. Singeltary, 148 F.3d
1327 (11th Cir. 1998), into a general principle of enhanced deference. But in
Provenzano, we stated only that “[o]ur strong reluctance to second guess strategic
decisions is even greater where those decisions were made by experienced criminal
defense counsel.” Id. at 1332 (emphasis added). In this case, Redden made no
strategic decision. Rather, he completely failed to investigate or to discover readily
available mitigating evidence. Deference is due to Redden’s “strategic decision”
only if evidence indicates that he made one. The majority’s reliance on Burger v.
Kemp, 483 U.S. 776, 779-80 (1987), is likewise misplaced. The Burger Court
merely mentioned in reviewing the facts that the defense counsel at issue in that
case had a good deal of trial experience. That passing reference was in no way
connected to the Court’s conclusion that that counsel’s performance was not
ineffective, and the Court did not opine, as the majority’s citation of Burger
implies, that a counsel’s extensive trial experience entitles him to enhanced
deference. This was not Reddent’s first capital case. It was, however, his first
since 1976, and his first with the new bifurcated guilt and penalty phases. See
R13-316-17; R15-1-28.
                                         102
968 F.2d at 1083 (emphasis added); see also Horton, 941 F.2d at 1462 (“[O]ur

case law rejects the notion that a ‘strategic’ decision can be reasonable when the

attorney has failed to investigate his options and make a reasonable choice

between them.”).

      In Baxter v. Thomas, we said that the first step in assessing a claim of

failure to investigate mitigating evidence is to “determine[] whether a reasonable

investigation should have uncovered the mitigating evidence. If so, then a

determination must be made whether the failure to put this evidence before the

jury was a tactical choice by trial counsel.” 45 F.3d 1501, 1513 (internal citations

omitted) (quoting Blanco, 943 F.2d at 1500). Thus, we may not simply assume

that Redden’s failure to investigate was a strategic decision deserving of

deference. We must determine whether the failure to investigate mitigating

character evidence was an unreasonable omission or a reasonable strategic choice.

      C. Redden’s failure to investigate and present the available mitigating
      evidence did not result from a strategic decision.

      Notwithstanding a complete absence of evidence in the record that Redden

knew of or considered the existence or nature of mitigating evidence, the majority

assumes that he made a “strategic choice” not to investigate it.

             1. Lingering doubt

      The majority first excuses Redden’s failure to investigate by positing that he

chose instead to “focus[] on obtaining an acquittal and then at sentencing on

                                         103
lingering doubt.” That choice, says the majority, “was a reasonable one.” The

majority errs in several respects in reaching that conclusion. First, it is mere

conjecture on the part of the majority that Redden “chose” to pursue a strategy of

lingering doubt. This gloss, which the majority has superimposed on Redden’s

actions in hindsight, is again not supported by the record. Redden himself never

suggested that he pursued any such strategy. Nor did the government suggest he

had pursued such a strategy until after the issuance of the panel opinions. The sum

total of the evidence on which the majority depends for its conclusion that Redden

pursued a strategy of lingering doubt is his testimony at the Section 2255

evidentiary hearing that he “did not feel that a reasonable minded jury would

impose the death penalty” on Chandler. That’s it. Redden did nothing at the

sentencing hearing to communicate to the jury that, because they harbored

lingering doubts regarding Chandler’s culpability, they should not recommend the

death penalty.13


      13
         The majority relies on Tarver v. Hopper, 169 F.3d 710 (11th Cir. 1999), to
support its contention that counsel may reasonably decide to pursue a strategy of
lingering doubt to the exclusion of all other strategies during the penalty phase of a
capital case. That case, however, is not analogous. In Tarver, counsel let the jury
in on his strategy of lingering doubt so they could apply it at sentencing:

      I would hope that the evidence presented both in the case-in-chief last
      week and anything that you have heard today might be sufficient to
      raise in your mind at least a shadow of a doubt about the defendant’s
      guilt, and if that doubt exists in your mind, I would pray that you
      would resolve it in favor of the defendant.
                                         104
      Second, even if we credit the majority’s assertion that trial counsel, albeit

clumsily, pursued a lingering doubt theory, it was unreasonable for him to limit his

presentation to that approach without first investigating how fruitful additional

mitigating strategies might be. As noted earlier, courts may not simply assume

that a failure to investigate was a strategic decision deserving of great deference.

Although it is beyond peradventure that a strategic decision implies knowledge of

the options, the majority says:

      Trial counsel stated that he did not need to know what a witness
      would say to determine whether the witness would be compelling at
      mitigation. He stated that you assume what a piece of testimony
      might be and “assume the most favorable testimony that you might
      get and then form some judgment, not the most reliable judgment in
      the world, but some judgment about how compelling it might be.”
      We [the majority] agree.

No court has ever found that merely imagining what a witness might say on the

stand constitutes effective assistance of counsel when that is the sum total of a

defense attorney’s investigation into the existence of mitigating evidence in a

capital case. “In order for counsel to make a professionally reasonable decision


139 F.3d at 715. In addition, Tarver’s attorney called a polygraph examiner who
had interviewed Tarver. The polygraph examiner testified at Tarver’s sentencing
hearing that Tarver did not lie when he said that he had not killed the victim in that
case. Id. The jury heard no comparable appeals in this case. More importantly, in
Tarver, counsel’s unambiguous decision to pursue a lingering doubt strategy was
an informed one. Unlike Redden, counsel in that case first “interviewed every
witness Tarver thought would be helpful as mitigation witnesses, including
Tarver’s mother, grandmother, aunt, cousin, girlfriends, former employer, and
members of the community.” Id. at 714. Redden did nothing.
                                         105
whether or not to present certain mitigating evidence . . . that counsel must be

informed of the available options.” Jackson, 42 F.3d at 1367. “An attorney’s

decision to limit his investigation . . . must ‘flow from an informed judgment.’ . . .

‘[O]ur case law rejects the notion that a “strategic” decision can be reasonable

when the attorney has failed to investigate his options and make a reasonable

choice between them.’” Baxter v. Thomas, 45 F.3d 1501, 1514 (11th Cir. 1995)

(quoting Harris v. Dugger, 874 F.2d 756, 763 (11th Cir.), cert. denied, 493 U.S.

1011 (1989), and Horton, 941 F.2d at 1462). Moreover, Redden simply could not

have “imagined” the actual mitigation in this case. He did not know Chandler, he

did not know Chandler’s community, and there is no basis for believing that he

would have imagined all the supporting factual evidence of Chandler’s good deeds

and good character that was presented at the Section 2255 hearing.

      Finally, the assumption that Redden “chose” to focus on lingering doubt to

the exclusion of mitigating evidence makes no sense because the mitigating

evidence here does not conflict with a lingering doubt argument. On the contrary,

mitigating evidence of the kind available here would have enhanced such an

argument. The kind of available evidence regarding Chandler’s good deeds and

character (see pp. __ - __, infra) could only have enhanced the jury’s doubts

regarding Chandler’s participation in the murder.




                                         106
      Factually, Redden did not make any “strategic decision.” Legally, a lawyer

who does absolutely nothing to prepare for the penalty phase even if he adequately

prepares for the guilt phase of the trial is constitutionally ineffective.14 The

foregoing cases clearly establish that preparation for the guilt phase does not in

any way alleviate a lawyer’s obligation to prepare for sentencing. No reasonable

civil defense lawyer would argue that it would be justifiable to give no shrift, or

short shrift, to preparation on damages because the case against liability was

strong. Such an omission would be considered malpractice. A comparable


      14
        Notwithstanding the Supreme Court’s pronouncement in Williams that
looking for mitigating evidence a week before sentencing falls below the objective
standard of reasonableness, the majority not only fails to find Redden’s behavior
wanting, but rather finds it appropriate:

      Moreover, the evidence of a request to the wife – at least, as strongly
      – shows the laudable fact that trial counsel, like most good trial
      lawyers, was flexible and opportunistic: he did not think character
      witnesses would be helpful or a good use of his time to pursue, but a
      reasonable lawyer would not foreclose himself altogether from
      considering some if they were presented to him. In fact, one such
      character witness was presented to trial counsel; counsel did not use
      him.

Redden testified that he did not put Chandler’s former minister on the stand
because “I felt that in the absence of some number of witnesses that would not be a
wise thing to do.” R13-433-398-99. As Redden had not investigated, he did not
know that, in fact, a large number of witnesses were available. He therefore was
incapable of making an informed judgment. It is unclear why Redden would think
that these character witnesses would not be helpful; nor does the record contain
any testimony that Redden in fact rejected these witnesses. Indeed, the quantity
and quality of the available mitigating evidence utterly undercuts the proposition
that character witnesses would not have been helpful.
                                          107
omission certainly falls below objective standards of reasonableness where the risk

of inadequate preparation is not just monetary damages but death.15 Consequently,

we have rejected the assertion that an attorney’s “good faith expectation of a

favorable verdict” somehow excused his failure to prepare for the penalty phase of

a capital case. Blake v. Kemp, 758 F.2d 523, 535 (11th Cir. 1985). In Blake, the

Court concluded that counsel “made no preparations whatsoever for the penalty

phase,” id. at 533, notwithstanding the fact that counsel had interviewed the

defendant’s father several times and met with the father and mother together on

one occasion before trial in order to learn of “character evidence which might be

used for mitigation at a penalty proceeding,” id. at 534. Moreover, if counsel

believes that there is inadequate time to provide effective assistance, it is counsel’s

responsibility to seek a continuance from the trial court.16

      15
         In finding ineffectiveness, this Court has previously condemned such a
passive approach to gathering mitigation evidence. See Blanco, 943 F.2d at 1501-
02 (“To save the difficult and time-consuming task of assembling mitigation
witnesses until after the jury’s verdict in the guilt phase almost insures that
witnesses will not be available.”).
      16
        It is undisputed that Redden failed to seek a continuance at any point
during Chandler’s trial:
      Q. Given the circumstance that prior to trial you didn't have, I think your
word was, you had done little or nothing regarding the penalty phase. Did you
consider moving for a continuance?
      A. At what time?
      Q. Prior to trial?
      A. No, not in that, no.
R13-433-332.
      Nor did Redden ask for or consider asking for a continuance between the
                                         108
             2. Possibility of harmful rebuttal

      The second after-the-fact justification suggested by the majority for

Redden’s “strategic decision” not to investigate or present mitigating evidence

derives from Redden’s “[m]isgivings about hurtful cross-examination and rebuttal

witnesses.” Again, we are left to speculate what negative cross-examination or

rebuttal witnesses would have been available to counter the mitigating evidence

that could have been presented in this case. Redden certainly had no knowledge of

what that (hypothetical) cross-examination or those (imagined) rebuttal witnesses

would reveal.17 Indeed, he had no idea what his own potential mitigation

witnesses might aver. Nor does the record indicate what that possible adverse

evidence would have been. Chandler had no criminal record.




guilt and penalty phases of the trial. Id. at 324. He did, however, request a
continuance to postpone commencement of the trail so he could attend a
convention. “I had committed myself by word and by money to attend the
Convention of the International Society of Barristers.” Id. at 322. Redden felt that
“the Court had set the agenda and that the court had, I’d say, acted to my client’s
benefit in requiring the other cases to be disposed of first and then had granted that
extension. I didn’t put my mind to thinking about asking for a further continuance
or a further break at that time.” Id. at 324.
      17
          The majority asserts that Redden did not need to articulate a reason for
failing to present additional mitigation witnesses, because, in regard to potential
cross-examination or rebuttal of those witnesses, “fear of the unknown may itself
be reasonable.” This statement flies in the fact of the Supreme Court’s holding in
Williams that defense counsel must investigate and discover the substance (and
corollary risks) of such mitigation testimony before deciding whether or not to use
it. Williams, 120 S. Ct. at 1514-15.
                                         109
      Unlike cases in which putting on good character evidence might have

opened the door for the government to introduce evidence of prior convictions of

which the jury had been unaware, Darden v. Wainwright, 477 U.S. 168, 186

(1986), or in which “cross-examination might . . . have revealed matters of

historical fact that would have harmed [the defendant’s] chances for a life

sentence,” Burger, 483 U.S. at 792, there is nothing in the record suggesting that

the government possessed such lurking, damaging evidence against Chandler. In

fact, it appears that the government had already managed to get that kind of

evidence before the jury in the form of allegations that Chandler was responsible

for the suspicious “disappearances” of two individuals, conduct for which

Chandler was not charged.18

      The only “bad” rebuttal evidence that the government suggests might have

been available in this case was Redden’s testimony that he knew that some

individuals in the Piedmont community “considered Ronald Chandler to be a drug

dealer,” and that “the law enforcement community in Piedmont . . . was hostile to

him.” R13-433-399. In light of the fact that Chandler had just been convicted of

orchestrating a murder-for-hire in connection with his leadership role in a



      18
         Again, even if there was a risk that introducing mitigating character
evidence would invite damaging rebuttal, Redden still had a duty to weigh both the
value of the mitigating evidence and the force of the available rebuttal evidence in
order to reasonably assess his choices.
                                        110
marijuana-growing enterprise, the fact that some people in the community deemed

Chandler a drug dealer and that the police were antagonistic toward him could

hardly come as a surprise to the jury during the penalty phase. In any case,

Redden’s concerns regarding the possible consequences of presenting witnesses

who would testify to Chandler’s good character did not inform his decision not to

present such witnesses. He did not even know of the existence of these witnesses

because he had never undertaken any investigation into the availability of

mitigating evidence. Redden also testified that, after balancing the favorable and

unfavorable factors, the existence of potential for cross-examination on such

matters “normally doesn’t back you off putting on a character witness.” R13-433-

415-16. He also acknowledged that, other than his inarticulable fears, he had no

reason not to pursue “the kindness aspect of Mr. Chandler’s death penalty phase.”

Id. at 400.

      The Supreme Court in Williams is instructive on this issue as well. There,

the Court acknowledged that the presentation of that evidence would lead to the

introduction of “evidence that was not favorable to” the defendant, including

evidence that he “had been thrice committed to the juvenile system . . . .”

Williams, 120 S. Ct. at 1514. The Court found counsel in that case to be

ineffective because “the failure to introduce the comparatively voluminous amount

of evidence that did speak in Williams’ favor was not justified by a tactical


                                         111
decision . . . .” Id. In this case, there is also no evidence that Redden made a

tactical decision, and the record contains no indication that there was any rebuttal

evidence unfavorable to Chandler.




             3. Purpose of mitigating evidence

      The majority’s final post hoc rationalization for Redden’s failure to present

mitigating evidence appears to be that Redden “questioned whether evidence of

[Chandler’s] specific good acts would have been compelling, considering that the

Government was not arguing that [Chandler] was in all ways a bad man, but

arguing that he had committed specific criminal acts.” This surprising

pronouncement contradicts every holding of the Supreme Court relating to the

purpose of mitigating evidence. The purpose of mitigating evidence is precisely to

show that the defendant is a good person.19 Lockett v. Ohio, 438 U.S. 586, 602-06

(1978). “[T]he Eighth and Fourteenth Amendments require that the sentencer, in


      19
         Furthermore, examination of the government’s closing argument
demonstrates that the government did argue that Chandler was a bad man. “His
presumption of innocence has been stripped away . . . . You are now allowed to
look at the man himself.” Ex. 15, R12-37-64. “Jack the Ripper had a mother.
Charles Manson had a mother. That does not mean that . . . the son is not guilty or
is not deserving of the death penalty.” Id. at 73-74. “He caused the misery. He
lived off of other people’s misery and their deaths.” Id. “Marty Shuler’s death
was formulated by a single, diabolical mind of somebody who was possessed with
the idea that marijuana and money was more important than life.” Id.
                                         112
all but the rarest kind of capital case, not be precluded from considering, as a

mitigating factor, any aspect of a defendant’s character or record.” Id. at 604.

The very task before a sentencing jury is to weigh the circumstances and severity

of the crime committed against the goodness and qualities of the convicted

defendant. At that stage of the trial “in capital cases the fundamental respect for

humanity underlying the Eighth Amendment . . . requires consideration of the

character and record of the individual offender and the circumstances of the

particular offense as a constitutionally indispensable part of the process of

inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. 280, 304

(1976) (internal citation omitted); see also Williams, 120 S. Ct. at 1516

(“Mitigating evidence unrelated to dangerousness may alter the jury’s selection of

penalty, even if it does not undermine or rebut the prosecution’s death-eligibility

case.”); Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (finding that the sentencer in

capital case must “treat[] the defendant as a ‘uniquely individual human bein[g]’

and [make] a reliable determination that death is the appropriate sentence”

(quoting Woodson, 428 U.S. at 304-05)). “A process that accords no significance

to relevant facets of the character and record of the individual offender or the

circumstances of the particular offense excludes from consideration in fixing the

ultimate punishment of death the possibility of compassionate or mitigating factors

stemming from the diverse frailties of humankind.” Woodson, 428 U.S. at 303;


                                         113
see also Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 (1937) (“For the

determination of sentences, justice generally requires consideration of more than

the particular acts by which the crime was committed and that there be taken into

account the circumstances of the offense together with the character and

propensities of the offender.”). By failing to present mitigating evidence during

the penalty stage of Chandler’s trial, Redden denied Chandler his constitutional

right to present to the jury evidence of his character and record. In Williams, the

Court said that “it is undisputed that Williams had a right – indeed, a constitutional

right – to provide the jury with the mitigating evidence that his trial counsel either

failed to discover or failed to offer.” 120 S. Ct. at 1513. Ronnie Chandler is

entitled to the same right in this case.

      The Supreme Court has stated unequivocally that a defense lawyer in a

capital case is “obligate[d] to conduct a thorough investigation of the defendant’s

background.” Williams, 120 S. Ct. at 1514-15. It cannot be gainsaid that

Redden’s investigation of Chandler’s background was nonexistent. Applying

Williams, we are bound to conclude that Redden’s failure to undertake even the

most preliminary investigation into the availability of mitigating evidence, as well

as his utter failure to present the available evidence, fell below an objective

standard of reasonableness. Moreover, the manner in which he presented the

testimony of the only two penalty phase mitigation witnesses, Chandler’s mother


                                           114
and wife, was itself less than effective, perhaps even harmful. The kinds of

questions Redden asked and the brevity of his examination left the jury with the

impression that the two women who theoretically knew Chandler best had little or

nothing to say about him other than the fact that he liked to participate in building

houses.20 Redden’s performance in the penalty phase was constitutionally

ineffective.

II. But for Redden’s failure, there is a reasonable probability that the result
of the penalty proceeding would have been different -- a probability
sufficient to undermine confidence in the sentence of death in this case.

      Just as Williams dictates a finding of ineffective assistance on the basis of

Redden’s performance, it dictates a reversal on the basis of the prejudice Chandler

suffered as a result of that deficient performance. Indeed, this case provides a

more compelling case for finding prejudice than did Williams as, even upon

conviction, Chandler was a much less likely candidate for the death penalty than

was Terry Williams.


      20
         With the exception of a few initial, informational questions and answers,
the entirety of Deborah Chandler’s and Irene Chandler’s testimony is reproduced
in the now-vacated panel opinion, United States v. Chandler, 193 F.3d 1297, 1301-
1302, nn. 6, 7 (11th Cir. 1999), reh’g en banc granted and opinion vacated, Dec. 3,
1999. The prosecution used the brevity of the testimony to his advantage. “We
didn’t ask [either woman] one question because what they had to say, ladies and
gentlemen . . . was just that he’s my child and he’s my husband and here’s his
background. I submit probably everyone of you have a husband or wife. If not,
you probably will. Every one of you had a mother . . . . Jack the Ripper had a
mother. Charles Manson had a mother. That does not mean that . . . the son is not
guilty or is not deserving of the death penalty. Ex. 15, R12-37-74.
                                         115
      A. The available mitigating evidence for Chandler

       Had Redden investigated and presented the case to which Chandler was

constitutionally entitled, he would have given the jury the opportunity to know

Chandler’s character as his community knew it. Habeas counsel discovered in one

afternoon at Chandler’s church 40 witnesses who had specific knowledge and

examples of Chandler’s good character traits, including compassion,21

generosity,22 love for children,23 respect for the elderly,24 strong religious beliefs,25


      21
         See, for example, the testimony of Herbert McCord (“compassionate”);
Ruby McFry (“a caring man”); Jerry Masters (“caring”); Marsha Dale Heath
(“good-hearted,” “giving”); Kenneth Ricky Chasteen (“He has a reputation for
being an extremely caring person.”); Elaine Freeman (“He’s one of the most
compassionate, generous caring people I’ve ever met.”); Henry Lawler (“Good
caring person”); Tina Stokes (“genuinely cared about people”).
      22
        See, for example, the testimony of Joseph Fortenberry (“generous”); Jerry
Masters (same); Elaine Freeman (same); Joy McCoy (“He’s a generous person.
He’d just give you the shirt off of his back, even if it was his last one.”); Sharon
Robertson (“he’s always been giving and generous.”).
      23
         See, for example, the testimony of Joseph Fortenberry (loved children);
Kenneth Ricky Chasteen (“fantastic” with children); Rita Sue Smith (particularly
caring for fatherless children); Elaine Freeman (“like a second dad [to her children]
after their dad passed away”); B. Russell (“very good role model [to children],
encourag[ing] them to stay in school, to go to church”); C. Chandler (“loves
children”); Kerry Chasteen (very good with children).
      24
         See, for example, the testimony of Billy Russell (elderly residents of
community “were very special to him . . . . he would treat them just like he was
treating his own family”); Rita Sue Smith (“always had a compassion for the
elderly people”); R.M. Trammell (age 82) (“always wanting to help me with
something”; “[H]e’s about the greatest friend I ever had.”); Ruby McFry (age 75)
(“always treated [her] with love and respect”); Ruth Trammell (Chandler’s
grandmother) (Chandler always visited once or twice a week to see if she needed
                                           116
patriotism,26 a strong work ethic,27 and a non-violent disposition.28 They also

backed up their opinions with specific and telling examples of Chandler’s

behavior.


anything).
      25
         See, for example, the testimony of Kenneth Chasteen (Chandler would
stop his car and pray for people); Don Matthews (Chandler is a religious person);
Billy Russell (Chandler “very religious”); Sharon Robertson (same).
      26
         See, for example, the testimony of Joseph Fortenberry (“He was real
patriotic”); Kenneth Chasteen (Chandler sang “God Bless America” at the top of
his voice from the peak of a mountain); Rita Sue Smith (Chandler a “very patriotic
person,” would pull his car over to the side of the road and sing “God Bless
America”).
      27
          See, for example, the testimony of Joseph Fortenberry (Chandler was
hard-working, “an excellent carpenter and an excellent brick layer, if not one of the
best in the state”); Jerry Masters (“Ronnie will get up from daylight and work until
dark and he wouldn’t quit until the job is done.”); Kenneth Chasteen (“[H]e’s
always been conscientious, hard worker.”); Don Matthews (Chandler a hard
worker, “one of the most skilled I’ve ever worked with”); Joy McCoy (“He’s a
very hard-working person”); Kenneth Charles Kelley (Chandler was hard working
and “[h]e was a real good brick mason, and carpenter, too.”) Ruth Trammell (hard
working); Kenneth McCord (“Ronnie has always worked hard.”); Hubert Masters
(“he was a hard-working man”).
      28
          See, for example, the testimony of Joseph Fortenberry (not violent); Ruby
McFry (same); Jerry Masters (not violent or hot-tempered); Kenneth Chasteen (not
violent, never fought, never held grudges); Don Matthews (not violent); Rita Sue
Smith (Chandler had paid up-front to have his house painted, but the painter had
quit half-way through. Chandler had not gotten angry but had quoted the Bible:
“Ronnie just said, well the Bible said if they take your coat to give him your
cloak.”); Kenneth Charles Kelley (never known him to be violent or hateful);
Kenneth McCord (not violent, seemed easy-going); Billy Russell (remembered
Chandler once getting angry at someone but Chandler later apologized: “It takes a
lot to get him upset.”) Deborah McFry (not violent); Sharon Kelley (same);
Charles Thomas Chandler (same); Mary Dobbs (same).
                                        117
      Chandler freely gave his time and support to a wide array of members of his

community. Joseph Fortenberry, who had grown up with Chandler and had

worked with him in construction, testified that Chandler’s daily visits inspired him

to walk after he had been told that his injuries in a traffic accident would prevent

him from ever walking again. Rita Sue Smith, who estimated that she had known

Chandler for 25 to 30 years, told of how Chandler and his wife had allowed

Thomas Montgomery and his wife to stay with him while Montgomery was out of

work. Chandler provided groceries for the couple and counseled Montgomery to

confront his alcoholism and straighten out his life. Chandler transported

Montgomery to and from Alcoholics Anonymous meetings. Montgomery

confirmed all this and added that he had later sued Chandler due to an injury he

had sustained while working for Chandler. They settled their differences and

Chandler took him back as an employee because, Montgomery testified, although

he would often miss work because of his alcoholism, Chandler never gave up on

him and “always put [him] right back to work.” Montgomery summarized his

experience with Chandler by saying that “[h]e helped me more than anybody I

know of.”

      Lesha McBrayer has known Chandler since around 1980. Like many

others, she testified that Chandler and his wife had provided food and

transportation for her family while her husband was out of work. When


                                         118
McBrayer’s husband became abusive, the Chandler family would take her in.

Chandler assured her that he and his family would support her decision, whether it

was to stay with her husband or to leave him. As McBrayer testified, Chandler

kept his word: “I had moved to Colorado. My husband had been in prison and he

got out. And I had talked to Ronnie about it and Ronnie told me if I thought I

could make it with him to go on up there, and that if it didn’t work that he would

try his best to get me home, and he did.” When McBrayer’s husband again

became abusive, she contacted Debbie Chandler, and Chandler sent someone to

get her. She testified that she would not have been able to return to Piedmont

without Chandler’s help.

      Kenneth Ricky Chasteen, who testified that he had known Chandler “all his

life,” offered the following anecdote:

      I know Ronnie was a mason, a carpenter, and he know people that
      had lost their jobs before, when he found out about it, he would make
      sure they got some work. And I know one occasion personally that
      he took money out of his own pocket and gave it to a guy that had
      just lost his job had three or four kids and I personally know that
      Ronnie didn’t have the money to give away but he did any way.

Elaine Freeman, who has known Chandler since high school, testified that, when

one of Chandler’s neighbors lost a son in a car accident, “Ronnie took money and

gave to them because they didn’t have insurance to bury the boy and took money

to them to help them bury him.” Two other witnesses confirmed this anecdote and

noted that, at the time this incident occurred, Chandler could ill afford to pay for

                                         119
the boy’s burial. When Freeman’s husband died, Chandler offered to let her “stay

in [his] house as long as I wanted to. It was mine to do with and just as long as I

always had a place to stay, not to worry about it.” He never asked her to pay rent

and would not accept payment when she offered. She also testified that when one

of his workers needed a car, Chandler co-signed the loan and made all of the

payments, never attempting to seize the vehicle and never uttering a harsh word.

Billy Russell testified that Chandler had paid utility bills and rent for him when he

was injured in a fire and could not work. Chandler visited Russell almost every

day, making sure that he had food and that everything was alright. When Russell

recovered enough to return to work, Chandler drove him there and back.

      Fortenberry testified that Chandler had helped his family buy groceries: “I

remember several occasions and he would bring vegetables by the house and leave

them and I remember a time or two . . . [when] Ronnie wouldn’t hesitate to leave

three or four, five dollars, whatever he had, there for to see the kids got their

lunch.” Chandler went out of his way to care for the people in his community. As

Tina Stokes, who knew Chandler from school and church, testified, “I’ve known

of him buying groceries for folks who he thought needed it . . . [Once he]

[s]topped on the way home from Georgia one night and he knew of some folks

that needed some groceries and stopped in and bought a couple of bags of

groceries.” Henry Lawler testified that when he was out of work and his wife was


                                          120
pregnant, Chandler gave him a deer that he had killed. Ruby McFry, who had

known Chandler since his father first brought him to church as a child, recalled

that Chandler, without having been asked, had brought her groceries when she

could not afford to buy any.

      Marsha Dale Heath had known Chandler for approximately ten years, had

met him at church, and knew his family. She testified about Chandler’s generosity

towards her son:

      [M]y son [Tony] didn’t have any shoes and Ronnie was out at a
      neighbor’s behind us and he saw Tony and he made a statement to
      Tony . . . about [his] shoes and, Tony said I don’t have any. It wasn’t
      long after that the neighbors that was there that Ronnie was visiting
      that day brought Tony two pair of shoes, instead of one it was two.

Harbert McCord had known Chandler all of his life. He testified that Chandler

would often buy a pair of cleats for people who needed them. According to Mary

Dobbs, Chandler’s wife’s best friend, Chandler even bought new shoes for the

pastor when he noticed that the pastor had holes in his shoes. He also said that

Chandler routinely donated twenty-dollar bills for the local emergency rescue

squad. Billy Russell, one of Chandler’s neighbors and employees, confirmed that

Chandler donated whatever he had in his pocket when asked for charity. He also

told of how Chandler paid the utility bills for needy families and cut wood and

hauled it to people who could not get any for themselves.




                                        121
      Many witnesses stressed Chandler’s generosity, both in terms of donating

his time and labor, and in terms of caring for his employees. Several witnesses

testified that Chandler had helped to build a church fellowship hall and to renovate

the parsonage without pay. Sharon Kelley, who had known Chandler for 27 years,

described how he cut the grass of a friend of hers who was unable to do so himself

due to a heart condition. Chandler’s older brother, Charles, told of how Chandler

had, without being asked, built a porch for a handicapped man so that he could get

into his house more easily. Chandler asked nothing for his labor or the materials.

Henry Lawler explained that Chandler had helped him to build his house, laying

the foundation and doing the masonry work on the fireplace. Chandler built a

barbeque grill for Hubert Masters. According to Sharon Kelley, “There was a time

when we needed some work done on the house and we had the money for supplies

but we didn’t have money for labor. And Ronnie came and done the work for

nothing just as a friend[] because we were friends.” Sharon Robertson, Chandler’s

sister, told of how Chandler did brick work for her so that her house would be

protected from the on-coming winter. “It was in the wintertime and it was very

cold, but he worked in the cold to get it done. And I know it wasn’t pleasant for

him, but he did it any way because our house needed to be bricked and out of the

weather. And he didn’t really expect to be paid for it either.”




                                         122
      Fortenberry stressed Chandler’s generosity towards his employees. As

Fortenberry put it, “If there was somebody on [Chandler’s construction] crew right

there that was a working man and he came up there and tell him he didn’t have

dinner, money would buy his dinner with, Ronnie would see that that man ate if he

worked.” Don Matthews, who worked in Chandler’s construction business,

confirmed this from personal experience. “I was out of work and needed work

real bad and Ronnie found out about it and hired me.” Kerry Chasteen, who had

known Chandler for over 25 years, testified that Chandler never turned away

anyone who needed work. Marsha Dale Heath told of how Chandler, after hearing

that Heath needed money, had suggested to his wife that they hire Heath to help

clean their home, even though they did not really need the help.

      Several witnesses testified that Chandler had a particularly kind way with

children. Fortenberry testified that “[children] loved Ronnie. I mean, he’d play

with them and, I mean, I’m not talking about five minutes. I mean he would spend

30, 45 minutes there just on the spur of the moment kind of playing. And you

could tell he really enjoyed it.” Jerry Masters had been Chandler’s next-door

neighbor for four years. He described his relationship with Chandler as follows:

“Ronnie was a very caring person, a very giving person . . . . [M]y dad worked all

his life, didn’t have time to spend with us, so Ronnie kind of took us in and taught

me the sport of hunting and fishing.” Kenneth Chasteen added, “He was fantastic


                                        123
[with children]. He took his children and several other children that couldn’t get

out, take them riding, would introduce them to sports, shooting a bow, things of

that nature.” Kerry Chasteen described how Chandler had given all of the money

in his wallet to a woman after overhearing her mention that she could not afford to

buy Christmas presents for her children. Children appreciated Chandler’s efforts.

Wendy Twilley, who was only 14 years old when Chandler was arrested, testified

that he was like a father to her.

      Chandler also loved to share his knowledge with others. Jerry Masters

testified that Chandler had taught him to hunt and to fish. He taught Joy McCoy’s

husband how to hunt deer. He also taught Masters’ father-in-law how to do brick

work and block work. “He was the type that would like to share what he knew.”

Kenneth Chasteen also noted that Chandler was always willing to teach people

masonry and carpentry skills. Don Matthews also learned carpentry skills from

Chandler, and he noted “[a]nd I’m not the only one that he’s done that for.”



      B. This mitigating evidence compels reversal in accordance with
      Williams v. Taylor.

      David Ronald Chandler was convicted of offering $500 to Charles Ray

Jarrell to kill Marlin Shuler. Although any murder is to be condemned, it is

indisputable that Terry Williams was convicted of committing a much more

heartless and heinous crime. He was found to have killed a drunken elderly man

                                        124
in his bed by beating him to death with a mattock after the man refused to lend

him a couple of dollars. Williams, 120 S. Ct. at 1499-1500. He then went on a

crime spree in which he savagely beat an elderly woman who was left in a

“vegetative state” and was not expected to recover, set a fire outside a man’s house

before stabbing him during another robbery, and stole two cars. Id. at 1500. After

his arrest, Williams set fire to the jail, for which he was convicted of arson, id.,

and “confessed to having strong urges to choke other inmates and to break a

fellow prisoner’s jaw,” Williams v. Taylor, 163 F.2d 860, 868 (4th Cir. 1998). In

contrast, it was never disputed that Chandler was not present when the victim died,

and that the actual shooter and the victim were both intoxicated and engaged in

target practice with firearms.

      Moreover, as the majority points out with regard to Chandler, “the evidence

of guilt was not overwhelming.” There was a question as to whether Chandler was

even involved in the murder. Jarrell, the man who actually shot Shuler, clearly

had his own motivations for committing the murder – reasons wholly independent

of any inducement Chandler may have provided. Shuler had abused Jarrell’s sister

and mother, Jarrell had attempted to murder Shuler on a previous occasion, and

Jarrell consumed nearly a case of beer before shooting Shuler. Even if the jury

believed that Chandler had seriously offered $500 to Jarrell to murder Shuler, it

could well have doubted that that offer had motivated Jarrell to kill Shuler.


                                          125
Indeed, Jarrell himself – the government’s star witness as to the murder charge –

had made numerous inconsistent statements regarding Chandler’s role in the

murder. In contrast, there was no doubt in Williams that the defendant confessed

to having committed the crimes of which he was convicted.

      There is also great contrast between the prior criminal histories of Chandler

and Williams. Chandler had no prior criminal background and no history of

incarceration. Williams, on the other hand, had an extensive criminal history and

had been constantly incarcerated throughout his life. Furthermore, substantial

evidence of Williams’ criminal history and history of incarceration was presented

to the jury at both the guilt and sentencing phases of his trial, as was expert

testimony that “there was a ‘high probability’ that Williams would pose a serious

continuing threat to society.” 120 S. Ct. at 1500. Mitigating evidence offered on

behalf of a defendant who has no prior criminal background is especially pertinent

to the jury’s determination of whether a defendant is sufficiently susceptible to

rehabilitation such that a death sentence is unwarranted.

      Finally, whereas the mitigating evidence for Williams could have opened

the door to negative rebuttal evidence, the nature of Chandler’s mitigating

evidence made it significantly less susceptible to such an attack. Mitigating

evidence can serve different purposes. In Williams’ case, the mitigating evidence

addressed the degree of his culpability for his confessed crime. It consisted of


                                         126
evidence that Williams had been committed at the age of 11, and that he had been

the victim of “mistreatment, abuse, and neglect during his early childhood,” and

was “borderline mentally retarded.” Evidence was also presented that he would

not pose a future danger to society if kept in a structured environment. Williams,

120 S. Ct. at 1501. The mitigating evidence in this case addressed Chandler’s

good character as a person, consisting primarily of evidence of prior good acts

which were unrebutted by the government. As the Court noted, “not all of the

additional evidence was favorable to Williams,” because it could not have been

introduced without both revealing more of Williams’ previous bad acts and

reminding the jury of Williams’ long history of prior criminal detention. Id. at

1514. Such is not the case with Chandler.

      In light of all the foregoing, the district court erred in concluding that,

notwithstanding the extraordinary testimony detailed above, Chandler had not

been prejudiced by counsel’s failure to elicit this testimony. The trial judge based

this conclusion on three reasons, none of which are legally valid: (1) all of the

witnesses showed a strong bias in favor of Chandler; (2) the good character

evidence related to a time remote from that of Chandler’s crimes; and (3) many of

the witnesses were ignorant of Chandler’s criminal activities and thus had no real




                                         127
insight into his character. None of these reasons is legally sufficient to support

such a conclusion.29

      First, if the fact that the mitigating character witnesses “showed a strong

bias in favor of Chandler” was enough to “severely undercut the mitigating value”

of the testimony of 40 such witnesses and to render their testimony “of tenuous

value,” then no mitigation witnesses would ever have a meaningful effect in any

capital trial. All mitigation witnesses have a bias. By its very nature and

definition, mitigating character evidence evinces a “bias” in favor of the

defendant; this is particularly true of mitigating character evidence that might

persuade a jury not to impose a death sentence.

       The district court imagined that these witnesses “believed that drug dealing

and violent crimes were irrelevant to a person’s character,” and therefore

concluded that their testimony would be “of little moment to the jury.” In fact,

however, not a single witness expressed such a view.30 Their purpose in offering

      29
          In addition, the district court’s analysis of the prejudice issue is not as
clear as the majority suggests. “[T]he Court acknowledges that the prejudice
question in this case is a close one, and that reasonable people could disagree about
whether Chandler was prejudiced.” United States v. Chandler, 950 F. Supp. 1545,
1569 (N. D. Ala. 1996).
      30
         Although many witnesses said that their personal views of Chandler would
not change even if the government’s allegations were true, others either refused to
believe the government’s allegations or said that, if what the government alleged
were true, their views of Chandler would change. See, for example, Marsha Dale
Heath (asked if she would change her opinion, she replied, “I don’t know. I don’t
– I haven’t heard this, so I don’t know.”); Don Matthews (probably would change
                                         128
character evidence was to try to persuade the jury that, in spite of the crimes he

may have committed, Ronnie Chandler did not deserve to be put to death. As

noted earlier, the purpose of presenting mitigating evidence at the sentencing

phase of a capital trial is to allow the jury to perform its constitutional function by

considering “any aspect of a defendant’s character or record.” Lockett, 438 U.S.

at 604; see also Collier, 177 F.3d at 1201-02 (“Counsel presented no more than a

hollow shell of the testimony necessary for a ‘particularized consideration of

relevant aspects of the character and record of [a] convicted defendant before the

imposition upon him of a sentence of death.’”) (quoting Woodson, 428 U.S. at

303).

        Second, the district court summarily dismissed and discounted the value of

the mitigation witnesses because “this good character evidence related to a time

period that was separated from Chandler’s crimes” and was therefore “of little

mitigating value.” Although this Court previously has observed that in some

circumstances character evidence relating to events remote in time from the

conduct for which the defendant has been convicted may carry less weight when

balanced against aggravating factors, see Stanley v. Zant, 697 F.2d 955, 969 (11th




opinion); Joy McCoy (opinion might change: “I would still need to know the
circumstances because I do not know a Ronnie Chandler like that.”). The question
was not posed to the last four witnesses, Sharon Robertson, Lesha McBrayer,
Kerry Chasteen, and Thomas Montgomery.
                                          129
Cir. 1983), the evidence at issue in this case was neither general nor temporally

remote from the criminal conduct of which Chandler was convicted. Much of the

testimony concerned personal interactions with Chandler that occurred within five

years of the time that the government claims Chandler became a marijuana grower

and dealer. Other witnesses testified that they continued to have contact with

Chandler up until the time of his arrest.31

      Finally, the trial court concluded that mitigation witnesses who “were

unaware of Chandler’s marijuana operation would have shown themselves to be

ignorant of Chandler’s character, so their testimony would have carried little or no

mitigating weight.” Again, this statement conflicts with all the case law requiring

that a defendant have the opportunity to present mitigating evidence as to the type

of person the defendant has shown himself to be through this actions and behavior.

This required mitigating evidence does not go to a defendant’s culpability for the

crimes of which he was convicted. As has been repeated, the purpose of

presenting character witnesses is to offer a complete view of the defendant, one

that presents positive aspects of his humanity and individuality, so that the jury

can weigh his good qualities against the nature of the crime committed to



      31
        The witnesses who testified on Chandler’s behalf often did not specify
when the good acts had occurred. However, many witnesses testified that they
remained in contact with Chandler up until his arrest and that his character was
unchanged.
                                          130
determine whether death is the appropriate sentence for this individual. Had

Chandler been able to present the testimony that he introduced and sought to

introduce at his Section 2255 evidentiary hearing, the jury would have been able to

perform its constitutional function by giving a “‘reasoned moral response to the

defendant’s background, character, and crime,’” Penry v. Lynaugh, 492 U.S. 302,

327-28 (1989), (quoting Franklin v. Lynaugh, 487 U.S. 164, 184 (1988)

(O’Connor, J., concurring in judgment), and California v. Brown, 479 U.S. 538,

545 (1987) (O’Connor, J., concurring)), and by considering “the character and

record of the individual offender and the circumstances of the particular offense,”

Woodson, 428 U.S. at 304. Given the quality and quantity of the evidence that

was available at the time of trial, viewed against the backdrop of the statutory

aggravating and mitigating factors the jury was required to consider,32 there is a


      32
          In determining whether to impose life imprisonment or a death sentence,
the jury must consider and weigh the balance or imbalance of statutory aggravating
and mitigating factors. These factors form an important backdrop to our evaluation
of whether the presentation of the omitted mitigating character evidence would
have created a reasonable probability of a different result. In Chandler’s case,
there were three aggravating factors presented to the jury: 1) that Chandler
intentionally engaged in conduct intending that Shuler be killed and resulting in
Shuler’s death, 21 U.S.C. § 848(n)(1)(C); 2) that he procured Shuler’s killing by
promising to pay something of pecuniary value, 21 U.S.C. § 848(n)(6); and 3) that
he committed Shuler’s murder after “substantial planning and premeditation,” 21
U.S.C. § 848(n)(8). The jury rejected the “substantial planning and premeditation”
factor, leaving only two aggravating factors againt which to compare the two
statutory mitigating factors introduced by stipulation: 1) that Chandler had no prior
criminal record, 21 U.S.C. § 848(m)(6); and 2) that the actual killer, Jarrell, would
not be punished by death, 21 U.S.C. § 848(m)(8). Redden’s failure is all the more
                                         131
reasonable probability that, but for Redden’s failure to present any of the available

mitigating evidence, Chandler would not have been sentenced to death.33

Accordingly, I find that Chandler suffered prejudice as a consequence of Redden’s

ineffective assistance during the penalty phase.

                                  CONCLUSION

      The Supreme Court has recognized that the “qualitative difference between

death and other penalties calls for a greater degree of reliability when the death

sentence is imposed.” Lockett, 438 U.S. at 604. In Woodson, a plurality of the

United States Supreme Court concluded that “in capital cases the fundamental

respect for humanity underlying the Eighth Amendment . . . requires

consideration of the character and record of the individual offender and the

circumstances of the particular offense as a constitutionally indispensable part of

the process of inflicting the penalty of death.” Id. at 304.

      When a lawyer does absolutely nothing to investigate whether mitigating

evidence exists, he cannot be said to have made a strategic decision not to present



prejudicial in this case because the statutory aggravating and mitigating factors in
this case were in essential equipoise.
      33
         As noted supra in footnote 28, the district court considered the prejudice
issue a close one. “[T]he jury [must] unanimously recommend a death sentence,
[otherwise,] the district court shall impose a sentence, other than death, authorized
by law.” United States v. Chandler, 996 F.2d 1073, 1088 (11th Cir. 1993). Just
one juror would have to be swayed by the mitigation evidence not presented in
order for the death penalty to be eliminated as a sentencing option.
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that evidence. When that evidence does exist and it is reasonably probable that its

presentation would have made a difference in the outcome, or conversely, that its

absence “undermines confidence in the outcome,” id. at 694, that lawyer cannot be

said to have been “functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment,” id. at 687. This is such a case. Accordingly, Ronald Chandler

is constitutionally entitled to a new sentencing hearing.




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WILSON, Circuit Judge, dissenting:

      We held in Tarver v. Hopper, 169 F.3d 710, 715 (11th Cir. 1999), that the

creation of lingering doubt can be an effective strategy for avoiding the death

penalty. But the choice to use this strategy must be made by defendant’s counsel.1

      It is evident from the record that Chandler’s counsel made no strategic

decision to use a “lingering” or “residual” doubt defense on Chandler’s behalf.

Not even the government suggested that he did so until after the dissent from the

panel opinion in this case.2 The majority opinion retroactively credits Chandler’s

lawyer with making a strategic decision that is not indicated by the record. As a

result, today’s decision virtually forecloses any future Strickland claim of

ineffective assistance during the penalty phase of a capital proceeding. Because I

believe the majority opinion extends Tarver v. Hopper too far, I respectfully

dissent.




      1
       If, as the record shows here, a lawyer simply fails “to investigate and to
present substantial mitigating evidence to the sentencing jury,” he falls below the
objective standard of reasonableness required for effective representation.
Williams v. Taylor, __ U.S. __, 120 S. Ct. 1495, 1511 (2000).
      2
     See United States v. Chandler, 193 F.3d 1297, 1311 (11th Cir. 1999)
(Edmondson, J., dissenting), vacated, No. 97-6365 (11th Cir. Dec. 3, 1999).
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