                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                            No. 02-50494


ROBERT DALE COX,
                                            Petitioner-Appellee,

                               versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
                                       Respondent-Appellant.




           Appeal from the United States District Court
                 For the Western District of Texas


                            March 6, 2003


Before HIGGINBOTHAM and DAVIS, Circuit Judges, and HUDSPETH,*
District Judge.

PER CURIAM:**

     A Texas jury found Robert Dale Cox guilty of felony theft of

property valued over $750 and under $20,000 for stealing a 1940

John Deere H tractor from eighty-six year old Gertrude Klunkert.

In July 1994, Klunkert agreed to pay Cox $1900 to build a carport.

Cox offered to take the tractor as payment for his labor, but


     *
       Senior District Judge of the Western District of Texas,
sitting by designation.
     **
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Klunkert refused and stated that she would not sell it to him for

any price due to its sentimental value to her.     With the help of

his brother-in-law, Cox stole the tractor.

     At trial, Klunkert testified that she believed the tractor was

worth $1500.    The state also called an expert in antique tractors,

Gustav Schlender.    Schlender explained that antique tractors have

two types of value, a “utility value” and a “collector-type value.”

Schlender testified that he had inspected the tractor and that in

his opinion its fair market value as a collectible was at least

$750, and could probably be sold at a price between $800 and $1000.

     Cox called Maurice Hilbert, a John Deere dealer, to testify to

the value of the tractor. Hilbert testified that the utility value

of the tractor was $200 to $300 at the most.     He admitted he did

not know its value as an antique or collectible, but stated that

“somebody who collects tractors for restoration might offer more

for it.”     He also admitted that “I don’t know what the antique

market is.     I don’t follow the antique market ....”   Cox did not

call any expert regarding the tractor’s collectible value.

     The jury found Cox guilty of theft of property valued between

$750 and $20,000.    Because Cox had five prior felony convictions,

he was sentenced to seventy-five years’ imprisonment.

     Cox moved for a new trial on the basis of new evidence and was

granted a hearing.      He called three experts to testify to the

collectable value of the tractor, none of whom valued the tractor

over $250. He also unsuccessfully attempted to enter into evidence

                                 -2-
the affidavits of three other collectible tractor experts, none of

whom valued the tractor over $350.           After the hearing, the trial

court denied Cox’s motion.

     Cox’s conviction was affirmed on direct appeal. He then filed

two state applications for writs of habeas corpus; the first

application was denied without written order, and the second was

dismissed for abuse of the writ.       Cox filed his federal petition in

February 2000.     In it he urged that his trial attorney’s failure to

obtain expert testimony regarding the collectible value of the

tractor constituted ineffective assistance of counsel, that he

received   ineffective    assistance       because   his   attorney   did   not

request a jury instruction on his defense of “mistake of fact,” and

that his sentence amounted to cruel and unusual punishment.                 The

magistrate judge to whom the case was assigned held an evidentiary

hearing, and afterwards recommended that the district court deny

his claims for relief on the mistake of fact and Eighth Amendment

issues, but grant relief on the ineffectiveness claim based on

failure to find a collectible value expert.                In April 2002 the

district   court    accepted   the     magistrate      judge’s   report     and

recommendation and granted the writ, finding Cox’s ineffective

assistance of counsel claim meritorious.             The Director appeals.

                                      I

     The Director first argues that the district court erred in

determining that Cox’s ineffective assistance claim based on the



                                     -3-
collectible value of the tractor was not procedurally defaulted.

The district court accepted the magistrate judge’s finding that Cox

brought this claim in his first state court petition and that it

was disposed of on the merits, thereby exhausting the claim and

allowing the district court to consider it notwithstanding that

Cox’s second state habeas application was dismissed for abuse of

the writ.1   The Director disputes this conclusion, arguing that the

ineffectiveness issue raised in the first state petition was

substantially different from that pursued in the second state


      1
       See TEX. CODE CRIM. P. ANN. Art. 11.071 § 5 (Vernon 2002).
This section provides:

      (a) If a subsequent application for a writ of habeas
      corpus is filed after filing an initial application, a
      court may not consider the merits of or grant relief
      based   on  the   subsequent   application   unless   the
      application   contains    sufficient    specific    facts
      establishing that:

      (1) the current claims and issues have not been and could
      not have been presented previously in a timely initial
      application or in a previously considered application
      filed under this article or Article 11.07 because the
      factual or legal basis for the claim was unavailable on
      the date the applicant filed the previous application;

      (2) by a preponderance of the evidence, but for a
      violation of the United States Constitution no rational
      juror could have found the applicant guilty beyond a
      reasonable doubt; or

      (3) by clear and convincing evidence, but for a violation
      of the United States Constitution no rational juror would
      have answered in the state’s favor one or more of the
      special issues that were submitted to the jury in the
      applicant’s trial under Article 37.071 or 37.0711.

Id.

                                 -4-
application and federal petition.              We disagree.

     In his first state petition, Cox presented a dual claim

consisting of his argument that he was actually innocent of felony

theft, because the tractor was worth less than $750, and that his

counsel    had    rendered      ineffective      assistance     by    failing     to

investigate      the   tractor’s   collectible      value     and    proffer    such

evidence at trial. In discussing his ineffectiveness argument, Cox

cited the basic law governing such claims, including Cronic2 and

Strickland.3      He explained that “[c]laims of ineffectiveness must

overcome a strong presumption that counsel’s representation was

within    the    expansive      range    of    reasonable     performance,       and

demonstrate that the attorney’s performance fell below prevailing

professional norms.”         Cox further noted that “Strickland also

requires a showing that, but for counsel’s errors or omissions, the

result of the proceeding probably would have been different.”

     In    particular,     he    urged    that    his   counsel’s     failure     to

sufficiently investigate the collectible value of the tractor

prejudiced him. He explained that during the hearing on his motion

for new trial, “three experts on antique tractors were presented,

and they testified without contradiction[] that Klunkert’s tractor

was worth nowhere near $750.”            He asserted, “[h]ad trial counsel

investigated[,] he would have found more than enough tractor


     2
         United States v. Cronic, 466 U.S. 648 (1984).
     3
         Strickland v. Washington, 466 U.S. 668 (1984).

                                         -5-
experts who were willing to testify regarding the worthlessness of

Klunkert’s tractor.       Had he done so, it is more likely than not

that the jury would have acquitted him.”

     Although Cox’s ineffectiveness argument was intertwined with

his actual innocence claim in his first state petition, it was

fairly   presented   in    that      application,     and   therefore    is   not

procedurally   barred     by   the    Texas   Court    of   Criminal    Appeals’

dismissal of his second application for abuse of the writ.4                   The

claim presented in his first state petition was nearly identical in

all relevant aspects to that asserted in his second state petition,



     4
       The Director argues that Cox argued ineffectiveness in an
attempt to have the state courts consider his actual innocence
claim, and that therefore he was not asking for relief due to
ineffective assistance of counsel, but was rather asking for relief
on the basis that he was actually innocent. However, the first
state claim actually reveals the opposite – Cox’s counsel was
operating under the mistaken view that he needed to show his client
was actually innocent in order to present the ineffectiveness
claim. In the petition, his attorney asserted, “[i]f the habeas
court is convinced that new facts exist raising doubt about the
defendant’s guilt, ... [this] ‘threshold showing of innocence would
justify a review of the merits of the constitutional claims.’”
Thus, Cox’s actual innocence argument was presented merely as “‘a
gateway through which a habeas petitioner must pass to have his
otherwise barred constitutional claim considered on the merits.’”

     Unfortunately, Cox’s attorney was applying the federal law
applicable to successive habeas petitions in the context of Cox’s
first habeas petition.     See Schlup v. Delo, 513 U.S. 298, 314
(1995).   His constitutional claim of ineffective assistance of
counsel was not a “barred claim” in his initial habeas application,
but would only have become barred if he failed to raise it in his
first petition. Id. However, that Cox’s attorney misapprehended
the law was of no matter, because the actual innocence discussion
was merely superfluous, and did not negate the presentation of his
ineffectiveness claim.

                                       -6-
which again cited Cronic and Strickland and summarized Strickland’s

two-pronged ineffectiveness test.         Like his first state petition,

the latter application also argued that his trial attorney fell

below an objective standard of reasonable performance in failing to

investigate and proffer at trial evidence on the collectible value

of the tractor.   Both his first and second state application ended

its discussion of this claim with the charge, “[h]ad counsel

properly investigated, he would have obtained the same overwhelming

testimony presented at” the hearing on the motion for new trial,

“which conclusively established that, even as a ‘collectible,’ the

tractor was not worth anywhere near $750.”5        Cox therefore did not

procedurally   default   on   his   ineffectiveness   claim,   which   was

rejected on the merits in his first state habeas petition.

                                    II

     The Director also asserts that the magistrate judge erred in

granting Cox an evidentiary hearing, because Cox failed to develop




     5
       The Director contends that Cox’s ineffectiveness allegations
differed in his first and second state petitions, because in his
first petition he only argued that his counsel failed to
investigate the value of the tractor, while in his second state
petition he asserted that his trial attorney failed to investigate
the tractor’s collectible value and present such evidence at trial.
However, this argument splits hairs. In both applications, the
gravamen of Cox’s ineffectiveness argument is the same: his trial
attorney failed to adequately investigate the collectible value of
the tractor; had he done so, he could have presented substantial
evidence that the tractor’s antique value was under $750 and the
jury would not have convicted Cox.

                                    -7-
the factual basis for his claim in state court.6              “[A] petitioner

cannot be said to have ‘failed to develop’ a factual basis for his

claim unless the undeveloped record is a result of his own decision

or omission.”7     Thus, “a failure to develop the factual basis of a

claim is not established unless there is a lack of diligence, or

some greater fault, attributable to the prisoner or the prisoner’s

counsel.”8    Although the state court rejected Cox’s request for a

hearing,     the   Director   argues     that    Cox   must   still   be   held

accountable for failure to develop the record because he did not

provide    the     state   courts   with        affidavits    supporting   his

allegations.       However, Cox sufficiently developed the record in

state court by presenting the transcript of the hearing on his

motion for new trial, which contained the testimony of three

antique tractor experts that the tractor was not worth $750.

Additionally, he submitted the affidavits of three other antique

tractor experts who opined that the tractor was not worth $750.             He

relied on both the transcript of the motion hearing and these

affidavits to support his ineffectiveness allegations in his first

state habeas petition.         We find that Cox’s reference to this

evidence in his first petition, coupled with his unsuccessful

request for an evidentiary hearing, satisfied his obligation to


     6
         See 28 U.S.C. § 2254(e)(2).
     7
         McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998).
     8
         (Michael) Williams v. Taylor, 529 U.S. 420, 432 (2000).

                                       -8-
develop the factual bases for his ineffectiveness claim.9

                                 III

     The Director last argues that the district court erred in

determining   that   Cox’s   trial     counsel   rendered   ineffective

assistance.   Before reaching this issue, however, we must take up

the question whether the district court applied the appropriate

legal standard to any implicit findings of fact and conclusions of

law made by the state courts.

     AEDPA restricts the ability of federal courts to grant relief

to those cases in which the state court’s adjudication on the

merits “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 “resulted

in a decision that was based upon an unreasonable determination of

the facts in light of the evidence presented in the state court




     9
       The Director complains that Cox proffered evidence at the
federal hearing different from that provided in the affidavits and
transcripts given to the state courts. During the hearing, Cox
called his trial attorney, Stork, and an attorney expert, Forsythe,
to testify on the ineffectiveness claim.      He had not presented
affidavits by these witnesses along with his first state petition.
However, the district court determined before allowing the hearing
that Cox did not fail to develop sufficiently his claim in state
court, and we concur with that determination. Once the district
court reached that conclusion, it was allowed to grant a hearing
and expand the record of evidence at the evidentiary hearing. See,
e.g., Rule 7 of the Rules Governing § 2254 Cases (“If the petition
is not dismissed summarily the judge may direct that the record be
expanded by the parties by the inclusion of additional materials
relevant to the determination of the merits of the petition.”).

                                 -9-
proceeding.”10     Claims of ineffective assistance of counsel are

mixed questions of law and fact,11 and a federal court may grant

relief for such claims only if the state court’s denial rested on

“an unreasonable application of[] clearly established Federal law,

as determined by the Supreme Court,” to the facts of the case.12

     Furthermore,       AEDPA   “requires   us   to   presume   state     court

findings of fact to be correct unless the petitioner rebuts that

presumption by clear and convincing evidence.”13          This presumption

of correctness applies not only to explicit factual findings, but

also “to those unarticulated findings which are necessary to the

state court’s conclusions of mixed law and fact.”14

     Although     the     district     court     correctly      applied     the

“unreasonable application” standard to the state court’s denial of

Cox’s ineffectiveness claim, it refused to apply the presumption of

correctness to any factual findings supporting this conclusion,

because the state courts had made no explicit factual findings on

the issue.       The magistrate judge’s report and recommendation

explains, “[g]iven that no evidentiary hearing was held, and no

findings of fact were made by the trial court or the Court of

     10
          28 U.S.C. § 2254(d).
     11
          Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002).
     12
          Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997).
     13
       Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir. 2001); §
2254(e)(1).
     14
          Id. at 948.

                                     -10-
Criminal Appeals, there are no factual findings to which this Court

must – indeed can – defer.”        Thus, the only factual findings it

relied upon in its determination were those it made after holding

an evidentiary hearing.

     In so doing, the district court did not abide by the Supreme

Court’s instruction that, in habeas proceedings, “if no express

findings of fact have been made by the state court, the District

Court     must   initially   determine   whether   the   state   court   has

impliedly found material facts.”15        This case presents particular

circumstances that complicate a court’s determination of whether

the state courts made implicit factual findings, because neither

the trial court nor the Texas Court of Criminal Appeals made any

explicit legal conclusions, and Cox’s first state petition was

denied without written order.

     In Goodwin v. Johnson, we reasoned that “[t]he case law of

this circuit demonstrates that some indication of the legal basis

for the state court’s denial of relief on a federal claim is

generally necessary to support a conclusion that the state court

has made an implied fact-finding as to a factual issue underlying

the claim.”16     However, it also noted, “[i]n a few instances, we


     15
       Townsend v. Sain, 372 U.S. 293, 314 (1963); see also Weeks
v. Snyder, 219 F.3d 245 (3d Cir. 2000) (same).
     16
        Goodwin v. Johnson, 132 F.3d 162, 184 (5th Cir. 1998).
Although this case applied pre-AEDPA law, its reasoning in regard
to implied factual findings was adopted in the AEDPA context in
Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001) (citing

                                   -11-
have    held      that   a   state   court’s    bare   legal    ruling   without

accompanying conclusions of law may form a basis for implying

findings of fact that support the ruling.”17                   It limited these

circumstances to those “in which the state court’s ruling addressed

a discrete issue and the factual basis for the ruling was extremely

clear based on the ruling’s limited nature.”18                 As examples, the

Goodwin court cited cases in which we have held that a state

court’s refusal to dismiss a juror for cause after a defendant

argued that the juror was partial gave rise to an implied factual

finding that the juror was not biased,19 that a trial court’s denial

of the defendant’s motion to suppress evidence from an out-of-court

identification implied that the court had credited the identifying

witness’s testimony that the out-of-court identification was not

unduly suggestive,20 and that the state court’s denial of the

defendant’s       motion     for   mistrial    based   on   pretrial   publicity

contained the implicit fact-finding that the publicity had not




Goodwin in support of its statement that “[t]he presumption of
correctness ... applies to those unarticulated findings which are
necessary to the state court’s conclusions of mixed law and fact”
and describing Goodwin as holding that “findings of fact can be
implied from explicit conclusions of law”).
       17
            Id. at 185 n.16.
       18
            Id.
       19
            See Jones v. Butler, 864 F.2d 348, 362 (5th Cir. 1988).
       20
            See Lavernia v. Lynaugh, 845 F.2d 493, 499-500 (5th Cir.
1988).

                                       -12-
created “the kind of ‘wave of public passion’ that would have made

a fair trial unlikely.”21

       Although       the      district       court    here     should     have    determined

whether the state courts’ denial of Cox’s ineffectiveness claim

entailed implicit factual findings, we conclude that its failure to

do so was harmless in this instance because, under Goodwin, no such

findings can be gleaned from their summary rejection of the claim.

Cox’s       ineffectiveness           claim    differs    from      the    discrete       issues

confronted in those few cases in which we have derived implicit

factual findings from a state court’s summary denial of a claim.

In this instance, we cannot gather from the state courts’ decision

whether they denied the ineffectiveness claim because they found

Cox’s attorney sufficiently investigated the case, or because they

found       that    any     testimony         proffered       by    the    defense        on   the

collectible value of the tractor would not have affected the jury

verdict, or both.              Therefore, this case does not fall within those

limited cases in which “the factual basis for the ruling was

extremely clear based on the ruling’s limited nature.”                             Because we

find    no    error       in    the    district       court’s      refusal   to    apply       the

presumption of correctness to any implicit factual findings made by

the    state       courts,       we    finally       address       the    merits     of     Cox’s

ineffectiveness claim.

                                                IV


       21
            See Wicker v. McCotter, 783 F.2d 487, 495 (5th Cir. 1986).

                                               -13-
                                     A

     Ineffective assistance is a mixed question of law and fact,

and we therefore review de novo the district court’s grant of

habeas, “while crediting the district court’s express or implied

findings     of   discrete   historical   fact   that   are   not   clearly

erroneous.”22      The familiar tenets of Strickland v. Washington

control and set out a two-pronged test to analyze whether a

defendant received ineffective assistance of counsel:

     First, the defendant must show that counsel’s performance
     was deficient. This requires showing that counsel made
     errors so serious that counsel was not functioning as the
     “counsel” guaranteed the defendant by the Sixth
     Amendment.   Second, the defendant must show that the
     deficient performance prejudiced the defense.        This
     requires showing that counsel’s errors were so serious as
     to deprive the defendant of a fair trial, a trial whose
     result is reliable.     Unless a defendant makes both
     showings, it cannot be said that the conviction ...
     resulted from a breakdown in the adversary process that
     renders the result unreliable.23

     To establish that counsel’s performance was deficient, a

defendant must show that it is objectively unreasonable under

prevailing professional norms.24 We apply a strong presumption that

trial counsel’s conduct fell within a wide range of reasonable

professional assistance or that the challenged conduct might be




     22
          United States v. Mullins, 315 F.3d 449, 453 (5th Cir. 2002).
     23
          466 U.S. 668, 687 (1984).
     24
          Id. at 688-89.

                                   -14-
considered a trial strategy.25                    The defendant must also show

prejudice, which requires demonstrating that there is a reasonable

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

proceeding would have been different.26                “A reasonable probability

is   a        probability     sufficient    to     undermine    confidence   in    the

outcome.”27

         After the magistrate judge conducted the evidentiary hearing,

he made numerous factual findings.                    He found that Cox’s trial

counsel, Stork, admitted that the value of the tractor was “the

issue at trial,” but despite this knowledge never requested funds

from the court to retain an expert on the tractor’s collectible

value.         Additionally, he determined that the one expert Stork did

call to speak on tractor valuation, Hilbert, was not qualified to

offer an opinion on the value of the item as an antique, which was

the theory Stork knew the prosecution planned on pursuing at trial.

         The court also found that Stork had not written down the names

of any other potential experts he had allegedly considered using.

It determined that the numerous clubs of tractor enthusiasts and

magazines           devoted   exclusively    to    antique     tractors   would   have

assisted Cox’s counsel in locating an appropriately qualified

expert. The court concluded that, had Stork attempted to engage an


         25
              Id. at 689.
         26
              Id. at 687.
         27
              Id.

                                            -15-
antique tractor expert, he would have had “a more than ample supply

of experts to demonstrate that the value of the tractor, even for

a collector, was well less than $750.”

     Applying the law to the facts, the magistrate judge concluded

that Cox’s attorney rendered deficient performance that prejudiced

the defense.   He reasoned:

     The evidence shows that [Cox’s attorney] was on notice
     that the value of the tractor as a collectible was the
     crucial issue in Petitioner’s trial. If Petitioner was
     convicted of theft of [over $750], he faced sentencing as
     a habitual offender, and was thereby exposed to a
     sentencing maximum of life imprisonment. [His counsel]
     likewise knew the expert he intended to present on the
     issue of value was not qualified to value the tractor as
     a collectible, yet he failed to take the steps necessary
     to secure such an expert.      Had counsel done even a
     minimal amount of investigation into the collectible
     value issue, he would have obtained the same overwhelming
     testimony presented at the hearing on Petitioner’s motion
     for new trial.

     It determined that Stork’s failures prejudiced Cox’s case

because “the jury sent out a note indicating it was deadlocked

between a conviction for a misdemeanor and a felony, meaning they

were having difficulty in determining whether the value of the

tractor was more than $750.”   Given the closeness of the issue, and

the wealth of testimony of the tractor’s low collectible valuation

presented by Cox in his post-conviction proceedings, the court

concluded that there was a reasonable probability that, but for

Cox’s attorney’s errors, the result of the proceeding would have

been different.

                                  B


                                -16-
     The Director first attacks the district court’s determination

on the basis that trial counsel cannot be ineffective for failing

to call a better expert.    She argues that Hilbert, the witness

called by Cox’s counsel at trial, was “a knowledgeable tractor

dealer,” and asserts that defense attorneys are not required to

shop around for experts who will provide better opinions.

     However, we concur with the district court’s analysis on this

point.    It reasoned that Cox’s attorney “was not deficient for

calling an expert who performed poorly,” but rather “was deficient

for not taking the steps necessary to locate and call an expert on

the issue actually before the court and jury – the value of the

tractor as a collectible item.” The court compared the scenario to

one in which “a defense attorney call[ed] a ballistics expert when

the defense attorney knew that the prosecution was going to tie a

gun to the defendant on the basis of fingerprints, not ballistics

identification.”   This situation is not, as the Director urges,

akin to one in which a defendant claims his expert did not prepare

as thoroughly as would have been desirable,28 or that his expert,

although qualified, did not correctly diagnose his psychological




     28
       See Fisher v. Lee, 215 F.3d 438, 449-452 (4th Cir. 2000)
(rejecting the petitioner’s complaint that his court-appointed
medical expert began his evaluation of the petitioner too late to
be sufficiently prepared to present effective testimony); McQueen
v. Scroggy, 99 F.3d 1302, 1312 (6th Cir. 1996) (rejecting the
petitioner’s claim that his attorney was ineffective because he did
not sufficiently prepare the psychiatric expert).

                               -17-
disorder.29     Rather, here the issue is not one of degree – whether

Hilbert or another expert could have proffered better testimony as

to the utility value of the tractor – but one of kind – whether

Stork     was   deficient   in   failing    to   locate   an   expert   on   the

collectible value of the tractor.           In this case, hiring Hilbert,

who could speak only to the utility value of the tractor, was

tantamount to hiring no expert at all.

                                      C

     The Director also asserts that, contrary to the district

court’s     finding,    Cox’s     counsel    did    not   render    deficient

performance.      She argues that his attorney conducted a reasonable

investigation, “speaking to ten or twelve people total,” and went

to tractor dealerships and an antique flea market that displayed

antique tractors.       She additionally asserts that Cox’s attorney

testified that he asked Hilbert for recommendations of other

potential expert witnesses, but was given only the name of the

prosecution’s witness.       Finally, the Director contends that Cox’s

counsel “found people he thought he could qualify as experts, but

they told him they did not want to get involved.”                Thus, in his

professional opinion he decided to call the utility valuation

expert, rather than witnesses who could potentially be hostile to


     29
       See McQueen, 99 F.3d at 1312-13 (rejecting the petitioner’s
argument that his counsel was ineffective because his psychiatric
expert testified that the defendant had a sociopathic personality
and became acclimated to heavy drinking and drug use); Poyner v.
Murray, 964 F.2d 1404, 1419 (4th Cir. 1992).

                                     -18-
his case.

      Contrary to the Director’s contentions, we, like the district

court, are     persuaded   that   the   actions   of   Cox’s   counsel   were

objectively unreasonable.       As noted by the magistrate judge in his

recommendation, Stork was aware that the crucial issue in this case

was the value of the tractor.        If the state could prove that the

tractor was worth $750, Cox faced a felony conviction and a

possible life sentence; if not, Cox was facing only a few years for

misdemeanor theft. Stork knew that the state intended to prove the

value of the tractor as an antique or collectible.         Stork also knew

that his expert, Hilbert, by his own admission, was not qualified

to   testify   as   to   the   tractor’s   collectible   value.     Rather,

Hilbert’s area of expertise was in valuing tractors as functional

pieces of farm equipment.

      Stork apparently made some strides in locating experts to

testify on the issue of collectible value, but he never hired one.

Stork stopped by a flea market displaying an antique tractor and

talked to several people who gave him helpful opinions regarding

the value of these collectibles.           He also recalled going to a

tractor dealership and a tractor sale. However, the individuals he

talked to expressed an unwillingness to get involved, and Stork

made no attempt to persuade them to do so.

      Stork did not subpoena any of these witnesses, though he

admitted that they were neutral to Cox and had no reason to slant

the truth.     Stork also failed to file a motion for court approval

                                    -19-
of funds for an appropriately qualified expert, which might have

remedied these individuals’ concerns that attending court would be

time consuming or costly.   During the evidentiary hearing, Andrew

Forsythe, an “attorney performance expert,” testified that Stork

should have sought funds from the court.   Forsythe opined that a

reasonably effective attorney would have sought such funds, which

could reduce a witness’s reluctance to testify.

     Cox provided further evidence that Stork could have located a

qualified expert who was willing to testify had he moved for funds

to hire one.     Curtis Johnson, an antique tractor enthusiast,

testified to the ease of finding such experts, and described the

many clubs around the state for tractor enthusiasts, the magazines

devoted to the hobby, and meetings and shows at which experts could

have been found. Six favorable opinions of antique tractor experts

were submitted by Cox demonstrating the facility with which such

opinions could be obtained. In sum, the Director’s contention that

the actions of Cox’s attorney were not unreasonable is unsupported

by the record.



                                 D

     The Director further argues that Cox was not prejudiced by his

attorney’s performance.   The district court found that the jury’s

note indicated it was deadlocked on the felony versus misdemeanor

issue.   The Director downplays the importance of the note by



                               -20-
pointing out that the jury also requested the portion of the trial

transcript in which Klunkert testified that Cox had been willing to

accept the tractor in lieu of $1900, indicating that the jury based

its felony determination on the amount at which Cox himself had

valued the tractor.

     However, in pursuing this argument the Director overlooks the

all too likely possibility that, had Cox put on some evidence as to

the collectible    value    of   the   tractor,   it   would   have   greatly

diminished the jury’s reliance on other, weaker indicia of the

tractor’s value, such as the arbitrary amount Cox was willing to

forgo for it.      Strickland requires that there be a reasonable

probability that, but for Cox’s attorney’s errors, he would have

prevailed at trial.        This standard is met in this case.                The

complete absence of any evidence proffered by the defense on the

most critical issue of the case – the collectible value of the

tractor   –   rendered   the   proceeding   “unreliable”       such   that   it

undermines confidence in the verdict.

                                       E

     Concluding, in our independent judgment, that Cox proved

ineffective assistance does not alone resolve this matter, however.

To uphold the district court’s grant of habeas relief, we must also

conclude that the state court’s denial of Cox’s petition “involved

an unreasonable application of clearly established Federal law, as




                                   -21-
determined by the Supreme Court of the United States.”30                  It is

well-settled that the rule set forth in Strickland qualifies as

“clearly established Federal law.”31             Therefore, for Cox to prevail

the state courts must have applied Strickland unreasonably. As the

Supreme     Court     has    instructed,         “[u]nder   the   ‘unreasonable

application’ clause, a federal 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.”32

     The district court did not err in concluding that the state

courts’ application of Strickland to the facts presented was

unreasonable.       As Cox’s trial counsel conceded, and as is apparent

from the record, whether Cox presented a collectible tractor expert

was critical to his attempt to receive a misdemeanor instead of a

felony conviction.           His attorney knew this, but despite this

knowledge failed to make reasonable efforts to secure such an

expert.      To     find    that   this    did    not   constitute   ineffective

assistance of counsel is not only incorrect, but unreasonable.



     30
          28 U.S.C. § 2254(d)(1).
     31
          (Terry) Williams v. Taylor, 529 U.S. 362, 391 (2000).
     32
       Id. at 413. Although the magistrate judge acknowledged that
Cox’s claim should be analyzed under the “unreasonable application”
prong of § 2254(d)(1), it incorrectly applied the standard
applicable to the “contrary to” prong, which looks to whether the
state courts decided the claim “differently than ... [the Supreme
Court] has on a set of materially indistinguishable facts.”

                                          -22-
AFFIRMED.




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