                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 13-3684
                                   ________________

                      SALVADOR MORALES a/k/a Simon Pirela

                                              v.

                        DONALD VAUGHN, et al;
        THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
          THE DISTRICT ATTORNEY FOR PHILADELPHIA COUNTY


                        SIMON PIRELA a/k/a Salvador Morales,
                                                          Appellant
                                ________________

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D. C. No. 2-90-cv-05105)
                       District Judge: Honorable Joel H. Slomsky
                                   ________________

                                Argued January 12, 2015

                Before: AMBRO, FUENTES and ROTH, Circuit Judges

                                  (Filed: July 20, 2015)

Arianna J. Freeman, Esq. (Argued)
Keisha N. Hudson, Esq.
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
                      Counsel for Appellant
Thomas W. Dolgenos, Esq.         (Argued)
Molly S. Lorber, Esq.
Susan E. Affronti, Esq.
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
                    Counsel for Appellees


                                    ________________

                                        OPINION*
                                    ________________

ROTH, Circuit Judge

       Simon Pirela, aka Salvador Morales, appeals the District Court’s order, denying

his habeas petition. He argues that counsel was ineffective for failing to raise a

diminished capacity defense at the guilt phase of his trial. Because we find that Pirela

suffered no prejudice, we will affirm.

I. Background

       On August 29, 1982, Pirela brutally murdered Georgie Figueroa. After leading

Figueroa into a trap, Pirela ordered his brother “Dency” to kill Figueroa. When Dency

balked, Pirela slapped him in the face and stabbed Figueroa repeatedly in the chest,

eventually announcing that Figueroa was dead. Somehow, Figueroa attempted to escape.

Upon discovering this, Pirela handed a knife to another brother “Cobo,” who stabbed

Figeuroa in the back several times, killing him. Pirela then told his associates to “clean

up” and “get rid of the body.” When the body was discovered by the police on

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                             2
September 9, 1982, the autopsy revealed that Figueroa had been stabbed at least twenty

times: eight times in the front and twelve in the back.

       On May 18, 1983, Pirela and Cobo were convicted of murder and conspiracy to

commit murder.1 On direct appeal, the Pennsylvania Supreme Court affirmed Pirela’s

conviction and sentence.2 Pirela argued that the trial court had erred by refusing to

continue the sentencing hearing to allow Pirela’s counsel to consult Dr. Gino Grosso, a

court-appointed psychiatrist who had examined him prior to trial. The court held that

Pirela “gave no indication to the [trial] court (nor to this Court) as to how the

psychiatrist’s testimony would have been beneficial,” and “made a knowing, intelligent

and voluntary waiver, on the record, of his right to present any evidence at the sentencing

hearing.”3

       In 1987, Pirela filed a petition for state collateral review. New counsel was

appointed and argued that trial counsel had rendered ineffective assistance by failing to

present mitigating evidence at the sentencing hearing. The petition was denied and the

denial was upheld on appeal.4 In 1990, Pirela filed a petition for a writ of habeas corpus

in the United States District Court for the Eastern District of Pennsylvania; the petition

was suspended pending exhaustion of state court remedies.

       On June 8, 1992, Pirela filed a second state post-conviction relief petition,

alleging, inter alia, that trial counsel was ineffective for failing to procure the trial

1
  The subsequent procedural history is long, and complicated, so for brevity we discuss
only that which is relevant to the issue before us.
2
  Commonwealth v. Morales, 494 A.2d 367 (Pa. 1985).
3
  Id.
4
  Commonwealth v. Morales, 565 A.2d 820 (Pa. Super. 1989).
                                                3
testimony of Dr. Grosso. On September 17, 1997, the Pennsylvania Supreme Court held

that all of Pirela’s claims were meritless or previously litigated with the exception of

prosecutorial misconduct at sentencing.5 With respect to Dr. Grosso, the Pennsylvania

Supreme Court analyzed only a claim of ineffective assistance at the sentencing phase.

The court found that the claim was both previously litigated and meritless, because the

Pirela could only speculate that Dr. Grosso’s testimony would be beneficial and Pirela’s

waiver of his right to present mitigating evidence at sentencing was “knowing, intelligent

and voluntary.” 6

       On January 17, 2001, Pirela reopened the federal habeas proceedings, but they

stalled for nearly six years.7 In October of 2008, Pirela’s habeas case was assigned to a

Magistrate Judge for a Report and Recommendation. On April 29, 2013, the Magistrate

Judge recommended that the petition be dismissed with prejudice, reasoning that (1) the

claim was defaulted because “[i]n state court, [Pirela] did not claim that counsel was

ineffective in failing to present a diminished capacity defense,” and (2) the claim was

meritless because Pirela was unable “to establish that at the time of Mr. Figueroa’s death,

[Pirela] was suffering from a mental disorder that specifically affected the cognitive

functions of deliberation necessary to formulate a specific intent to kill.” On May 22,


5
  Commonwealth v. Morales, 701 A.2d 516 (Pa. 1997).
6
  Id. at 521.
7
  The proceedings stalled while Pirela sought relief in the state courts from a death
sentence in another murder conviction. On April 30, 2004, the court presiding over the
other matter ruled that Pirela lacked the mental capacity to justify the death penalty under
Atkins v. Virginia, and was thus ineligible for execution under the Eighth Amendment.
The Pennsylvania Supreme Court affirmed on August 20, 2007, in an unpublished, per
curiam order.
                                              4
2013, the District Court approved and adopted the Report and Recommendation, with one

modification. The court held that the Magistrate Judge had applied an incorrect standard

of review, but concluded nevertheless that the analysis was the functional equivalent of

the de novo analysis required by the correct standard.

II. Discussion

       We exercise plenary review over the District Court’s habeas decision.8 Because

this habeas proceeding began before the passage of the Antiterrorism and Effective Death

Penalty Act of 1996,9 we apply a de novo standard of review to state court rulings

regarding pure legal questions and mixed questions of law and fact.10

       A. Pirela’s Claim Was Not Procedurally Defaulted

       “Before seeking a federal writ of habeas corpus, a state prisoner must exhaust

available state remedies, thereby giving the State the opportunity to pass upon and correct

alleged violations of its prisoners’ federal rights.”11 To demonstrate that his claim was

not defaulted, Pirela must demonstrate that the claim in his habeas petition “was the

substantial equivalent of that presented to the state courts,”12 including both the “legal

theory and supporting facts.”13 Pirela must also demonstrate he raised his claim at each




8
  Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009).
9
  Woodford v. Garceau, 538 U.S. 202, 207 (2003).
10
   Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
11
   Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quotation marks and internal citation
omitted).
12
   Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
13
   Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996), abrogated on other grounds by
Beard v. Kindler, 558 U.S. 53 (2009).
                                              5
available level of appellate review,14 giving the “state courts . . . an opportunity to correct

the constitutional violation in the first instance.”15

       In his second petition for state collateral review, Pirela had alleged that trial

counsel was ineffective for “failing to preserve his right to the assistance of a psychiatrist

at trial and sentencing” by failing to consult with court-appointed psychiatrist Dr. Grosso

either before or during the guilt phase proceedings. The state review court had ordered

Pirela to submit a brief with more specificity regarding “facts that would support

diminished capacity or other psychiatric defense.” While the thrust of Pirela’s responsive

argument related to sentencing, Pirela mentioned diminished capacity, distinguished

between trial and sentencing, and discussed mental health evaluations that suggested his

regular drug use could have reduced his mental capacity. Admittedly, the brief never

identified diminished capacity as a defense to the murder charge and never described how

his drug use could have prevented Pirela from forming the specific intent to kill. Pirela,

however, need not have proven the merits of his case to avoid procedural default; he must

only have raised it.16

       After the state petition was denied, Pirela appealed to the Pennsylvania Supreme

Court, where he once again advanced the ambiguous psychiatric defense theory based on

his counsel’s failure to consult with Dr. Grosso before trial. The Pennsylvania Supreme

Court did not read Pirela’s brief to raise a guilt-phase issue and ruled again on the



14
   O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
15
   Id.
16
   See Baldwin, 541 U.S. at 29.
                                                6
sentencing claim.17 Nevertheless, the fact that the court did not address the guilt phase

claim does not render it procedurally defaulted. Pirela argued for ineffectiveness at both

trial and sentencing, and accordingly, we conclude that guilt phase ineffectiveness was

fairly presented.

       B. Pirela Suffered No Prejudice Due to His Counsel’s Failure to Investigate

       To succeed on an ineffective assistance of counsel claim, Pirela must show (1) that

his counsel’s performance was deficient under “an objective standard of reasonableness,”

and (2) that he was prejudiced by counsel’s failures.18 To demonstrate prejudice, Pirela

must show that there is “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”19

       Pirela argues that if the original jury had been presented with evidence of his

mental health, drug usage, and diminished intellectual capacity, there is a reasonable

probability that the jury would have determined that he lacked the ability to formulate a

specific intent to kill.20 Specifically, Pirela argues that his trial counsel failed to even

investigate a diminished capacity defense. Certainly, we have found ineffective

assistance in cases where counsel fails to adequately investigate.21 There was, however,

no prejudice here.

       In order to succeed on a diminished capacity defense, Pirela must be able to

demonstrate that, although he intended the attack, he did not and could not have intended

17
   Morales, 701 A.2d 516.
18
   Strickland v. Washington, 466 U.S. 668, 688 (1984).
19
   Id. at 694.
20
   Id.
21
   Jacobs v. Horn, 395 F.3d 92, 101 (3d Cir. 2005).
                                               7
it to result in Figueroa’s death.22 Such a finding is exceedingly unlikely. A jury would

have been presented with the facts that Pirela ordered Dency to “Kill Georgie!”, slapped

Dency for balking at the order, stabbed Figueroa repeatedly himself. Then, after

announcing that Figueroa was dead, and discovering that Figueroa yet lived, Pirela

handed Cobo a knife to kill Figueroa again, and finally ordered his associates to dispose

of the body. It is almost unimaginable that a jury could find specific intent lacking in this

case.

II. Conclusion

          For the above reasons, we conclude that Pirela suffered no prejudice due to his

trial attorney’s failure to investigate his meritless diminished capacity defense. We will

affirm.




22
     Commonwealth v. Bracey, 795 A.2d 935, 946 n.10 (Pa. 2001).
                                               8
AMBRO, Circuit Judge, dissenting

              My colleagues and I agree that Mr. Pirela’s ineffective-assistance-of-

counsel claim is not procedurally defaulted. We part ways, however, in my colleagues’

rejection of his claim on the ground that he has failed to demonstrate prejudice. Because

I believe Pirela is entitled to an evidentiary hearing on this question, I respectfully

dissent.

       Counsel’s performance in this case is a textbook example of deficiency; it is one

of the more appalling cases of so-called legal representation I have seen. To provide a

client with constitutionally effective assistance, “counsel must, at a minimum, conduct a

reasonable investigation enabling him to make informed decisions about how to best

represent his client.” Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (emphasis in

original). This investigation must include “an independent examination of the relevant

facts, circumstances, pleadings and laws.” Foster v. Dugger, 823 F.2d 402, 405 n.9 (11th

Cir. 1987). It is deficient for a lawyer not to investigate a potential diminished-capacity

defense where “he knew or should have known from [the client’s] behavior and from his

interaction with [the client] that he should initiate some investigation of a psychological

or psychiatric nature.” Jacobs v. Horn, 395 F.3d 92, 103 (3d Cir. 2005) (internal

quotation marks omitted).

       Here, counsel erred not merely in failing to conduct an adequate investigation into

his client’s diminished capacity, but in failing to conduct any pretrial investigation at all.

Had counsel taken the time for the most rudimentary interview of his client, he would

have known of a diminished-capacity defense with potential merit. See, e.g.,

                                               1
Commonwealth v. Pirela, No. 2143-45, slip op. at 19 (Pa. Ct. Comm. Pl. Apr. 30, 2004)

(crediting the testimony of “the parole agents [at the prison] who worked with Pirela

[who] uniformly report[ed] him to be ‘special needs’, speaking like a child of about 10 or

12 years old,” and the testimony of “[o]ne counselor . . . that Pirela’s ‘degree of

difficulty’ was unique among the prisoners that [she] dealt with and no one else suffered

with a similar ‘impairment’”). Conversations with Pirela’s family would have revealed

the same. See J.A. 1543–50 (affidavits of numerous family members stating that they

have known of Pirela’s intellectual challenges since he was a child and that they would

have offered to testify on Pirela’s behalf had they been asked by counsel to do so).

       Although the “failure to investigate a critical source of potentially exculpatory

evidence” can never be characterized as “strategy,” United States v. Bayne, 622 F.2d 66,

69 (3d Cir. 1980) (per curiam), we need not engage in even minimal speculation as to

counsel’s gross neglect. After failing to speak to Pirela for the first time until just a few

days before trial and Pirela’s family members at all, it first occurred to counsel midway

through trial to have his client evaluated by a psychiatrist. Not only was the halfhearted

effort too late, counsel failed to heed the judge’s warning to have the psychiatrist ready to

testify on the first day of his client’s case-in-chief. That opportunity came and went with

counsel introducing no evidence and calling no witnesses on his client’s behalf. At a

post-trial hearing, recalling his failure to secure a psychiatric testimony on time, counsel

casually remarked, “Now that was a mess.”

       Because of his failure to prepare even minimally for Pirela’s case, counsel never

learned of the overwhelming evidence that Pirela was suffering from severe intellectual

                                               2
handicaps. Not only is Pirela “well within the mentally retarded range” and/or at the

level of a young child on every standardized test, but PET and MRI scans reveal

“egregious[] abnormal[ities]” in his brain, including “globally decreased function in

almost the entire cortex.” Such evidence of “mental retardation, brain damage and other

mental health and cognitive impairments” is “the specific type [of evidence] in which [a]

diminished capacity defense as to the [victim’s] murder . . . is appropriate” under

Pennsylvania law. Horn, 395 F.3d at 105. Several experts have opined that a brain with

such defects as Pirela’s would not be capable of the premeditation and forethought

necessary to formulate specific intent for first-degree murder.

       There also is compelling evidence in the record that Pirela could have presented a

viable voluntary intoxication defense based on his addiction to a dangerous cocktail of

alcohol and drugs (the latter a mix of heroin, Quaaludes, cocaine, and valium). See

Commonwealth v. Fletcher, 861 A.2d 898, 907 (Pa. 2004) (holding that “a showing of

voluntary intoxication can . . . reduce the crime of murder from first to third degree”).

One medical doctor submitted an affidavit stating that Pirela’s substance abuse “could by

itself have caused certain forms of organic brain damage . . . [and] would be likely to

have significantly magnified the physical effects of any pre-existing combination of

personality disorder and organic brain damage”; and a second doctor testified at an Atkins

hearing in another case involving Pirela “that the vast majority of the brains with this

degree of impairment could not . . . make a goal-directed plan and carry it out after a

substantial delay in time.”



                                              3
       That counsel had no knowledge of any of the information relevant to either a

diminished-capacity or voluntary-intoxication defense became clear to everyone in the

courtroom (except perhaps his client with a 57-point performance IQ) during the penalty

stage. After announcing that he still had not spoken with the court-appointed psychiatrist

and he did not know whether his “client [was] on drugs,” counsel could muster up only

the following argument as to why the jury should spare his client’s life:

       [Y]ou are facing a very, very serious problem. Not one that is
       insurmountable, but one that is very difficult. I was walking around this
       morning trying to figure it out to approach it and what to say, and it came to
       my mind out of the clear blue sky that the quality of mercy is not strained,
       it droppeth as a gentle rain from heaven.

       I think that’s about the best instruction that any Judge could give a jury in
       the determination that you have now to make. My client, Simon Pirela has
       refused me and His Honor, in your absence to [take] the stand and answer
       my questions for your benefit as to where he came from, how old he is,
       what his childhood was like, who his parents were, how he grew up. All
       the things necessary for you to determine whether under those
       circumstances, you could find mitigating circumstances, evidence of
       mitigating circumstances which would counteract in your mind and balance
       in your mind the aggravating circumstances of his having already been
       found guilty by a jury in another murder case. He would not take the stand.

       ....

       This I do know and can say, under no circumstances do you to have to—no
       circumstances does the law require you to give the death penalty unless you
       decide in your own mind that you should and you will regardless of the
       circumstances. This question is entirely within your discretion and no
       further questions can be asked of you no matter what your decision is in
       this case.

       And I ask you to be merciful, to be thoughtful, plus do what in your
       conscience is the best thing under these circumstances.




                                             4
Again not a single piece of evidence was introduced or witness was called, this time for

why the mitigating circumstances in the case required the jury to save his client’s life.

       In brushing aside counsel’s offensive performance and concluding that “[i]t is

almost unimaginable that a jury could [not] find specific intent,” the majority cites “the

facts that Pirela ordered Dency to ‘Kill Georgie!’, slapped Dency for balking at the order,

stabbed Figueroa repeatedly himself[,] . . . handed Cobo a knife to kill Figueroa again,

and finally ordered his associates to dispose of the body.” Majority op. at 8 (emphasis in

original). But it ignores the shaky evidence on which these so-called “facts” are based,

including that they were elicited from the testimony of two juveniles, themselves

implicated in Figueroa’s murder and who had every reason to lie. Moreover, virtually

every aspect of these two witnesses’ trial testimony differed from their earlier statements

to police or made under oath, and one of the two witnesses, 16-year-old Lisa Colon (15

years old at the time of the murder), testified at Pirela’s preliminary hearing that she did

not “[a]t any time . . . see him do anything with the knife.”1 That a jury could hear



       1
         Among the inconsistences in Lisa Colon’s story were the order in which people
arrived at her house the night of the murder, who was present in the basement when
Figueroa was first stabbed, whether she saw anything that happened, whether she heard
screams while she was waiting upstairs, and who then stabbed Figueroa (ultimately
killing him) in the living room.
        When asked at trial “[h]ow many different stories [he] t[old] police,” the second
witness, 17-year-old Eddie Colon (16 years old at the time of the murder), answered
“[t]hree,” and admitted that he only agreed to testify against Pirela in exchange for
prosecutors’ agreement to allow him to plead guilty in another murder case to “[t]hird
degree instead of the electric chair.” Among numerous other things, Eddie Colon
admitted on the stand that he had previously concocted a made-up story about how his
sister was sleeping at the time of Figueroa’s murder and came down the stairs only when
she heard screams, at which point she was threatened with a gun by Cobo (another boy
                                              5
evidence of intent does not mean it would have found this evidence credible. And even if

the jury believed some or all of these facts to be true, the majority fails to explain why

they are necessarily inconsistent with a diminished-capacity and/or voluntary-intoxication

defense.2

       Given the weakness of the Commonwealth’s case and the strength of a potential

diminished-capacity and/or voluntary-intoxication defense, I believe the applicable pre-

AEDPA standard entitles Pirela to an evidentiary hearing, at a minimum, to allow him to

develop an adequate factual record to prove his entitlement to relief. Absent the benefit

of that hearing, my colleagues cannot evaluate the strength of Pirela’s defense vis-à-vis

the Commonwealth’s case, nor do they try to do so. Hendricks v. Vasquez, 974 F.2d

1099, 1110 (9th Cir. 1992) (“[A]ssuming the performance was deficient, we cannot

determine, without the benefit of an evidentiary hearing, whether that performance had

any probable effect on the outcome.”); Lawrence v. Armontrout, 900 F.2d 127, 131 (8th

Cir. 1990) (remanding for an evidentiary hearing “to determine whether trial counsel’s

failure to investigate and call alibi witnesses prejudiced [the] defense”); U.S. ex rel. Cross

v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987) (noting that a “court simply cannot

fulfill its obligation under Strickland v. Washington, 466 U.S. 668, 692 (1984) to assess

prejudice until the petitioner has met his burden of supplying sufficiently precise

information”).


present at the scene of the murder).
       2
          For instance, according to one psychiatrist, “[t]he words themselves, ‘I’m going
to kill you,’ may not totally indicate [an individual’s] mental state” because
“[s]ome . . . drugs produce what is called echolalia, which is simply repeating words.”
                                              6
       Moreover, in denying Pirela this chance to prove his claim, the majority assumes

that a showing of prejudice is required. But “a complete lack of pretrial preparation puts

at risk both the defendant’s right to an ‘ample opportunity to meet the case of the

prosecution,’ and the reliability of the adversarial testing process.” Kimmelman v.

Morrison, 477 U.S. 365, 385 (1986) (citation omitted) (quoting Adams v. U.S. ex rel.

McCann, 317 U.S. 269, 275 (1942)). Depending on what Pirela could establish on

remand as to his counsel’s lack of preparation, this might not be the case. See also

Strickland, 466 U.S. at 692 (“[C]onstructive denial of the assistance of counsel altogether

is legally presumed to result in prejudice.”); United States v. Cronic, 466 U.S. 648, 659

(1984) (“[I]f counsel entirely fails to subject the prosecution’s case to meaningful

adversarial testing, then there has been a denial of Sixth Amendment rights that makes

the adversary process itself presumptively unreliable.”).

       Finally, in determining the proper standard of prejudice and whether Pirela meets

that standard, we must place counsel’s failure to investigate in context of his appalling

performance in other respects. At trial counsel made no opening statement, introduced

no evidence, and called no witnesses. Before choosing to forgo a case-in-chief, counsel

put the onus on his illiterate and intellectually challenged client to figure out whether and

how to mount a defense, asking him in open court whether he “ha[d] . . . any witnesses[]

or any other evidence . . . to bring to the Court’s attention.” Counsel then proceeded to

apologize clumsily to the jury for his client’s failure to testify on his own behalf:

       This is not easy, there’s no question. Each of you want to hear the other
       side of the story, it’s human and it is very difficult for you only to hear the
       Commonwealth’s side. However, I have talked to the defendant, my client,

                                              7
       Simon Pirela, and he has good and sufficient personal reasons for not
       taking the stand . . . .

       Had counsel not done enough to damage his client’s case, his exceedingly short

closing argument at the guilt phase was factually and legally incorrect. Distilled to its

core, counsel’s main argument was that the jury should believe Lisa Colon’s testimony

that “she had at no time saw [Pirela] do anything to [the victim] Georgie” other than “a

little physical slapping or something . . . at the bottom of the stairs.”3 But despite at one

point prior to trial Lisa denied having seen Pirela do anything wrong, she in fact testified

at trial that Pirela retrieved the knife from the kitchen and ordered the victim killed.4

Clearly not having grasped the basic legal concept that accomplice and coconspirator

liability have nothing to do with who wields the knife,5 counsel came nowhere close to a

coherent theory of defense. He then ended by, in effect, conceding his client’s guilt,

telling the jury “this [was] not the kind of situation . . . an ordinary citizen . . . would

condone or be involved in—drugs, stabbings, and all the rest.”

        “The very premise of our adversary system of criminal justice is that partisan

advocacy on both sides of a case will best promote the ultimate objective that the guilty

be convicted and the innocent go free.” Cronic, 466 U.S. at 655 (quoting Herring v. New


       3
          Counsel’s argument was also internally inconsistent, as he also argued to the jury
that it should reject Lisa Colon’s testimony as “worthless.”
       4
         Moreover, Lisa Colon did not testify that Pirela was not the one to stab the
victim in the basement. Rather, she simply testified that, subsequent to seeing Pirela slap
Dency and order him to “Kill Georgie,” she went back upstairs.
       5
         Indeed, the Commonwealth told jurors during its closing that the judge would
instruct them “that an accomplice of one person is as guilty as the person who commits
the vital act.”
                                                8
York, 422 U.S. 853, 862 (1975)). To deny Pirela an evidentiary hearing denies that

principle in my view. Because I believe that Pirela could establish either a reasonable

probability of a different result or that his lawyer’s performance was so egregious that a

showing of prejudice is not necessary to obtain relief, I respectfully dissent.




                                              9
