                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

KRISTOPHER C. EDWARDS,                    No. 04-55752
              Petitioner-Appellee,
               v.                           D.C. No.
                                         CV-01-10401-RGK
A. LAMARQUE, Warden,
                                            OPINION
            Respondent-Appellant.
                                     
       Appeal from the United States District Court
          for the Central District of California
       R. Gary Klausner, District Judge, Presiding

                  Argued and Submitted
            June 7, 2005—Pasadena, California

                 Filed December 12, 2005

      Before: Betty B. Fletcher, Pamela A. Rymer and
            Raymond C. Fisher, Circuit Judges.

                 Opinion by Judge Fisher;
                 Dissent by Judge Rymer




                          16145
                     EDWARDS v. LAMARQUE                  16149


                         COUNSEL

David C. Cook, Deputy Attorney General, Los Angeles, Cali-
fornia, for the respondent-appellant.

Steven S. Lubliner, Petaluma, California, for the petitioner-
appellee.


                          OPINION

FISHER, Circuit Judge:

   Petitioner-appellee Kristopher C. Edwards (“Edwards”)
was convicted of murder in state court and filed a federal
habeas corpus petition alleging, among other things, ineffec-
tive assistance of counsel. The district court granted the peti-
tion, finding that trial counsel’s actions leading to Edwards’
waiver of his marital privilege constituted ineffective assis-
tance of counsel and prejudiced Edwards. The state appeals;
we affirm.
16150               EDWARDS v. LAMARQUE
                    I.   BACKGROUND

  On July 17, 1991, the body of Don Thomas was found in
an alley behind a barbershop where Edwards worked. Thomas
had died of multiple gunshot wounds from a .38 caliber gun
and 9-mm gun. Five years later, after a tip from Edwards’
wife, police arrested Edwards in Detroit, and he was tried in
California for the murder and for insurance fraud.

   Before trial, and in anticipation of Edwards’ wife Kemet
Gaines (“Gaines”) appearing as a witness, Edwards’ counsel
John Meyers (“Meyers”) raised the issue of Edwards’ marital
privilege under California Evidence Code § 980 and the pre-
sumption of confidentiality of marital communications under
California Evidence Code § 917. The trial court ruled that
Gaines could testify about any discussions between them
regarding the insurance fraud scheme as falling under the “fu-
ture crimes” exception to the privilege, and also about her
observations of Edwards’ behavior on the nights in question,
but not about any other conversations between them.

   The following facts emerged from Edwards’ and Gaines’
testimony at trial, not including any information from their
testimony about their conversations with one another.
Edwards and Thomas conspired to defraud Edwards’ automo-
bile insurer. They stripped his car of parts, and Edwards cal-
led 911 to report that he had been carjacked; the idea was to
collect $10,000 from the insurance company for the “stolen”
parts, and then replace them. The scheme went awry, how-
ever, because Thomas stripped so many parts that the insur-
ance company deemed the car “totaled,” resulting in a smaller
payout (and loss of the car). Thomas and Edwards exchanged
threats and angry calls, including a call from Edwards to
Thomas on the night of his death, July 17. Bullets recovered
at the scene of the crime and from Thomas’ body were from
guns registered to Edwards. The night of the murder, Gaines
returned home to find Edwards in a “weird” mood and scrub-
bing his hands with laundry detergent. The next evening, July
                        EDWARDS v. LAMARQUE                         16151
18, Edwards received a phone call from Thomas’ cousin,
threatening Edwards’ and Gaines’ lives. The cousin testified
that Edwards threatened to “fuck [him] up too.” Edwards
brandished a shotgun and paced around his apartment, staring
out the window, and eventually took Gaines first to a nearby
motel, then to Florida and finally to Michigan, where they
resettled. At trial, Edwards insisted that he had neither com-
mitted nor had anything to do with the murder, and that he
had given the guns to Thomas as collateral until he was able
to pay Thomas for his role in the insurance scam.

   Before trial, the police questioned Gaines, who told them
that she was prepared to testify that, during an exchange with
Edwards on July 17 about why he was washing his hands, he
had confessed to committing the murder. Meyers was aware
of this proposed testimony.

   Despite the trial court’s ruling as to the limited nature of
questioning that would be allowed regarding Edwards’ and
Gaines’ conversations, Meyers on several occasions asked
both Edwards and Gaines questions about their conversations
with one another on the nights of July 17 and 18. The collo-
quies that followed the prosecutor’s objections revealed that
Meyers did not understand what sorts of questions could lead
to a waiver of the privilege.1

  The waiver issue first surfaced during Meyers’ cross-
examination of Gaines. In an apparent attempt to fortify the
defense theory that Edwards was vigorously washing his
  1
    The dissent argues that Meyers’ “questions did not seek to elicit any
confidential communications Edwards had with his wife,” Dissent at
16171-72, n.3, yet the very interchange it quotes shows Meyers com-
pounding Edwards’ non-responsive answer by asking, “Did you tell her
anything?” Meyers may not have sought to elicit confidential communica-
tions, but his essentially open-ended question surely violated one of the
basic rules of witness examination (whether on direct or cross): “Certainly
no lawyer should ask a critical question unless he is sure of the answer.”
Francis L. Wellman, The Art of Cross-Examination 39 (1904).
16152               EDWARDS v. LAMARQUE
hands on the night of the murder (July 17) because the cou-
ple’s dog had messed the carpet and Edwards had cleaned it
up, Meyers asked Gaines what reason Edwards had offered
for washing his hands on the night of July 17. The prosecutor
objected that allowing Gaines to testify about Edwards’ state-
ments would waive Edwards’ marital privilege. At a sidebar,
Meyers asserted that the question regarding washing hands
was “not a confidential communication,” and that Gaines had
waived her marital privilege by taking the stand — an argu-
ment wholly irrelevant to whether her testimony would waive
Edwards’ privilege. The court ruled that Meyers was at risk
of allowing a waiver of the privilege and sustained the objec-
tion. Meyers withdrew the question.

   Later, however, during direct examination of Edwards,
Meyers asked Edwards if he had suggested to Gaines that she
go to her brother’s house on the night of the murder, and
Edwards answered, “Yes, I did.” Then, Meyers asked
Edwards about the exchange with Gaines about washing his
hands: “Did you tell her about what happened with the dog?”
Edwards answered, “About the dogs, yes.” The prosecutor did
not object to either of these questions. Thereafter, Edwards
testified about the cousin’s threatening phone call the next
night, and Meyers asked Edwards what he had told Gaines
upon receiving the call. Edwards responded, “I told her,
‘Somebody killed Don and they think I had something to do
with it, and they just threatened to come and kill us.’ ” The
prosecutor objected for a second time. The court told Meyers
at sidebar that his question effectively waived Edwards’ privi-
lege and thus had “opened the door” to further testimony from
Gaines about her discussions with Edwards on the nights in
question. Meyers again stressed his view that he was allowed
to ask Edwards about any communication that he did not
deem to be “confidential,” and that such questioning did not
open the door to the prosecution eliciting any statements from
Gaines as to her conversations with Edwards. The court
invited Meyers to provide relevant authorities supporting his
position the next morning.
                     EDWARDS v. LAMARQUE                  16153
   Meyers arrived the next morning without any such authori-
ties — indeed, without any authorities at all. The judge
directed Meyers’ attention to a California appellate court case,
People v. Worthington, 38 Cal. App. 3d 359 (3d Dist. 1974),
concerning the marital privilege and waiver. It became clear
that Meyers had not read it. When the court said, “Somebody
gave me some cases,” the prosecutor replied, “That was me,”
and Meyers added, “I’m reading those now.” When the court
offered Meyers additional time to review Worthington and
other cases, he replied, “I’ve pretty well looked at the general
parts. Both are attorney-client privilege, that I can see.”

   In the discussion that followed, Meyers continued to argue
his version of the marital privilege, in which he could elicit
“nonconfidential” testimony from Edwards about his discus-
sions with Gaines, but prevent Gaines from testifying about
her version of the conversations. Meyers also attempted to
distinguish Worthington. The court ultimately ruled that the
privilege had been waived, and that the prosecution could
elicit testimony from Gaines about her discussions with
Edwards on the nights of July 17 and 18.

   Meyers then stated, “Well, one thing for the record, that
raises a significant I.A.C. claim if he is convicted on appeal,
in my judgment . . . . [W]hat you’re saying is I erred in asking
that question and I, quote, ‘opened the door,’ close quote, to
all the other stuff coming in. To me, that’s an inadequate rep-
resentation of counsel.” The trial court disagreed, calling it a
“tactical decision.” Meyers responded, “It wasn’t a tactic. It
was a mistake.”

   Given the waiver of the marital privilege, the prosecution
was able to elicit the following additional damaging testimony
from Gaines: When she came home on the night of the mur-
der, July 17, she asked Edwards why he was scrubbing his
hands, and, upon receiving no response, whether he had killed
Thomas. Edwards responded, “I’ll put it to you like this: you
don’t have to worry about hearing from him again.”
16154                EDWARDS v. LAMARQUE
   The jury returned convictions on the insurance fraud
counts, but deadlocked on the murder charge. One juror,
angered by another juror’s racial slur, changed her vote and
refused to convict.

   Before retrial, Edwards successfully moved to have Meyers
replaced. See People v. Marsden, 2 Cal. 3d 118 (1970) (hold-
ing that defendant has the right to have counsel discharged
upon appropriate showing). Edwards argued that Meyers had
provided ineffective assistance by leading Edwards to open
the door to Gaines’ testimony. The court granted the Marsden
motion based on “discord” between Edwards and Meyers.
Edwards’ new counsel argued that there had been no waiver
of the privilege, that any waiver had been limited in scope and
that any waiver was the result of Meyers’ ineffective assis-
tance. The court rejected all three arguments.

   At retrial, Gaines testified as she had in the first trial,
adding that when she asked Edwards whether he had killed
Thomas, he replied, “Yeah.” Edwards was convicted of mur-
der, and filed a motion for a new trial, again arguing ineffec-
tive assistance of counsel. The trial court denied the motion,
ruling that Meyers had made a tactical decision. Edwards
appealed to the California Court of Appeal, which concluded
that Meyers had made a “reasonable tactical decision” and
affirmed the conviction. The California Supreme Court denied
a petition for review.

   Edwards filed a federal petition for habeas corpus, alleging
several alternate claims for relief, including ineffective assis-
tance of counsel. The district court, adopting the recommen-
dation of a magistrate judge, denied all grounds except the
ineffective assistance claim. The court concluded that
although it owed deference to the state court determination
that Meyers’ decision was “tactical,” that finding was clearly
erroneous. The court further concluded that Meyers was inef-
fective under clearly established Supreme Court precedent,
and that Edwards had been prejudiced. The court issued a
                        EDWARDS v. LAMARQUE                        16155
judgment granting the petition as to the ineffective assistance
claim. The state timely appealed. We have jurisdiction under
28 U.S.C. § 2253.

                 II.   STANDARD OF REVIEW

   This appeal is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254,
which provides that a federal court may not grant a writ of
habeas corpus on behalf of a person in state custody “with
respect to any claim that was adjudicated on the merits in
state court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding.” 28 U.S.C. § 2254(d).

      Under the ‘contrary to’ clause, a federal habeas court
      may grant the writ if the state court arrives at a con-
      clusion opposite to that reached by [the Supreme
      Court] on a question of law or if the state court
      decides a case differently than [the Supreme Court]
      has on a set of materially indistinguishable facts.
      Under the ‘unreasonable application’ prong, a fed-
      eral habeas court may grant the writ if the state court
      identifies the correct governing legal principle from
      [the Supreme Court’s] decisions but unreasonably
      applies that principle to the facts of the prisoner’s
      case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). State court
findings of fact are presumed to be correct unless the peti-
tioner rebuts the presumption by clear and convincing evi-
dence. 28 U.S.C. § 2254(e)(1).2
  2
   Our dissenting colleague believes that § 2254(e)’s standard for review-
ing state court factual determinations, which creates a presumption of
16156                   EDWARDS v. LAMARQUE
  We review the district court’s decision to grant the writ de
novo, and its findings of fact for clear error. Houston v. Roe,
177 F.3d 901, 905 (9th Cir. 1995).

                        III.    DISCUSSION

  A. The Right To Effective Assistance of Counsel Has
  Been Clearly Established by the Supreme Court

   “It is past question that the [right to effective assistance of
counsel] qualifies as ‘clearly established Federal law, as
determined by the Supreme Court of the United States.’ That
the [governing] test . . . requires a case-by-case examination
of the evidence obviates neither the clarity of the rule nor the
extent to which the rule must be seen as ‘established’ by this
Court.” Williams, 529 U.S. at 391 (internal citations and quo-
tations omitted). The parties do not dispute that the California
Court of Appeal applied the correct clearly established
Supreme Court law, and we so hold.

  [1] We summarize the relevant principles that govern here.
“[T]he [Sixth Amendment] right to counsel is the right to

accuracy that can be rebutted only by “clear and convincing evidence,”
may be at odds with § 2254(d)’s separate “unreasonable determination of
the facts” standard for granting petitions. In the dissent’s estimation,
employing the “unreasonable determination” language of § 2254(d), the
state courts’ determinations were not unreasonable. However, the Supreme
Court recently suggested that the standards merge: “Under the Antiterro-
rism and Effective Death Penalty Act of 1996, [petitioner] may obtain
relief only by showing the [state] conclusion to be ‘an unreasonable deter-
mination of the facts in light of the evidence presented in the State court
proceeding.’ Thus we presume the [state] court’s factual findings to be
sound unless [petitioner] rebuts the ‘presumption of correctness by clear
and convincing evidence.’ ” Miller-El v. Dretke, 125 S.Ct. 2317, 2325
(2005) (emphasis added). Even if the Supreme Court had not recognized
the merger of the two standards and we based our analysis solely upon
Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004), we would reach the same
conclusion: the state courts’ determinations were not reasonable.
                     EDWARDS v. LAMARQUE                   16157
effective assistance of counsel.” McMann v. Richardson, 397
U.S. 759, 771 n. 14 (1970). “Counsel . . . can . . . deprive a
defendant of the right to effective assistance, simply by failing
to render adequate legal assistance.” Strickland v. Washing-
ton, 466 U.S. 668, 686 (1984) (internal citation and quotations
omitted). “The benchmark for judging any claim of ineffec-
tiveness must be whether counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” Id.

   [2] “[A] defendant must [first] show that counsel’s perfor-
mance was deficient[,] [which] requires showing that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. at 687. Further, “the proper standard for attorney perfor-
mance is that of reasonably effective assistance.” Id. Put
another way, counsel must perform within “the range of com-
petence demanded of attorneys in criminal cases.” McMann,
397 U.S. at 771.

   The Court has also emphasized that “[j]udicial scrutiny of
counsel’s performance must be highly deferential,” and that
“[a] fair assessment of attorney performance requires that
every effort be made to . . . reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689. This means that “a court must indulge a strong pre-
sumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Id. (internal quotation omitted).

   [3] If a defendant can show that counsel’s actions consti-
tuted ineffective assistance, he must then show that “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
16158                EDWARDS v. LAMARQUE
A reasonable probability is a probability sufficient to under-
mine confidence in the outcome.” Id. at 694.

   If Edwards successfully satisfied the Strickland two-part
test, he is entitled to habeas relief. However, AEDPA and
recent case law require significant deference to the reasoning
of the state court.

  B.    The First Strickland Prong: Ineffective Assistance

    1. The District Court Correctly Rejected the State
    Court’s Finding that Meyers’ Acts Reflected “Tactical”
    Decisions

  The California Court of Appeal discussed the substance of
Edwards’ ineffective assistance claim in the following pas-
sage:

    In view of the strong evidence against appellant,
    defense counsel could reasonably have decided to
    introduce appellant’s testimony regarding his version
    of the conversation he had with Gaines on the night
    of July 17, 1991. In fact, as previously noted, the
    first jury deadlocked on the murder charge. Since
    defense counsel was aware that the trial court had
    ruled that defense counsel could not introduce evi-
    dence of the defense’s version of a conversation
    between appellant and Gaines without opening the
    door to the prosecution’s version of that conversa-
    tion, the trial court reasonably determined that elicit-
    ing appellant’s testimony regarding his conversation
    with Gaines on the night of July 17, 1991, was a rea-
    sonable tactical decision rather than ineffective assis-
    tance of counsel.

   The district court held that the state court’s conclusion that
Meyers made a “tactical” decision to allow Edwards to waive
the privilege was a “factual finding entitled to deference
                     EDWARDS v. LAMARQUE                  16159
under the AEDPA.” Edwards contests this conclusion, argu-
ing that whether Meyers’ acts were tactical or not is a mixed
question of law and fact, which can be distinguished from a
purely factual question.

   It is academic how the state court’s determination is cate-
gorized, because either way it is entitled to significant defer-
ence — either as a factual determination to be reviewed under
the “unreasonable determination of the facts” prong of
AEDPA, or as a legal conclusion, to be reviewed under the
“unreasonable application” prong. In either case, the question
is whether the state court’s determination can be viewed as
reasonable. And either way, the district court was correct that
the state court’s ruling cannot stand.

   California Evidence Code § 980 establishes a marital privi-
lege as follows:

    [A] spouse . . . has a privilege during the marital
    relationship and afterwards to refuse to disclose, and
    to prevent another from disclosing, a communication
    if he claims the privilege and the communication
    was made in confidence between him and the other
    spouse while they were husband and wife.

The privilege, however, may be waived:

    [T]he right of any person to claim [the marital privi-
    lege] . . . is waived with respect to a communication
    protected by the privilege if any holder of the privi-
    lege, without coercion, has disclosed a significant
    part of the communication or has consented to dis-
    closure made by anyone.

Cal. Evid. Code § 912.

   [4] Meyers’ responses to the prosecutor’s objections and
the trial judge’s comments reveal that he fundamentally mis-
16160                    EDWARDS v. LAMARQUE
understood the marital privilege, and thus lacked the legal
understanding necessary for a competent tactical decision.
Meyers plainly believed that he could prevent Gaines from
testifying as to certain “confidential” conversations between
her and Edwards (such as Edwards’ alleged confession to
her), but that he could pick and choose other parts of the con-
versations they had and elicit testimony as to Edwards’ ver-
sions of those exchanges to bolster his defense. Thus, when
the prosecutor first objected to the court that Meyers was
“going into the area of confidential marital communication”
by having Edwards report the conversation he had with
Gaines about the washing of his hands, Meyers’ revealing
response was, “No, no. That is not a confidential communica-
tion.” Later, after causing Edwards to waive his privilege,
Meyers argued to the court, “My feeling is every statement
made between a husband and wife is not a confidentiality
privilege.” Indeed, Meyers’ questioning (and arguments to the
judge) demonstrate that he believed that he could simulta-
neously prevent Gaines from testifying as to the specific
exchange about the dog mess (the exchange where, in Gaines’
version, Edwards confessed to her), and yet draw from
Edwards his version of that very same exchange.3 Meyers thus
sought to introduce Edwards’ explanation for cleaning his
hands (that their puppy had messed the floor) as well as the
communication in which Edwards relayed to Gaines the threat
from Thomas’ cousin to kill the two of them. When the prose-
cution objected, Meyers insisted upon his view of the law,
and, as the record indicates, appeared astonished by the trial
court’s explanation of how waiver actually worked. After the
court advised him that he could not characterize “certain com-
munications as confidential” merely because they might con-
  3
    Meyers also directly asked Gaines what Edwards told her when she
asked why he was washing his hands — the exchange that Gaines later
would testify led to Edwards’ confession. Without the prosecutor’s objec-
tion regarding the marital privilege, Meyers might well have elicited testi-
mony about the confession at this moment. What tactical approach, if any,
this represented is impossible to discern.
                       EDWARDS v. LAMARQUE                     16161
cern a particular subject, Meyers’ surprised response was,
“That’s a pretty good issue.” He even stated that Gaines had
waived the spousal privilege “by being here and taking the
stand” — a comment with no bearing on whether Edwards,
the defendant in the trial, had waived his privilege of prevent-
ing his wife from testifying. Gaines’ own marital privilege
was irrelevant, and Meyers’ invocation of it further demon-
strates his lack of understanding of the doctrine.

   [5] Fundamentally, Meyers had no conception of the most
basic premise of the spousal privilege and could therefore not
make competent tactical decisions regarding it. He did not
recognize that all private communications between spouses
are “presumed to have been made in confidence.” North v.
Superior Court of Riverside County, 8 Cal. 3d 301, 310 (Cal.
1972) (citing 8 Wigmore, Evidence, § 2336 [McNaughton
rev. ed. 1961]); cf. Blau v. United States, 340 U.S. 332, 333
(1951) (“[M]arital communications are presumptively confi-
dential”); Wolfle v. United States, 291 U.S. 7, 14 (1934);
United States v. Strobehn, 421 F.3d 1017, 1021 (9th Cir.
2005) (Rymer, J.) (noting that “[f]ederal common law
assumes that private communications between spouses are
intended to be confidential, and thus privileged”). Corre-
spondingly, Meyers showed no understanding that courts nar-
rowly construe the privilege because it “prevent[s] the
admission of relevant and otherwise admissible evidence” and
impedes the search for truth. People v. Sinohui, 28 Cal. 4th
205 (Cal. 2002); cf. Strobehn, 421 F.3d at 1021. Given Mey-
ers’ evident misconceptions about the nature and scope of the
marital privilege, Meyers was incapable of making competent
tactical decisions of the sort the state court (and the dissent)
imagines. It is no surprise, therefore, that when the trial court
invited Meyers to provide authorities for his view, after he
already opened the door to Gaines’ damaging testimony, he
had none to put forward.4
  4
  The dissent relies on Meyers’ extemporaneous attempt to distinguish
Worthington to argue that he could reasonably have thought that waiver
16162                   EDWARDS v. LAMARQUE
   [6] Finally, upon grasping that he had led his client to
waive the privilege, Meyers immediately asserted that he had
made a mistake.5 His confession of error is, of course, not
itself dispositive. See Morris v. California, 966 F.2d 448,
456-457 (9th Cir. 1991) (determining whether a decision was
tactical based on counsel’s statement and additional facts).
Nonetheless, when considered in conjunction with the evi-
dence reviewed above, it is further evidence of his confusion.6

  [7] The district court correctly found that the court of
appeal’s conclusion that Meyers made a tactical decision to
waive the privilege is rebutted by clear and convincing evi-
dence in the record. Such a finding means that the state court
determination was based on an “unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(2); Miller-El v.
Dretke, 125 S.Ct. 2317, 2325 (2005).7

of the privilege as to one communication did not open the door to disclo-
sure of the other marital communications since Worthington dealt with
dueling versions of a single conversation. To so argue posits that Meyers
made a tactical decision ignorant of the key marital privilege case, which
the trial judge had to show to him; and credits his post-hoc creativity in
trying to undo the harm he had already incurred by opening the door.
Nothing in the record shows that Meyers made a decision to ask his high
risk questions informed by a minimally competent understanding of the
relevant law of marital privilege. It shows a misguided blunder.
   5
     According to Edwards’ second attorney, Meyers later offered to so tes-
tify.
   6
     Edwards highlights several other instances in the trial where Meyers
betrayed confusion about the rules of evidence and needed to be assisted
by the trial judge. For example, he was confused about: the admissibility
of evidence of a defendant’s character as opposed to evidence of a vic-
tim’s character; hearsay; laying the foundation for testimony; and hearsay
and expert testimony. None of these episodes is directly relevant, but they
do reinforce the picture of Meyers as an incompetent trial attorney.
   7
     The second trial judge had a slightly different theory, that Meyers
made a tactical decision to risk waiving the privilege. Our foregoing anal-
ysis applies equally to this theory. We further note that if Meyers really
wanted to pursue a strategy of nearly waiving the privilege without actu-
                        EDWARDS v. LAMARQUE                       16163
     2. Alternatively, the District Court Correctly
     Concluded that Meyers’ Actions, if Tactical, Were
     Objectively Unreasonable

   [8] The district court alternatively found that even if the
state court reasonably concluded that Meyers had made a tac-
tical decision to waive the privilege, the state court unreason-
ably applied Strickland in finding such tactics themselves to
be reasonable. The district court recognized the “wide lati-
tude” given to counsel in determining trial strategy, and the
importance of considering counsel’s behavior from the per-
spective counsel himself had, rather than with hindsight. Nev-
ertheless, it concluded that “[e]ven if it was a conscious
strategy, Meyers’s decision to waive petitioner’s right to
assert the marital privilege was so completely uninformed and
misguided that a reasonably competent lawyer would not have
done the same thing in like circumstances.” We agree.

   The district court recognized that the Supreme Court and
this circuit have applied a cost-benefit analysis to such tactical
decisions. See, e.g., Darden v. Wainwright, 477 U.S. 168, 186
(1986) (“Any attempt to portray petitioner as a nonviolent
man would have opened the door for the State to rebut with
evidence of petitioner’s prior convictions.”); Mak v. Blodgett,
970 F.2d 614, 619 (9th Cir. 1992) (“[N]o risk would have
been incurred by presenting the proferred evidence.”).

   As the district court found, if we apply a cost-benefit analy-
sis to Meyers’ decision to waive the privilege, the ledger is
one-sided. Gaines was openly hostile to Edwards; she had tes-
tified to the police that he had confessed to the murder to her,

ally doing so, the reasonable course would have been to seek, through in
limine motions, to define the exact scope of the privilege and what would
and would not waive it. See, e.g., People v. Dorsey, 46 Cal.App.3d 706,
718 (1975) (“The [marital privilege] claims should have been asserted and
ruled upon in camera.”).
16164                   EDWARDS v. LAMARQUE
and Meyers was aware of that information. Indeed, it was
Gaines who, five years after the murder, tipped off the police
that her husband was the murderer. To offset this near-certain
and extremely damaging potential testimony, Meyers could
hope to demonstrate that Gaines knew that she too had been
threatened by Thomas’ cousin. But as the district court
observed, the jury would know either way that Thomas’ cou-
sin had threatened Edwards and Gaines, and that would be
reason enough to explain why Edwards and his wife fled the
state.8 The additional testimony that Meyers apparently hoped
to elicit was not even likely to come: Meyers appeared to
hope, for example, that Gaines would testify that Edwards had
said he was cleaning his hands because the dog had messed
the rug, but when allowed to testify as to the exchange, she
did no such thing, and instead — consistent with her state-
ments to the police — testified that her question led quickly
to his confession to the murder.

   Nevertheless, if we accept that Meyers made a tactical deci-
sion to waive, the question does become closer. Given the
extremely strong circumstantial evidence against Edwards, an
attorney in Meyers’ position would be forced to consider
numerous different strategies, all of which could be risky or
prone to failure, in an effort to win an acquittal. However,
nearly all of the supposed advantages of Gaines’ testimony
could be reaped without her testimony. Edwards could testify
himself that he was cleaning up a dog’s mess, and it is diffi-
cult to see how Meyers could hope to supplement that testi-
mony with Gaines’ perspective. It comes down to the
difference between Edwards testifying that Thomas’ cousin
threatened his and his wife’s life, and Edwards giving that tes-
  8
    The dissent implausibly argues that Meyers could counter the inculpat-
ing circumstantial evidence only by contending that Edwards and his wife
fled because they had been threatened. However, even if Meyers reason-
ably viewed the threat as an important piece of evidence in favor of his
client, there was no need for him to waive Edwards’ privilege to provide
an alternative explanation for his and Gaines’ sudden departure.
                     EDWARDS v. LAMARQUE                  16165
timony supplemented by Gaines’ testimony that she was
aware of the threat. When balanced against the near-certainty
of Gaines’ testifying as to Edwards’ confession to the murder,
the tactical decision to allow the privilege to be waived was
objectively unreasonable.

   The California Court of Appeal’s opinion gives little expla-
nation for why it concluded that Meyers made a “reasonable
tactical decision” to allow the privilege to be waived. The
main reason offered is that there was “strong evidence”
against Edwards — apparently suggesting that desperate
straits call for desperate measures. However, for the adversary
process to function effectively, there must be some limits on
counsel’s willingness to take enormous risks, and Meyers’
decision falls outside those limits.

   The state seeks to support its view by reference to Davis v.
Woodford, 384 F.3d 628 (9th Cir. 2004). In that case, we con-
cluded that defense counsel’s decision to allow an expert to
testify despite the expert’s statement that he might offer “pos-
sibly damaging information” was a reasonable tactical deci-
sion. Id. at 648. Upon learning that the expert might do so,
counsel sought a continuance, and when it was denied, made
the decision to allow the expert to testify. We ruled that
“[w]hen the effort to postpone the [proceedings] and bring in
a new psychiatric expert failed, defense counsel quite reason-
ably decided that the risk of a slight unknown was preferable
to presenting no psychiatric testimony . . . . [Defendant]
needed someone who could . . . put together the pieces to
demonstrate, as [the expert] did, that [defendant] was not
entirely a creature of his own making, that he had psychologi-
cal problems, and that hope existed for some type of rehabili-
tation.” Id.

  Contrary to the state’s position, Davis actually illustrates
how a decision to allow the admission of damaging testimony,
depending on numerous factors, can be either eminently rea-
sonable or clearly unreasonable. See Strickland, 466 U.S. at
16166                EDWARDS v. LAMARQUE
693 (“[A]n act or omission that is unprofessional in one case
may be sound or even brilliant in another.”). In Davis, counsel
had a strong incentive to put on an expert who could help
illustrate why his client “was not a creature of his own mak-
ing,” but was faced with a situation where his only option was
an expert who had warned that he would be entirely candid
and, possibly, say things damaging to the defendant’s case. In
such a situation, the benefit was clearly strong, because with-
out any expert testimony about the defendant’s psychology,
there was a gaping hole in the defense; whereas the risk of
harmful statements was, if not remote, at least uncertain —
counsel was not aware what the expert might say.

   In this case, the balance tilts the other way. The benefits to
be gained from Gaines’ testimony (or Edwards’ statements as
to what he told her) are few. It is on this side of the equation
that there is uncertainty: Meyers could not know whether
Gaines would provide the sort of exculpatory testimony he
apparently hoped she would. On the other side of the equation
there is no uncertainty (or at least very little): Meyers knew
that Gaines, a hostile witness, was prepared to testify that her
husband had confessed to the murder to her. Davis thus illus-
trates how in this instance, given these facts, Meyers acted
outside the bounds of professional competence.

   [10] Regardless of whether Meyers’ acts are viewed as
reflecting a tactical decision to waive the privilege or as a
plain mistake, the California Court of Appeal’s conclusion
that his performance was adequate was an unreasonable appli-
cation of clearly established Supreme Court precedent, or was
based on an unreasonable determination of the facts in light
of the evidence presented at trial.

  C.    The Second Strickland Prong: Prejudice

  We must now consider whether Edwards was prejudiced by
Meyers’ ineffective assistance. Because the court of appeal
found no ineffective assistance, it never reached the prejudice
                         EDWARDS v. LAMARQUE                         16167
inquiry.9 The first question, then, is whether there is anything
to defer to in making this determination.

   [10] The district court found that the court of appeal had
not addressed the prejudice issue, but that the trial court had.
The second trial judge, upon denying the motion for a new
trial, stated, “I am convinced that without the testimony that
I allowed in, that the verdict may well have been a different
one. So that I want to make it clear that if I’m wrong on this
[the first Strickland prong], I do think it’s reversible from my
standpoint.” The district court found this perspective “highly
persuasive” and “entitled to deference” because “it is the last
(and only) reasoned opinion of the state court on the issue of
prejudice.” We agree on both counts. Because the trial court’s
view was the “last reasoned decision” by a state court on the
issue of prejudice, we owe it deference, Campbell v. Rice, 408
F.3d 1166, 1170 (9th Cir. 2005); and we are independently
persuaded of the existence of prejudice in any event. As the
district court noted, a defendant’s own confession is the most
damning sort of evidence available against him. See, e.g., Ari-
zona v. Fulimante, 499 U.S. 279, 296 (1991) (quoting Bruton
v. United States, 391 U.S. 123, 139-40 (1968)) (“A confession
is like no other evidence. Indeed, the defendant’s own confes-
sion is probably the most probative and damaging evidence
that can be admitted against him . . . . Certainly, confessions
have a profound impact on the jury, so much so that we may
justifiably doubt its ability to put them out of mind even if
told to do so.”) (internal quotations omitted). It is true that the
circumstantial evidence against Edwards was extremely
strong here, including testimony from the victim’s cousin that
Edwards threatened to “fuck you up too.” Upon retrial with-
out any of Gaines’ testimony, he might well be convicted; but,
as the second trial judge himself noted, it is impossible to be
  9
   The state’s argument that the California Court of Appeal did conduct
a prejudice inquiry is meritless; the court of appeal had no reason to reach
the prejudice inquiry after finding no ineffective assistance, and its opin-
ion cannot plausibly be read to contain an alternative holding.
16168                    EDWARDS v. LAMARQUE
free from doubt in the verdict given the improper admission
of Gaines’ testimony. For example, the prosecutor empha-
sized the confession during closing arguments, even reading
Gaines’ statement to the police verbatim. It is clear at least
that the prosecutor believed that this evidence was of central
importance.10

   [11] If we defer to the trial court’s conclusion of prejudice,
it is established. Alternatively, our independent inquiry leads
us to conclude that prejudice is established here. The proba-
bility of a different result is “sufficient to undermine confi-
dence in the outcome.” Strickland, 466 U.S. at 694.

                         IV.    CONCLUSION

   We affirm the district court. Meyers’ acts were not tactical
but simple incompetence; alternatively, if tactical, they were
objectively unreasonable; and there is a reasonable probability
that but for Meyers’ ineffective assistance, Edwards would
have received a different verdict.

   AFFIRMED.




   10
      The state argues that the fact that the first jury hung proves no preju-
dice. The dissent argues further that the hung jury is probative of the effec-
tiveness of Meyers’ “tactical” decision. Both arguments are irrelevant.
Edwards was convicted upon retrial, and it is this conviction from which
he seeks relief. Further, as the prosecution recognized at the time, the mis-
trial was almost certainly the result of nullification.
                        EDWARDS v. LAMARQUE                       16169
RYMER, Circuit Judge, dissenting:

   I part company because in my view, the state courts did not
make an unreasonable determination of the facts in light of
the record before them when they found that John Meyers,
Edwards’s counsel at his first trial, made a tactical decision in
asking Edwards questions on the stand that waived the marital
communications privilege. Nor did the state courts apply
Strickland v. Washington, 466 U.S. 668 (1984), unreasonably
in concluding that this was not an unreasonable strategy for
Meyers to pursue, given the substantial amount of circumstan-
tial evidence implicating Edwards that had already been pre-
sented, an implicit confession by Edwards to the victim’s cou-
sin that he was the murderer, Edwards’s unexplained flight
with his wife two days after the murder, and Meyers’s reason-
able belief, in light of the state of California law at the time,
that he could elicit testimony from Edwards about his conver-
sations with his wife on the night after the murder without
opening the door to his wife’s version of their conversation on
the night of the murder. Therefore, I disagree with the deci-
sion of the district court granting Edwards’s habeas petition,
and dissent from the majority’s contrary disposition.

   At the outset, the district court reviewed the state courts’
finding that Meyers made a tactical decision, not a mistake,
under the “clear and convincing evidence” standard of 28
U.S.C. § 2254(e)(1) rather than, as we have since clarified in
Taylor v. Maddox, 366 F.3d 992, 999-1000 (9th Cir. 2004),
for whether that determination was unreasonable under
§ 2254(d)(2).1 The district court held that Meyers’s declara-
tion, his stipulated testimony that he had made a mistake dur-
ing the first trial, his statements to the trial judge at sidebar
during the first trial, and his apparent ignorance of the nature
  1
   As the majority notes, the Supreme Court in Miller-El v. Dretke, 125
S.Ct. 2317, 2325 (2005), intimates that the standards under §§ 2254(d)(2)
and (e)(1) may merge. However, the Court’s passing recitation of the
AEDPA standard does not undermine Taylor, which is binding on us.
16170                EDWARDS v. LAMARQUE
and scope of the marital communications privilege, amounted
to clear and convincing evidence that the state courts’ finding
was incorrect. See 28 U.S.C. § 2254(e)(1). However, the state
courts’ finding should not have been reviewed under
§ 2254(e)(1) because Edwards introduced no new evidence in
the district court. Instead, as we explained in Taylor, when a
federal habeas petitioner introduces no new evidence and
relies solely on the state court record in challenging a state
court factual determination, the proper inquiry is whether the
state court made “an unreasonable determination of the facts
in light of the evidence presented in the State court proceed-
ing.” 28 U.S.C. § 2254(d)(2). Only if a state court factual
determination survives this intrinsic review and the petitioner
presents new evidence in district court that was not in the
state court record may the district court proceed to the extrin-
sic review contemplated by § 2254(e)(1) and ask whether the
new evidence clearly and convincingly shows that the state
court factual determination was incorrect. Edwards presented
no new evidence in the district court that was not in the state
court record, and did not seek an evidentiary hearing in the
district court to elicit any such evidence; accordingly, the
proper question is whether the California Court of Appeal’s
determination that Meyers was not ineffective was based on
an unreasonable determination of the facts in light of the evi-
dence before it.

   Here, two state trial judges and three state appellate judges
found that Meyers’s decisions were tactical. While this is a
close call and we may or may not have made the same judg-
ment ourselves, that is not the question. The question is
whether the state courts’ determination was unreasonable. I
can’t say that it was.

   Unlike the situation in People v. Dorsey, 46 Cal.App.3d
706 (1975), in which the defendant’s trial counsel failed to
raise the marital communications privilege at all, Meyers
clearly knew about the privilege and timely raised it before
trial began. Edwards argues that Meyers was ineffective
                          EDWARDS v. LAMARQUE                         16171
because he was ignorant about the operation and scope of the
privilege and of how waiver operates under California law.
However, the state courts concluded that Meyers took a calcu-
lated risk.2 It appears from the record that Meyers believed
that he could question Edwards about his conversation with
his wife on July 18, the night after the murder, without waiv-
ing the privilege as to Edwards’s different conversation with
her on July 17, the night of the murder. The confession
occurred during the conversation on July 17. Meyers with-
drew an earlier question about Edwards’s July 17 conversa-
tion with his wife regarding the reason Edwards was washing
his hands, and thereby avoided opening the door to Edwards’s
wife’s testimony about Edwards’s confession to her during
that same conversation. The question Meyers did pursue with
Edwards was about the telephone call he received the next
evening and what he told his wife about it, which elicited
from Edwards evidence that both he and his wife had been threat-
ened.3 At the point when Meyers asked this question, he was
  2
     Our review of the state courts’ decisions should not be influenced by
the fact that Meyers fell on his sword during the first trial. After the trial
judge ruled that his questions had opened the door, Meyers immediately
asserted “that’s inadequate representation of counsel.” If anything is tacti-
cal, that claim surely is, and it demonstrates how quickly Meyers could
think on his feet.
   3
     In fact, the question Meyers asked Edwards did not call for Edwards
to reveal any confidential communications he had with his wife. Meyers
asked Edwards:
      Q:   Where was Kemet [Edwards’s wife] at that time [the night
           after the murder]?
      A:   She started hollering, “What’s going on? What’s going on?
           What’s happening? What’s wrong? What’s going on?”
      Q:   Did you tell her anything?
      A:   I told her, “Somebody killed Don and they think I had some-
           thing to do with it, and they just threatened to come and kill
           us.”
(RT 545-46.) As this excerpt demonstrates, Edwards’s answers were not
responsive to Meyers’s questions. Meyers’s questions did not seek to elicit
16172                   EDWARDS v. LAMARQUE
faced with a considerable amount of circumstantial evidence
of Edwards’s guilt, an implicit confession related by the vic-
tim’s cousin — who testified that Edwards told him “And I’ll
fuck you up too” — and Edwards’s flight with his wife two
days after the murder for no apparent reason other than con-
sciousness of guilt. The only way Meyers could combat the
inevitable inferences to be drawn from this evidence was to
defuse the flight issue by making it look like Edwards and his
wife fled because they had been threatened, not because he
was guilty or because his wife was scared of him instead of
a threat by a third party.

   Meyers also argued in state court that eliciting evidence
from Edwards about a different conversation with his wife
that occurred on a different day about a different topic —
threats to Edwards and his wife — did not waive the privilege
as to all conversations between Edwards and his wife that
took place after the murder. Meyers’s position on this point
was far from unreasonable. When the trial judge directed the
prosecutor’s and Meyers’s attention to People v. Worthington,
38 Cal.App.3d 359 (1974), Meyers argued that Worthington
was distinguishable because the dueling versions of a commu-
nication between a husband and wife in that case all had to do
with a single conversation. Meyers was quite correct on this
point, and was not unreasonable in maintaining that Wor-
thington could not possibly stand for the proposition that a
waiver of the marital communications privilege as to one con-
versation on one day about one subject opens the door to

any confidential communications Edwards had with his wife. Thus, noth-
ing Meyers asked Edwards on the stand indicates that he expected
Edwards to waive the privilege through his responses, and it is not clear
how Meyers acted unreasonably in asking the questions that he did. The
question “Did you tell her anything?” calls for a “yes” or “no” answer,
which is not a privileged communication. The fact that Edwards spontane-
ously waived the privilege by giving non-responsive answers to Meyers’s
questions does not mean that Meyers was unreasonable in asking those
questions.
                     EDWARDS v. LAMARQUE                  16173
admission of confidential marital communications that
occurred during a different conversation on a different day
about a completely different subject. That Meyers turned out
to be wrong in his position because the trial judge disagreed
with him about the scope of the waiver does not make the cal-
culated risk he took unreasonable given that, had he suc-
ceeded, he would have been able to explain Edwards’s flight
and maybe create reasonable doubt by suggesting that the per-
son who made the threat was the murderer instead of
Edwards.

   Finally, Edwards was not convicted on the first-degree
murder charge in the first trial. The jury may have hung due
to unrelated racial tension among the jurors, as Edwards con-
tends, or it may have hung because of reasonable doubt about
whether Edwards was the murderer. The point is that no one
knows why Edwards was not convicted in the first trial, but
that he was not is at least some indication that Meyers’s tacti-
cal decision may have worked.

   I would reverse, and part company with my colleagues,
because I cannot conclude that the state courts applied Strick-
land in an objectively unreasonable manner or made an unrea-
sonable determination of the facts in light of the state court
record in deciding that Meyers made a reasonable tactical
decision that resulted in waiver of the marital communications
privilege.
