                 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 En Banc
        October 5, 2006—San Francisco, California

                  Filed February 1, 2007

     Before: Mary M. Schroeder, Chief Circuit Judge,
    Betty B. Fletcher, Harry Pregerson, Alex Kozinski,
         Pamela Ann Rymer, Andrew J. Kleinfeld,
         Michael Daly Hawkins, Susan P. Graber,
 Raymond C. Fisher, Richard A. Paez, Richard C. Tallman,
Johnnie B. Rawlinson, Richard R. Clifton, Jay S. Bybee, and
               Carlos T. Bea, Circuit Judges.

               Opinion by Judge Hawkins;
              Concurrence by Judge Graber;
                Dissent by Judge Fisher




                           1165
                     EDWARDS v. LAMARQUE                    1169
                          COUNSEL

David C. Cook, Deputy Attorney General, Office of the Attor-
ney General of the State of California, Los Angeles, Califor-
nia, for the respondent-appellant.

Steven S. Lubliner, Law Offices of Steven S. Lubliner, Peta-
luma, California, for the petitioner-appellee.


                          OPINION

HAWKINS, Circuit Judge:

   Petitioner-appellee Kristopher C. Edwards was convicted
of murder in state court and sentenced to life in prison without
possibility of parole. The district court granted his § 2254
habeas petition, finding that Edwards’s trial attorney had mis-
takenly caused Edwards to waive his marital privilege and
that this constituted prejudicial error entitling Edwards to
relief for ineffective assistance of counsel. The state appealed,
and a divided panel of this court affirmed, Edwards v. LaMar-
que, 439 F.3d 504 (9th Cir. 2005); we granted rehearing en
banc, 455 F.3d 973 (9th Cir. 2006), and now reverse.

     FACTS AND PROCEDURAL BACKGROUND

   This case involves something of a murder mystery about
which there is little mystery. In 1996, based on information
obtained from Edwards’s wife, Kemet Gaines, Edwards was
arrested and charged with first degree murder, insurance
fraud, and conspiracy to commit insurance fraud. Before trial,
and in anticipation of Gaines’s testimony, Edwards’s counsel
John Meyers raised the issue of marital privilege under Cali-
fornia Evidence Code § 980. The trial court ruled that
although Gaines could testify about her observations of
Edwards’s behavior around the time of the murder, she could
1170                EDWARDS v. LAMARQUE
not specifically testify about conversations between them
because of the privilege.

   At trial, the prosecution’s evidence showed that, at some
time in 1990, Edwards and the victim, Don Thomas, con-
spired to defraud Edwards’s automobile insurance company.
Thomas took Edwards’s Mercedes Benz, stripped parts from
the car, and then abandoned it. Edwards reported the car as
stolen and filed an insurance claim. According to their plan,
once the Mercedes was “recovered,” they would then replace
the parts and Edwards would pay Thomas for his participa-
tion. The scheme went awry, however, because Thomas
stripped too many parts and the insurance company “totaled”
the car, resulting in a smaller payout and loss of the car.

   Thomas and Edwards exchanged threats and angry phone
calls in the spring of 1991. In mid-July, Edwards received a
check for $3,267.86 from his insurance company and depos-
ited it in his bank. Edwards testified that on the evening of
July 16, he telephoned Thomas and told him he could come
either to Edwards’s house or to the barbershop where
Edwards worked to get his money, but that Thomas never
showed up.

   The next evening, Thomas’s body was found in the alley
behind the barbershop. Thomas had been shot with both a 9
millimeter and a .38 caliber handgun. Ballistics evidence
revealed that the 9 millimeter bullets retrieved from the mur-
der scene had been fired from a 9 millimeter weapon regis-
tered to Edwards’s wife. His wife was also the registered
owner of a .38 caliber handgun, but this gun was unavailable
for testing at the time of Edwards’s trial. However, the bullet
retrieved from Thomas was consistent with being fired from
the type of .38 handgun registered to Gaines. Gaines testified
that she had purchased these weapons for Edwards at his
request because (as a convicted felon) he could not purchase
them himself.
                    EDWARDS v. LAMARQUE                   1171
   Gaines testified that on the evening Thomas was murdered,
she had gone to visit her brother and returned home to find
Edwards acting nervous and jittery. She also indicated he was
scrubbing his hands with laundry detergent. During cross-
examination, Meyers asked Gaines what reason Edwards had
offered for washing his hands. The prosecutor objected and at
a sidebar argued that Meyers was asking about confidential
communications and that Edwards would be waiving the mar-
ital privilege if he continued. Meyers withdrew the question.

   Gaines continued to testify that, the following evening,
Edwards received a phone call and then grabbed a shotgun,
started looking out the window, and eventually took her to a
nearby motel for the night. The next day, the couple left for
Florida, where they stayed a few days, and then they resettled
in Michigan. Some eight months later, Gaines left Edwards
and returned to Los Angeles. Located by police following her
return, Gaines provided information that led to Edwards’s
arrest. Gaines was given immunity from prosecution in
exchange for her testimony against Edwards.

  Thomas’s cousin, Tyrone Melton, also testified for the
prosecution. After learning of Thomas’s death, Melton called
Edwards to accuse him of the murder. Thomas testified that
Edwards threatened, “I’ll fuck you up too,” thus implicitly
admitting to killing Thomas.

   In the face of this evidence, Edwards chose to take the
stand and tell his side of the story. Edwards testified that he
had agreed to pay Thomas $1,500 for his role in the insurance
fraud, and that he had given Thomas the two handguns owned
by Gaines to keep as collateral. If Thomas wanted to keep the
guns, then Edwards would pay him only $1,000 instead.

  Edwards claimed he was home alone at the time of the
murder. He testified that one of his puppies had an accident
on the carpet and that he had cleaned it up and that was why
he was washing his hands with detergent when his wife
1172                EDWARDS v. LAMARQUE
returned home. Meyers asked Edwards, “Did you tell her
what had happened with the dog?” Edwards answered,
“About the dogs, yes.”

   Edwards confirmed that he had received a call from Thom-
as’s cousin Melton, accusing Edwards of killing Thomas.
According to Edwards, that same day, an anonymous caller
threatened: “You and that bitch are dead. We know where
you’re at and we know where you live.” At this point,
Edwards turned off the lights, loaded a shotgun, and stood by
the window. Edwards said his wife started hollering “What’s
going on? What’s happening? What’s wrong?” Meyers asked
Edwards, “Did you tell her anything?” Edwards replied, “I
told her ‘Somebody killed Don [Thomas] and they think I had
something to do with it, and they just threatened to come and
kill us.’ ”

   The prosecutor objected and called for a sidebar, arguing
that Edwards had waived the marital communications privi-
lege by this testimony. Meyers argued that not every marital
conversation is privileged, and also argued vigorously that
even if Edwards had waived the privilege regarding the con-
versation on the second night about the phone call, this waiver
did not extend to other conversations that had occurred earlier
between Edwards and his wife. The following morning, the
court revisited the issue and indicated that it believed under
People v. Worthington, 113 Cal. Rptr. 322 (Ct. App. 1974),
Edwards no longer had an expectation of privacy in the con-
versations with his wife about the murder. Meyers attempted
to distinguish Worthington and again argued that any waiver
was only with respect to a single conversation and should not
be construed as a broad waiver, but the court disagreed.

   Almost immediately, Meyers stated that the court’s ruling
raised a significant ineffective assistance of counsel claim for
appeal. The court again disagreed with Meyers:

    The Court: Well I don’t agree. I don’t think it’s
               inadequate representation. He chose to
                       EDWARDS v. LAMARQUE                         1173
                    take the stand and he wanted to tell his
                    version. And the only way he can tell
                    his version is to tell it as he has told it.

                       And I think it’s a tactical decision.
                    Maybe you didn’t anticipate it was
                    breaching the privilege, but I don’t see
                    that as —

      Meyers:       It wasn’t a tactic. It was a mistake.

      The Court: I don’t see it as ineffective assistance.

   The prosecution called Gaines again in rebuttal. This time
she testified that Edwards had told her to visit her brother on
the night of the murder, and that she thought this was “very
odd” because he usually did not encourage her to spend time
with her family. She also testified that when she returned
home and saw him scrubbing his hands, she asked him what
he had done. At first, Edwards did not reply, and then Gaines
asked him whether he had killed Thomas. According to
Gaines, Edwards replied, “I’ll put it to you like this: you don’t
have to worry about hearing from him again.” On cross-
examination, Meyers brought out the point that the couple did
have a young puppy in July 1991 and that Gaines had failed
to mention Edwards’s supposed confession in her first inter-
view with the police.

   At the end of the first trial, the jury convicted Edwards of
the insurance fraud counts, but deadlocked on the murder
charge.1 A different attorney represented Edwards in the
retrial on the murder charge. Following new argument about
the waiver issue, the second trial court ruled that the waiver
of marital privilege would apply to the retrial and agreed with
  1
   We can only speculate why this happened, but it appears that there was
some racial animosity between the jurors, which may have led one juror
to become a holdout vote for acquittal.
1174                 EDWARDS v. LAMARQUE
the first trial court that Meyers made a tactical decision to ask
the questions that led to waiver, and that Meyers was not inef-
fective for doing so. The court similarly denied a midtrial
motion for mistrial. This time, the jury convicted Edwards of
the murder. The court also denied Edwards’s post-conviction
motion for a new trial, which again asserted ineffective assis-
tance of counsel with respect to Meyers’s actions that waived
the privilege.

   On direct appeal, Edwards argued that the trial court erro-
neously found that the marital privilege was waived, that the
waiver was limited in scope, and that Meyers had rendered
ineffective assistance of counsel. The California Court of
Appeal held that the first trial court had properly found that
the privilege had been waived. It also rejected Edwards’s
claim of ineffective assistance. The court stated:

       The trial court also properly determined that elicit-
    ing appellant’s testimony about his version of that
    conversation did not constitute ineffective assistance
    of counsel. To establish ineffective assistance of
    counsel, a defendant must show that counsel’s repre-
    sentation fell below an objective standard of reason-
    ableness under prevailing professional norms and
    that there is a reasonable probability that, but for
    counsel’s deficient performance, the defendant
    would have obtained a more favorable outcome. In
    determining whether counsel’s performance was
    deficient, a court must generally exercise deferential
    scrutiny, viewing the reasonableness of counsel’s
    acts under the circumstances as they stood at the
    time counsel acted and should not second-guess rea-
    sonable tactical decisions. The trial court need not
    accept a self-proclaimed assertion by trial counsel
    that trial counsel’s performance was inadequate.

      In view of the strong evidence against appellant,
    defense counsel could reasonably have decided to
                       EDWARDS v. LAMARQUE                     1175
    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.

(citations omitted).

   Edwards filed a petition for review in the California
Supreme Court, but received a postcard denial. Edwards then
filed his habeas petition in the district court in December
2001, alleging, among other claims, that Meyers provided
ineffective assistance. A magistrate judge issued a report and
recommendation, recommending that the district court grant
the petition on the ineffective assistance of counsel claim. The
magistrate judge concluded that the state court determination
that Meyers had made a tactical decision was objectively
unreasonable in light of the facts before it. The magistrate
judge also concluded that even if a tactical decision, it was not
a reasonable one, and also found that Edwards had been prej-
udiced by this error. The district court adopted the report and
recommendation and granted Edwards’s petition, and this
appeal followed.

                         DISCUSSION

                                I

  Edwards’s appeal is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
1176                EDWARDS v. LAMARQUE
§ 2254, which significantly constrains our review of state
court proceedings. We may not grant a writ of habeas corpus
on behalf of a person in state custody unless the state’s adju-
dication of his claim “(1) resulted in a decision that was con-
trary 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.” Id.
§ 2254(d).

  The Supreme Court instructs that, in determining whether
a state court’s application of law or factual determination is
“unreasonable,” we cannot simply consider whether we would
have reached a different outcome on the same record. Rice v.
Collins, 126 S. Ct. 969, 976 (2006) (stating that “[r]easonable
minds reviewing the record might disagree about” the ulti-
mate issue is insufficient for habeas relief). “The ‘unreason-
able application’ clause requires the state court decision to be
more than incorrect or erroneous.” Lockyer v. Andrade, 538
U.S. 63, 75 (2003). Only if the evidence is “too powerful to
conclude anything but” the contrary should we grant relief.
Miller-El v. Dretke, 545 U.S. 231, 265 (2005).

   [1] Because this case involves a claim of ineffective assis-
tance of counsel, there is an additional layer of deference to
the choices of trial counsel. We “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.”
Strickland v. Washington, 466 U.S. 668, 689 (1984) (internal
quotation marks omitted). To prevail on a claim of ineffective
assistance, a petitioner must demonstrate that “counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed . . . by the Sixth Amendment,” id. at
687, and that “there is a reasonable probability that, but for
                    EDWARDS v. LAMARQUE                    1177
counsel’s unprofessional errors, the result of the proceeding
would have been different,” id. at 694.

                               II

                               A

   We begin by considering the state court’s determination
that Meyers made a tactical decision to ask the questions
which led Edwards to waive the marital privilege. We must
apply AEDPA’s standards to the state court’s “last reasoned
decision” on the claim, see Ylst v. Nunnemaker, 501 U.S. 797,
803-04 (1991), which in this case was the opinion of the Cali-
fornia Court of Appeal. Although “AEDPA generally requires
federal courts to review one state decision,” if the last rea-
soned decision adopts or substantially incorporates the rea-
soning from a previous state court decision, we may consider
both decisions to “fully ascertain the reasoning of the last
decision.” Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir.
2005), cert. denied, 126 S. Ct. 2041 (2006). In ruling on
Edwards’s ineffective assistance of counsel claim, the Califor-
nia Court of Appeal refers back to and incorporates the rea-
soning of the first trial court to conclude that Meyers made a
reasonable tactical decision.

  [2] Although the reasonableness of counsel’s decision is
best described as a question of law, whether Meyers’s actions
were indeed “tactical” is a question of fact. See, e.g., Holsom-
back v. White, 133 F.3d 1382, 1386-87 (11th Cir. 1998); Ber-
ryman v. Morton, 100 F.3d 1089, 1095 (3d Cir. 1996).
Therefore, we must initially decide whether the state court
made an unreasonable determination of the facts in light of
the evidence before it. Taylor v. Maddox, 366 F.3d 992, 999-
1000 (9th Cir. 2004).

  [3] We recognize that Meyers himself quickly claimed he
made a mistake, rather than a tactical decision. As the Califor-
nia Court of Appeal noted, however, the trial court was not
1178                     EDWARDS v. LAMARQUE
obligated to “accept a self-proclaimed assertion by trial coun-
sel” of inadequate performance. The trial court judge, who
was in a unique position to observe Meyers’s actions through-
out the trial, rejected this assertion and the California Court
of Appeal deferred to that determination.2 We do the same.
See Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (hold-
ing that federal habeas courts have “no license to redetermine
credibility of witnesses whose demeanor has been observed
by the state trial court, but not by them”).

   We are also aware that there are portions of the record
where Meyers appeared to misunderstand the marital privi-
lege. However, midtrial the court clearly advised Meyers that
he could not characterize certain conversations as non-
confidential and thereby preclude the government from intro-
ducing Gaines’s differing version of the same conversation.
Meyers heeded this warning and withdrew a question to
Gaines during his cross-examination. This sequence of events
supports the trial court’s rejection of Meyers’s claim of mis-
take, which occurred shortly thereafter.

   [4] We might reach a different conclusion on the cold
record if we were reviewing de novo. But that is not our task.
See McClure v. Thompson, 323 F.3d 1233, 1243-44 (9th Cir.
2003) (holding that state court findings of fact are entitled to
deference even though evidence may cast doubt on findings
such that federal court would have made different findings of
fact). The trial court judge who had observed Meyers through-
out the trial readily dismissed Meyers’s assertion that he had
made a mistake. It was Meyers who raised the issue of spou-
sal privilege pretrial and obtained a favorable ruling for his
client. Even though during trial it may have appeared that
  2
    Although the California Court of Appeal did not rely on the determina-
tion of the second trial court on this issue, we share that court’s skepticism
of Meyers’s mea culpa: “Well, that’s a nice way to try to protect your cli-
ent, but I’m not sure that that’s—that’s a real admission of incompetence
of counsel.”
                    EDWARDS v. LAMARQUE                    1179
Meyers did not fully comprehend the scope of that ruling, the
consequences of inquiring into spousal communications was
clearly brought into focus by the court during Gaines’s cross-
examination. With full knowledge of this, Meyers still had
Edwards testify to his version of events, including the expla-
nations he made to his wife. Meyers may have hoped that he
could “get by” with this line of questioning without waiving
the privilege, or at least without waiving it as to all communi-
cations, but it was not objectively unreasonable for the trial
court and the California Court of Appeal to conclude on the
facts before them that Meyers intentionally asked those ques-
tions of Edwards as part of his trial tactics.

                               B

   Our conclusion, of course, raises the question of whether
Meyers’s tactics were reasonable. In evaluating the reason-
ableness of counsel’s actions, a reviewing court must consider
the circumstances at the time of counsel’s conduct, Strickland,
466 U.S. at 690, and cannot “second-guess” counsel’s deci-
sions or view them under the “fabled twenty-twenty vision of
hindsight,” LaGrand v. Stewart, 133 F.3d 1253, 1271 (9th
Cir. 1998) (internal quotation marks omitted).

   As the California Court of Appeal recognized, Meyers was
confronted with a strong case against his client. If Edwards
did not testify, the jury would be left with no explanation for
the prosecution’s evidence, including the bizarre conduct his
wife observed around the time of the murder — the hand
washing, the pacing with the shotgun, the sudden out-of-state
departure, etc. The district court, however, reasoned that
Edwards could have presented his explanation for these
events — the dog mess and the anonymous threatening phone
call — without going into confidential communications with
Gaines and thus had nothing to gain by risking waiver of the
marital privilege.

  This reasoning, however, goes only so far. Having already
heard Gaines testify about her observations — including how
1180                EDWARDS v. LAMARQUE
strange she considered Edwards’s behavior — the jury was
left to speculate whether Edwards had even attempted to
explain his actions to his wife or whether he simply let her
think he was a murderer. After all, would not a truly innocent
man have justified his behavior to his wife? Moreover, with-
out Edwards’s testimony that he had conveyed the caller’s
threat — which was supposedly directed at both Edwards and
his wife — to Gaines, there was no innocent explanation for
her decision to accompany him on their cross-country trek.
The couple’s sudden flight was one of the most damaging
pieces of the prosecution’s case, and Edwards certainly did
not want the jury to have the impression that his wife accom-
panied him out of fear of him as a murderer, as opposed to
fear of a third party.

   [5] Moreover, the district court’s conclusion that Meyers’s
conduct was unreasonable presumes that the finding of waiver
of the marital privilege was a foregone conclusion. Meyers,
however, argued forcefully that he could question Edwards
about his conversation with Gaines on the night after the mur-
der without opening the door to different conversations with
her the night before. Although his argument did not prevail,
it was not an unreasonable argument in light of California law
at the time. The primary case relied on by the trial court, Peo-
ple v. Worthington, 113 Cal. Rptr. 322 (Ct. App. 1974),
involved dueling versions of a single conversation. Other Cal-
ifornia cases suggested that waiver of privilege was limited
and that a disclosure would waive the privilege only if it
amounts to a “significant part” of the confidential communi-
cation. See, e.g., Owens v. Palos Verdes Monaco, 191 Cal.
Rptr. 381, 390 (Ct. App. 1983) (“[A] waiver under Evidence
Code section 912 relates to the particular communication
which has been revealed and not to all communications con-
cerning the subject matter of the lawsuit.”), disapproved on
other grounds by Applied Equip. Corp. v. Litton Saudi Ara-
bia, Ltd., 869 P.2d 454, 464 n.10 (Cal. 1994). Indeed, this
very argument about the limited scope of the waiver was
                       EDWARDS v. LAMARQUE                         1181
repeated by Edwards’s second trial counsel and again on
appeal.

   Finally, an additional factor that must be weighed in evalu-
ating the risks and benefits at the time of Meyers’s decision
is how devastating the downside would be if the court did find
waiver as to all spousal communications. Meyers knew from
one of the police reports that Gaines claimed Edwards had
confessed to her on the night of the murder. Meyers also
knew, however, that he could impeach Gaines’s credibility
with not only her grant of immunity from prosecution, but
also with her omission of this obviously critical information
from her first interview with police (even though she had
given them other information pointing toward Edwards as the
murderer). In the end, in a worst-case scenario, Meyers would
wind up with a “he said, she said” credibility battle, but it
might be his client’s only hope for acquittal.

   Meyers’s decision to ask Edwards about conversations with
his wife was certainly risky and may not have turned out the
way he had hoped. But there are many different reasonable
ways to try a case and, in Meyers’s mind, desperate times
may have called for desperate measures. The California Court
of Appeal recognized this as well, concluding in light of the
“strong evidence” against Edwards that Meyers’s decision
was reasonable and did not amount to ineffective assistance.
Giving proper deference to this state court conclusion, and
even though we might reach a different conclusion under a
different standard of review, we cannot say that this determi-
nation was an objectively unreasonable application of Strick-
land to the facts of this case.3
   3
     Because of our determination, we need not reach the prejudice prong
of Strickland. We do, however, agree with the California Court of Appeal
that there was strong evidence against Edwards even without his wife’s
testimony. Gaines’s testimony about Edwards’s confession, although dam-
aging, was not the piece of evidence that tipped an otherwise balanced
scale in favor of the prosecution; it was more the bow on top of a nicely
wrapped package of motive, means, ballistics evidence, implied confes-
sion, and consciousness of guilt.
1182                EDWARDS v. LAMARQUE
                              III

   [6] We reverse the district court’s habeas grant. The Cali-
fornia Court of Appeal was not objectively unreasonable in
determining that Edwards’s counsel made a reasonable, tacti-
cal decision to ask the questions that led to Edwards’s waiver
of the spousal privilege.

  REVERSED.



GRABER, Circuit Judge, specially concurring:

  I concur in the result but not in all of the reasoning of the
majority opinion.

   I agree with Part II(A) of the dissent, which concludes that
Defendant’s counsel mistakenly waived Defendant’s marital
privilege, misunderstood the law, and did not make a “tacti-
cal” decision. The state court unreasonably found the decision
to have been “tactical.”

   But, because of our highly deferential standard of review,
I agree with Part II(B) of the majority opinion, which holds
that the state court permissibly concluded that counsel’s per-
formance was not objectively unreasonable under the first
prong of Strickland v. Washington, 466 U.S. 668 (1984). Not
every mistake requires a conclusion that counsel acted outside
the bounds of professional competence. Moreover, in my
view, for the reasons alluded to in the majority’s footnote 3,
Defendant did not demonstrate prejudice under the second
prong of Strickland.

  Accordingly, I concur in the result.
                      EDWARDS v. LAMARQUE                       1183
FISHER, Circuit Judge, with whom B. FLETCHER, PRE-
GERSON, PAEZ and RAWLINSON, Circuit Judges, join in
dissent:

   The objective record embodied in the trial transcript plainly
shows that Edwards’ counsel, John Meyers, never understood
the California law of marital privilege. In granting the writ,
the district judge, himself an experienced former California
Superior Court judge, found that Meyers’ waiver of Edwards’
privilege was neither tactical nor reasonable. Nonetheless, the
California Court of Appeal held that Meyers made the tactical
decision to intentionally waive Edwards’ privilege rights. The
majority reads the Court of Appeal’s decision as concluding
that Meyers simply made a high-risk tactical decision to try
to get into evidence one of Edwards’ conversations with his
wife without opening the door to her damning account of his
supposed confession to her. But even if the majority’s reading
is accurate, tactics based on ignorance cannot be what Strick-
land contemplates as “sound trial strategy,” see Strickland v.
Washington, 466 U.S. 668, 689 (1984); rather it is the essence
of attorney incompetence to fail to understand the governing
law necessary to formulate such a strategy. The clear record
evidence of incompetence here is “too powerful to conclude
anything but” that Meyers mistakenly waived Edwards’ mari-
tal privilege. Miller-El v. Dretke, 545 U.S. 231, 265 (2005).1
Moreover, we cannot agree with the dire picture the majority
paints to justify Meyers’ supposed strategy — that “desperate
circumstances require desperate measures.” The district court
carefully analyzed the trial record in concluding that the bene-
fits of getting Edwards’ version of what he said to his wife,
Kemet Gaines, about the anonymous caller were dwarfed by
the risk of Gaines then being allowed to testify about her
highly prejudicial version of the “dog mess” conversation.
  1
   See Edwards v. Lamarque, 439 F.3d 504 (9th Cir. 2005), vacated, 455
F.3d 973 (9th Cir. 2006).
1184                 EDWARDS v. LAMARQUE
   We are mindful that AEDPA sets a high standard to allow
us to find a state court’s application of law or factual determi-
nation to be “unreasonable,” see 28 U.S.C. § 2254(d); Rice v.
Collins, 126 S. Ct. 969, 976 (2006), and that we must presume
an attorney’s conduct involved a competent trial strategy, see
Strickland, 466 U.S. at 689. On this record, however, we con-
clude that Edwards clears both hurdles. Meyers lacked the
legal competence to make such a decision. His inappropriate
questions, misinformed legal arguments and the predictable
damage resulting from opening the door to his wife’s version
of their discussion are ample evidence of his incompetence.
An attorney cannot make an informed tactical decision to
waive a privilege he does not understand. Thus it was objec-
tively unreasonable for the California Court of Appeal to find
Meyers effective here. Because Edwards was prejudiced by
his counsel’s deficient representation, we would affirm the
district court’s grant of Edwards’ habeas petition. We there-
fore respectfully dissent.

                           I.   Facts

   The majority’s summary of the facts understates the extent
to which Meyers lacked a basic understanding of the law of
privilege and waiver, as evidenced by the trial transcript.
Meyers failed to understand the law governing marital privi-
lege, not just at the beginning of trial but throughout. He
never shook his misperception that he could pick and choose
parts of sensitive communications between Edwards and
Gaines without waiving the privilege, even when warned by
both the prosecutor and the trial judge. His misunderstanding
led directly to his waiver of Edwards’ rights.

   Meyers knew before trial that Edwards’ wife had told
police that she was prepared to testify that during the
exchange with Edwards on July 17 about why he was washing
his hands, he had confessed to murdering Don Thomas. In
anticipation of Gaines’ testimony, Meyers raised the issue of
marital privilege, obtaining a trial court ruling in limine that
                    EDWARDS v. LAMARQUE                  1185
Gaines could testify only about discussions between her and
Edwards regarding the insurance fraud scheme, and about her
observations of Edwards’ behavior on the nights in question.

   Nonetheless, Meyers proceeded nearly to fumble away the
benefit of this limiting order by asking Gaines what reason
Edwards had given for washing his hands on July 17, the
night of the murder. Responding to an objection from the
prosecution that Meyers was getting into privileged territory,
Meyers asserted at sidebar that the conversation about
Edwards’ washing his hands was “not a confidential commu-
nication.” Meyers argued that some conversations between
Edwards and Gaines were confidential, but others were not.
Astonishingly, Meyers also argued that he could ask Gaines
about communications with Edwards because she had waived
her marital privilege by taking the stand. Meyers mistakenly
believed that because Gaines was not asserting her marital
privilege, he could ask her about confidential communications
with Edwards without waiving Edwards’ privilege.

   The trial judge attempted to clarify waiver law for Meyers,
explaining that other than statements made in furtherance of
the insurance fraud crime, “any statements that are made are
. . . confidential because they are between a husband and a
wife.” Accord North v. Superior Court of Riverside County,
8 Cal. 3d 301, 310 (Cal. 1972) (holding that all statements
made between husband and wife are presumed confidential).
The court also informed Meyers that he could not “character-
ize certain conversations as [not] confidential because
[Edwards and Gaines] might happen to be talking about the
dog. They are still confidential.” Meyers responded, “That’s
a pretty good issue,” and withdrew the question.

   Despite the trial court’s lesson in evidence law, Meyers
continued to blunder. During his direct examination of
Edwards, Meyers asked about the evening of July 18 when
Edwards received a death threat over the telephone from the
victim’s cousin, Tyrone Melton. Specifically, Meyers asked
1186                EDWARDS v. LAMARQUE
Edwards whether he told Gaines anything about the phone
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.’ ” After another objection
from the prosecution, the court told Meyers that he had
allowed Edwards to waive the marital privilege by “testify-
[ing] to what [Edwards] told [Gaines].” Meyers objected, con-
tending once again that “every statement made between a
husband and wife is not a confidentiality privilege” and that
Edwards had not waived the privilege because any communi-
cation between Edwards and Gaines regarding the phone call
“wasn’t confidential.” When told by the court that Edwards
could not “pick and choose” which conversations were confi-
dential and which were not, Meyers replied, “Sure you can.”
Obviously, the court’s prior explanation that all communica-
tions between husband and wife are presumed confidential
had been lost on Meyers.

   The court gave Meyers the opportunity to come in the next
morning and provide some authorities for his proposition that
Edwards could designate certain conversations confidential
and others not confidential. Significantly, Meyers returned
empty-handed, and was forced on the spot to read and
respond to the key California case — People v. Worthington,
38 Cal. App. 3d 359 (Ct. App. 1974) — which was new to
him. Meyers’ extemporaneous riff on Worthington predict-
ably did not persuade the judge, who ruled that Edwards’
marital privilege indeed had been waived. Meyers immedi-
ately responded, “Well, one thing for the record, that raises a
significant [ineffective assistance of counsel] 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 inadequate representation of counsel.” The trial court
disagreed, finding that it was a “tactical decision,” although
adding that “[m]aybe you didn’t anticipate it was breaching
                      EDWARDS v. LAMARQUE                        1187
the privilege . . . .” Meyers responded, “It wasn’t a tactic. It
was a mistake.”2

                         II.   Discussion

  A.    Meyers Mistakenly Waived Edwards’ Privilege

   The district court correctly rejected the California Court of
Appeal’s finding that Meyers’ acts reflected “tactical” deci-
sions. The Court of Appeal reasoned that:

      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
      assistance of counsel.

(Emphasis added.)

  In essence, the court assumed that Meyers deliberately
decided to open the door to Gaines’ confession testimony,
notwithstanding his earlier efforts to keep her testimony out
and despite his articulated misunderstanding of the all-or-
nothing character of the privilege. Such a high risk, self-
  2
    We agree with the majority that Meyers’ mea culpa claiming mistake
is not dispositive. (Op. at 1177-78.)
1188                     EDWARDS v. LAMARQUE
destructive defense strategy seems implausible on its face. As
borne out by the transcript, and by the obviously devastating
impact on Edwards’ defense of letting Gaines testify that he
had essentially admitted to having killed Don Thomas, the
Court of Appeal’s reading of the record is not just implausible
but objectively unreasonable.

   The majority, which apparently does not want to defend the
Court of Appeal’s decision as written, acknowledges that
Meyers at least initially “appeared to misunderstand the mari-
tal privilege,” (Op. at 1178), but posits that Meyers — warned
by the trial court that he could not ask about parts of Edwards’
conversations with his wife — then made the tactical decision
to ask the questions that led Edwards to waive the marital
privilege, perhaps hoping he could “get by” without actually
opening the door to Gaines’ damaging testimony. (Op. at
1179.) The record simply does not bear out such a knowl-
edgeable strategy. Rather it shows that Meyers persisted in
thinking he could ask about one interchange between the hus-
band and wife without opening up their broader communica-
tions about the events of July 1991. Even the trial judge in
calling Meyers’ questioning “tactical” acknowledged, “Maybe
you didn’t anticipate it was breaching the privilege . . . .” That
observation not only underscores Meyers’ legal incompe-
tence, but it gives the lie to the notion that Meyers had delib-
erately decided to waive the privilege.3
   3
     Like the majority, we recognize that the trial judge “had observed
Meyers throughout the trial.” (Op. at 1178.) However, given the judge’s
seemingly contradictory conclusion that Meyers waived Edwards’ rights
as a litigation tactic but may not have known he was doing so, his “tacti-
cal” finding should carry less weight, notwithstanding the deference we
owe the trial judge and the limitations of appellate review from a trial tran-
script. Cf. Rice v. Collins, 126 S. Ct. 969, 975-76 (2006) (reviewing credi-
bility findings of state trial court); see also id. at 977 (Breyer, J.,
concurring) (reminding that “[t]he trial judge is best placed to consider the
factors that underlie credibility” and that “[a]ppellate judges cannot on the
basis of a cold record easily second-guess a trial judge’s decision about
likely motivation” when reviewing Batson challenges). The trial judge did
                        EDWARDS v. LAMARQUE                          1189
   In short, Meyers made no tactical decision to reverse course
and let the prosecution put on Gaines’ damaging confession
testimony. He opened the door by mistake, plain and simple.
The Court of Appeal’s conclusion that Meyers intended to
waive his client’s privilege simply is not borne out by the
record. Nor is the majority’s alternative explanation objec-
tively reasonable. The only “tactical” decision Meyers made
was to get in Edwards’ statement to Gaines about the anony-
mous caller’s threat, thinking he could limit it to that. A tacti-
cal decision with devastating consequences based on a
mistake of law is not effective assistance of counsel.

  B.    Meyers’ Performance was Deficient

   Even if the California Court of Appeal reasonably under-
stood Meyers to have made a tactical decision to waive the
privilege, the state court unreasonably applied the Strickland
standard in finding the tactic to be reasonable. By waiving
Edwards’ marital privilege and exposing him to the devastat-
ing impact of a confession for little testimony of value in
return, Meyers acted outside the bounds of professional com-
petence. Indeed, the calculus was so one-sided as to reinforce
the conclusion that Meyers acted out of ignorance.

   In Strickland, the Supreme Court held that to prevail on an
ineffective assistance claim, a petitioner “must show that
counsel’s performance was deficient. This requires showing
that counsel made errors so serious that counsel was not func-
tioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” 466 U.S. at 687. As the district court properly
recognized, the Supreme Court and this circuit have compared

not articulate any reasoning that is not captured by the trial transcript —
Meyers’ demeanor, for example — but rather the judge appears to have
accepted, as the majority now does, that it is constitutionally acceptable
for an attorney to make a strategic decision based on an erroneous under-
standing of the law.
1190                EDWARDS v. LAMARQUE
the risks and benefits associated with a lawyer’s tactical deci-
sions. See, e.g., Darden v. Wainwright, 477 U.S. 168, 186
(1986); Mak v. Blodgett, 970 F.2d 614, 619 (9th Cir. 1992).
If we apply that kind of analysis to Meyers’ decision to waive
the privilege, the ledger is decidedly one-sided against waiver.
By waiving Edwards’ marital privilege, Meyers opened the
door to testimony from Gaines. Meyers knew that Gaines was
openly hostile to Edwards and had told police that he had con-
fessed the murder to her. Not only did Gaines tell the police
about his confession, but she told them that “he’s crazy,” she
feared him and he had threatened her. Indeed, it was Gaines
who, five years after the murder, tipped off the police that her
husband was the murderer. Meyers knew that Gaines was
firmly in the prosecution’s camp. Balanced against this near-
certain and near-dispositive evidence, there was little for
Edwards to gain from Gaines’ testimony.

   The majority speculates that Meyers waived the privilege
so that the jury would not be left to wonder whether Edwards
attempted to explain his behavior — such as pacing the apart-
ment with a shotgun and washing his hands — to his wife.
(Op. at 1180.) But Edwards had already explained his behav-
ior to the jury — without waiving the marital privilege —
simply by testifying that Melton had threatened both him and
his wife, and by describing his attempt to clean up his dog’s
mess. The additional question of whether Edwards tried to
explain those actions to his wife concerns a minor detail that
pales in importance to Gaines’ revelation of Edwards’ confes-
sion.

   Similarly, the majority states that without waiver, “there
was no innocent explanation for [Gaines’] decision to accom-
pany him on their cross-country trek.” (Op. at 1180.) That
assertion is perplexing; Edwards testified that Melton had
threatened both Edwards and Gaines without waiving the
privilege. Such testimony did not require delving into confi-
dential communications between Edwards and Gaines and
provided reason enough to explain why Gaines accompanied
                       EDWARDS v. LAMARQUE                        1191
Edwards when he fled from the state. The only benefit
Edwards could have hoped to receive from waiving the privi-
lege was showing that Gaines knew she too had been threat-
ened by the victim’s cousin. Once again, we are not persuaded
that it was reasonable for Meyers to seek the minimal benefit
accorded by this additional fact in exchange for the near-
certain revelation of a murder confession.

   Nor was Meyers’ waiver of Edwards’ privilege reasonable
even assuming there was a non-frivolous argument that
waiver should be limited to conversations that occurred on
July 18, the night after Edwards confessed to his wife. (Op.
at 1180-81.) That the scope of waiver was unsettled under
California law at the time only bolsters my conviction that
Meyers’ decision to waive was unreasonable. In light of the
considerable risk posed by Gaines’ testimony, Meyers should
not have plowed blindly into protected communications with-
out first attempting to clarify the effect of waiver through a
motion in limine.4

   The majority excuses Meyers’ decision to waive the privi-
lege by recalling the adage, “desperate times call for desperate
measures.” (Op. at 1181.) As a preliminary matter, character-
izing Edwards’ case as desperate is misleading. All of the evi-
dence linking Edwards to the crime was circumstantial.
Although the victim’s cousin, Tyrone Melton, testified that
Edwards told him, “And I’ll fuck you up too,” Melton’s testi-
mony was ambiguous and weak in comparison to what Gaines
would have to say. On cross-examination, Melton’s credibil-
ity was undermined when he admitted that he personally
desired to see Edwards convicted. The defense also brought
out that when Melton signed a police statement less than two
weeks after the murder, he recounted his phone conversation
with Edwards and left out any reference to Edwards’ alleged
  4
   Meyers did not seek a preliminary ruling on the consequences of
Edwards testifying about his version of conversations with Gaines or the
limits of the testimony he could elicit from Gaines.
1192                EDWARDS v. LAMARQUE
self-incriminating statement. At that time — when the conver-
sation with Edwards was freshest in his mind — Melton told
the police only that Edwards had denied knowing about the
murder of Thomas or who had committed it.

   Moreover, the majority’s “desperate times” thesis does not
excuse ineffective assistance of counsel. As Strickland estab-
lished, even in desperate times, there are discernible limits on
counsel’s justification for taking unwarranted risks. The deci-
sion to waive Edwards’ marital privilege falls outside those
limits. When the ultimate balance is calculated, the cost of
waiving Edwards’ marital privilege overwhelmingly out-
weighs any benefit to Edwards. By waiving Edwards’ marital
privilege rights, Meyers provided ineffective assistance and
the California Court of Appeal was objectively unreasonable
in finding otherwise.

  C.   Edwards was Prejudiced by Meyers’ Ineffective
       Assistance

   To prevail on a claim of ineffective assistance, Edwards
must also show “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceed-
ing would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the out-
come.” Strickland, 466 U.S. at 694. The second trial judge
explicitly found that Edwards was prejudiced by the waiver of
his marital privilege, stating that without Gaines’ testimony:

    the verdict may well have been a different one. So
    that I want to make it clear that if I’m wrong on this,
    I do think it’s reversible, from my standpoint, for
    whatever the court of appeals wants to decide
    because this is a key issue in this case. This testi-
    mony was very damaging.

The trial court’s unequivocal assessment of prejudice is enti-
tled to deference under 28 U.S.C. § 2254(d) and was not
objectively unreasonable.
                    EDWARDS v. LAMARQUE                    1193
   When a state trial court reaches a reasoned conclusion that
the appellate court subsequently does not address, tradition-
ally we have treated the trial court’s determination as the last
reasoned decision. See Hirschfield v. Payne, 420 F.3d 922,
928 (9th Cir. 2005) (reviewing trial judge’s oral decision to
deny petitioner’s motion to represent himself because state
appellate court did not address the ruling). The trial court’s
finding is the only determination on prejudice in the entire
state court record. Affording the state trial court’s determina-
tion adequate deference under AEDPA, we cannot say that its
finding of prejudice was objectively unreasonable. Without
the confession, the only evidence linking Edwards to the
crime was circumstantial and the impeached testimony from
the victim’s cousin that Edwards threatened to “fuck you up
too.” A defendant’s own confession is the most damning sort
of evidence available against him. See Bruton v. United
States, 391 U.S. 123, 139-40 (1968) (“[T]he defendant’s own
confession is probably the most probative and damaging evi-
dence that can be admitted against him.”). Because a confes-
sion is so damaging, we are persuaded that under the
circumstances, the trial judge reasonably concluded that
Edwards was prejudiced by the waiver of his marital privi-
lege.

                      III.   Conclusion

   The California Court of Appeal’s conclusion that Meyers
made a tactical decision to waive Edwards’ marital privilege
was objectively unreasonable; the trial transcript makes clear
that Meyers did not comprehend the basic legal underpinnings
of the law of privilege and waiver and waived Edwards’ rights
only in error. Moreover, by opening Edwards up to the most
damning evidence available for little in return, Meyers ren-
dered ineffective assistance of counsel. The state trial court’s
finding that there was a reasonable probability that but for
Meyers’ ineffective assistance, the verdict would have been
different was reasonable. We would affirm the district court
1194               EDWARDS v. LAMARQUE
and grant the habeas petition. We therefore respectfully dis-
sent.
