1

We conclude that only Petitioner's claim of ineffectiveness at sentencing warrants more discussion.

Therefore, for the reasons set out by the district court and in our earlier, but now-vacated, panel decision, we

affirm the district court's denial of habeas relief for Petitioner's other claims. 

David Ronald CHANDLER, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

No. 97-6365.

United States Court of Appeals,

Eleventh Circuit.

July 21, 2000.

Appeal from the United States District Court for the Northern District of Alabama. (Nos. 95-08005-CV-H-E

and Cr 90-H-266-E), James H. Hancock, Judge.

Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, BLACK,

BARKETT, HULL, MARCUS and WILSON, Circuit Judges.

EDMONDSON, Circuit Judge:

Petitioner, David Ronald Chandler, was sentenced to death for murder in furtherance of a continuing

criminal enterprise under 21 U.S.C. § 848(e)(1)(A). We affirmed Petitioner's murder conviction and death

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

a section 2255 petition challenging his conviction and sentence on several grounds. Among other things,

Petitioner, invoking the Sixth Amendment, claimed that he received ineffective assistance of counsel—during

the sentencing phase of trial—because his trial counsel failed to investigate and to present character witnesses.

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

BACKGROUND

Petitioner ran an extensive marijuana growing and distribution operation in Northern Alabama. In

January 1990, Petitioner had offered Charles Ray Jarrell, Sr., one of Petitioner's marijuana couriers, $500 to

eliminate Marlin Shuler, a suspected informant; Jarrell has said he thought Petitioner was joking. On 8 May
 2

In March 1990, state law enforcement officers executed a search warrant at the home of one of

Petitioner's dealers, based on information provided by Shuler. 

 3Redden had tried over 1000 cases, had formerly been a prosecutor at the U.S. Attorney's Office, was

formerly president of the Alabama Bar, was a member of the American College of Trial Lawyers and the

International Society of Barristers. He is listed in America's Best Lawyers for his criminal defense work. For

further background, including academic honors, see the Martindale-Hubble Law Directory. By the way, the

prosecutor said during the trial that Redden is an "extremely talented defense counsel, probably the best in

the state [of Alabama]." 

 4At the section 2255 hearing, trial counsel testified that in his view "the guilt of murder to a capital degree

... was the weakest part of the [Government's] case." And he stated that, based on the circumstances of the

Government's case, he believed "there was a fair chance" his client would be found not guilty and it was even

"less likely" that he would get the death penalty. 

2

1990,2 Petitioner saw Shuler at Jarrell's house. Petitioner warned Jarrell that Shuler was going to cause them

trouble and stated: "You need to go on and take care of him and I still got that $500." Jarrell understood

Petitioner to be referring to Petitioner's earlier offer to pay Jarrell should he eliminate Shuler. Petitioner left;

Jarrell and Shuler spent the morning drinking heavily. The two men then drove to a lake for some target

practice with two guns. During target practice, Jarrell turned a gun on Shuler, shot him twice, and killed him.

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

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

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

and conspiracy offenses, including procuring Shuler's murder in furtherance of a continuing criminal

enterprise.

Petitioner retained Drew Redden, a prominent Alabama criminal defense lawyer, to defend him at

trial.3

 Redden actively pursued acquittal, especially on the charge of procuring a murder.4 In preparation,

trial counsel, among other things, observed the trial of a codefendant and reviewed material from the defense

attorneys of the other defendants to the CCE charge. He consulted a jury selection expert. And trial counsel

interviewed at least 67 witnesses in the Piedmont and Esom Hill area, Petitioner's small community.

Believing his client not to be a true drug kingpin, counsel also spent time trying to find the "real" drug
3

kingpin. Trial counsel, throughout the case, was in frequent contact with Petitioner, Petitioner's brother, and

Petitioner's wife.

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

the Government's case: that is, trial counsel attacked the idea that Petitioner had in reality caused, on the

pertinent day, Shuler to be killed. A history of animosity existed between Jarrell and Shuler as a result of

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

and mother respectively), which provided Jarrell with his own motives for killing Shuler. Jarrell—on an

earlier occasion and for his own reasons—- had actually attempted to kill Shuler: Jarrell had placed a gun

to Shuler's head and pulled the trigger, but the loaded gun had just not gone off. In addition, trial counsel

stressed that the key Government witnesses in this case, including Jarrell himself, testified in exchange for

lesser sentences. Furthermore, Jarrell, over time, had made inconsistent statements about Petitioner's

responsibility for the murder: stating that he (Jarrell) did not do it; stating that he (Jarrell) alone did it

intentionally because of personal animosity; admitting that he (Jarrell) did it but claiming it was an accident;

and, at last, implicating Petitioner.

Nevertheless, the jury convicted Petitioner on all nine counts of the indictment, including the murder

charge. The jury implicitly found that the Government proved beyond reasonable doubt that Petitioner had

offered to pay, and induced, Jarrell to kill Shuler. A separate death penalty sentencing hearing on the murder

count was held the next day.

At sentencing, the Government alleged three statutory aggravating factors: (1) that Petitioner had

intentionally engaged in conduct resulting in the death of another, (2) that Petitioner procured the killing of

another for money, and (3) that Petitioner committed the murder after substantial planning and premeditation.

The Government offered no new evidence at the sentencing phase and relied on the evidence it had presented

at the guilt phase.
 5

In response to a question, trial counsel testified at the section 2255 hearing that, based on his "reasonable

professional judgment," he had not believed that a reasonable jury would impose the death penalty given the

weak case against his client:

I did not feel that a reasonable minded jury would impose the death penalty on him, given

not only the testimony as to what had occurred in November when Jarrell, Sr. undertook to

kill Shuler, but also what occurred on the day that he did kill him. And that is, that they had

consumed a tremendous amount of beer, been out there at Snow's Lake for a good while.

I think they had given out of beer and gone back and gotten more beer. And that even if one

assumed that Ronnie Chandler had offered him $500, well, this was still the act of a drunken

mind overwhelmed by other things than a $500 offer.

And this view supports the argument (an argument mainly based on residual doubt about Petitioner's

responsibility for the shooting) trial counsel pressed at the sentencing phase. 

 6Trial counsel explained to the jury the mitigating nature of the women's testimony this way:

[The testimony of Petitioner's wife and mother] was here to show that there was a life here

that has had a stability to it, that has had some quality to it and I think that is apparent when

you looked at those two ladies ... and the fact that here is a family that had tremendous

stability.... He's got three children, they are all by his wife. Here is a man who apparently

has some skill of his hands who has worked in building his house and his parents' house, his

brothers' houses and they've worked with him and this springs off the 80-acre farm that his

father had with his father, way back. They built a sawmill, they cut trees, they made lumber,

they collected rocks, they built houses and lives demonstrating lives with some purpose as

opposed to life worthless. So that that is a mitigating factor that I think that you have

certainly not just the right but the obligation to consider. 

4

Defense counsel did present evidence as well as arguments for mitigation, among other things,

stressing residual doubt.5

 He reminded the jury—using a stipulation about the date of the death of the

victim—that a taped statement, made by Petitioner about having to kill somebody (a tape the jury had

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

did not indicate that Petitioner was talking about Shuler. Trial counsel also entered into evidence two other

stipulations: (1) that Petitioner had no prior criminal record, and (2) that Jarrell, the actual killer, and Jarrell's

son (who was also implicated in the murder) would never be prosecuted for Shuler's murder. Both of these

latter stipulations were mitigating factors as a matter of law under the pertinent statute. In addition, trial

counsel called as character witnesses and presented to the jury the humanizing testimony of Petitioner's wife

and mother.6
 7

Counsel also pointed out that Petitioner's alleged statements to Jarrell about killing Shuler, if made at

all, were made only twice—the first occasion Jarrell himself characterized as a joke. Counsel reiterated to

the jury, "if it took place, it was a thing that was not precipitated." The jury did not find extensive planning

to be an aggravating factor. 

5

Given that the evidence was unconverted that Jarrell (not Petitioner) had actually killed the victim,

trial counsel argued again at sentencing that the evidence was not absolutely conclusive about whether Jarrell,

especially in his drunken state, was truly induced by Petitioner when Jarrell shot Shuler. Trial counsel

pointed to evidence that Jarrell earlier, in November 1989, had—completely independent of Petitioner—put

"a pistol to the nose of [Shuler] and pull[ed] the trigger intending to kill him": the gun had misfired. Trial

counsel reiterated the independent malice Jarrell harbored for the victim as a result of their personal history.

Trial counsel asked the jury how Petitioner could have motivated Jarrell at the time of the killing, when Jarrell

(after Petitioner had left) had consumed "twenty-three beers on that date, twenty-three beers before he shot

the man."7

 Trial counsel stressed that imposing the death penalty in this case would be "cruel and unusual

punishment" and a "tremendous mistake ... considering every circumstance of this case."

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

recommended that Petitioner be sentenced to death. The district court, Judge Hancock, did so.

After exhausting his direct appeals, Petitioner moved to vacate his convictions and sentence under

28 U.S.C. § 2255 and moved for a new trial in accordance with Fed.R.Crim.P. 33 on many grounds, including

ineffective assistance of counsel at sentencing. In the light of Petitioner's claims, the district court, Judge

Hancock, conducted a series of evidentiary hearings.

On the ineffectiveness claim, Petitioner asserted that counsel was ineffective for failing to investigate

and to present character witnesses at the sentencing hearing. At the section 2255 evidentiary hearing,
 8

For example, witnesses testified that Petitioner had bought shoes for a boy who did not have any; had

given money to a family to help them bury their son; had bought groceries for people he thought needed

them; had bought dinner for members of his construction crew who did not have the money to buy their own;

had given lunch money to a neighbor's children; and had offered to allow a woman to stay at his house when

her husband died. 

 9When cross-examined, the witnesses testified that knowledge of Petitioner's drug dealing, attempt to turn

a gun on a police officer, and statement about having to kill someone if he were set up again, would not

change their opinion of Petitioner. The district court found that this testimony "largely nullified the

persuasive value" of this character testimony because the jury would not be likely to credit witnesses who

"believed that drug dealing and violent crimes were irrelevant to a person's character." 

6

Petitioner presented 27 witnesses who testified to specific good acts by Petitioner.8 Petitioner also presented

the testimony of defense counsel Redden.

Judge Hancock found that the mitigating value of the proffered witnesses was undercut on

cross-examination: (1) the good character evidence related to a time remote from that of Petitioner's crimes;

(2) many of the witnesses were ignorant of Petitioner's criminal activities altogether, showing an ignorance

of Petitioner's character; and (3) all of the witnesses showed a strong bias in favor of Petitioner.9

The district court then considered the aggravating circumstances and found that the jury had

determined that two aggravating factors existed based on a "particularly egregious crime": encouraging

another, dependant upon him, to kill a police informant and then assisting in disposing of the body. The

district court—"[w]eighing this weak character evidence against the strong aggravating evidence that the jury

accepted"—concluded that prejudice was not proved. Therefore, the district court denied relief on the

ineffectiveness claim.

DISCUSSION

 Petitioner argues that he received ineffective assistance of counsel during the sentencing phase of

his trial. We review Petitioner's claim of ineffective assistance de novo. Williams v. Head, 185 F.3d 1223,

1227 (11th Cir.1999). To succeed on a claim of ineffective assistance, Petitioner must show both

incompetence and prejudice: (1) "[P]etitioner must show that 'counsel's representation fell below an objective

standard of reasonableness,' " and (2) "[P]etitioner must show that 'there is a reasonable probability that, but
 10Most of these principles and presumptions were expressly set out in three ineffective assistance cases

in which the Supreme Court specifically addressed the issue of ineffective assistance of counsel at the

sentencing stage for failure to investigate and to present mitigating evidence. In each case, the Court

determined counsel was not ineffective. See Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638

(1987) (death penalty case); Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)

(death penalty case); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (death

penalty case). 

 11There are different kinds of ineffective assistance claims. Here, Petitioner does not allege that his trial

counsel's performance was impaired by an incapacity (mental or physical), a conflict of interest, bad faith,

or an unreasonable mistake of law. Therefore, we decide nothing today about these other kinds of cases. 

7

for counsel's unprofessional errors, the result of the proceeding would have been different.' " Darden v.

Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986); accord Williams v. Taylor, --- U.S.

----, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000). Petitioner says that his trial counsel was incompetent

because his trial counsel failed to investigate and to present character evidence. And, Petitioner says

that—but for his trial counsel's failure to investigate and to present the evidence—a reasonable probability

exists that the jury would not have voted for a death sentence.

SOME PRINCIPLES GOVERNING PERFORMANCE

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

Court and this court, particularly sitting en banc, have set out certain principles and presumptions.10 We have

recognized that, given these principles and presumptions, "the cases in which habeas petitioners can properly

prevail ... are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir.1995) (en banc). A

review of the principles and presumptions seems appropriate.11

 I. The standard for counsel's performance is "reasonableness under prevailing professional norms."

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984); accord Williams v.

Taylor, --- U.S. ----, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000) (most recent decision reaffirming that

merits of ineffective assistance claim are squarely governed by Strickland ). The purpose of ineffectiveness

review is not to grade counsel's performance. See Strickland, 104 S.Ct. at 2065; see also White v. Singletary,

972 F.2d 1218, 1221 (11th Cir.1992) ("We are not interested in grading lawyers' performances; we are
 12"The test for ineffectiveness is not whether counsel could have done more; perfection is not required.

Nor is the test whether the best criminal defense attorneys might have done more. Instead the test is ...

whether what they did was within the 'wide range of reasonable professional assistance.' " Waters, 46 F.3d

at 1518 (en banc) (citations omitted). 

 13"It is important to note that judicial scrutiny of an attorney's performance is appropriately highly

deferential because the craft of trying cases is far from an exact science; in fact, it is replete with uncertainties

and obligatory judgment calls." Bolender v. Singletary, 16 F.3d 1547, 1557 (11th Cir.1994). 

8

interested in whether the adversarial process at trial, in fact, worked adequately."). We recognize that

"[r]epresentation is an art, and an act or omission that is unprofessional in one case may be sound or even

brilliant in another." Strickland, 104 S.Ct. at 2067. Different lawyers have different gifts; this fact, as well

as differing circumstances from case to case, means the range of what might be a reasonable approach at trial

must be broad. To state the obvious: the trial lawyers, in every case, could have done something more or

something different. So, omissions are inevitable. But, the issue is not what is possible or "what is prudent

or appropriate, but only what is constitutionally compelled."12 Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114,

3126, 97 L.Ed.2d 638 (1987).

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

that counsel's performance was unreasonable. See Strickland, 104 S.Ct. at 2064; see also Williams, 120 S.Ct.

at 1511 ("[D]efendant must show that counsel's representation fell below an objective standard of

reasonableness.") (internal citations and quotations omitted). The petitioner must establish that particular and

identified acts or omissions of counsel "were outside the wide range of professionally competent assistance."

Burger, 107 S.Ct. at 3126; see also Strickland, 104 S.Ct. at 2064-65 (stating that petitioner must show

"counsel's representation fell below an objective standard of reasonableness"—that is, that counsel's

performance was unreasonable "under prevailing professional norms ... considering all of the circumstances").

 III. "Judicial scrutiny of counsel's performance must be highly deferential."13 Strickland, 104 S.Ct.

at 2065. We must avoid second-guessing counsel's performance: "[I]t does not follow that any counsel who
 14In accordance with this principle, courts must recognize that counsel does not enjoy the benefit of

unlimited time and resources. See Rogers v. Zant, 13 F.3d 384, 387 (11th Cir.1994). Every counsel is faced

with a zero-sum calculation on time, resources, and defenses to pursue at trial.

And, a court must not second-guess counsel's strategy. Waters, 46 F.3d at 1518-19 (en banc).

By "strategy," we mean no more than this concept: trial counsel's course of conduct, that was neither

directly prohibited by law nor directly required by law, for obtaining a favorable result for his client.

For example, calling some witnesses and not others is "the epitome of a strategic decision." Id. at

1512 (en banc); see also id. at 1518-19 (en banc); Felker v. Thomas, 52 F.3d 907, 912 (11th

Cir.1995) (whether to pursue residual doubt or another defense is strategy left to counsel, which court

must not second-guess); Stanley v. Zant, 697 F.2d 955, 964 (11th Cir.1983) (stating that reliance on

line of defense to exclusion of others is matter of strategy). 

 15The presumption impacts on the burden of proof and continues throughout the case, not dropping out

just because some conflicting evidence is introduced. "Counsel's competence ... is presumed, and the

[petitioner] must rebut this presumption by proving that his attorney's representation was unreasonable under

prevailing professional norms and that the challenged action was not sound strategy." Kimmelman v.

Morrison, 477 U.S. 365, 106 S.Ct. 2574, 2588, 91 L.Ed.2d 305 (1986) (emphasis added) (citations omitted).

An ambiguous or silent record is not sufficient to disprove the strong and continuing presumption. Therefore,

"where the record is incomplete or unclear about [counsel]'s actions, we will presume that he did what he

should have done, and that he exercised reasonable professional judgment." Williams, 185 F.3d at 1228; see

also Waters, 46 F.3d at 1516 (en banc)(noting that even though testimony at habeas evidentiary hearing was

ambiguous, acts at trial indicate that counsel exercised sound professional judgment).

The presumption about which we write here is not some presumption that the particular

9

takes an approach we would not have chosen is guilty of rendering ineffective assistance."14 Waters, 46 F.3d

at 1522 (en banc). Nor does the fact that a particular defense ultimately proved to be unsuccessful

demonstrate ineffectiveness.

 IV. Courts must "indulge [the] strong presumption" that counsel's performance was reasonable and

that counsel "made all significant decisions in the exercise of reasonable professional judgment." Strickland,

104 S.Ct. at 2065-66; accord Williams v. Head, 185 F.3d 1223, 1227-28 (11th Cir.1999) (presuming counsel

rendered effective assistance). Thus, counsel cannot be adjudged incompetent for performing in a particular

way in a case, as long as the approach taken "might be considered sound trial strategy." Darden v.

Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 2474, 91 L.Ed.2d 144 (1986). Given the strong presumption in

favor of competence, the petitioner's burden of persuasion—though the presumption is not

insurmountable—is a heavy one.15 Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 2586, 91 L.Ed.2d
defense lawyer in reality focused on and, then, deliberately decided to do or not to do a specific act.

Instead, the presumption to which we refer is the presumption that what the particular defense lawyer

did at trial—for example, what witnesses he presented or did not present—were acts that some

reasonable lawyer might do.

The Supreme Court has instructed that there is "a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance." Strickland, 104 S.Ct. at 2065.

This presumption is like the "presumption of innocence" in a criminal trial, in which "the defendant

is not required to come forward with proof of his innocence once evidence of guilt is introduced to

avoid a directed verdict of guilty." Black's Law Dictionary 823 (6th. ed.1991). This presumption

of competence must be disproved by a petitioner. Petitioner continually bears the burden of

persuasion on the constitutional issue of competence and further, (adding the prejudice element) on

the issue of ineffective assistance of counsel. See Strickland, 104 S.Ct. at 2064 (stating that

"defendant must show that counsel's performance was deficient" and that defendant must also show

prejudice). Never does the government acquire the burden to show competence, even when some

evidence to the contrary might be offered by the petitioner. 

10

305 (1986); see also Williams, 120 S.Ct. at 1511 ("[T]he defendant must show that counsel's performance

was deficient." (quoting Strickland, 104 S.Ct. at 2064)).
 16To uphold a lawyer's strategy, we need not attempt to divine the lawyer's mental processes underlying

the strategy. "There are countless ways to provide effective assistance in any given case." Strickland, 104

S.Ct. at 2065. No lawyer can be expected to have considered all of the ways. If a defense lawyer pursued

course A, it is immaterial that some other reasonable courses of defense (that the lawyer did not think of at

all) existed and that the lawyer's pursuit of course A was not a deliberate choice between course A, course

B, and so on. The lawyer's strategy was course A. And, our inquiry is limited to whether this strategy, that

is, course A, might have been a reasonable one. See generally Harich v. Dugger, 844 F.2d 1464, 1470-71

(11th Cir.1988) (en banc) (concluding—without evidentiary hearing on whether counsel's strategy arose from

his ignorance of law—that trial counsel's performance was competent because hypothetical competent counsel

reasonably could have taken action at trial identical to actual trial counsel), replacing vacated panel opinion,

813 F.2d 1082 (11th Cir.1987) (2-1 opinion) (remanding for evidentiary hearing on whether pursuit at trial

of actual innocence defense, instead of intoxication defense or a combination of defenses, was informed

strategic decision); Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir.1995) (holding—where petitioner alleged

that trial counsel's mental processes were impaired by drug use—that, because an objective standard is used

to evaluate counsel's competence, "once an attorney's conduct is shown to be objectively reasonable, it

becomes unnecessary to inquire into the source of the attorney's alleged shortcomings"). See also Roe v.

Flores-Ortega, --- U.S. ----, 120 S.Ct. 1029, 1037, 145 L.Ed.2d 985 (2000) ("The relevant question is not

whether counsel's choices were strategic, but whether they were reasonable.").

We look at the acts or omissions of counsel that the petitioner alleges are unreasonable and

ask whether some reasonable lawyer could have conducted the trial in that manner. Because the

standard is an objective one, that trial counsel (at a post-conviction evidentiary hearing) admits that

his performance was deficient matters little. See Tarver v. Hopper, 169 F.3d 710, 716 (11th

Cir.1999) (noting that "admissions of deficient performance are not significant"); see also Atkins v.

Singletary, 965 F.2d 952, 960 (11th Cir.1992) ("[I]neffectiveness is a question which we must decide,

[so] admissions of deficient performance by attorneys are not decisive."). 

 17If some reasonable lawyer might have not pursued a certain defense or not called a certain witness, we

fail to understand why we would order a new trial on the ground that the actual lawyer had not used the

11

 V. The reasonableness of a counsel's performance is an objective inquiry.16 See Darden, 106 S.Ct.

at 2474 (noting that counsel's performance did not fall below "an objective standard of reasonableness"); see

also Williams, 120 S.Ct. at 1511 (same); Darden, 106 S.Ct. at 2474 (noting that "there are several reasons

why counsel reasonably could have chosen to rely on" the defense that he did (emphasis added)); United

States v. Fortson, 194 F.3d 730, 736 (6th Cir.1999) (determining—without district court findings or even

evidentiary hearing—that defendant had not overcome presumption of effective assistance because court

"[could] conceive of numerous reasonable strategic motives" for counsel's actions at trial). And because

counsel's conduct is presumed reasonable, for a petitioner to show that the conduct was unreasonable, a

petitioner must establish that no competent counsel would have taken the action that his counsel did take.17
defense or witness in the first trial: at the new trial, a different lawyer (even a reasonable one) might again

not use the witness or defense. If two trials are identical, one should not be constitutionally inadequate and

the other constitutionally adequate. 

 18We accept that even the very best lawyer could have a bad day. No one's conduct is above the

reasonableness inquiry. Just as we know that an inexperienced lawyer can be competent, United States v.

Cronic, 466 U.S. 648, 104 S.Ct. 2039, 2050, 80 L.Ed.2d 657 (1984) (inexperienced does not mean

ineffective), so we recognize that an experienced lawyer may, on occasion, act incompetently. Our point is

a small one: Experience is due some respect. 

12

See Waters, 46 F.3d at 1512 (en banc) ("The test has nothing to do with what the best lawyers would have

done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable

lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial."); see also Harich

v. Dugger, 844 F.2d 1464, 1470 (11th Cir.1988) (en banc) ("It is not enough for petitioner to claim his

counsel was ignorant of the Florida law. Petitioner must prove that the approach taken by defense counsel

would not have been used by professionally competent counsel"); Provenzano v. Singletary, 148 F.3d 1327,

1332 (11th Cir.1998) (noting that counsel's conduct is unreasonable only if petitioner shows "that no

competent counsel would have made such a choice"); Burger, 107 S.Ct. at 3124 (in concluding that defense

counsel's not using character witnesses met reasonableness standard, Court pointed out that district court

judge—presumably a reasonable lawyer—who heard the proffered mitigating evidence did not think it would

have aided petitioner's case).

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

that his conduct was reasonable is even stronger.18 See Provenzano, 148 F.3d at 1332 (stating that "strong

reluctance to second guess strategic decisions is even greater where those decisions were made by

experienced criminal defense counsel" and that "[t]he more experienced an attorney is, the more likely it is

that his decision to rely on his own experience and judgment in rejecting a defense" is reasonable); see also
 19"[Counsel] had been practicing law in Wayne County for about 14 years, had served as the county's

attorney for most of that time, and had served on the Board of Governors of the State Bar Association. About

15 percent of his practice was in criminal law, and he had tried about a dozen capital cases. It is apparent that

he was a well-respected lawyer, thoroughly familiar with practice and sentencing juries in the local

community." Burger, 107 S.Ct. at 3118. 

 20For example, "[i]t is common practice for petitioners attacking their death sentences to submit affidavits

from witnesses who say they could have supplied additional mitigating [ ] evidence, had they been called or

... had they been asked the right questions." Waters, 46 F.3d at 1514 (en banc). But "[t]he mere fact that

other witnesses might have been available or that other testimony might have been elicited from those who

testified is not a sufficient ground to prove ineffectiveness of counsel." Id. (noting that such witnesses show

nothing more than that, "with the luxury of time and the opportunity to focus resources on specific parts of

a made record, post-conviction counsel will inevitably identify shortcomings"). And, basing the inquiry on

whether an investigation (if one had been undertaken) would have uncovered mitigating evidence (or

witnesses) is an example of judging counsel's acts from the benefit of hindsight. The proper inquiry was

articulated in Rogers v. Zant: "Once we conclude that declining to investigate further was a reasonable act,

we do not look to see what a further investigation would have produced." 13 F.3d 384, 388 (11th Cir.1994).

13

Burger, 107 S.Ct. at 3118 (reciting counsel's impressive credentials in opinion finding that counsel rendered

effective assistance).19

 VII. In reviewing counsel's performance, a court must avoid using "the distorting effects of

hindsight" and must evaluate the reasonableness of counsel's performance "from counsel's perspective at the

time." Strickland, 104 S.Ct. at 2065. "[I]t is all too easy for a court, examining counsel's defense after it has

proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable."20 Id.; see

Waters, 46 F.3d at 1514 (en banc) ("The widespread use of the tactic of attacking trial counsel by showing

what 'might have been' proves that nothing is clearer than hindsight—except perhaps the rule that we will not

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

 VIII. No absolute rules dictate what is reasonable performance for lawyers. Strickland, 104 S.Ct.

at 2065 ("No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety

of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent

a criminal defendant."); see also Roe v. Flores-Ortega, --- U.S. ----, 120 S.Ct. 1029, 1036-37, 145 L.Ed.2d

985 (2000) (rejecting bright-line rule that counsel "almost always" has duty to consult with defendant about
 21We do not read Williams to declare a per se rule of law that a defense lawyer must present character

witnesses at the sentencing phase or that a defense lawyer (no matter what his client may have informed or

instructed him) must in every case investigate purely to see if character witnesses might exist who might be

of help at the sentencing phase.

We understand Williams to create no mechanistic rule of law at all for investigation or for

presentation of evidence in capital cases. See generally Cohens v. Virginia, 19 U.S. (6 Wheat.) 264,

399, 5 L.Ed. 257 (1821) (Marshall, C.J.) ("It is a maxim not to be disregarded, that general

expressions, in every opinion, are to be taken in connection with the case in which those expressions

14

appeal, reaffirming that the Court has "consistently declined to impose mechanical rules on counsel—even

when those rules might lead to better representation"). "Any such set of rules would interfere with the

constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making

tactical decisions." Strickland, 104 S.Ct. at 2065; see also id. at 2066 (stating that " rigid requirements

[would] dampen the ardor and impair the independence of defense counsel, discourage the acceptance of

assigned cases, and undermine the trust between attorney and client"); Waters, 46 F.3d at 1511 (en banc)

(noting that Supreme Court has prohibited "[i]ntensive scrutiny of counsel and [the creation of] rigid

requirements for acceptable assistance"). The law must allow for bold and for innovative approaches by trial

lawyers. And, the Sixth Amendment is not meant "to improve the quality of legal representation," but

"simply to ensure that criminal defendants receive a fair trial." Strickland, 104 S.Ct. at 2065.

 IX. Thus, no absolute duty exists to investigate particular facts or a certain line of defense. Under

Strickland, counsel's conducting or not conducting an investigation need only be reasonable to fall within the

wide range of competent assistance. 104 S.Ct. at 2066 (stating that counsel "has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations unnecessary"); cf.

Kimmelman, 106 S.Ct. at 2588 (failure to file timely motion to suppress unlawfully obtained evidence

amounts to constitutionally ineffective assistance when failure is based on counsel's unreasonable mistake

of law about the Government's duty to supply certain information to defense counsel before trial) (emphasis

added); Williams, 120 S.Ct. at 1514 (failure to conduct investigation ineffective because based, in part, on

lawyer's mistake of law that information not discoverable).21
are used."); Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 1590, 140 L.Ed.2d 759 (1998)

("There is, of course, an important difference between the holding in a case and the reasoning that

supports that holding."). In particular, we do not understand the Supreme Court to make the ABA

Standards part of the highest law of the land, even if one accepts that those standards reflect a good

policy. We remember that these ABA Standards were also mentioned in Strickland; but the Court

went on to shun per se rules. Strickland, 104 S.Ct. at 2065; accord Roe, 120 S.Ct. at 1036-37.

We read Williams to decide this question about lawyer performance: where a capital

defendant (with a significant criminal record) has repeatedly admitted before trial that he, in fact, did

kill the victim in the course of a theft so that a defense of factual innocence hardly existed and where,

at the sentencing phase, the defense counsel, while repeatedly telling the jury that it was hard to

explain why the jury should spare defendant's life, presents no evidence of the defendant's

"nightmarish" childhood (criminal neglect by his parents, repeated severe beatings by his father, and

abuse in a foster home)—not because defense counsel thought such evidence would not be

compelling (defense counsel testified at a habeas hearing that it was important evidence which he

would have used had he known of it), but because he "incorrectly thought" that state law barred his

access to the juvenile and social services records in which such information could be found—the

defense lawyer's performance at sentencing was deficient.

But the present case is different from Williams not only in the kinds of evidence that are

involved, but in its other material facts: for example, here defendant's factual guilt was strongly

disputed (and still is); here no one contends that the defense counsel's not presenting more character

witnesses was due to a mistaken view of the law (he did not think a search for such witnesses was

prohibited by law or that character witnesses would, as a matter of law, be excluded); here defense

counsel has never said that character witnesses would be very helpful or that he would have used

them if he had known of them (and the trial judge who has heard and seen the pertinent character

witnesses has said that, in his opinion, they would not have been helpful if introduced); here defense

counsel did raise mitigating factors unavailable in Williams.

Williams cannot command the outcome for this case; the cases' facts are materially different,

allowing different outcomes under Strickland. 

 22As we have recognized, Strickland 's approach toward investigation "reflects the reality that lawyers

do not enjoy the benefit of endless time, energy or financial resources." Rogers, 13 F.3d at 387. How a

lawyer spends his inherently limited time and resources is also entitled to great deference by the court. See

White, 972 F.2d at 1224 ("[G]iven the finite resources of time and money that face a defense attorney, it

simply is not realistic to expect counsel to investigate substantially all plausible lines of defense. A

reasonably competent attorney often must rely on his own experience and judgment, without the benefit of

a substantial investigation, when deciding whether or not to forego a particular line of defense...."). 

15

 And counsel need not always investigate before pursuing or not pursuing a line of defense.

Investigation (even a nonexhaustive, preliminary investigation) is not required for counsel reasonably to

decline to investigate a line of defense thoroughly.22 See Strickland, 104 S.Ct. at 2066 ("[S]trategic choices

made after less than complete investigation are reasonable precisely to the extent that reasonable professional
 23Requiring that counsel always do certain acts to be found effective (for example, interviewing some

of petitioner's neighbors for mitigation evidence) would contravene the Supreme Court's directive that no set

of detailed rules for counsel's conduct should be used to evaluate ineffectiveness claims. See Strickland, 104

S.Ct. at 2065. 

 24And, when the circumstances of a claim make these conversations relevant, the petitioner can rarely

(if ever) satisfy his burden to disprove the presumption of effective assistance without disclosing the

substance of these attorney-client conversations. Cf. Laughner v. United States, 373 F.2d 326, 327 (5th

Cir.1967) (refusing to allow petitioner, who requested a section 2255 evidentiary hearing, to invoke

16

judgments support the limitations on investigation."); id. ("In any ineffectiveness case, a particular decision

not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy

measure of deference to counsel's judgments." (emphasis added)); Williams, 185 F.3d at 1236-37 (noting that

this circuit has rejected idea that "strategic decisions can be considered reasonable only if they are preceded

by a 'thorough investigation' " and stating that, to be effective, counsel is not "required to 'pursue every path

until it bears fruit or until all hope withers' "); Rogers v. Zant, 13 F.3d 384, 387 (11th Cir.1994) ("By its

nature, 'strategy' can include a decision not to investigate ... [and] a lawyer can make a reasonable decision

that no matter what an investigation might produce, he wants to steer clear of a certain course."); see also

Holladay v. Haley, 209 F.3d 1243, 1252 (11th Cir.2000) (noting that our circuit has rejected "a per se rule

of ineffective assistance where counsel does not consult family members"). For example, counsel's reliance

on particular lines of defense to the exclusion of others—whether or not he investigated those other

defenses—is a matter of strategy and is not ineffective unless the petitioner can prove the chosen course, in

itself, was unreasonable.23

 X. Because the reasonableness of counsel's acts (including what investigations are reasonable)

depends "critically" upon "information supplied by the [petitioner]" or "the [petitioner]'s own statements or

actions," evidence of a petitioner's statements and acts in dealing with counsel is highly relevant to ineffective

assistance claims. Strickland, 104 S.Ct. at 2066. "[An] inquiry into counsel's conversations with the

[petitioner] may be critical to a proper assessment of counsel's investigation decisions, just as it may be

critical to a proper assessment of counsel's other litigation decisions."24 Id. ("[W]hen a defendant has given
attorney-client privilege to "eliminate the one source of evidence likely to contradict his allegations");

Williams, 185 F.3d at 1235 ("Given the lack of clarity of the record, we presume that [counsel] talked with

[petitioner] as part of his effort to ascertain whether there was any mitigating circumstance evidence...."). 

 25While Petitioner is correct that capital defendants have a right to present just about any evidence in

mitigation at the sentencing phase, this right is the right to be free of governmental interference with the

presentation of evidence. See generally Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 1824, 95

L.Ed.2d 347 (1987). The question of admissibility of evidence is different from whether counsel acted

reasonably in not introducing the evidence. See Burger, 107 S.Ct. at 3123 n. 7. And the cases concerning the

constitutional right of defendants not to be precluded or limited by the state or the court in their presentation

of mitigation evidence at sentencing do not support the proposition that, if counsel does not present all

possible mitigation at sentencing, then defendant has been denied some constitutional right. 

17

counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's

failure to pursue those investigations may not later be challenged as unreasonable.").

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

all mitigation evidence, even if the additional mitigation evidence would not have been incompatible with

counsel's strategy. See Waters, 46 F.3d at 1511 (en banc) (noting that no absolute duty exists to present all

possible mitigating evidence available: "Our decisions are inconsistent with any notion that counsel must

present all available mitigating circumstance evidence."). Considering the realities of the courtroom, more

is not always better. Stacking defenses can hurt a case. Good advocacy requires "winnowing out" some

arguments, witnesses, evidence, and so on, to stress others. See Rogers, 13 F.3d at 388 (citing Jones v.

Barnes, 463 U.S. 745, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987 (1983)); see also Waters, 46 F.3d at 1512 (en

banc) ("There is much wisdom for trial lawyers in the adage about leaving well enough alone.").

 XII. No absolute duty exists to introduce mitigating or character evidence.25 See Tarver v. Hopper,

169 F.3d 710, 715 (11th Cir.1999) (noting that counsel is not "required to investigate and present all available

mitigating evidence to be reasonable") (citing Burger, 107 S.Ct. at 3126); Stanley v. Zant, 697 F.2d 955, 961

(11th Cir.1983) (no duty to present general character evidence); see also Waters, 46 F.3d at 1511 (en banc)

(noting this court and Supreme Court have held counsel's performance to be constitutionally sufficient when

no mitigation evidence was produced even though it was available). See, e.g., Burger, 107 S.Ct. at 3126
 26In his sentencing argument, defense counsel did not use the words "lingering doubt" or "residual doubt."

But, as the government pointed out in its first brief filed in this court, defense counsel's argument at

sentencing attacked the government's aggravating factors: the factors expressly included that Petitioner

"intentionally engaged in conduct intending that [the victim] be killed and resulting in [the victim's] death."

And, trial counsel did argue at some length that the evidence showing that defendant in fact had caused the

actual killer to shoot the victim was disputed evidence; and he pointed to the weakness of the evidence as

a ground for a sentence other than death: for example, the lawyer argued "What prompted [the killer] in his

actions. How much did anything that was said to him on that day by [Petitioner] impel him, motivate him

to do what he did after twenty-three beers on that date, twenty-three beers before he shot the man."

In the context of the trial and sentencing proceeding, defense counsel's argument, stressing

the lack of strong evidence of guilt, cannot be said to be unconnected to "lingering doubt." We

recognize the argument as a lingering-doubt argument and would not approve a district court's

finding otherwise. 

 27At least when guilt in fact is denied, a "lawyer's time and effort in preparing to defend his client in the

guilt phase of a capital case continues to count at the sentencing phase." Tarver v. Hopper, 169 F.3d 710,

715 (11th Cir.1999); see also Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144

(1986) (rejecting petitioner's argument that counsel had only spent the time between conviction and

18

(finding counsel effective even though counsel presented no mitigation evidence at all); Darden, 106 S.Ct.

at 2474 (same).

These principles guide the courts on the question of "reasonableness," the touchstone of a lawyer's

performance under the Constitution.

PERFORMANCE IN THIS CASE

 Petitioner says that his trial counsel's performance during the sentencing phase of his trial was

unreasonable. Trial counsel at the sentencing phase called Petitioner's mother and wife to testify, advanced

two statutory mitigating factors, and stressed lingering doubt about Petitioner's true guilt. Our court's proper

inquiry is limited to whether this course of action might have been a reasonable one. And, we begin with the

strong presumption that it was. We conclude that—given the record in this case and taking in the principles

for ineffective assistance claims—Petitioner has failed, as a matter of law, to overcome the presumption.

 Although Petitioner's claim is that his trial counsel should have done something more, we first look

at what the lawyer did in fact. Trial counsel focused on obtaining an acquittal and then, at sentencing, on

lingering doubt.26 This defense was a reasonable one.27 We have said before that focusing on acquittal at trial
sentencing preparing the case for mitigation because "counsel engaged in extensive preparation prior to trial,

in a manner that included preparation for sentencing ") (emphasis added); Lockhart v. McCree, 476 U.S.

162, 106 S.Ct. 1758, 1769, 90 L.Ed.2d 137 (1986) ("[I]t seems obvious to us that in most, if not all, capital

cases much of the evidence adduced at the guilt phase of the trial will also have a bearing on the penalty

phase....").

Trial counsel, at the section 2255 hearing, testified that he had believed "there was a fair

chance" his client would be found not guilty, and it was even "less likely" that he would get the death

penalty given the circumstances of the murder case. These views are reasonable considering the

evidence at the trial.

In this case, when we refer to trial counsel's testimony explaining his personal mental

processes (assessing the strengths of the prosecution's case, opining on the value of character

witnesses and so on), we are not accepting that his words represent his heartfelt views, that is we are

not crediting his testimony as absolutely true; but we point to this lawyer's testimony as illustrating

the kinds of thoughts some lawyer in the circumstances could—we conclude—reasonably have had.

The trial counsel's testimony is not essential to today's affirmance. 

 28We have accepted that residual doubt is perhaps the most effective strategy to employ at sentencing.

See Tarver, 169 F.3d at 715-16 (citing law review study concluding that "the best thing a capital defendant

can do to improve his chances of receiving a life sentence ... is to raise doubt about his guilt"). Counsel

cannot be held to be ineffective when he has taken a line of defense which is objectively reasonable.

The jury in this case was instructed at the guilt phase this way: "[I]t is not necessary that the

defendant's guilt be proven beyond all possible doubt. It is only required that the Government's proof

exclude any reasonable doubt concerning the defendant's guilt." As this instruction shows, the law

recognizes that jurors who have found a person guilty of a crime may well still have doubt about his

true guilt. Thus, the law itself points to and lays the foundation for a good argument based on

lingering doubt when the jury is later asked to impose death, the ultimate and most irremediable

punishment. Nothing about this argument signals submissiveness or fatalism; stressing residual

doubt is a straightforward and sound defense. 

19

and then on residual doubt at sentencing (instead of other forms of mitigation) can be reasonable. See Tarver

v. Hopper, 169 F.3d 710, 715-16 (11th Cir.1999). Especially when—as in this case—the evidence of guilt

was not overwhelming,28 we expect that petitioners can rarely (if ever) prove a lawyer to be ineffective for

relying on this seemingly reasonable strategy to defend his client.
 29Petitioner tries to make much of trial counsel's asking Petitioner's wife—after the guilty verdict—to find

witnesses and of trial counsel's saying at the section 2255 hearing that he had a hope that some character

witnesses might be presented to him (though he stated that it was not a hope "that I really spent a lot of time

or effort on or felt that there was that much time to spend on"). Petitioner claims this request of his wife

shows that trial counsel really wanted character witnesses but had not invested the time and energy to find

them. This circumstance, even if true, would not be decisive: recall especially that our inquiry is an objective

one and that we are not attempting to grade this counsel's performance, but are looking at the trial just to see

if the trial (as it was) was adequate. Moreover, the evidence of a request to the wife—at least, as

strongly—shows the laudable fact that trial counsel, like most good trial lawyers, was flexible and

opportunistic: he did not think character witnesses would be helpful or a good use of his time to pursue, but

a reasonable lawyer might not foreclose himself altogether from considering some if they were presented to

him. In fact, one such character witness was presented to trial counsel; counsel did not use him. 

 30Two character witnesses were presented at the sentencing stage: Petitioner's wife and mother.

Petitioner also argues that trial counsel was ineffective for his limited preparation of and for his limited

questioning of the wife and mother. Petitioner contends that, if trial counsel had asked the right questions,

the lawyer could have elicited more mitigation testimony from them. But see Waters v. Thomas, 46 F.3d

1506, 1514 (11th Cir.1995) (en banc) (counsel not ineffective for failing to elicit more testimony from the

witnesses because perfection is not required). Considering concerns about opening the door, a reasonable

lawyer might well limit his questioning of the wife and mother: as it was, the wife and mother did escape

cross-examination altogether.

The testimony that was elicited reminded the jury that Petitioner was a husband, a father, and

a son: humanizing circumstances. The wife and mother addressing the jury also reminded the jury

that innocent people would suffer if this man was put to death. Bringing the family's existence and

pain to the attention of the jury is powerful in and of itself. See id. at 1519 (noting that, sometimes,

just having a witness on the stand can humanize petitioner in eyes of jury). We cannot say the

Constitution demanded that more be done with these witnesses. 

20

Trial counsel did not pursue character witnesses for mitigation;29 but he had other mitigators in hand.

That trial counsel's approach (preparing and presenting a case for doubt about Petitioner's guilt instead of

focusing on mitigating character evidence) was reasonable is even more clear in the light of the questionable

value of the mitigating character evidence.

A lawyer reasonably could have determined that character evidence would not be compelling in this

case. And a lawyer reasonably could also fear that character evidence might, in fact, be counterproductive:

it might provoke harmful cross-examination and rebuttal witnesses.30 Misgivings about hurtful

cross-examination and rebuttal witnesses have been decisive to the Supreme Court when it determined that

counsel was effective. See, e.g., Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 3124-25, 97 L.Ed.2d 638
 31Trial counsel testified:

Q: And that specific instances of the defendant helping people is probably the most

compelling of that type of evidence, a mere opinion that he's a good person is one thing, but

to say he did this for me is even better. You recognized that, did you not?

A: Well, I recognize its admissibility as a compelling nature, I wouldn't test it.

Q: You didn't think that type of testimony would be very helpful, is that your

testimony?

A: Well I'm—if that's your question, I say in the whole picture of things as it existed

at that time, if that jury was going to give him the death penalty based on what they had

heard, their minds were made up as to that, I doubted that compelling would be an

appropriate word. 

 32Trial counsel stated that he did not need to know what a witness would say to determine whether the

witness would be compelling at mitigation. He stated that you assume what a piece of testimony might be

and "assume the most favorable testimony that you might get and then form some judgment, not the most

reliable judgment in the world, but some judgment about how compelling it might be." We agree. 

21

(1987) (concluding that failure to introduce character evidence was effective performance because witnesses

could have been subjected to harmful cross-examination or invited other damaging evidence); Darden v.

Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 2474, 91 L.Ed.2d 144 (1986) (same); Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 2057 & 2071, 80 L.Ed.2d 674 (1984) (same). Trial counsel in this case has

testified that he had these thoughts and concerns.

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

Petitioner's character would be admissible as mitigation evidence, he thought that character witnesses would

not be very helpful or compelling, in this case. "[I]t would be at least questionable whether a sufficient

impact of character type testimony could overcome a fixed opinion based on the other evidence ... [whether

it] could change it from life to death. Or death to life."31 The trial record indicates that counsel used other

evidence and stressed lingering doubt. He thought character evidence (even evidence of specific good acts

by Petitioner) would not prevent the jury—if they were sure Petitioner had procured this murder—from

giving Petitioner the death penalty.32 And trial counsel also questioned whether evidence of instances of
 33The record shows:

[Habeas Counsel] Q: ... [I]nstances like that [of good acts], would have been

something to refute the government's claim that [Petitioner] was just a bad person, wouldn't

it?

[Trial Counsel] A: If that had been the claim, yes.

Q: All right. But they did claim that, did they not?

A: Well, I don't think they claimed that he was just a bad person. I think that they

claimed that he was guilty of a specific offense with which I disagreed, but I can't say that

the case was just that he was a bad person. 

 34To anyone familiar with popular books and films about organized crime, such as Mario Puzo's The

Godfather, the idea that a criminal was helpful to many people in his community (perhaps on account of his

goodness or perhaps out of maintaining the very helpful goodwill of the community in which the defendant

is operating a criminal enterprise) would be familiar. In fact, the generosity of a man, convicted of being a

drug kingpin, might reenforce those stereotypes. For a lawyer to worry about counterargument even to

22

Petitioner's specific good acts would have been compelling, considering that the Government was not arguing

that Petitioner was in all ways a bad man, but arguing that he had committed specific criminal acts, including

offering to pay for a murder.33

As every reasonable trial lawyer knows, character witnesses that counsel called could be

cross-examined by the Government. And as trial counsel said, such cross-examination might not be helpful

to his case. It is uncontroverted that, based on his earlier interviews with people in the pertinent community,

he knew that "some individuals in the community considered [Petitioner] to be a drug dealer" and "that there

were people in the community [who] were afraid of him."

Trial counsel also had seen at this very trial how a character witness's testimony could be twisted by

cross-examination and the arguments of opposing counsel. A witness at the guilt phase testified that

Petitioner had given him some property for a house after the witness was newly married, even though the

witness did not have the money to pay for the land. Trial counsel then had attempted to paint the story as

good-act evidence. Trial counsel accurately noted that the Government, however, used this testimony to

argue that Petitioner's gift to this man was, in reality, part of a money laundering operation.34
evidence of good deeds is not unreasonable.

The record from the evidentiary hearing provides other examples of how the character

evidence could be considered aggravating. One man testified that Petitioner had donated $10,000

to the church, but the Government brought out on cross that Petitioner's entire reported income for

the year was $10,000. And even those who testified that Petitioner was a regular churchgoer,

admitted on cross that his attendance had dropped off in the years preceding his arrest. See Stanley

v. Zant, 697 F.2d 955, 970 (11th Cir.1983) (questionable whether evidence would have been

perceived as mitigating by the jury because church attendance could be perceived as aggravating:

"if [he] went to the church, then he should have known the extreme culpability of his conduct"). 

 35Trial counsel testified that deciding whether to put on character evidence requires a balancing

determination, which he made in this case, and that he "[had] to evaluate the impact of that along with

everything else that you evaluate." The record contains the following exchange:

Q: And I believe you stated that in determining whether or not to put on a character

witness in view of the possibility of cross-examination by the government concerning

various bad acts requiring a balancing act on your part, to determine whether or not the value

of the witness, character witness would outweigh that possible damage done by that cross

examination; is that correct?

[Trial Counsel] A: Well, balancing of the factors favorable and unfavorable and what

I am saying is that that normally doesn't back you off putting on a character witness, but it's

23

That counsel's concerns about using character evidence were reasonable is confirmed by the transcript

of the evidentiary hearing for section 2255 relief. At the hearing, the Government did effectively

cross-examine the proffered character witnesses. The district court judge—the same, very experienced judge

who presided at the murder trial itself—after seeing and hearing these witnesses, did not think they were

helpful to Petitioner's case because they were nullified on cross-examination. See Burger, 107 S.Ct. at 3124

(concluding that trial counsel acted reasonably in not calling witness at sentencing that district judge later

heard fully at habeas hearing and found not to be helpful); see also White v. Singletary, 972 F.2d 1218, 1225

(11th Cir.1992) (questioning whether counsel would even have presented evidence had he possessed it

because it had substantial internal weaknesses).

Trial counsel also testified that he was "fearful" of rebuttal witnesses: "I felt that the law enforcement

community in Piedmont, in that part of the county, was hostile to [Petitioner], antagonistic to him. And that

they certainly could have produced witnesses of that sort."35 A reasonable lawyer could decide to limit
a fact that they might be asked have you heard about so and so.

Q: Did you perform this balancing in this case?

A: I would think more of what might have been produced and I think I had said that

not just on cross-examination of witnesses. [ ] But by rebuttal witnesses. 

 36Petitioner argues that counsel's worries about opening the door on cross-examination and the

presentation of rebuttal witnesses were unreasonable because negative information about Petitioner had come

out earlier at the guilt stage of the trial. Apart from the point that the timing of when evidence comes in may

be as important as the evidence itself, we make these points.

We note the Government, on appeal in response to questioning, pointed out two examples

of evidence from the section 2255 hearing, not introduced at trial, which might have come out at

sentencing: (1) Petitioner had given a .357 magnum handgun to his fifteen-year-old son, and (2) the

testimony of a witness (Scottie Surrett)—kept out at the guilt phase by Petitioner's trial

counsel—implicating Petitioner in the murder of a missing "dope stealer."

More important, Petitioner, who bears the burden in this case, never presented evidence that

the fears of trial counsel about hurtful rebuttal witnesses were imaginary and baseless. For example,

Petitioner's habeas counsel, at the evidentiary hearing, could have asked trial counsel precisely what

trial counsel feared and why, but the questions were not asked. We must not just assume that defense

counsel's worries were baseless. For all we know, trial counsel actually discussed this issue with his

client; and the client informed him of potentially harmful witnesses or information.

Furthermore, even a competent trial lawyer may be unable to articulate exactly what

cross-examination and rebuttal witnesses he fears because the scope of discovery in federal criminal

cases is limited. See, e.g., United States v. Fischel, 686 F.2d 1082, 1090 (5th Cir.1982) ("Discovery

in criminal cases is narrowly limited."). But the lack of articulation does not make his performance

at trial incompetent. The fear of the unknown may, itself, be reasonable. For a defense lawyer to be

a bit risk averse in a capital case is no indicator of incompetence. And recall in this case, trial counsel

had (and did use) other mitigators; so, it was not a case of his having only one way to go. Compare

Williams, 120 S.Ct. at 1514 (deeming counsel incompetent because failure to introduce voluminous

mitigation evidence, even if it contained some unfavorable evidence about defendant's juvenile

record, was unreasonable when only alternative was to rely on the mitigating value of a voluntary

confession to brutal murder and when counsel's mistake of law impacted on the omission of other

evidence). 

24

reliance on character testimony instead of exposing the jury (right at sentencing) to a new string of

Government witnesses who could testify to Petitioner's bad acts.36 We must conclude that trial counsel's

approach to the sentencing proceedings was a reasonable one.

Petitioner, on this record, has given us no cause to doubt this conclusion. Petitioner never testified

at his section 2255 hearing. The reasonableness of a trial counsel's acts, including lack of investigation or
 37Trial counsel censored himself; and given Petitioner's objections, the district court shielded the

attorney-client conversations. At the 2255 hearing, the Government asked trial counsel if he had discussed

Petitioner's arrest in Georgia with Petitioner. The following colloquy then occurred:

[Trial Counsel]: I'm aware of Your Honor's order with reference to waiver of a

confidentiality and this is not a—

[Habeas Counsel]: Your Honor, I would, for the record object to going into any

attorney/client conversations in light of the fact that we have not gone into any of those on

the direct so I think it's beyond the scope of direct and I do not think that any of our

examination touched on those issues which would constitute a waiver of the attorney/client

privilege. Our examination dealt solely with his investigation with regard to other witnesses

and with regard to specific particular witnesses. Not anything with regard to conversations

with his client. I haven't gone into that one whit. And I don't think I've waived the privilege

in that regard nor do I believe that it is within the scope of the direct examination.

[U.S. Attorney]: Your Honor, the very basis of their allegations deal with what [trial

counsel] knew or should have known at the time that this trial took place. And I think very

clearly what his client told him or may have advised him concerning this information is

relevant to cross-examination.

....

The Court: I think this is going to be an area that on a situation by situation,

case-by-case basis, we may have to make rulings.

(Emphasis added). The district court then sustained habeas counsel's objection. And trial counsel,

from the stand, at the end of this exchange told the judge: "I'm not raising an objection. I'm going

to do what the court directs. But I want to be sure where we are. I think that there might be

situations in which an answer to a question like that might implicitly indicate what was said." 

 38The judge disallowed the substance of conversations based on attorney-client privilege and said he

would make further rulings on an instance-by-instance basis. Habeas counsel argues that he had only

objected to issues outside of the scope of the hearing. We observe, however, that an objection was made and

sustained on whether counsel discussed a piece of evidence with his client even though Petitioner was

challenging trial counsel's failure to investigate sufficiently the author of this piece of evidence for trial. We

also observe that trial counsel was careful himself not to touch on the conversations with his client. We find

it troubling when a petitioner thinks he can meet his burden to show ineffectiveness even though he shielded

and avoided pertinent conversations which would allow the courts to assess what trial counsel had learned

25

excluding character witnesses from the sentencing phase, depends "critically" upon what information the

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

shrouded the conversations between themselves in attorney-client privilege;37 so we do not know to what

extent Petitioner informed trial counsel's acts.38 Therefore, given the absence of evidence in the record, we
from his client.

Habeas counsel claims he did not shield Petitioner's conversations with the trial counsel

about mitigation; habeas counsel says that no one asked about it. Even if habeas counsel had not

raised an objection to shield the pertinent conversations, we stress he should have asked about them

because Petitioner bears the burden of showing that trial counsel's acts were unreasonable. And, as

Strickland says, what the client said and did is critical to that proof. 

 39The effect of attorney-client privilege was argued by the Government in its briefs, and both sides

addressed this issue at oral argument. This issue was sufficiently argued, see FSLIC v. Haralson, 813 F.2d

370, 373 n. 3 (11th Cir.1987) ("briefs are read liberally to ascertain the issues raised on appeal"), especially

considering that we make no new law on this issue, but merely apply the existing case law from this circuit.

 40Trial counsel (without contradiction) testified: "what I was preparing to do was to try to defend the case

and there was not volunteered at that—in any of that among the people I talked with or presented to me

anything that I considered would be helpful on a sentencing phase." And "nobody had ever come forward

and said such things [examples of good acts] and the only example of that type of thing that we had was in

evidence." He stated further, "nothing was volunteered to me that I considered of value in there." See

generally Collins v. Francis, 728 F.2d 1322, 1349 (11th Cir.1984) (counsel not ineffective for not

investigating witnesses in mitigation when defendant failed to alert counsel to their existence). See also

Strickland, 104 S.Ct. at 2066 ("[W]hen a defendant has given counsel reason to believe that pursuing certain

investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not

later be challenged as unreasonable."). 

26

must assume counsel carried out his professional responsibility and discussed mitigation with his client.39

See Williams v. Head, 185 F.3d 1223, 1235 (11th Cir.1999). In addition, the section 2255 transcript is clear

on two points: trial counsel testified—without dispute—that he frequently met with Petitioner before and

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

evidence that he thought would be helpful.40

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

(or some reasonable lawyer could have) that his client had a fair chance for acquittal, saw (or some reasonable

lawyer could have) character witnesses—with the potential dangers associated with cross-examination and

rebuttal witnesses—as less than compelling in mitigation, and allocated (or some reasonable lawyer could

have) his time and resources accordingly. Trials are full of imponderables. Nothing in the record indicates

with force that this lawyer's conduct was outside of the range of reasonable conduct.
 41It certainly would have been less work for us to remand. And, we understand that appellate courts

should not resolve genuine issues of disputed facts when those facts are material, in the light of the applicable

law, to the outcome of the case; so, we do not do that. But, in our view, if we take seriously the principles

that we have set out in this opinion, especially those dealing with objective reasonableness, no need for a

remand arises. About remand, this principle of law is particularly important: We are not reviewing the

quality of the specific lawyer's judgment processes that underlie his conduct at trial. (We must remember that

Strickland passed through this court on its way to the Supreme Court and that some of our judges—who

believed that the lawyer's performance in Strickland was inadequate under the Constitution—said they held

that view because they were not convinced that the particular trial lawyer in that case had actually made a

thought-out decision; the Supreme Court, however, determined the lawyer to be effective applying an

objective standard. Washington v. Strickland, 693 F.2d 1243, 1283-84 (5th Cir. Unit B 1982) (en banc)

(Johnson, J., concurring in part and dissenting in part), rev'd by 466 U.S. 668, 104 S.Ct. 2052, 2070-71, 80

L.Ed.2d 674 (1984).) We are reviewing the lawyer's conduct at trial and asking only whether some

reasonable lawyer could have acted that way. In the light of the legal standards for lawyers' performance,

we know enough to decide this case. We cannot honestly remand when, if the district court concluded that

the trial lawyer's performance was deficient, we already know that we would reverse that judgment because

it would be contrary to law, given the record.

The record in this case—even when read in Petitioner's favor—presents this legal question:

Has a defendant proved his lawyer's performance to be deficient—that is, totally beyond the outside

border of the "wide range" of reasonable performance—at sentencing when the defendant (with no

prior criminal record) is convicted of procuring a murder and his lawyer has invested most of his time

and energy in defending against conviction; when the evidence of guilt is not overwhelming, relying

largely on the testimony of the actual killer who has told a variety of stories and who has been

promised that he will not be executed; when defense counsel did present witnesses as well as other

evidence in mitigation; when defense counsel did not present other character witnesses who would

have testified to his past good works; when no one knows what instructions and information about

the availability and use of character witnesses were supplied by defendant to defense counsel; when

defense counsel has never said that the pertinent character witnesses would be compelling or that he

would have used them; when nothing indicates that defense counsel's act in not presenting more

character witnesses was caused by his having some erroneous view of the law; when defense counsel

argued to the jury at sentencing that the evidence that defendant actually prompted the admitted killer

to do the killing was in dispute (an argument that we say must be seen as a lingering-doubt argument

given the context); when defense counsel stressed the lack of a criminal record for his client and that

the actual killer would not be executed?

As we understand the law, we must conclude the answer is "no." Considering these

circumstances, we believe that some lawyer could reasonably have not presented the character

witnesses, although we also accept that other lawyers could reasonably have presented the witnesses.

To us, the basic disagreement in this case among the court's judges is not about facts—what

happened, happened—but about law and what kinds of facts are legally important given the objective

legal standard. In a less academic sense, our disagreement also reminds us that lawyers (for we are

27

 When the guiding principles are applied to the record, the record will allow only one legal

conclusion: Petitioner is due no relief.41 In the light of the strong presumption that counsel was effective and
lawyers, too) can easily disagree on almost any point about how to proceed in a trial and that, because

trying cases is no exact science, no level of skill or excellence can exist at which a trial lawyer (who

has been unsuccessful in a case) can be removed from intelligent criticism in hindsight. There is no

end to what might have been done differently. 

28

the circumstances of the case, Petitioner has not met his heavy burden to prove that counsel's acts—at

sentencing, focusing largely on residual doubt and not investigating or presenting mitigating character
 42The district court, having concluded that no prejudice was proved in this case, did not specifically

address whether counsel's performance was deficient. But no remand is required in this case given (1) the

developed record complete with an evidentiary hearing (which Petitioner does not argue was inadequate and

at which no one testified about what Petitioner had said to his trial counsel about the benefit and danger of

using character witnesses), (2) the strong presumption that counsel's acts at trial were acts that a reasonable

lawyer could have taken, and (3) the reality that Petitioner bears the heavy burden of proof on ineffectiveness.

Remand is not required when the record is sufficiently developed and a "complete understanding of the issues

is possible in the absence of separate findings." Tejada v. Dugger, 941 F.2d 1551, 1555 (11th Cir.1991)

(considering habeas issue not addressed by district court); see Black, et al., Federal Appellate

Procedure—11th Circuit, § 12:189 (1996) ("The trial court's failure to make necessary findings of fact

constitutes harmless error when the facts necessary to the judgment have been incontestably demonstrated

based on uncontroverted evidence."); see also Strickland, 104 S.Ct. at 2070-71 (Court applying different

legal standard than applied by lower courts to record and declaring—without remand for more

factfinding—defense counsel's conduct not to be ineffective), rev'g, 693 F.2d 1243 (5th Cir.1982) (en banc)

(remanding to district court because more district court findings needed to reach conclusion on ineffective

assistance issue); Harich v. Dugger, 844 F.2d 1464, 1470 (11th Cir.1988) (en banc) (deciding question of

ineffectiveness without remanding for district court factfindings). And we note that, neither party, in the

briefs, contended that the record is insufficient and requires remand.

Moreover, courts have decided ineffective assistance claims on direct appeal, without the

benefit of district court factfinding. See, e.g., United States v. Shukri, 207 F.3d 412, 418 (7th

Cir.2000) (denying ineffective assistance of counsel relief on direct appeal even though issue was

not raised to district court below because both parties requested it and claim of incompetence could

be rejected considering record of trial); United States v. Fortson, 194 F.3d 730, 736 (6th Cir.1999)

(on direct appeal, deciding no deficient performance because record was adequately developed to

allow the court to assess the merits of the issue, government did not contend that record was

insufficient, court concluded further factual development was unnecessary and because court could

"conceive of numerous reasonable strategic motives" for counsel's actions at trial (emphasis added)).

And any alleged lack of evidence in this record necessitates neither a remand nor a ruling for

Petitioner, but must be considered in the light of Petitioner's burden to overcome the presumption of

competence, that is, to show ineffective assistance. Cf. United States v. Montes-Mercado, --- F.3d

---- (9th Cir.2000) (unpublished opinion) (refusing to conclude counsel ineffective for failing to

provide reasons for his acts at the evidentiary hearing in part because petitioner never asked for an

explanation); United States v. Torres, 845 F.2d 1165, 1172 (2d Cir.1988) (rejecting ineffective

assistance claim, not considered by district court, as matter of law because proffered evidence of

deficient performance did not "rise to the level necessary to overcome the strong presumption that

counsel's performance was reasonable under [Strickland]"). 

 43Never do we even hint that this course was either the best way or the only reasonable way to proceed

in this case. To decide the constitutional question, we do not need to decide such things. 

29

witnesses—were unreasonable.42 Nothing more needs to be said. The Constitution did not demand that trial

counsel, in this case, use more character witnesses.43

CONCLUSION
 44About the question of prejudice, the court decides nothing. We need not. But several judges would

be inclined to affirm on account of no prejudice, even if trial counsel's performance was deficient.

About today's dissenting opinions, we refrain from commenting, except that some of them

bring to mind the words of Justice Jackson:

There has been much undiscriminating eulogy of dissenting opinions. It is said they

clarify the issues. Often they do the exact opposite. The technique of the dissenter

often is to exaggerate the holding of the Court beyond the meaning of the majority

and then to blast away at the excess. So the poor lawyer with a similar case does not

know whether the majority opinion meant what it seemed to say or what the

minority said it meant.

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

30

Petitioner's evidence was insufficient to prove that his trial counsel's acts were outside the wide range

of professionally competent assistance. Thus, Petitioner has not met his burden under the law to prove

ineffective assistance of counsel in this case. Because Petitioner cannot properly be granted relief, we affirm

the district court's denial of the writ.44

AFFIRMED.

COX, Circuit Judge, specially concurring, in which DUBINA, BLACK, HULL and MARCUS,

Circuit Judges, join:

I join Judge Edmondson's opinion in full. I write separately because I would also affirm the denial

of Chandler's § 2255 petition because Chandler has not shown prejudice from his counsel's alleged deficient

performance.

The district court assumed (without deciding) that Chandler's counsel's performance at sentencing

had been deficient, but denied relief, concluding that Chandler had failed to establish prejudice. The district

court's ultimate conclusion as to prejudice answers a mixed question of law and fact, and we review that

conclusion de novo, but we review the district court's subsidiary factual findings only for clear error. See

Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984).

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

ineffective assistance claim, found that the value of their testimony was severely undercut by three factors.
 1

These included:

(1) Chandler's arrest in Georgia while attempting to purchase 100 pounds of marijuana;

(2) Chandler's flight from Georgia Bureau of Investigation Agent Skinner and Chandler's

attempt to turn Skinner's gun back on Skinner during a scuffle; and

(3) Chandler's tape-recorded statement to a confidential informant that if he were "set up"

again, he would have to kill someone. 

31

First, most of the character witnesses' knowledge of Chandler was "stale;" that is, their knowledge of

Chandler's good character pre-dated Chandler's illegal activities, and the witnesses had little familiarity with

him in the years leading up to the murder. Second, many witnesses also evidenced a lack of knowledge about

Chandler's character by testifying that they were unaware that, as the jury heard, Chandler bought, grew, and

sold large quantities of marijuana. Third, the district court found that most of the character witnesses

exhibited a strong bias for Chandler because they testified that, even if Chandler had committed certain bad

acts,1

 their opinions of Chandler would not have changed. As the district court found, "a witness's high

opinion of Chandler would have been of little moment to the jury if the witness believed that drug dealing

and violent crimes were irrelevant to a person's character." United States v. Chandler, 950 F.Supp. 1545,

1571 (N.D.Ala.1996). In summation, the district court found that "the mitigation evidence that Chandler's

trial counsel could have offered was of tenuous value." Id.

The district court's findings about the value of this testimony are factual findings, subject to review

only for clear error. A court's factual finding is clearly erroneous only if " 'although there is evidence to

support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a

mistake has been committed.' " University of Georgia Athletic Assoc. v. Laite, 756 F.2d 1535, 1543 (11th

Cir.1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed.

746 (1948)). The district court made findings about the value of this testimony after seeing and hearing the

witnesses, and those findings have support in the record. I cannot conclude that those findings are clearly

erroneous.
 2

The Government presented evidence that Chandler committed the murder after substantial planning and

premeditation, 21 U.S.C. § 848(n)(8), but the jury rejected that factor. 

32

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

evidence that could have been introduced at sentencing. The ultimate question is whether Chandler has

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

probability that the balance of aggravating and mitigating circumstances would have been different. See

Bolender v. Singletary, 16 F.3d 1547, 1556-57 (11th Cir.1994) (citing Strickland, 466 U.S. at 687, 104 S.Ct.

at 2064). Weighing anew the aggravating and mitigating factors, I note that the jury found two aggravating

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

Shuler's death, 21 U.S.C. § 848(n)(1)(C); and (2) Chandler procured Shuler's killing by promising to pay

something of pecuniary value, 21 U.S.C. § 848(n)(6).2

 The two statutory mitigating factors, admitted by

stipulation,were that (1) Chandler had no prior criminal record, 21 U.S.C. § 848(m)(6); and (2) the

triggerman would not receive the death penalty, 21 U.S.C. § 848(m)(8). Chandler's counsel also presented

mitigating evidence in the testimony of Chandler's wife and mother at sentencing.

On balance, whether Chandler was prejudiced is, as the district court noted, a close question. The

jury had convicted Chandler of a particularly egregious crime. It does not appear to me, given the strong

aggravating factors, that the addition of weak character evidence would have tipped the balance in favor of

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

failed to establish prejudice, and would affirm on that ground as well.

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

I.

The question before the en banc court is whether the district court erred in rejecting petitioner's claim

that his lawyer, L. Drew Redden, rendered ineffective assistance of counsel in the sentencing phase of this

case by failing to obtain evidence in mitigation of the death penalty and present it to the jury. The district
 1

The evidence Redden could have uncovered is the testimony petitioner's habeas counsel presented to the

district court during the proceedings on petitioner's application for relief under 28 U.S.C. § 2255 (Supp

II.1996). 

33

court assumed that counsel's performance was constitutionally deficient; it nevertheless rejected petitioner's

claim because, in the court's view, the mitigating evidence that Redden would have found (had he looked for

it)1

 would not have prompted the jury to recommend a sentence of life imprisonment instead of death. See

United States v. Chandler, 950 F.Supp. 1545, 1569 (N.D.Ala.1996) ("In fact, the Court is convinced that there

is no reasonable probability that the result of the sentencing hearing would have been different if the proffered

evidence had been presented."); see also Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068,

80 L.Ed.2d 674 (1984) (To prove prejudice, the second prong of the Sixth Amendment test for ineffective

assistance of counsel, "[t]he defendant must show that there is a reasonable probability that, but for counsel's

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

A divided panel of this court vacated the district court's decision denying relief on petitioner's

ineffective assistance of counsel claim, and remanded the case for resentencing. See Chandler v. United

States, 193 F.3d 1297, 1310 (11th Cir.1999). It held that the mitigating evidence Redden should have

uncovered, and which habeas counsel proffered to the district court in support of petitioner's application for

relief under 28 U.S.C. § 2255 (Supp II.1996), if presented to the jury, would probably have made a difference

in the outcome of the sentencing phase. Id. at 1308 ("[T]he quality and quantity of this evidence, almost all

of which was available at the time of trial ... creates a reasonable probability that, but for counsel's failure to

present even a small portion of this evidence, [petitioner] would not have received the death sentence.")

(footnote omitted). In addition to deciding that petitioner had satisfied the prejudice prong of Strickland 's

Sixth Amendment test, the panel also addressed the question of whether petitioner had satisfied the

performance prong of that test. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064 ("This requires showing

that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant

by the Sixth Amendment."). After examining the record, it concluded that Redden's performance in the
 2

It is not disputed that Redden failed to look for mitigating evidence for use in the sentencing phase of

petitioner's trial (except two circumstances, to which the Government stipulated, that petitioner lacked a

substantial criminal history and that someone equally culpable would not be receiving a death sentence).

Therefore, when the sentencing phase arrived, Redden had nothing to present to the jury except the testimony

of two witnesses, whose testimony he did not anticipate until an hour or so before the sentencing phase began.

The majority holds that Redden's failure to look for mitigating evidence and his performance during the

sentencing phase passed Sixth Amendment muster because four years later the district court, in ruling on

petitioner's motion for section 2255 habeas relief, concluded that Redden's failure to call any, or all, of the

witnesses that habeas counsel were able to uncover caused petitioner no prejudice. In other words, the

majority's holding today is: counsel's failure to seek mitigating evidence constitutes competent performance,

if, on habeas corpus, it appears that the petitioner cannot satisfy Strickland 's prejudice prong. 

 3At the same time, I concur in the court's disposition of petitioner's remaining claims for section 2255

relief. 

 4It cannot be disputed that the fact-finding function lies with the district court. See United States v.

Griffin, 699 F.2d 1102, 1108 & n. 14 (11th Cir.1983). In Griffin, this court explained, in a footnote, why it

34

sentencing phase failed that part of the test as a matter of law, and (after refusing to set aside petitioner's

convictions) vacated his death sentence and ordered (assuming that the Government still wished to pursue

a death sentence on the murder conviction) the district court to afford petitioner a new sentencing proceeding.

See Chandler, 193 F.3d at 1310. Judge Edmondson, dissenting, did not address the question of whether

petitioner had shown Strickland prejudice. Instead, he focused solely on Redden's performance, and,

disagreeing with the panel's reading of the record, concluded as a matter of law that Redden's performance

passed constitutional muster. Id. at 1315 (Edmondson, J., dissenting). Today, the court sitting en banc

reaches the same conclusion and thus finds it unnecessary to remand the case to the district court for findings

of fact and conclusions of law on the performance prong of Strickland 's test for ineffective assistance of

counsel.2

I dissent because the material facts concerning Redden's investigation and presentation of mitigating

evidence are in dispute.3

 An evidentiary hearing on an application for section 2255 relief is, in all respects,

a bench trial; the tasks of resolving the conflicts in the testimony, finding the facts, and then weighing such

facts and according them their appropriate weight under the applicable rule of law is assigned to the district

court.4

 In this case, the court of appeals has put aside institutional tradition and taken over the district court's
is procedurally improper for an appellate court to decide a claim when the underlying facts have not been

found by the district court:

If an appellate court elects to consider the issue and study the record on appeal in relation

to it, an assertion of ineffective assistance may appear totally without merit in light of that

record. The temptation is strong in such instances to go ahead and decide the issue against

appellant on the presumption that doing so will reduce the workload of the district court.

Succumbing to the temptation, however (1) adds unnecessarily to the workload of the

appellate court; (2) may be fruitless, where the appellant would not have elected to present

the issue to the district court under 28 U.S.C. § 2255; (3) may deny appellant an opportunity

to develop the issue on a proper record; (4) encourages future first-time presentations on

appeal; and most importantly; (5) undercuts everything the courts ... have said against its

presentation for the first time on direct appeal.

Griffin, 699 F.2d at 1108-09 n. 14. See generally Gulf Power Co. v. United States, 187 F.3d 1324,

1334 (11th Cir.1999) ("To be sure, an appellate court is not the usual forum in which factual issues

... are resolved...."). 

 5There may be occasions, as in a case whose appropriate disposition turns on documentary or other

tangible evidence, where the material facts are so clear and settled that a remand for fact-finding is

unnecessary; this, however, is not such an occasion. See, e.g., Jackson v. Leonardo, 162 F.3d 81, 86 (2d

Cir.1998) (stating that the usual practice is to remand, but that remand "might not be necessary in a highly

unusual case where no plausible explanation for an attorney's actions exists"); United States v. Gaviria, 116

F.3d 1498, 1512 (D.C.Cir.1997) (stating that remand is the normal practice unless "the trial record alone

conclusively shows that the defendant is entitled to no relief and when the record conclusively shows the

contrary") (internal quotation marks omitted).

To support its proposition that it is within the province of a court of appeals to resolve issues

of fact in a case where the district court held an evidentiary hearing but failed to find the facts, the

majority cites several cases. None of them, however, stands for the majority's proposition. In United

States v. Shukri, 207 F.3d 412 (7th Cir.2000), the Seventh Circuit disposed of the defendant's claims

35

role. On a cold record from which various inferences of fact can reasonably be drawn—some in favor of

petitioner, some in favor of the Government—the court has judged the demeanor of the witnesses, determined

their credibility, found and weighed the facts, and then, applying Strickland 's performance standard, has

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

habeas proceeding—especially in a capital case—whether brought under 28 U.S.C. § 2254 or § 2255, in

which a United States Court of Appeals took it upon itself to resolve the issues of fact rather than remanding

the fact-finding task to the district court, which previously had held an evidentiary hearing, heard from

witnesses on both sides of the case, and observed their demeanor.5
of ineffective assistance of counsel in the defendant's direct appeal from his convictions for

conspiring to possess and possession of stolen property. The claims, which had not been presented

to the district court, were that (1) counsel failed to cite United States v. Garcia, 897 F.2d 1413 (7th

Cir.1990), in support of his motion in limine to suppress certain out-of-court statements the

prosecution intended to introduce as having been made against the witness' penal interest; (2)

counsel failed to renew his objection to the statements at trial, when it presumably became apparent

that the statements had not been made against the witness' penal interest; and (3) counsel failed to

object to questions the prosecutor put to the defendant on cross examination. Shukri, 207 F.3d at

418-19. In his brief, the defendant cited as district court error the court's denial of the motion in

limine. The Seventh Circuit found no error, much less an abuse of discretion, in the district court's

denial of the motion in limine or its admission of the statements into evidence at trial; therefore, the

defendant's claim that his attorney's performance was constitutionally defective was patently

meritless. Id. at 419. The same was true regarding the defendant's third point; the questions the

prosecutor asked the defendant on cross examination were appropriate. Id. The court of appeals

disposed of the defendant's ineffective assistance claims because the trial court record conclusively

showed that, even if the defendant was given an evidentiary hearing in a section 2255 proceeding

(brought following the affirmance of his conviction), he could not possibly establish either prong of

Strickland 's standard for ineffective assistance. Id. at 419.

In United States v. Fortson, 194 F.3d 730, 736 (6th Cir.1999), another direct appeal from

the defendant's convictions, the Sixth Circuit entertained the defendant's challenge to his attorney's

performance at trial. In that case, the defendant, Fortson, a Michigan resident, was charged with four

other gentlemen for conspiring to transport cocaine from New York to Michigan. Id. at 733.

Fortson's co-conspirators brought eight kilograms of cocaine to Michigan in a van; when they

arrived, the local police, who had been monitoring the activities of one of the co-conspirators,

Paulino, spotted the van, and followed it and a Camry sedan, driven by Fortson, which was traveling

in front of the van. Id. When it appeared that the occupants of the van and the Camry were working

together, the police stopped the van, and searched it, finding the cocaine. Id. Moments later, the

police approached the Camry, which was parked in an adjacent lot, and arrested Fortson, Paulino,

and a co-conspirator. Id. at 734. At his trial, Fortson's defense was that, even though he had been

arrested at the scene of the crime, the jury should acquit him because all that the evidence showed

was "mere presence." Id. The jury, of course, rejected his "mere presence" defense. In his brief on

appeal, in addition to challenging the sufficiency of the evidence, Fortson alleged that his trial

attorney's performance had been constitutionally deficient because he had not "introduced evidence

demonstrating Paulino's ties to the state of Michigan." Id. at 736. He did not explain, however, how

evidence of Paulino's ties to Michigan would have established his "mere presence" defense. The

Sixth Circuit, concluding that the evidence was more than sufficient to convict, made an exception

to its rule that ineffective assistance of counsel claims are not to be heard on direct appeal and

decided to address Fortson's ineffective assistance claim because the record conclusively

demonstrated that the claim had no merit. Id.

United States v. Torres, 845 F.2d 1165, 1167, 1172 (2d Cir.1988), another drug case, is

likewise a case in which the challenged actions of counsel were clearly established in the trial record,

so that the court of appeals was confident that it could decide the ineffective assistance of counsel

claim while reviewing the defendant's conviction on direct appeal. Torres and two accomplices were

arrested at the conclusion of a drug transaction involving two kilograms of cocaine. In searching

Torres at the scene, a DEA agent found $3,871on his person. Id. at 1168. In his brief on appeal,

36
Torres claimed that he was denied the effective assistance of counsel because, prior to trial, his

attorney failed to move to suppress money the agent had seized and, at trial, failed to request a

missing witness instruction, so that the jury would understand why a confidential informant had not

been called as a defense witness. Id. at 1172. It was obvious that counsel's performance fell clearly

within the range of what any court would consider adequate performance, and the Second Circuit

therefore rejected Torres' ineffective assistance claim out of hand.

Next, Bonin v. Calderon, 59 F.3d 815, 822-23 (9th Cir.1995), involving two 28 U.S.C. §

2254 (1994 & Supp. II 1996) petitions challenging sixteen murder convictions in two counties (Los

Angeles and Orange), provides absolutely no support for the majority's proposition. In Bonin, the

district court held a three-day evidentiary hearing and made comprehensive findings of fact and

conclusions of law in disposing of the petitioner's ineffective assistance of counsel claim. Id. at 823

(9th Cir.1995) ("In separate published opinions, the district court denied both of Bonin's petitions.")

(citing Bonin v. Vasquez, 807 F.Supp. 589 (C.D.Cal.1992) and Bonin v. Vasquez, 794 F.Supp. 957

(C.D.Cal.1992)). United States v. Montes-Mercado, No. 99-15282, --- F.3d ---- (9th Cir. May 15,

2000) (unpublished), a section 2255 proceeding in which the petitioner's ineffective assistance claim

was that counsel should have advised petitioner that he could plead guilty, but still maintain his

innocence, is equally unhelpful to the majority. Putting aside the question whether we should rely

on an unpublished opinion from a sister circuit, we note that, unlike the situation in the instant case,

the district court held an evidentiary hearing and made findings of fact in rejecting the petitioner's

claim.

Finally, the majority relies on two Supreme Court cases, Roe v. Flores-Ortega, --- U.S. ----,

120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464,

91 L.Ed.2d 144 (1986), for the proposition that it is appropriate for a court of appeals to make

findings of fact in the absence of findings made by the court that originally entertained the ineffective

assistance of counsel claim. In Roe, the Court emphasized that the deficient performance inquiry is

a fact-intensive one, the determination of which requires "courts ... [to] take into account all the

information counsel knew or should have known." Roe, 120 S.Ct. at 1036. Because the "Magistrate

Judge's findings d[id] not provide [the Court] with sufficient information to determine whether Ms.

Kops rendered constitutionally inadequate assistance," id. at 1040, the Court vacated the court of

appeals decision and remanded the case. In Darden, the district court held an evidentiary hearing and

made findings of fact; the Court cites to the habeas proceeding, Darden, 477 U.S. at 184, 106 S.Ct.

at 2473, and concludes that "[w]e agree with both the District Court and the Court of Appeals that

petitioner was not deprived of the effective assistance of counsel." id. at 187, 106 S.Ct. at 2474.

In sum, I am simply at a loss as to how any of the cases cited above could be considered

supportive of the majority's proposition that a court of appeals should assume the district court's

fact-finding role in a case of this magnitude. 

37

Judge Barkett's dissent, after canvassing the evidence relating to Redden's performance, shows quite

convincingly why petitioner has satisfied the first prong of Strickland 's test. I agree with her dissent's

analysis of the evidence, but I disagree that the dispositive issue can, and should, be decided by this court in

the first instance. If nothing else, that the judges of this court are fairly split on whether the historical facts
 6

The majority draws this conclusion without acknowledging the full import of the Supreme Court's recent

decision in Williams v. Taylor, --- U.S. ----, 120 S.Ct. 1495, 1514-15, 146 L.Ed.2d 389 (2000). As Judge

Barkett's dissent explains, the majority's analysis of Redden's "strategic choice" to forego any investigation

into the petitioner's background in an effort to find mitigating evidence cannot be squared with the Court's

holding in Williams. 

 7Absent findings of fact by the district court, this court is in the same position it would occupy in

reviewing a summary judgment, a judgment as a matter of law, or a judgment entered following a bench trial

without the findings of fact and conclusions of law required by Fed.R.Civ.P. 52(a) (as occurred in the instant

case). In conducting such reviews, we consider the evidence, and the inferences it yields, in the light most

favorable to the nonmovant. In the case at hand, petitioner is, for our purposes, the nonmovant. Although

the majority opinion does not indicate that, in assessing Redden's performance, the court viewed the evidence

in the light most favorable to the petitioner, I must assume that it did. 

 8The majority opinion cites this presumption at least eleven times, ante at 3043 n. 14, 3044 n. 15, 3045-

46, 3046, 3048 n. 23, 3049, 3053, and 3054. In footnote 15, ante, the majority seems to agree with the proper

definition of a presumption; therefore, I do not understand how it can continue to assert that we should

presume that defense counsel acted reasonably. 

38

demonstrate ineffective assistance of counsel highlights the necessity of remanding the issue to the district

court.

The majority concludes that Redden provided effective assistance as a matter of law.6

 Because the

district court made no findings of historical fact on his performance in the sentencing phase of the case, the

majority, in order to hold that petitioner failed to show that Redden's performance was deficient, must view

the evidence in the light most favorable to petitioner.7

 In this dissent, I also consider the evidence in that

light, and then lay out the facts that a reasonable fact finder could find by a preponderance of the evidence.

Before doing so, however, I deem it necessary to comment on the majority's strong reliance on the

"presumption" that defense attorneys are acting competently, in the Sixth Amendment sense, when they make

strategic choices,8

 and to consider the time frame in which Redden prepared petitioner's case for trial, a time

frame the majority opinion fails to mention.

A.

According to the majority, the Supreme Court and this court have established certain "principles and

presumptions" relating to ineffective assistance of counsel claims. One such presumption is that counsel's
 9

For the same reason, the principle that a defendant is "presumed" innocent until proven guilty beyond

a reasonable doubt does not express a presumption in the Rule 301/common law sense. That the defendant

is presumed innocent is merely a way of saying that the prosecution has the burden of proof on the issue of

the defendant's guilt. 

39

strategic choices are competent. In a post-conviction proceeding in which the petitioner is claiming that his

lawyer rendered ineffective assistance, however, this "strategic choice" presumption has no legal effect. In

other words, it does not operate as a presumption.

Federal Rule of Evidence 301 explains how a presumption operates in a case such as the one before

us:

In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules,

a presumption imposes on the party against whom it is directed the burden of going forward with

evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the

sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was

originally cast.

See also Fed.R.Evid. 301 advisory committee's note ("[W]hile evidence of facts giving rise to a presumption

shifts the burden of coming forward with evidence to rebut or meet the presumption, it does not shift the

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

to whom it is allocated ... in the first instance."). A Rule 301 presumption is the same as a presumption at

common law. Like its common law antecedent, a Rule 301 presumption is a device that aids the party with

the burden of proof in establishing the elements of its claim. (Or, on the defendant's side of the case, a

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

a party's adversary possesses evidence that is essential to the claim (or affirmative defense) but is, as a

practical matter, unavailable to all but the adversary.

In giving petitioner's adversary, the Government, the benefit of the "strategic choice" presumption,

the majority apparently overlooks the fact that the Government needs no assistance in this case. The

Government does not bear the burden of establishing Redden's competence; to the contrary, it is petitioner's

burden to establish Redden's in competence.9

 In sum, the "strategic choice" presumption is not a presumption
 10A final observation about the "strategic choice" presumption the majority invokes: even if the law were

to accord it the status of a Rule 301 presumption, it would not yield an inference that Redden acted

competently in making the strategic choice at issue. An inference has probative value. A presumption does

not. It simply shifts the burden of going forward with the evidence; once rebutted, it disappears from the

scene. 

40

in the Rule 301/common law sense. It is simply a short-hand way of saying that petitioner has the burden of

proof on the issue of the constitutional adequacy of his attorney's performance.10

B.

The period of time during which Redden performed his service in the trial court—from the day he

undertook petitioner's representation to the day the jury recommended the death penalty—was relatively

short. The petitioner retained Redden early in January 1991 (the record does not disclose the precise date of

Redden's employment). Petitioner and fifteen others had been under indictment in the Northern District of

Alabama on a charge of conspiring to traffic marijuana, and the grand jury was in the process of returning

a ten-count superceding indictment that alleged a massive continuing criminal enterprise that spanned a period

of three years, 1987-1990, and included the murder charge that led to the death sentence now under

consideration. The grand jury returned the superceding indictment on January 9; Redden appeared for

petitioner at his arraignment the next day. On January 24, the district court entered an order fixing February

12 as the trial date. Six days later, on January 30, the prosecutor formally notified petitioner, and Redden,

that the Government would be seeking the death penalty on the murder count. On February 1, the district

court severed petitioner's case from the cases against the other (fifteen) defendants; their trial would

commence on February 12 as scheduled, and petitioner's trial would begin on March 12. Because Redden

had previously committed himself to attending the annual convention of the International Society of Barristers

in London in the first week of March, he moved the court to set another trial date. The court granted his

request and scheduled petitioner's trial for March 19.

Recapitulating, I conclude that, excluding the time Redden would spend attending the Barristers'

convention, from the day the prosecutor notified him that the Government would seek the death penalty until
 11Petitioner also called one witness in surrebuttal. 

41

the day petitioner's trial would (and did) begin, he had forty days, weekends included, in which to prepare

for trial. During that time, he or his paralegal, Suzanne Brotherton, or both, attended the February 12 trial

of petitioner's co-defendants, which lasted six days, and interviewed nearly sixty-seven witnesses; some of

the witnesses were interviewed initially, or were re-interviewed, during petitioner's trial. Most of the

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

Birmingham, where Redden's law firm had its office.

The guilt phase of petitioner's trial began as scheduled on March 19, 1991. The Government called

over forty witnesses. Nine days later, on March 28, the Government rested. In his defense (in the guilt

phase), petitioner called twelve witnesses, but did not take the stand himself.11 The parties' closing arguments

took place on April 1. The court charged the jury the following morning, and at 10:25 a.m., the jury retired

to deliberate. At 1:50 p.m., after three and a half hours of deliberation, the jury reached a verdict; it found

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

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

9:00 a.m. the next day, at which time the sentencing phase of the trial of the murder count would begin. Once

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

do in the sentencing phase of the trial. Redden stated that he would prefer that the discussion take place in

chambers. The court agreed, and declared a half-hour recess.

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

down and transcribed the entire proceeding. The court began the discussion by outlining the sentencing phase

of the trial. That phase would begin with the court instructing the jury on its sentencing role and how the

proceedings would be conducted. Thereafter, the prosecution and the defense would make opening

statements; the Government would present evidence of aggravating circumstances; the defendant would be

afforded the opportunity to put on evidence of mitigating circumstances; the Government and the defendant
42

would present their closing arguments; and the court would charge the jury. Regarding mitigating evidence,

the court told Redden that the "world is open" to the defendant; he has the right to introduce any evidence

that might mitigate the sentence.

The court asked the prosecutor and Redden how long it would take to present their evidence. The

prosecutor stated that the Government would stand on the record of the guilt phase and offer nothing further.

Redden said that his presentation of the defense "won't be long ... less than a day." He stated that the defense

would rely on two statutory mitigating circumstances, which the Government did not dispute. These were

(1) that petitioner had no "substantial criminal record," and (2) that Charles Ray Jarrell, who was as

responsible as petitioner for Shuler's death and had plead guilty to the marijuana conspiracy charge, would

not be receiving a death sentence. Redden was non-committal concerning the witnesses, if any, he might call,

although he did ask the court for a ruling in limine as to the scope of the prosecutor's cross-examination of

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

court planned to give the jury and the verdict form. The record does not indicate how long the court-counsel

chambers conference lasted. Although the clerk's docket sheet and the court reporter's transcript reveal that

the conference began at 2:30 p.m., neither reveal when it ended. The transcript consists of twenty-nine pages;

hence, drawing purely on experience, I estimate that the conference lasted twenty-five to thirty minutes.

With the foregoing time frames in mind, I turn to the facts a reasonable fact finder could find from

the evidence when that evidence is considered in the light most favorable to petitioner. Stated another way,

I review what the evidence, when considered in that light, tells us about Redden's investigation of mitigating

evidence and his decision to limit petitioner's case to the two undisputed statutory mitigating circumstances

cited above and the testimony of petitioner's wife, Deborah Chandler, and his mother, Irene Chandler.

II.

The evidence bearing on petitioner's claim that Redden rendered ineffective performance by failing

to seek mitigating evidence and present it to the jury comes from four sources: (1) the testimony of Redden
 12The following passages are from Redden's testimony during the section 2255 proceeding:

! In response to when he entered a notice of appearance in the case, Redden stated "Well, I don't—I

don't have any recollection of that act. I'm sure I did it."

! Responding to a question about when he received notice of the Government's intent to seek the death

penalty, Redden said, "I recall that subject. I do not recall the precise date."

! Regarding severance of Chandler's trial, he stated "I don't know what the Government's position was.

I don't recall what it was."

! When asked why he sought a one-week continuance, Redden replied "It was that I had prior to being

retained in this case committed myself by word and by money to attend the Convention of the

International Society of Barristers that was to be held probably the first week in March, I've

forgotten."

! When asked if he thought about requesting a continuance before the sentencing phase, Redden stated

"I don't think I did."

! When asked whether the court would have granted a continuance, Redden said "I don't know whether

it would have been or not."

! When trying to recall when petitioner was arrested, Redden said "I believe, [he] had been arrested

probably in around September, I'm not sure...."

! When asked if he knew that section 848(q) of the Anti-Drug Act provided resources for an

investigator (whom he chose not to hire), Redden stated "I'm not sure whether I knew that at the time

or not, but I knew I was retained counsel and I figured that [hiring an investigator] would be my

obligation."

43

and petitioner's wife, Deborah Chandler, adduced during the section 2255 evidentiary hearing concerning

Redden's efforts to obtain favorable character witnesses; (2) the testimony of the twenty-seven witnesses

called to the stand by habeas counsel during that proceeding to expound on petitioner's character and to relate

specific instances of petitioner's charity toward others; (3) the pre-trial and trial time tables I have set out

above; and (4) Redden's opening statement and closing argument made to the jury at the sentencing phase

of the trial. If this evidence is viewed in the light most favorable to petitioner—which means that he receives

the benefit of the doubt on all credibility and fact issues—a reasonable fact finder would be justified in giving

little, if any, credence to what Redden had to say, with the exception of the statements that support petitioner's

claim. I say this because Redden's testimony, as indicated in the margin,12 is riddled with "I don't 
! When asked whether he remembered the jury asking to listen a second time to a tape recording in

which petitioner said he'd have to kill somebody, Redden said "I don't recall."

! When asked if the sentencing hearing was set for the day after the jury's verdict (finding petitioner

guilty of murder and eight other offenses) was announced, Redden said "Set it for the next day. I

don't—I don't know the time."

! When asked what he did after the verdict came in to find some additional character witnesses,

Redden replied "I know that I made the request of [Deborah] Chandler and whether other family

members, I don't know, and whether we had earlier had such conversations, I don't know." Then

petitioner's habeas counsel said, "All right. You don't recall?" and Redden responded, "No."

! In response to a question about what he told Deborah Chandler on April 2 about the kind of evidence

they needed to put on in mitigation the next day, Redden said "I don't recall what I told her or what

she might have been told by Suzanne [Brotherton, his paralegal], except that it would be things that

would demonstrate humanity, compassion, things of that sort."

! When asked if he asked any family members besides Deborah Chandler to find mitigation witnesses,

Redden replied "That I'm not sure of."

! Regarding when he prepared Deborah and Irene Chandler to testify at sentencing, Redden said "We

talked probably some that afternoon, I'm not sure, and probably in the morning." When

post-conviction counsel tried to be more specific, asking "[s]o it would have been after—sometime

after 2:30 before you talked to her?" Redden replied "It might have been. I don't recall now."

! When asked if he remembered asking the court to bring petitioner in at 8:00 a.m. on the day the

sentencing proceeding was to begin, Redden said "I think that happened. I don't remember it."

! In response to a question about if he knew what Deborah Chandler's and Irene Chandler's answers

would be to the questions he would ask them before the jury, Redden said "I don't think so."

! When asked if he knew that the sentencing hearing lasted less than an hour, Redden said "I don't

know."

! When the prosecutor asked Redden if he knew how many witnesses he talked to, Redden said "No,

except as she [his paralegal, Brotherton] has advised me of a number that looked as if we had was

67."

! When asked by the prosecutor why he did not call Reverend McCoy as a mitigation character

witness, Redden said "[t]hey came with—there was a minister who came that I made the decision not

to use for the reason that he had been out of the community for a period of time, and as I recall—I've

forgotten, you know, the contact was not a current thing and I felt that in the absence of some number

of witnesses that that would not be a wise thing to do."

! When asked if he knew which of the 67 witnesses he and/or his paralegal, Brotherton, interviewed

were interviewed prior to trial or during trial, Redden said "No. Of course, there was some that would

have been in both categories." 

44

know," or "I don't recall," or "I don't have any recollection," or "I have forgot- ten."13 Giving
 13The majority states, ante at nn. 27 & 41, that it is not "accepting that [Redden's] words represent his

heartfelt views, that [it] is not crediting his testimony as absolutely true" or reviewing "the quality of the

specific lawyer's judgment process that underlie his conduct at trial;" rather, the majority accepts Redden's

testimony as "illustrating the kinds of thoughts some lawyer in the circumstances could—we

conclude—reasonably have had." It seems to me that in determining whether a defense attorney provided

ineffective assistance of counsel, what the attorney did, and why he did it, is important. The majority seems

to be disregarding what Redden did, and why he did it; instead, imagining what a hypothetical lawyer would

have done under the circumstances. I am unfamiliar with such an approach, which to me is quite novel, to

the resolution of ineffective assistance claims. 

 14All of the 27 character witnesses who testified during the hearing on petitioner's ineffective assistance

claim stated that neither Redden nor anyone acting in his behalf contacted them at any time about testifying

in petitioner's behalf at the sentencing phase of the trial. All of them also stated that they would have been

available to testify and would have done so if called. Deborah Chandler testified that the first time Redden

mentioned the subject of mitigating evidence was after the jury returned its verdict on the afternoon of April

2. 

 15In his opening statement to the jury at the sentencing phase of trial, Redden described the mitigating

evidence he would present as follows:

Mitigating circumstances may include any of those mitigating circumstances that are

identified by statute and may include also anything else, any other circumstance that any

juror wants to consider in mitigation. And by mitigation, we simply mean as tending to

indicate to you that you should not recommend a death penalty.

... [A]mong the statutory mitigating factors that the Court will identify to you are

two at least that are very important in this case.

One is—and this is in the statute for a jury to consider—that the defendant on trial

has no, as the statute says, "substantial criminal record." And we expect that to be

demonstrated very clearly in this hearing, that that is true of David Ronald Chandler.

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

which has been found, is not receiving and is not undertaken to receive the capital penalty.

I think that's already been demonstrated by the evidence in this case that that certainly is true

45

Redden's testimony its due weight and considering the rest of the evidence, a reasonable fact finder could find

the following facts:

— Redden did not look for mitigating evidence or even give the matter serious thought until after the

jury returned its verdict at the conclusion of the guilt phase of the trial.14

— After the jury returned its verdict at the conclusion of the guilt phase of the case, Redden

determined as a matter of sound trial strategy that mitigating evidence would be necessary. Having

made no investigation, or other inquiry, into petitioner's background, however, he had no idea of the

sort of mitigating evidence that might be available.15
with reference to the man that killed Marlin Shuler, Charles Ray Jarrell, Sr. But it will be

demonstrated conclusively to you again in the course of this hearing.

Then, in his closing argument at the sentencing phase, Redden contended that the mitigation evidence

he had presented showed that a sentence of death was inappropriate for Chandler's crime.

Specifically, he argued that,

Now, certainly we would argue and we do argue that there are two very clear

mitigating circumstances in this case. One is the absence of any substantial criminal record,

as the statute says, "mitigating factors." Number six, the defendant did not have a significant

prior criminal record. And that stipulation which is in evidence is proof without

contradiction that that is the case.

Another is that another defendant or defendants equally culpable in the crime will

not be punished by death. You can go further than that, not be punished at all, will not even

be tried under an accusation of the murder of Marlin Shuler. Those two things. Well, what

else mitigates.

Well, for one thing, the testimony of his mother and of his wife was not here for a

tear-jerking purpose. It was here to show that there was a life here that has had a stability

to it, that has had some quality to it and I think that is apparent when you looked at those two

ladies, contrasted to the character or nature of some of the people who testified in this case

and it stands out in stark contrast and the fact that here is a family that had tremendous

stability, here is a man who not to have lived around with this person, that person and the

other. He's got three children, they are all by his wife. Here is a man who apparently has

some skill of his hands who has worked in building his house and his parents' house, his

brother's houses and they've worked with him and this springs off the 80-acre farm that his

father had with his father, way back. They built a sawmill, they cut trees, they made lumber,

they collected rocks, they built houses and lives demonstrating lives with some purpose as

opposed to life worthless. So that that is a mitigating factor that I think that you have

certainly not just the right but the obligation to consider.

A reasonable fact finder could find from these portions of Redden's opening statement and closing

argument that Redden thought that mitigating evidence would be necessary if the jury was to spare

petitioner's life. 

 16After Redden spoke to Deborah Chandler about the need for witnesses to testify for petitioner, she left

the courthouse with members of her family and some friends (all from Piedmont) and drove to Piedmont.

Someone else drove the car because, in her words, she was "numb" and was having difficulty functioning.

Foremost in her mind was what she would tell her three children, the oldest of which was sixteen, about the

day's events.

46

— Redden delegated to Deborah Chandler the task of finding witnesses who could portray

petitioner's character in a favorable light. He did so without asking her who might be available to

testify or explaining the kinds of persons she should contact. Moreover, Redden knew that she was

visibly shaken and distraught over the jury's verdict and in no condition to carry out the task he had

assigned her.16
The trip to Piedmont took two and a half to three hours because they had to detour to drop

some of the people off; thus, they arrived home somewhere between 4:45 p.m. to 5:15 p.m. Family

members concerned about Deborah's condition summoned Rita Smith, a fellow member of Piedmont

Church of God, to stay with her. Several well-wishers stayed and prayed with Deborah throughout

the night. At some point during the evening, Deborah's sister-in-law reminded her that "they were

supposed to get somebody to stand up for Ronnie tomorrow." Rita Smith thought of Reverend

McCoy, who had been the pastor of Piedmont Church of God from 1975 to 1981. McCoy, who lived

in Piedmont, said he would testify, and came to Birmingham the next day for that purpose.

On the morning of April 3, between 8:00 a.m. and 9:00 a.m., Redden met for a "few minutes"

with petitioner, Deborah Chandler, Irene Chandler, and Reverend McCoy. At 9:00 a.m., the

sentencing phase of the trial began. Redden called Deborah and Irene to the stand, and they testified

as indicated in Judge Barkett's dissenting opinion. 

 17During the chambers conference, after the court told Redden that "the world [was] open to him,"

Redden could have—indeed, should have—informed the court that he had done nothing to prepare for the

penalty phase of the case. First, and foremost, his client's life was at stake. Even though Redden had satisfied

his constitutional obligation to provide petitioner competent representation during the guilt phase of the case,

Redden had an ethical obligation to cast petitioner's character in the best possible light at the sentencing phase

of the trial. Second, as a highly experienced criminal defense attorney, Redden knew that, if the jury

recommended a death sentence and petitioner was sentenced to death (1) petitioner would seek relief from

the sentence under 28 U.S.C. § 2255 on the ground that Redden had denied him effective assistance in the

sentencing phase of the trial, and (2) Redden would be back in court before the same district judge and

interrogated under oath as to why he did not seek a continuance in order to prepare the sort of mitigation

evidence petitioner's habeas counsel was able to uncover in the span of a few days.

Habeas counsel, after receiving two weeks notice of the evidentiary hearing the district court

would hold on petitioner's claim of ineffective assistance of counsel, met with Deborah Chandler,

explained the role of a mitigation witness, and asked her to assemble a group of people who would

have been available to testify in petitioner's behalf during the sentencing phase of the trial. On a

Sunday afternoon, after church, fifty or so people gathered at Irene Chandler's house for a meeting

with habeas counsel. Of this group, nearly all, forty to fifty, came to the evidentiary hearing in the

district court. After hearing the testimony of 27 of these witnesses, the district court stated that it had

heard enough; it held that the testimony of the remaining mitigation witnesses would simply be

cumulative and therefore would be unnecessary. 

47

— Notwithstanding these circumstances, Redden did not consider explaining his predicament to the

district court and requesting a continuance. He could have done so during or following the chambers

conference with the court on the afternoon of April 2, or before the sentencing phase of the trial

began at 9:00 a.m. the next day.17

The notion, expressed by the majority, that Redden did not call character witnesses like those found

by habeas counsel because he had "misgivings" about what the prosecutor might be able to bring out on
 18The majority draws its "misgivings" conclusion from the following exchange that took place between

Redden and the prosecutor at the evidentiary hearing on petitioner's ineffective assistance claim:

Q: You're also aware, were you not, that by calling character witnesses for Mr. Chandler you

would have opened them up to cross-examination by the government, would you not?

A: Yes, sir.

Q: Were there some aspects of that that you believed might not have been helpful to your

case?

A. Certainly.

Q: In fact, you knew or had some information that some individuals in the community

considered Ronald Chandler to be a drug dealer, did you not?

A: Yes.

Q: And some information that there were people in the community that were afraid of him?

A: Not as much of that. I had heard that, but that was—I don't know how many people

would come and say that as opposed to the other.

Q: You knew that was certainly available to the government or could be available to the

government as cross-examination material?

A: Well, I felt that the law enforcement community in Piedmont, in that part of the county,

was hostile to him, antagonistic to him. And that they certainly could have produced

witnesses of that sort.

Immediately after this exchange, Redden clarified that his real concern was not what the prosecutor

might bring out on cross-examination, but that the jury, by finding petitioner guilty, had already set

its mind against the petitioner such that nothing would convince it not to recommend death:

And so I felt that, to answer your question, that it would be at least questionable whether a

sufficient impact of character type testimony could overcome a fixed opinion based on the

other evidence, if they had such a fixed opinion, and could change it from life to death. Or

death to life. 

48

cross-examination, ante at 3051, has no foundation in the record.18 First, since Redden had no idea as to who

might be able to testify for petitioner, he could not have had misgivings about what a particular witness might

say on cross-examination. Second, other than his belief that the Piedmont "law enforcement community" was
 19As the prosecutor conceded, petitioner had no "substantial" criminal record; thus, the prosecutor could

not have cross-examined petitioner's mitigation witnesses about petitioner's past crimes. As far as we can tell

from the record, Redden had no idea as to the identity of any witness(es) the prosecutor could have called to

the stand to rebut the sort of mitigating evidence petitioner's habeas counsel were able to develop. Nor did

the prosecutor reveal the identity of such witness(es). As for Redden's belief that the Piedmont law

enforcement community was "hostile" toward petitioner, neither Redden nor the prosecutor have explained

how this hostility would have been put to the mitigation witnesses on cross-examination. Moreover, I have

been unable to conjure a question that the prosecutor could have put to a mitigation witness—such as, "Have

you heard that the Piedmont law enforcement community is hostile toward petitioner?"—that would have

survived a defense objection. Furthermore, neither Redden nor the prosecutor, who defended Redden's

conduct at the evidentiary hearing, identified any testimony that could have been admitted under the Federal

Rules of Evidence. The same is true with respect to the belief of some in the community that petitioner was

trafficking drugs. 

 20The majority not only concludes, as a factual matter, that Redden delivered a "lingering doubt"

argument as a matter of trial strategy, but goes on to hold that "we ... would not approve a district court's

finding otherwise." Ante at n. 26. In other words, Redden's lingering doubt argument provides a bench mark

for the lawyers and courts of this circuit in future cases; any argument appearing to fit hand-in-glove with

Redden's argument will be considered, as a matter of law, to be a "lingering doubt" argument! 

49

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

to say on the subject of what the prosecutor might have been able to develop on cross.19

Also lacking a foundation in the record is the notion that Redden decided to base his sentencing phase

strategy on "lingering doubt" rather than mitigating evidence (save the two stipulations, and the testimony

of Deborah and Irene). I say this for two reasons. First, when examined at the evidentiary hearing on

petitioner's ineffective assistance of counsel claim, Redden did not say, or even imply, that he pursued the

"lingering doubt" strategy.20 From all appearances, Redden had little idea as to what he would say to the jury

when he rose to make his opening statement. Second, the transcripts of Redden's opening statement and

closing argument—copies of which are attached to this opinion—do not reflect a "lingering doubt" strategy.

In fact, in his closing argument, Redden told the jury:

You've made a finding of guilt. I can't argue against that because it's already made, but I say to you

in all sincerity that it would be a tremendous mistake, in my judgment, for you to return a

recommendation; that is, a verdict that would impose on this court the obligation to cause this man

to be put to death considering every circumstance of this case.
50

Instead of relying on "lingering doubt," Redden urged the jury to give due weight to the fact that petitioner

had no substantial criminal record, the fact that Charles Ray Jarrell would not be receiving the death penalty,

and the testimony of Deborah and Irene Chandler. Regarding the women's testimony, he said that he had not

presented "the testimony ... for a tear-jerking purpose." It was presented "to show that there was a life here

that has had a stability to it, that has had some quality to it." In other words, a reasonable fact finder could

find that Redden himself thought mitigating circumstances existed, which the jury should have considered

in deliberating on the sentence to recommend.

III.

In summary, the district court made no findings of fact regarding Redden's performance in the

sentencing phase of the trial; rather, it disposed of petitioner's ineffective assistance claim by concluding that

Redden's performance, even if constitutionally inadequate, caused petitioner no prejudice. What the majority

and Judge Barkett in her dissent have done is to step into the district court's shoes, find the historical facts

underpinning petitioner's claim that Redden's performance fell short of constitutional minima, and decide the

merits of the performance aspect of petitioner's ineffective assistance claim. I would eschew such fact finding

at the appellate level. Rather, I would remand the case to the district court, whose habeas role is to find the

facts underpinning a petitioner's claims, with instructions to enter findings of fact and conclusions of law

concerning Redden's performance in the sentencing phase of petitioner's trial. 

Opening Statement

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

question of whether these aggravating factors exist by evidence sufficient to convince beyond a reasonable

doubt that they do exist. The Court has told you I believe and will tell you again that the only aggravating

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

I'm sure, in his closing instructions.
51

Mitigating circumstances may include any of those mitigating circumstances that are identified by

statute and may include also anything else, any other circumstance that any juror wants to consider in

mitigation. And by mitigation, we simply mean as tending to indicate to you that you should not recommend

a death penalty.

Of course, as the Court has stated to you, the word "recommend" is used here but it's more than that.

In this respect, that if a jury recommends the death penalty, the Court has no discretion to change that or to

make another sentence or penalty, but among the statutory mitigating factors that the Court will identify to

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

One is—and this is in the statute for a jury to consider—that the defendant on trial has no, as the

statute says, "substantial criminal record". And we expect that to be demonstrated very clearly in this hearing,

that that is true of David Ronald Chandler.

Also, that another person or persons who participated in the killing of Marlin Shuler, which has been

found, is not receiving and is not undertaken to receive the capital penalty. I think that's already been

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

Marlin Shuler, Charles Ray Jarrell, Sr. But it will be demonstrated conclusively to you again in the course

of this hearing.

Yesterday after you had commenced your deliberations you manifested an interest in what was

identified as Exhibit 45 of the government and that was a tape that you asked to be played and you were

allowed to have in your hands to read along with the playing of the tape a document which had been

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

The importance of that tape and of that document for purposes of this hearing is this. I say that this

hearing will establish without a doubt—again I think it's something already that has already been established,

that the death of Marlin Shuler occurred on May 8, 1990, that the statement that your foreman's message

referred to to the Court which was in writing as the Court instructed and you did it without knowledge of what
52

numbered exhibit you were talking about, but the statement in which you had an interest was capsulated in

the foreman's message. And that was Exhibit 45. And you manifested an interest in a statement that says,

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

The evidence has reflected and will reflect again that that statement was not made until July 31, 1990,

that it was made almost three months after the death of Marlin Shuler. It could not have been made with

reference to Marlin Shuler unless the maker of the statement was unaware of the death of Marlin Shuler. But

you found contrary to that by your finding already. And I ask you—we will ask you to consider the

significance of that fact; that is, that Marlin Shuler was already deceased at that time.

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

the further instructions of the Court we urge and feel very strongly that you will not recommend a death

sentence under all the circumstances of this case which you have heard and can take into consideration to the

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

Closing Argument

Please the Court, I think that for the purposes that you're here that part of Mr. Davis' argument goes

outside the parameters of what is relevant to determining what penalty you recommend for David Ronald

Chandler. But I'll respond to part of it anyway. He talked of the great preparation, he talked about Texas,

he talked about many things, all of which he now attributes to David Ronald Chandler, which the evidence

did not attribute to David Ronald Chandler. He sort of forgets Paul Watson when he talks about who was the

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

Moncrief, all of this, forgets and I respond to it only to say, number one, I think it's outside the scope of what

is relevant here but, number two, it forgets what the evidence in this case was.

And then he says to you that David Ronald Chandler says to Charles Ray Jarrell, Sr., got $500.00,

kill him, kill him, kill him, keep on and keep on until you persuade that man to do that and wait a minute, if

I misstate the evidence, you'll correct me and I hope you'll correct Mr. Davis because Charles Ray Jarrell
53

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

made a statement to him which said, in substance, "This man is going to cause trouble, I'll give you $500.00

to kill him." And what did he say about the statement. He said, "I thought he was joking, always off the wall

like that." And that that's the only time, the only time that was ever mentioned up until the 8th day of May

of 1990 when he said he had a conversation with David Ronald Chandler which he stated two different ways

in his prior testimony. One time no money was mentioned, according to him. The other time said I've still

got the $500.00. Now, what does that show with reference to any planning, scheming, deliberation by David

Ronald Chandler. If that conversation took place at all, if it took place at all, took place after a long lapse of

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

thing that was not precipitated. His testimony was not that any nine millimeter pistol had been given to him

for the purpose of killing Marlin Shuler, that he had that pistol. He said, in his truck, that he thought, as I

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

to pick it up that morning when he came over and that the thirty-eight he had was his own weapon.

Well, then let's go on. What prompted Charles Ray Jarrell, Sr. in his actions. How much did

anything that was said to him on that day by David Ronald Chandler impel him, motivate him to do what he

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

I recall, was well, shot up all of the thirty-eight—I don't know how many rounds were left in the nine

millimeter, didn't even know whether he had any or not. And he shot him. And, of course, when Mr. Davis

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

unequivocally on other occasions; that is, number one, that he didn't shoot this man; number two, he shot

him, it was an accident and then he gets into the routine of the statements that he made when it became

profitable for him to make them.

Well, here's one thing that is undisputed. There was Jarrell's family's malice toward Marlin Shuler.

How is that demonstrated. No question about the fights that both sons, Charles Ray, Jr., Billy Joe had with
54

Shuler. Why. Because of, number one, his abuse of Donna Shuler, Charles Ray's half sister, abuse of her,

his abuse of the family generally and his abuse of Donna's mother, Mrs. Johnson, for whom he had an

abhorrious name.

Charles Ray Jarrell had plenty of malice, animosity, hostility toward Marlin Shuler not engendered

by David Ronald Chandler. David Ronald Chandler didn't have a thing to do with Charles Ray Jarrell putting

a pistol to the nose of this man and pulling the trigger intending to kill him and in November of 1989. So

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

would say to you yeah, but that was all over with, that was over and done with, that was just one moment

called the argument that well, he was looking him in the face at that time. That's a different thing from

shooting him in the back of the head or wherever he was shot on a different occasion. But I say you can't

attribute to David Ronald Chandler the compelling force of what that man did on that occasion to the extent

that a recommendation, in fact, a sentence to death be justified.

I submit to you that under all the circumstance of this case it would be cruel and unusual punishment,

which our constitution even says should not be the subject of punishment in this country.

Now, certainly we would argue and we do argue that there are two very clear mitigating

circumstances in this case. One is the absence of any substantial criminal record, as the statute says,

"mitigating factors". Number six, the defendant did not have a significant prior criminal record. And that

stipulation which is in evidence is proof without contradiction that that is the case.

Another is that another defendant or defendants equally culpable in the crime will not be punished

by death. You can go further than that, not be punished at all, will not even be tried under an accusation of

the murder of Marlin Shuler. Those two things. Well, what else mitigates.

Well, for one thing, the testimony of his mother and of his wife was not here for a tear-jerking

purpose. It was here to show that there was a life here that has had a stability to it, that has had some quality

to it and I think that is apparent when you looked at those two ladies, contrasted to the character or nature of
55

some of the people who testified in this case and it stands out in stark contrast and the fact that here is a

family that had tremendous stability, here is a man who not to have lived around with this person, that person

and the other. He's got three children, they are all by his wife. Here is a man who apparently has some skill

of his hands who has worked in building his house and his parents' house, his brother's houses and they've

worked with him and this springs off the 80-acre farm that his father had with his father, way back. They

built a sawmill, they cut trees, they made lumber, they collected rocks, they built houses and lives

demonstrating lives with some purpose as opposed to life worthless. So that that is a mitigating factor that

I think that you have certainly not just the right but the obligation to consider.

This is a case, of course, that's extremely important. You've made a finding of guilt. I can't argue

against that because it's already made, but I say to you in all sincerity that it would be a tremendous mistake,

in my judgment, for you to return a recommendation; that is, a verdict that would impose on this court the

obligation to cause this man to be put to death considering every circumstance of this case. You are going

to be told that any such recommendation must be unanimous, that it has to be signed on, signed on judgment

of each one of you. And I say to you that there has been a lot of innuendo—where he says, well, now, this

guy named McFry who is not her, Burrows who is not here—I say to you that there is no evidence in this case

that would justify any speculation on someone's part that hey, these people may be dead and he might have

had something to do with it. If you indulge in that, you will have committed, in my judgment, an aggrievous

wrong as far as the defendant is concerned.

I think it is the certainly the inclination of our law and the safeguards that even this statute attempts

to wrap around the case and this defendant or any defendant so charged that the recommendation of a death

penalty is not considered to be the normal act of a juror, certainly under circumstances of this case and

particularly where, as here, no prior record. And then the man who did it after twenty-three beers not even

prosecuted for that murder, has been indicted but that will be dismissed, that's the stipulation that's in
 1

See Linda Greenhouse, In Test of New U.S. Law, Death Sentence is Upheld, N.Y. Times, June 22, 1999,

at A22 (noting that last federal execution occurred in 1963). 

56

evidence. So we ask you to consider the relevant evidence and when you've done so, we feel that you will

return a recommendation to the court that there be no death penalty imposed on David Ronald Chandler.

Thank you very much.

ANDERSON, Chief Judge, dissenting:

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

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). I agree with Judge Tjoflat that the

performance prong should be remanded to the district court. Because the district court found that the

prejudice prong was not satisfied, it did not address the performance prong. As Judge Tjoflat correctly

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

facts which are in dispute. I agree with Judge Tjoflat that, in this case, an appropriate resolution of the

performance prong cannot be made without such fact findings by the district court. Accordingly, I

respectfully dissent.

BIRCH, Circuit Judge, dissenting:

I join in Judge Barkett's comprehensive, persuasive, and record-relevant dissent. Given the current

and continuing concerns about the reliability and, hence, the viability of the death penalty, it is critical for

the courts to set a standard of attorney performance which merits the public's confidence. In this case, the

majority places the acceptable level of attorney assistance so low as to risk undermining the public's

confidence in the criminal justice system. The result of this opinion may be to make David Ronald Chandler

the first federal prisoner executed by the government of the United States in 37 years.1

Chandler is the first person to be sanctioned with the death penalty as enacted by Congress in 1988

under the Anti-Drug Abuse Act of 1988, 21 U.S.C. §§ 848(e) et seq. Therefore, it represents a unique

opportunity for the federal courts to prescribe the minimum requirements for the Government's taking of a
57

life. Defense counsel's entire penalty phase effort, from the minute that he asked Deborah Chandler to find

mitigation witnesses until the arguments concluded, consisted of less than 24 hours. Before we, as a civilized

society, condemn a man to death, we should expect and require more of an advocate.

For all of the reasons that I set forth in the panel opinion in this case, see Chandler v. United States,

193 F.3d 1297 (11th Cir.1999), reh'g en banc granted and opinion vacated, Dec. 3, 1999, I continue, as I did

then, to be convinced that the record in this case compels the conclusion that Chandler received ineffective

assistance of counsel during his penalty phase, in violation of the Sixth Amendment guarantees as set forth

in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Supreme Court's

recent decision in Williams v. Taylor, --- U.S. ----, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), only strengthens

my conviction that we should vacate Chandler's death sentence and remand for re-sentencing.

BARKETT, Circuit Judge, dissenting, in which BIRCH, Circuit Judge, joins:

The issue in this case is whether a lawyer who has competently performed in the guilt phase of a

capital trial, but does nothing to investigate mitigating evidence, has provided constitutionally effective

representation at the sentencing phase. The Supreme Court made clear in Williams v. Taylor, --- U.S. ----,

120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), decided on April 18, 2000, that he has not.

To the extent that the majority's opinion suggests that a defense lawyer has no obligation, independent

of his preparation for the guilt phase, to conduct even the most minimal investigation into the existence of

mitigating evidence in preparation for the penalty phase of a capital case, it is contrary to and misstates the

specific dictates of the Supreme Court as well as this Circuit's precedent. To the extent that the majority's

opinion suggests that L. Drew Redden, Chandler's attorney, conducted a reasonable investigation into the

availability of mitigating evidence, or that he made a reasonable tactical choice not to investigate or present
 1

Notwithstanding the majority's assertion, supra note 41, that the disagreements in this case are about the

law and not about factual matters, I in fact do take issue with the majority's reading of the record as well as

its interpretation of the law. 

 2This dissent is in a different format than the majority's 12 "principles and presumptions." I note that,

while some of those principles and presumptions are accurate statements of the law, others are extrapolations

from dicta that cannot be reconciled with the guidance provided in Strickland. Many, as pointed out infra,

are totally inapplicable to the facts of this case. 

 3When asked what he did to prepare for sentencing, Redden admitted "I would say basically not anything

explicitly. I mean, what I was preparing to do was to try to defend the case and there was not volunteered

at that—in any of that among the people I talked with or presented to me anything that I considered would

be helpful on a sentencing phase if that came to pass." R13-433-331.

At a later point, Redden again testified:

58

mitigating evidence, it is in clear conflict with the record,1 which belies the conclusion that Redden conducted

any investigation or made any reasoned tactical decisions with respect to the penalty phase of Chandler's trial.

Although the majority devotes much of its opinion to facts relevant to Redden's professional

qualifications and civic and bar activities as well as his competent representation in the guilt phase, these facts

have nothing to do with the issue raised in this case. As to that issue, the majority glosses over the record

evidence of Redden's complete lack of preparation for or effort in the crucial penalty phase. Moreover, rather

than remanding the case to the district court judge, who is in the best position to assess testimony, to give him

the opportunity to decide first whether Redden's performance was constitutionally adequate, the majority

arrogates this task to itself and, based on speculation, wrongfully holds that Chandler's sixth amendment right

to counsel was not violated and Redden's performance was constitutionally adequate.2

I. Redden's performance at the sentencing phase was constitutionally ineffective.

A. Redden does not dispute that he failed to investigate the availability of mitigating evidence.

In Williams v. Taylor, the Supreme Court found ineffectiveness requiring a new sentencing hearing

where counsel "did not begin to prepare for [the penalty] phase of the proceeding until a week before the

trial." 120 S.Ct. at 1514. In this case, counsel was even more remiss, failing to think about the penalty phase

until the night before the sentencing hearing.3

 The guilt-innocence proceeding ended at 2:30 on the afternoon
Q. You testified earlier today that prior to trial, I think your exact words, you had done

essentially nothing to prepare a mitigation case in the event that your client was convicted of the

murder charge. Murder in furtherance of a continuing criminal enterprise. At the—during trial,

what, if any, efforts did you do to try to put together a mitigation case?

A. In connection with sentencing?

Q. Mitigation case in connection with sentencing, yes, sir....

A. Very little.

R13-433-359. 

 4Deborah Chandler testified that Redden first asked her to find character witnesses for the sentencing

hearing on the afternoon that Chandler was convicted. See Exh.12 at 19. Redden explicitly corroborates

Chandler's testimony on this point:

Q. Did you go—when did you go prepare their testimony?

A. We talked probably some that afternoon, I'm not sure, and probably the morning.

Q. So it would have been after—sometime after 2:30 before you talked to her?

A. It might have been, I don't recall now.

Q. Okay. Or it would have been sometime before 9:00 a.m. in the morning?

A. We started at nine and we talked to them that morning, it would have been before then.

Q.... [H]ow much time did you have to prepare Ms. Irene Chandler and Ms. Deborah

Chandler for their testimony?

A. Not much.

R13-433-371-72. 

59

of April 2, 1991, and the penalty phase was set to begin at 9:00 the next morning. That afternoon, Redden

"prepared" for the penalty phase by asking Deborah Chandler, the defendant's wife, to "find" some character

witnesses to "stand up for Ronnie" the next morning.4

 In addressing the extent to which counsel must prepare

for mitigation, our cases require that counsel, at the very least, inform the defendant and the defendant's
 5

Tyler v. Kemp, 755 F.2d 741, 744-45 (11th Cir.1985) (finding that, although counsel contacted relatives,

his performance was deficient because he "did not tell them that their testimony was needed on any subject

other than guilt or innocence and did not explain the sentencing phase of the trial of that evidence of a

mitigating nature was needed"), rev'd in part on other grounds sub nom. Peek v. Kemp, 784 F.2d 1479, 1494

& n. 15 (11th Cir.1986) (en banc). 

 6Elledge v. Dugger, 823 F.2d 1439, 1445, modified on other grounds, 833 F.2d 250 (11th Cir.1987)

(stating that counsel must "at least interrogate [the defendant's] relatives"); see also Cargill v. Turpin, 120

F.3d 1366, 1386 (11th Cir.1997) (finding effective assistance where counsel "obtained names" of potential

witnesses from defendant and defendant's mother and sister); Bolender v. Singletary, 16 F.3d 1547, 1558

(11th Cir.1994) (counsel effective where he "interviewed relatives concerning [defendant's] family

background"); White v. Singletary, 972 F.2d 1218, 1224-25 (11th Cir.1992) (counsel effective where he

"spoke[ ] with family members in preparing for the penalty phase"); cf. Stevens v. Zant, 968 F.2d 1076,

1083-84 (11th Cir.1992) (counsel effective where he tried to secure in-court presence of defendant's relatives

by telling defendant of importance of this, asking him for names, and speaking with the two relatives

defendant mentioned). 

 7Compare Jackson, 42 F.3d at 1367 (deficient performance where counsel aware of some "possible"

mitigating evidence regarding defendant's background but failed to investigate); Blanco v. Singletary, 943

F.2d at 1500-01 (11th Cir.1991) (deficient performance where counsel left messages with relatives mentioned

by defendant but neglected to contact them); Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir.1988)

(deficient performance where counsel learned of mitigating personal history evidence from defendant but

failed to investigate); with Cunningham v. Zant, 928 F.2d 1006, 1015-16 (11th Cir.1991) (not deficient

performance for failing to locate more character witnesses where counsel interviewed the three people

defendant identified as well as several others). But cf. Singleton v. Thigpen, 847 F.2d 668, 670 (11th

Cir.1988) (counsel not deficient for failing to interview neighbors where he "asked [defendant's] mother and

girlfriend to identify individuals who could testify on behalf of [defendant], but they could not name anyone"

and where defendant failed to proffer evidence which counsel would have found had he searched

neighborhood). 

60

relatives about the nature and importance of character evidence in a capital sentencing trial,5 ask them for the

names of potential witnesses,6

 and then follow up on whatever leads they provide.7

Even if it were appropriate for counsel to delegate the task of uncovering mitigating witnesses to a

person without any legal training whose husband had just been convicted and faced the possibility of being

sentenced to death the next day, Deborah Chandler hardly had time to comply. On that afternoon, she had

to drive approximately two hours to Piedmont where she and Chandler lived, and two hours again the

following morning to attend the penalty hearing. She thus had approximately twelve hours to round up

mitigation witnesses who would then be called to testify with little or no preparation from trial counsel as

Redden never advised Deborah Chandler, or anybody else, regarding the nature of the testimony he hoped
 8

Q. Mr. Redden, on cross-examination you mentioned that there was some interviews of witnesses prior

to trial and during trial, and though you don't have an independent recollection of how many were

interviewed, you have been told by Ms. Brotherton that y'all have 67 files, witness files, with information

regarding some contact with a witness; is that correct?

A. I believe she said 67.

Q. 67. And all of those witnesses, however, were witnesses that dealt with the

guilt/innocence issues in the trial, is that not correct?

A. Those were.

Q. All 67 were guilt/innocence type witnesses.

A. I would say that's correct.

R13-433-406. 

61

to elicit at the penalty stage. See R13-433-364. Redden did not consider or request a continuance in order

to prepare for the next day's penalty phase. Id. at 324.

When asked whether he thought he would have had some opportunity to interview potential character

witnesses, Redden responded: "Well, only a hope. And not one that I really spent a lot of time or effort on

or felt that there was that much time to spend on." Id. at 398. The best he could do was suggest that he would

have been prepared to listen if anyone had volunteered anything useful. When asked why he had not "done

any specific preparation for the death penalty phase," id. at 395, Redden offered the following explanation:

Well, I guess, number one, you do what's coming up first, and you do what's immediately on you.

Number two, of course, if something happens in your interviewing of a witness or talking to a

particular witness that could be of value ultimately in that, you'd make at least a mental note of that.

But there wasn't, as I've testified, anything specifically directed to that at that time and nothing was

volunteered to me that I considered of value in there.

Although the majority notes that Redden interviewed 67 witnesses, it is clear that those witnesses were

interviewed only for purposes of the guilt phase of the trial and not for purposes of mitigation.8

 Moreover,

the majority of these interviews were with government witnesses who were unlikely to offer unsolicited

favorable character evidence. There is no evidence that Redden asked a single question of these witnesses

with mitigation in mind.
 9

The majority speculates that Redden censored himself at the Section 2255 evidentiary hearing and that

the district court shielded attorney-client conversations from examination. On the contrary, the court did

nothing to prevent the prosecution from asking Redden whether he had discussed the existence or presentation

of mitigating evidence with Chandler. Indeed, when the prosecution requested permission to ask Redden

whether he had discussed certain topics with his client, the district court instructed Redden to testify as to the

fact of the conversations but not to reveal what was said. R13-433-385. Far from halting such inquiries or

even chilling prosecutors from asking questions along those lines, the court merely stated that it would make

rulings on questions that might touch on the attorney-client privilege "on a situation by situation, case-by-case

basis." Id. Clearly, the prosecution could have asked Redden whether he had ever had conversations with

Chandler or his family members regarding possible mitigating evidence. When the prosecution did ask

Redden whether he had failed to mention any preparation he had done for Chandler's case, he indicated that

all of his preparation had been covered during direct examination:

Q. A number of things that were described by [appellate counsel] Mr. Martin or you were

questioned by Mr. Martin concerning a number of things that you did in preparation for this case.

Were there any matters that, or any preparation that you did that was not covered on direct

examination that you can think of that would be of significance or do you feel like you covered

everything?

A. I guess the nature of everything was covered. I don't suggest that each act of preparation

was covered.

Id. at 386. The effect, if any, that invocation of the attorney-client privilege should have on review

of counsel's effectiveness at the trial level is prematurely addressed and decided by the majority, as

the issue was not briefed or argued in this case. Such an important question needs to be fully

addressed prior to any decision by this Court. 

62

The majority insinuates, extrapolating from Redden's use of the attorney-client privilege as to one

issue, that Redden did not investigate because Chandler might not have wished him to do so. Although that

suggestion is totally unsupported by the record in this case,9

 even if the majority's interpretation of the facts

were correct, this Court has found that an attorney has a duty to investigate possible mitigating evidence even

where a defendant has specifically said to his lawyer that he does not want to present any mitigating evidence.

Dobbs v. Turpin, 142 F.3d 1383, 1387-88 (11th Cir.1998). "Although the decision whether to use mitigating

evidence is for the client, this court has stated, 'the lawyer first must evaluate potential avenues and advise

the client of those offering possible merit.' " Id. (quoting Thompson v. Wainwright, 787 F.2d 1447, 1451

(11th Cir.1986)); see also Blanco, 943 F.2d at 1503 (finding ineffective assistance where "[t]he ultimate

decision that was reached not to call witnesses was not a result of investigation and evaluation, but was
 10The majority treatment of Williams is at odds with the well-established judicial practice of drawing

general principles from specific cases as the majority has done throughout its opinion. We certainly agree

that Williams does not establish a per se rule that "a defense lawyer must present character witnesses at the

sentencing phase or that a defense lawyer (no matter what his client may have informed or instructed him)

must in every case investigate purely to see if character witnesses might exist who might be of help at the

sentencing phase." Supra note 21. We do however read Williams as reinforcing the established rule that

defense counsel's decision not to present mitigating evidence must be reasonable. 

63

instead primarily a result of counsels' eagerness to latch onto [the defendant's] statements that he did not want

any witnesses called"). Again, Redden could not have intelligently counseled Chandler about the availability

or presentation of mitigating evidence because he had no knowledge of its nature or its extent.

B. A lawyer has an obligation to investigate mitigating evidence.

In Williams v. Taylor, the Supreme Court, citing to the American Bar Association's Standards for

Criminal Justice, specifically stated that a defense lawyer in a capital case is "obligat[ed] to conduct a

thorough investigation of the defendant's background." 120 S.Ct. at 1514-15. The ABA standard recognizes

the lawyer's substantial role in raising mitigating factors both to the prosecutor initially and to the court at

sentencing, that this task cannot be accomplished simply on the basis of broad general emotional appeals or

on the strength of statements made to the lawyer by the defendant, and that investigation is essential to

discover facts about the defendant's background, education, employment record, mental and emotional

stability, family relationships, and the like. It concludes that, "without careful preparation, the lawyer cannot

fulfill the advocate's role." 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed.1980).

Dismissing Williams ' relevance to this case,10 the majority says that "[i]nvestigation (even a

nonexhaustive, preliminary investigation) is not required for counsel reasonably to decline to investigate a

line of defense thoroughly." Not only is this statement contrary to Williams and to prior Supreme Court

precedent, but the citations following this statement hold precisely the opposite, as recognized in the

parentheticals for the cited cases. Strickland v. Washington states that counsel has a duty either to make a

reasonable investigation or to make a reasonable decision that no investigation is necessary. 466 U.S. 668,

691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland also states that counsel may make a "less than
 11Similarly, in Williams v. Head, this Court noted that a strategic decision can be reasonable even if not

preceded by a thorough investigation. 185 F.3d 1223, 1236-37 (11th Cir.1999). As the majority points out,

that Court also held that counsel need not "pursue every path until to bears fruit or until all hope withers."

Id. However, that statement does not support the conclusion that counsel is not obligated to conduct any

investigation at all. This Court has established that defense counsel has a duty to undertake reasonable

investigations. Failure to conduct any investigation "because of the mistaken notion that mitigating evidence

is inappropriate is indisputably below reasonable professional norms." Dobbs, 142 F.3d at 1388 (quoting

Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991)). Redden did not fail to present some of the available

mitigating evidence; he failed to present any of it. He did not make a strategic decision not to "stack

defenses"; he did not "winnow out" certain arguments, witnesses or evidence. Redden failed completely to

investigate the availability of mitigating evidence and then presented no case for mitigation at all. He relied

on Chandler's wife to locate mitigation witnesses at the eleventh hour, and his abbreviated examination of

the two people who should have known Chandler the best, his wife and mother, was so deficient as to have

been detrimental. See footnote 18, infra, addressing the prosecution's use of their testimony. No prior

decision of this Court or the Supreme Court has held that such a performance is constitutionally effective.

64

complete investigation" if "reasonable professional judgment supports the limitations on the investigation."

Id. at 690-91, 104 S.Ct. 2052.11 As evidenced by the cases cited herein, as well as those cited by the majority,

it is axiomatic that counsel must perform at least a preliminary investigation before he or she is able to make

an informed or "strategic" decision about whether or not to further pursue that investigation.

In Williams, the Supreme Court emphasized that, regardless of whether counsel's failure to conduct

a thorough background investigation was sufficiently prejudicial to have affected the outcome of sentencing,

it "clearly demonstrated that trial counsel did not fulfill their obligation." 120 S.Ct. at 1514-15. Likewise,

this Court previously has recognized that a defense attorney has a duty "to conduct a reasonable investigation,

including an investigation of the defendant's background, for possible mitigating evidence." Porter v.

Singletary, 14 F.3d 554, 557 (11th Cir.1986).

It is true that an attorney may, under some circumstances, make a strategic choice to curtail a

particular investigation. But the Supreme Court has tied the reasonableness of such a choice to the amount

of investigation backing that choice:

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options

are virtually unchallengeable; and strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the limitations on
 12The majority suggests that experienced criminal trial lawyers are entitled to some heightened standard

of deference. Although counsel's experience may be relevant in assessing, for example, how he viewed a

particular strategy, it cannot carry over to excuse a case of incompetent performance, notwithstanding his

capable representation in any other case, or even in the guilt phase of this one. The majority attempts to

parlay the respect for the professional judgment of an experienced trial lawyer that we expressed in

Provenzano v. Singletary, 148 F.3d 1327 (11th Cir.1998), into a general principle of enhanced deference.

But in Provenzano, we stated only that "[o]ur strong reluctance to second guess strategic decisions is even

greater where those decisions were made by experienced criminal defense counsel." Id. at 1332 (emphasis

added). In this case, Redden made no strategic decision. Rather, he completely failed to investigate or to

discover readily available mitigating evidence. Deference is due to Redden's "strategic decision" only if

evidence indicates that he made one. The majority's reliance on Burger v. Kemp, 483 U.S. 776, 779-80, 107

S.Ct. 3114, 97 L.Ed.2d 638 (1987), is likewise misplaced. The Burger Court merely mentioned in reviewing

the facts that the defense counsel at issue in that case had a good deal of trial experience. That passing

reference was in no way connected to the Court's conclusion that that counsel's performance was not

ineffective, and the Court did not opine, as the majority's citation of Burger implies, that a counsel's extensive

trial experience entitles him to enhanced deference. This was not Reddent's first capital case. It was,

however, his first since 1976, and his first with the new bifurcated guilt and penalty phases. See R13-316-17;

R15-1-28. 

65

investigation. In other words, counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.

Strickland, 466 U.S. at 691, 104 S.Ct. 2052; see also Dobbs, 142 F.3d at 1387-88 (advising that "a particular

decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a

heavy measure of deference to counsel's judgments") (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052).12

Thus, counsel's failure to conduct a thorough or complete investigation may be excused only where a

preliminary investigation has reasonably informed counsel's determination that further investigation is not

warranted. "[T]he mere incantation of 'strategy' does not insulate attorney behavior from review; an attorney

must have chosen not to present mitigating evidence after having investigated the defendant's background,

and that choice must have been reasonable under the circumstances." Stevens, 968 F.2d at 1083 (emphasis

added); see also Horton, 941 F.2d at 1462 ("[O]ur case law rejects the notion that a 'strategic' decision can

be reasonable when the attorney has failed to investigate his options and make a reasonable choice between

them.").

In Baxter v. Thomas, we said that the first step in assessing a claim of failure to investigate mitigating

evidence is to "determine[ ] whether a reasonable investigation should have uncovered the mitigating
 13The majority relies on Tarver v. Hopper, 169 F.3d 710 (11th Cir.1999), to support its contention that

counsel may reasonably decide to pursue a strategy of lingering doubt to the exclusion of all other strategies

66

evidence. If so, then a determination must be made whether the failure to put this evidence before the jury

was a tactical choice by trial counsel." 45 F.3d 1501, 1513 (internal citations omitted) (quoting Blanco, 943

F.2d at 1500). Thus, we may not simply assume that Redden's failure to investigate was a strategic decision

deserving of deference. We must determine whether the failure to investigate mitigating character evidence

was an unreasonable omission or a reasonable strategic choice.

C. Redden's failure to investigate and present the available mitigating evidence did not result from a

strategic decision.

Notwithstanding a complete absence of evidence in the record that Redden knew of or considered

the existence or nature of mitigating evidence, the majority assumes that he made a "strategic choice" not to

investigate it.

1. Lingering doubt

The majority first excuses Redden's failure to investigate by positing that he chose instead to "focus[

] on obtaining an acquittal and then at sentencing on lingering doubt." That choice, says the majority, "was

a reasonable one." The majority errs in several respects in reaching that conclusion. First, it is mere

conjecture on the part of the majority that Redden "chose" to pursue a strategy of lingering doubt. This gloss,

which the majority has superimposed on Redden's actions in hindsight, is again not supported by the record.

Redden himself never suggested that he pursued any such strategy. Nor did the government suggest he had

pursued such a strategy until after the issuance of the panel opinions. The sum total of the evidence on which

the majority depends for its conclusion that Redden pursued a strategy of lingering doubt is his testimony at

the Section 2255 evidentiary hearing that he "did not feel that a reasonable minded jury would impose the

death penalty" on Chandler. That's it. Redden did nothing at the sentencing hearing to communicate to the

jury that, because they harbored lingering doubts regarding Chandler's culpability, they should not

recommend the death penalty.13
during the penalty phase of a capital case. That case, however, is not analogous. In Tarver, counsel let the

jury in on his strategy of lingering doubt so they could apply it at sentencing:

I would hope that the evidence presented both in the case-in-chief last week and anything

that you have heard today might be sufficient to raise in your mind at least a shadow of a

doubt about the defendant's guilt, and if that doubt exists in your mind, I would pray that you

would resolve it in favor of the defendant.

169 F.3d at 715. In addition, Tarver's attorney called a polygraph examiner who had interviewed

Tarver. The polygraph examiner testified at Tarver's sentencing hearing that Tarver did not lie when

he said that he had not killed the victim in that case. Id. The jury heard no comparable appeals in this

case. More importantly, in Tarver, counsel's unambiguous decision to pursue a lingering doubt

strategy was an informed one. Unlike Redden, counsel in that case first "interviewed every witness

Tarver thought would be helpful as mitigation witnesses, including Tarver's mother, grandmother,

aunt, cousin, girlfriends, former employer, and members of the community." Id. at 714. Redden did

nothing. 

67

Second, even if we credit the majority's assertion that trial counsel, albeit clumsily, pursued a

lingering doubt theory, it was unreasonable for him to limit his presentation to that approach without first

investigating how fruitful additional mitigating strategies might be. As noted earlier, courts may not simply

assume that a failure to investigate was a strategic decision deserving of great deference. Although it is

beyond peradventure that a strategic decision implies knowledge of the options, the majority says:

Trial counsel stated that he did not need to know what a witness would say to determine whether the

witness would be compelling at mitigation. He stated that you assume what a piece of testimony

might be and "assume the most favorable testimony that you might get and then form some judgment,

not the most reliable judgment in the world, but some judgment about how compelling it might be."

We [the majority] agree.

No court has ever found that merely imagining what a witness might say on the stand constitutes effective

assistance of counsel when that is the sum total of a defense attorney's investigation into the existence of

mitigating evidence in a capital case. "In order for counsel to make a professionally reasonable decision

whether or not to present certain mitigating evidence ... that counsel must be informed of the available

options." Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir.1995). "An attorney's decision to limit his

investigation ... must 'flow from an informed judgment.' ... '[O]ur case law rejects the notion that a "strategic"

decision can be reasonable when the attorney has failed to investigate his options and make a reasonable

choice between them.' " Baxter v. Thomas, 45 F.3d 1501, 1514 (11th Cir.1995) (quoting Harris v. Dugger,
 14Notwithstanding the Supreme Court's pronouncement in Williams that looking for mitigating evidence

a week before sentencing falls below the objective standard of reasonableness, the majority not only fails to

find Redden's behavior wanting, but rather finds it appropriate:

Moreover, the evidence of a request to the wife—at least, as strongly—shows the laudable

fact that trial counsel, like most good trial lawyers, was flexible and opportunistic: he did

not think character witnesses would be helpful or a good use of his time to pursue, but a

reasonable lawyer would not foreclose himself altogether from considering some if they

were presented to him. In fact, one such character witness was presented to trial counsel;

counsel did not use him.

Redden testified that he did not put Chandler's former minister on the stand because "I felt that in the

absence of some number of witnesses that would not be a wise thing to do." R13-433-398-99. As

Redden had not investigated, he did not know that, in fact, a large number of witnesses were

available. He therefore was incapable of making an informed judgment. It is unclear why Redden

would think that these character witnesses would not be helpful; nor does the record contain any

testimony that Redden in fact rejected these witnesses. Indeed, the quantity and quality of the

available mitigating evidence utterly undercuts the proposition that character witnesses would not

have been helpful. 

68

874 F.2d 756, 763 (11th Cir.), cert. denied, 493 U.S. 1011, 110 S.Ct. 573, 107 L.Ed.2d 568 (1989), and

Horton, 941 F.2d at 1462). Moreover, Redden simply could not have "imagined" the actual mitigation in this

case. He did not know Chandler, he did not know Chandler's community, and there is no basis for believing

that he would have imagined all the supporting factual evidence of Chandler's good deeds and good character

that was presented at the Section 2255 hearing.

Finally, the assumption that Redden "chose" to focus on lingering doubt to the exclusion of mitigating

evidence makes no sense because the mitigating evidence here does not conflict with a lingering doubt

argument. On the contrary, mitigating evidence of the kind available here would have enhanced such an

argument. The kind of available evidence regarding Chandler's good deeds and character (see section II.A,

infra) could only have enhanced the jury's doubts regarding Chandler's participation in the murder.

Factually, Redden did not make any "strategic decision." Legally, a lawyer who does absolutely

nothing to prepare for the penalty phase even if he adequately prepares for the guilt phase of the trial is

constitutionally ineffective.14 The foregoing cases clearly establish that preparation for the guilt phase does

not in any way alleviate a lawyer's obligation to prepare for sentencing. No reasonable civil defense lawyer
 15In finding ineffectiveness, this Court has previously condemned such a passive approach to gathering

mitigation evidence. See Blanco, 943 F.2d at 1501-02 ("To save the difficult and time-consuming task of

assembling mitigation witnesses until after the jury's verdict in the guilt phase almost insures that witnesses

will not be available."). 

 16It is undisputed that Redden failed to seek a continuance at any point during Chandler's trial:

Q. Given the circumstance that prior to trial you didn't have, I think your word was, you had

done little or nothing regarding the penalty phase. Did you consider moving for a continuance?

A. At what time?

Q. Prior to trial?

A. No, not in that, no.

R13-433-332.

Nor did Redden ask for or consider asking for a continuance between the guilt and penalty

phases of the trial. Id. at 324. He did, however, request a continuance to postpone commencement

of the trail so he could attend a convention. "I had committed myself by word and by money to

attend the Convention of the International Society of Barristers." Id. at 322. Redden felt that "the

Court had set the agenda and that the court had, I'd say, acted to my client's benefit in requiring the

other cases to be disposed of first and then had granted that extension. I didn't put my mind to

thinking about asking for a further continuance or a further break at that time." Id. at 324. 

69

would argue that it would be justifiable to give no shrift, or short shrift, to preparation on damages because

the case against liability was strong. Such an omission would be considered malpractice. A comparable

omission certainly falls below objective standards of reasonableness where the risk of inadequate preparation

is not just monetary damages but death.15 Consequently, we have rejected the assertion that an attorney's

"good faith expectation of a favorable verdict" somehow excused his failure to prepare for the penalty phase

of a capital case. Blake v. Kemp, 758 F.2d 523, 535 (11th Cir.1985). In Blake, the Court concluded that

counsel "made no preparations whatsoever for the penalty phase," id. at 533, notwithstanding the fact that

counsel had interviewed the defendant's father several times and met with the father and mother together on

one occasion before trial in order to learn of "character evidence which might be used for mitigation at a

penalty proceeding," id. at 534. Moreover, if counsel believes that there is inadequate time to provide

effective assistance, it is counsel's responsibility to seek a continuance from the trial court.16
 17The majority asserts that Redden did not need to articulate a reason for failing to present additional

mitigation witnesses, because, in regard to potential cross-examination or rebuttal of those witnesses, "fear

of the unknown may itself be reasonable." This statement flies in the fact of the Supreme Court's holding in

Williams that defense counsel must investigate and discover the substance (and corollary risks) of such

mitigation testimony before deciding whether or not to use it. Williams, 120 S.Ct. at 1514-15. 

 18Again, even if there was a risk that introducing mitigating character evidence would invite damaging

rebuttal, Redden still had a duty to weigh both the value of the mitigating evidence and the force of the

available rebuttal evidence in order to reasonably assess his choices. 

70

2. Possibility of harmful rebuttal

The second after-the-fact justification suggested by the majority for Redden's "strategic decision" not

to investigate or present mitigating evidence derives from Redden's "[m]isgivings about hurtful

cross-examination and rebuttal witnesses." Again, we are left to speculate what negative cross-examination

or rebuttal witnesses would have been available to counter the mitigating evidence that could have been

presented in this case. Redden certainly had no knowledge of what that (hypothetical) cross-examination or

those (imagined) rebuttal witnesses would reveal.17 Indeed, he had no idea what his own potential mitigation

witnesses might aver. Nor does the record indicate what that possible adverse evidence would have been.

Chandler had no criminal record.

Unlike cases in which putting on good character evidence might have opened the door for the

government to introduce evidence of prior convictions of which the jury had been unaware, Darden v.

Wainwright, 477 U.S. 168, 186, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), or in which "cross-examination

might ... have revealed matters of historical fact that would have harmed [the defendant's] chances for a life

sentence," Burger, 483 U.S. at 792, 107 S.Ct. 3114, there is nothing in the record suggesting that the

government possessed such lurking, damaging evidence against Chandler. In fact, it appears that the

government had already managed to get that kind of evidence before the jury in the form of allegations that

Chandler was responsible for the suspicious "disappearances" of two individuals, conduct for which Chandler

was not charged.18
71

The only "bad" rebuttal evidence that the government suggests might have been available in this case

was Redden's testimony that he knew that some individuals in the Piedmont community "considered Ronald

Chandler to be a drug dealer," and that "the law enforcement community in Piedmont ... was hostile to him."

R13-433-399. In light of the fact that Chandler had just been convicted of orchestrating a murder-for-hire

in connection with his leadership role in a marijuana-growing enterprise, the fact that some people in the

community deemed Chandler a drug dealer and that the police were antagonistic toward him could hardly

come as a surprise to the jury during the penalty phase. In any case, Redden's concerns regarding the possible

consequences of presenting witnesses who would testify to Chandler's good character did not inform his

decision not to present such witnesses. He did not even know of the existence of these witnesses because he

had never undertaken any investigation into the availability of mitigating evidence. Redden also testified that,

after balancing the favorable and unfavorable factors, the existence of potential for cross-examination on such

matters "normally doesn't back you off putting on a character witness." R13-433-415-16. He also

acknowledged that, other than his inarticulable fears, he had no reason not to pursue "the kindness aspect of

Mr. Chandler's death penalty phase." Id. at 400.

The Supreme Court in Williams is instructive on this issue as well. There, the Court acknowledged

that the presentation of that evidence would lead to the introduction of "evidence that was not favorable to"

the defendant, including evidence that he "had been thrice committed to the juvenile system...." Williams,

120 S.Ct. at 1514. The Court found counsel in that case to be ineffective because "the failure to introduce

the comparatively voluminous amount of evidence that did speak in Williams' favor was not justified by a

tactical decision...." Id. In this case, there is also no evidence that Redden made a tactical decision, and the

record contains no indication that there was any rebuttal evidence unfavorable to Chandler.

3. Purpose of mitigating evidence

The majority's final post hoc rationalization for Redden's failure to present mitigating evidence

appears to be that Redden "questioned whether evidence of [Chandler's] specific good acts would have been
 19Furthermore, examination of the government's closing argument demonstrates that the government did

argue that Chandler was a bad man. "His presumption of innocence has been stripped away.... You are now

allowed to look at the man himself." Ex. 15, R12-37-64. "Jack the Ripper had a mother. Charles Manson

had a mother. That does not mean that ... the son is not guilty or is not deserving of the death penalty." Id.

at 73-74. "He caused the misery. He lived off of other people's misery and their deaths." Id. "Marty Shuler's

death was formulated by a single, diabolical mind of somebody who was possessed with the idea that

marijuana and money was more important than life." Id. 

72

compelling, considering that the Government was not arguing that [Chandler] was in all ways a bad man, but

arguing that he had committed specific criminal acts." This surprising pronouncement contradicts every

holding of the Supreme Court relating to the purpose of mitigating evidence. The purpose of mitigating

evidence is precisely to show that the defendant is a good person.19 Lockett v. Ohio, 438 U.S. 586, 602-06,

98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). "[T]he Eighth and Fourteenth Amendments require that the sentencer,

in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect

of a defendant's character or record." Id. at 604, 98 S.Ct. 2954. The very task before a sentencing jury is to

weigh the circumstances and severity of the crime committed against the goodness and qualities of the

convicted defendant. At that stage of the trial "in capital cases the fundamental respect for humanity

underlying the Eighth Amendment ... requires consideration of the character and record of the individual

offender and the circumstances of the particular offense as a constitutionally indispensable part of the process

of inflicting the penalty of death." Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d

944 (1976) (internal citation omitted); see also Williams, 120 S.Ct. at 1516 ("Mitigating evidence unrelated

to dangerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the

prosecution's death-eligibility case."); Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d

256 (1989) (finding that the sentencer in capital case must "treat[ ] the defendant as a 'uniquely individual

human bein[g]' and [make] a reliable determination that death is the appropriate sentence" (quoting Woodson,

428 U.S. at 304-05, 96 S.Ct. 2978)). "A process that accords no significance to relevant facets of the

character and record of the individual offender or the circumstances of the particular offense excludes from

consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors
73

stemming from the diverse frailties of humankind." Woodson, 428 U.S. at 303, 96 S.Ct. 2978; see also

Pennsylvania ex rel Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 82 L.Ed. 43 (1937) ("For the determination

of sentences, justice generally requires consideration of more than the particular acts by which the crime was

committed and that there be taken into account the circumstances of the offense together with the character

and propensities of the offender."). By failing to present mitigating evidence during the penalty stage of

Chandler's trial, Redden denied Chandler his constitutional right to present to the jury evidence of his

character and record. In Williams, the Court said that "it is undisputed that Williams had a right—indeed, a

constitutional right—to provide the jury with the mitigating evidence that his trial counsel either failed to

discover or failed to offer." 120 S.Ct. at 1513. Ronnie Chandler is entitled to the same right in this case.

The Supreme Court has stated unequivocally that a defense lawyer in a capital case is "obligate[d]

to conduct a thorough investigation of the defendant's background." Williams, 120 S.Ct. at 1514-15. It

cannot be gainsaid that Redden's investigation of Chandler's background was nonexistent. Applying

Williams, we are bound to conclude that Redden's failure to undertake even the most preliminary investigation

into the availability of mitigating evidence, as well as his utter failure to present the available evidence, fell

below an objective standard of reasonableness. Moreover, the manner in which he presented the testimony

of the only two penalty phase mitigation witnesses, Chandler's mother and wife, was itself less than effective,

perhaps even harmful. The kinds of questions Redden asked and the brevity of his examination left the jury

with the impression that the two women who theoretically knew Chandler best had little or nothing to say
 20With the exception of a few initial, informational questions and answers, the entirety of Deborah

Chandler's and Irene Chandler's testimony is reproduced in the now-vacated panel opinion, Chandler v.

United States, 193 F.3d 1297, 1301-1302, nn. 6, 7 (11th Cir.1999), reh'g en banc granted and opinion

vacated, Dec. 3, 1999. The prosecution used the brevity of the testimony to his advantage. "We didn't ask

[either woman] one question because what they had to say, ladies and gentlemen ... was just that he's my child

and he's my husband and here's his background. I submit probably everyone of you have a husband or wife.

If not, you probably will. Every one of you had a mother.... Jack the Ripper had a mother. Charles Manson

had a mother. That does not mean that ... the son is not guilty or is not deserving of the death penalty." Ex.

15, R12-37-74. 

 21See, for example, the testimony of Herbert McCord ("compassionate"); Ruby McFry ("a caring man");

Jerry Masters ("caring"); Marsha Dale Heath ("good-hearted," "giving"); Kenneth Ricky Chasteen ("He has

a reputation for being an extremely caring person."); Elaine Freeman ("He's one of the most compassionate,

generous caring people I've ever met."); Henry Lawler ("Good caring person"); Tina Stokes ("genuinely

cared about people"). 

 22See, for example, the testimony of Joseph Fortenberry ("generous"); Jerry Masters (same); Elaine

Freeman (same); Joy McCoy ("He's a generous person. He'd just give you the shirt off of his back, even if

it was his last one."); Sharon Robertson ("he's always been giving and generous."). 

 23See, for example, the testimony of Joseph Fortenberry (loved children); Kenneth Ricky Chasteen

("fantastic" with children); Rita Sue Smith (particularly caring for fatherless children); Elaine Freeman ("like

74

about him other than the fact that he liked to participate in building houses.20 Redden's performance in the

penalty phase was constitutionally ineffective.

II. But for Redden's failure, there is a reasonable probability that the result of the penalty proceeding would

have been different—a probability sufficient to undermine confidence in the sentence of death in this case.

Just as Williams dictates a finding of ineffective assistance on the basis of Redden's performance, it

dictates a reversal on the basis of the prejudice Chandler suffered as a result of that deficient performance.

Indeed, this case provides a more compelling case for finding prejudice than did Williams as, even upon

conviction, Chandler was a much less likely candidate for the death penalty than was Terry Williams.

A. The available mitigating evidence for Chandler

Had Redden investigated and presented the case to which Chandler was constitutionally entitled, he

would have given the jury the opportunity to know Chandler's character as his community knew it. Habeas

counsel discovered in one afternoon at Chandler's church 40 witnesses who had specific knowledge and

examples of Chandler's good character traits, including compassion,21 generosity,22 love for children,23 respect
a second dad [to her children] after their dad passed away"); B. Russell ("very good role model [to children],

encourag[ing] them to stay in school, to go to church"); C. Chandler ("loves children"); Kerry Chasteen

(very good with children). 

 24See, for example, the testimony of Billy Russell (elderly residents of community "were very special to

him .... he would treat them just like he was treating his own family"); Rita Sue Smith ("always had a

compassion for the elderly people"); R.M. Trammell (age 82) ("always wanting to help me with something";

"[H]e's about the greatest friend I ever had."); Ruby McFry (age 75) ("always treated [her] with love and

respect"); Ruth Trammell (Chandler's grandmother) (Chandler always visited once or twice a week to see

if she needed anything). 

 25See, for example, the testimony of Kenneth Chasteen (Chandler would stop his car and pray for people);

Don Matthews (Chandler is a religious person); Billy Russell (Chandler "very religious"); Sharon Robertson

(same). 

 26See, for example, the testimony of Joseph Fortenberry ("He was real patriotic"); Kenneth Chasteen

(Chandler sang "God Bless America" at the top of his voice from the peak of a mountain); Rita Sue Smith

(Chandler a "very patriotic person," would pull his car over to the side of the road and sing "God Bless

America"). 

 27See, for example, the testimony of Joseph Fortenberry (Chandler was hard-working, "an excellent

carpenter and an excellent brick layer, if not one of the best in the state"); Jerry Masters ("Ronnie will get

up from daylight and work until dark and he wouldn't quit until the job is done."); Kenneth Chasteen ("[H]e's

always been conscientious, hard worker."); Don Matthews (Chandler a hard worker, "one of the most skilled

I've ever worked with"); Joy McCoy ("He's a very hard-working person"); Kenneth Charles Kelley

(Chandler was hard working and "[h]e was a real good brick mason, and carpenter, too.") Ruth Trammell

(hard working); Kenneth McCord ("Ronnie has always worked hard."); Hubert Masters ("he was a

hard-working man"). 

 28See, for example, the testimony of Joseph Fortenberry (not violent); Ruby McFry (same); Jerry

Masters (not violent or hot-tempered); Kenneth Chasteen (not violent, never fought, never held grudges);

Don Matthews (not violent); Rita Sue Smith (Chandler had paid up-front to have his house painted, but the

painter had quit half-way through. Chandler had not gotten angry but had quoted the Bible: "Ronnie just

said, well the Bible said if they take your coat to give him your cloak."); Kenneth Charles Kelley (never

known him to be violent or hateful); Kenneth McCord (not violent, seemed easy-going); Billy Russell

(remembered Chandler once getting angry at someone but Chandler later apologized: "It takes a lot to get

him upset.") Deborah McFry (not violent); Sharon Kelley (same); Charles Thomas Chandler (same); Mary

Dobbs (same). 

75

for the elderly,24 strong religious beliefs,25 patriotism,26 a strong work ethic,27 and a non-violent disposition.28

They also backed up their opinions with specific and telling examples of Chandler's behavior.

Chandler freely gave his time and support to a wide array of members of his community. Joseph

Fortenberry, who had grown up with Chandler and had worked with him in construction, testified that
76

Chandler's daily visits inspired him to walk after he had been told that his injuries in a traffic accident would

prevent him from ever walking again. Rita Sue Smith, who estimated that she had known Chandler for 25

to 30 years, told of how Chandler and his wife had allowed Thomas Montgomery and his wife to stay with

him while Montgomery was out of work. Chandler provided groceries for the couple and counseled

Montgomery to confront his alcoholism and straighten out his life. Chandler transported Montgomery to and

from Alcoholics Anonymous meetings. Montgomery confirmed all this and added that he had later sued

Chandler due to an injury he had sustained while working for Chandler. They settled their differences and

Chandler took him back as an employee because, Montgomery testified, although he would often miss work

because of his alcoholism, Chandler never gave up on him and "always put [him] right back to work."

Montgomery summarized his experience with Chandler by saying that "[h]e helped me more than anybody

I know of."

Lesha McBrayer has known Chandler since around 1980. Like many others, she testified that

Chandler and his wife had provided food and transportation for her family while her husband was out of

work. When McBrayer's husband became abusive, the Chandler family would take her in. Chandler assured

her that he and his family would support her decision, whether it was to stay with her husband or to leave

him. As McBrayer testified, Chandler kept his word: "I had moved to Colorado. My husband had been in

prison and he got out. And I had talked to Ronnie about it and Ronnie told me if I thought I could make it

with him to go on up there, and that if it didn't work that he would try his best to get me home, and he did."

When McBrayer's husband again became abusive, she contacted Debbie Chandler, and Chandler sent

someone to get her. She testified that she would not have been able to return to Piedmont without Chandler's

help.

Kenneth Ricky Chasteen, who testified that he had known Chandler "all his life," offered the

following anecdote:

I know Ronnie was a mason, a carpenter, and he know people that had lost their jobs before, when

he found out about it, he would make sure they got some work. And I know one occasion personally
77

that he took money out of his own pocket and gave it to a guy that had just lost his job had three or

four kids and I personally know that Ronnie didn't have the money to give away but he did any way.

Elaine Freeman, who has known Chandler since high school, testified that, when one of Chandler's neighbors

lost a son in a car accident, "Ronnie took money and gave to them because they didn't have insurance to bury

the boy and took money to them to help them bury him." Two other witnesses confirmed this anecdote and

noted that, at the time this incident occurred, Chandler could ill afford to pay for the boy's burial. When

Freeman's husband died, Chandler offered to let her "stay in [his] house as long as I wanted to. It was mine

to do with and just as long as I always had a place to stay, not to worry about it." He never asked her to pay

rent and would not accept payment when she offered. She also testified that when one of his workers needed

a car, Chandler co-signed the loan and made all of the payments, never attempting to seize the vehicle and

never uttering a harsh word. Billy Russell testified that Chandler had paid utility bills and rent for him when

he was injured in a fire and could not work. Chandler visited Russell almost every day, making sure that he

had food and that everything was alright. When Russell recovered enough to return to work, Chandler drove

him there and back.

Fortenberry testified that Chandler had helped his family buy groceries: "I remember several

occasions and he would bring vegetables by the house and leave them and I remember a time or two ... [when]

Ronnie wouldn't hesitate to leave three or four, five dollars, whatever he had, there for to see the kids got their

lunch." Chandler went out of his way to care for the people in his community. As Tina Stokes, who knew

Chandler from school and church, testified, "I've known of him buying groceries for folks who he thought

needed it ... [Once he] [s]topped on the way home from Georgia one night and he knew of some folks that

needed some groceries and stopped in and bought a couple of bags of groceries." Henry Lawler testified that

when he was out of work and his wife was pregnant, Chandler gave him a deer that he had killed. Ruby

McFry, who had known Chandler since his father first brought him to church as a child, recalled that

Chandler, without having been asked, had brought her groceries when she could not afford to buy any.
78

Marsha Dale Heath had known Chandler for approximately ten years, had met him at church, and

knew his family. She testified about Chandler's generosity towards her son:

[M]y son [Tony] didn't have any shoes and Ronnie was out at a neighbor's behind us and he saw

Tony and he made a statement to Tony ... about [his] shoes and, Tony said I don't have any. It wasn't

long after that the neighbors that was there that Ronnie was visiting that day brought Tony two pair

of shoes, instead of one it was two.

Harbert McCord had known Chandler all of his life. He testified that Chandler would often buy a pair of

cleats for people who needed them. According to Mary Dobbs, Chandler's wife's best friend, Chandler even

bought new shoes for the pastor when he noticed that the pastor had holes in his shoes. He also said that

Chandler routinely donated twenty-dollar bills for the local emergency rescue squad. Billy Russell, one of

Chandler's neighbors and employees, confirmed that Chandler donated whatever he had in his pocket when

asked for charity. He also told of how Chandler paid the utility bills for needy families and cut wood and

hauled it to people who could not get any for themselves.

Many witnesses stressed Chandler's generosity, both in terms of donating his time and labor, and in

terms of caring for his employees. Several witnesses testified that Chandler had helped to build a church

fellowship hall and to renovate the parsonage without pay. Sharon Kelley, who had known Chandler for 27

years, described how he cut the grass of a friend of hers who was unable to do so himself due to a heart

condition. Chandler's older brother, Charles, told of how Chandler had, without being asked, built a porch

for a handicapped man so that he could get into his house more easily. Chandler asked nothing for his labor

or the materials. Henry Lawler explained that Chandler had helped him to build his house, laying the

foundation and doing the masonry work on the fireplace. Chandler built a barbeque grill for Hubert Masters.

According to Sharon Kelley, "There was a time when we needed some work done on the house and we had

the money for supplies but we didn't have money for labor. And Ronnie came and done the work for nothing

just as a friend[ ] because we were friends." Sharon Robertson, Chandler's sister, told of how Chandler did

brick work for her so that her house would be protected from the on-coming winter. "It was in the wintertime

and it was very cold, but he worked in the cold to get it done. And I know it wasn't pleasant for him, but he
79

did it any way because our house needed to be bricked and out of the weather. And he didn't really expect

to be paid for it either."

Fortenberry stressed Chandler's generosity towards his employees. As Fortenberry put it, "If there

was somebody on [Chandler's construction] crew right there that was a working man and he came up there

and tell him he didn't have dinner, money would buy his dinner with, Ronnie would see that that man ate if

he worked." Don Matthews, who worked in Chandler's construction business, confirmed this from personal

experience. "I was out of work and needed work real bad and Ronnie found out about it and hired me."

Kerry Chasteen, who had known Chandler for over 25 years, testified that Chandler never turned away

anyone who needed work. Marsha Dale Heath told of how Chandler, after hearing that Heath needed money,

had suggested to his wife that they hire Heath to help clean their home, even though they did not really need

the help.

Several witnesses testified that Chandler had a particularly kind way with children. Fortenberry

testified that "[children] loved Ronnie. I mean, he'd play with them and, I mean, I'm not talking about five

minutes. I mean he would spend 30, 45 minutes there just on the spur of the moment kind of playing. And

you could tell he really enjoyed it." Jerry Masters had been Chandler's next-door neighbor for four years.

He described his relationship with Chandler as follows: "Ronnie was a very caring person, a very giving

person.... [M]y dad worked all his life, didn't have time to spend with us, so Ronnie kind of took us in and

taught me the sport of hunting and fishing." Kenneth Chasteen added, "He was fantastic [with children]. He

took his children and several other children that couldn't get out, take them riding, would introduce them to

sports, shooting a bow, things of that nature." Kerry Chasteen described how Chandler had given all of the

money in his wallet to a woman after overhearing her mention that she could not afford to buy Christmas

presents for her children. Children appreciated Chandler's efforts. Wendy Twilley, who was only 14 years

old when Chandler was arrested, testified that he was like a father to her.
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Chandler also loved to share his knowledge with others. Jerry Masters testified that Chandler had

taught him to hunt and to fish. He taught Joy McCoy's husband how to hunt deer. He also taught Masters'

father-in-law how to do brick work and block work. "He was the type that would like to share what he

knew." Kenneth Chasteen also noted that Chandler was always willing to teach people masonry and

carpentry skills. Don Matthews also learned carpentry skills from Chandler, and he noted "[a]nd I'm not the

only one that he's done that for."

B. This mitigating evidence compels reversal in accordance with Williams v. Taylor.

David Ronald Chandler was convicted of offering $500 to Charles Ray Jarrell to kill Marlin Shuler.

Although any murder is to be condemned, it is indisputable that Terry Williams was convicted of committing

a much more heartless and heinous crime. He was found to have killed a drunken elderly man in his bed by

beating him to death with a mattock after the man refused to lend him a couple of dollars. Williams, 120 S.Ct.

at 1499-1500. He then went on a crime spree in which he savagely beat an elderly woman who was left in

a "vegetative state" and was not expected to recover, set a fire outside a man's house before stabbing him

during another robbery, and stole two cars. Id. at 1500. After his arrest, Williams set fire to the jail, for

which he was convicted of arson, id., and "confessed to having strong urges to choke other inmates and to

break a fellow prisoner's jaw," Williams v. Taylor, 163 F.3d 860, 868 (4th Cir.1998). In contrast, it was never

disputed that Chandler was not present when the victim died, and that the actual shooter and the victim were

both intoxicated and engaged in target practice with firearms.

Moreover, as the majority points out with regard to Chandler, "the evidence of guilt was not

overwhelming." There was a question as to whether Chandler was even involved in the murder. Jarrell, the

man who actually shot Shuler, clearly had his own motivations for committing the murder—reasons wholly

independent of any inducement Chandler may have provided. Shuler had abused Jarrell's sister and mother,

Jarrell had attempted to murder Shuler on a previous occasion, and Jarrell consumed nearly a case of beer

before shooting Shuler. Even if the jury believed that Chandler had seriously offered $500 to Jarrell to
81

murder Shuler, it could well have doubted that that offer had motivated Jarrell to kill Shuler. Indeed, Jarrell

himself—the government's star witness as to the murder charge—had made numerous inconsistent statements

regarding Chandler's role in the murder. In contrast, there was no doubt in Williams that the defendant

confessed to having committed the crimes of which he was convicted.

There is also great contrast between the prior criminal histories of Chandler and Williams. Chandler

had no prior criminal background and no history of incarceration. Williams, on the other hand, had an

extensive criminal history and had been constantly incarcerated throughout his life. Furthermore, substantial

evidence of Williams' criminal history and history of incarceration was presented to the jury at both the guilt

and sentencing phases of his trial, as was expert testimony that "there was a 'high probability' that Williams

would pose a serious continuing threat to society." 120 S.Ct. at 1500. Mitigating evidence offered on behalf

of a defendant who has no prior criminal background is especially pertinent to the jury's determination of

whether a defendant is sufficiently susceptible to rehabilitation such that a death sentence is unwarranted.

Finally, whereas the mitigating evidence for Williams could have opened the door to negative rebuttal

evidence, the nature of Chandler's mitigating evidence made it significantly less susceptible to such an attack.

Mitigating evidence can serve different purposes. In Williams' case, the mitigating evidence addressed the

degree of his culpability for his confessed crime. It consisted of evidence that Williams had been committed

at the age of 11, and that he had been the victim of "mistreatment, abuse, and neglect during his early

childhood," and was "borderline mentally retarded." Evidence was also presented that he would not pose a

future danger to society if kept in a structured environment. Williams, 120 S.Ct. at 1501. The mitigating

evidence in this case addressed Chandler's good character as a person, consisting primarily of evidence of

prior good acts which were unrebutted by the government. As the Court noted, "not all of the additional

evidence was favorable to Williams," because it could not have been introduced without both revealing more

of Williams' previous bad acts and reminding the jury of Williams' long history of prior criminal detention.

Id. at 1514. Such is not the case with Chandler.
 29In addition, the district court's analysis of the prejudice issue is not as clear as the majority suggests.

"[T]he Court acknowledges that the prejudice question in this case is a close one, and that reasonable people

could disagree about whether Chandler was prejudiced." United States v. Chandler, 950 F.Supp. 1545, 1569

(N.D.Ala.1996). 

 30Although many witnesses said that their personal views of Chandler would not change even if the

government's allegations were true, others either refused to believe the government's allegations or said that,

if what the government alleged were true, their views of Chandler would change. See, for example, Marsha

Dale Heath (asked if she would change her opinion, she replied, "I don't know. I don't—I haven't heard this,

so I don't know."); Don Matthews (probably would change opinion); Joy McCoy (opinion might change:

"I would still need to know the circumstances because I do not know a Ronnie Chandler like that."). The

question was not posed to the last four witnesses, Sharon Robertson, Lesha McBrayer, Kerry Chasteen, and

Thomas Montgomery. 

82

In light of all the foregoing, the district court erred in concluding that, notwithstanding the

extraordinary testimony detailed above, Chandler had not been prejudiced by counsel's failure to elicit this

testimony. The trial judge based this conclusion on three reasons, none of which are legally valid: (1) all of

the witnesses showed a strong bias in favor of Chandler; (2) the good character evidence related to a time

remote from that of Chandler's crimes; and (3) many of the witnesses were ignorant of Chandler's criminal

activities and thus had no real insight into his character. None of these reasons is legally sufficient to support

such a conclusion.29

First, if the fact that the mitigating character witnesses "showed a strong bias in favor of Chandler"

was enough to "severely undercut the mitigating value" of the testimony of 40 such witnesses and to render

their testimony "of tenuous value," then no mitigation witnesses would ever have a meaningful effect in any

capital trial. All mitigation witnesses have a bias. By its very nature and definition, mitigating character

evidence evinces a "bias" in favor of the defendant; this is particularly true of mitigating character evidence

that might persuade a jury not to impose a death sentence.

The district court imagined that these witnesses "believed that drug dealing and violent crimes were

irrelevant to a person's character," and therefore concluded that their testimony would be "of little moment

to the jury." In fact, however, not a single witness expressed such a view.30 Their purpose in offering

character evidence was to try to persuade the jury that, in spite of the crimes he may have committed, Ronnie
 31The witnesses who testified on Chandler's behalf often did not specify when the good acts had occurred.

However, many witnesses testified that they remained in contact with Chandler up until his arrest and that

his character was unchanged. 

83

Chandler did not deserve to be put to death. As noted earlier, the purpose of presenting mitigating evidence

at the sentencing phase of a capital trial is to allow the jury to perform its constitutional function by

considering "any aspect of a defendant's character or record." Lockett, 438 U.S. at 604, 98 S.Ct. 2954; see

also Collier, 177 F.3d at 1201-02 ("Counsel presented no more than a hollow shell of the testimony necessary

for a 'particularized consideration of relevant aspects of the character and record of [a] convicted defendant

before the imposition upon him of a sentence of death.' ") (quoting Woodson, 428 U.S. at 303, 96 S.Ct. 2978).

Second, the district court summarily dismissed and discounted the value of the mitigation witnesses

because "this good character evidence related to a time period that was separated from Chandler's crimes" and

was therefore "of little mitigating value." Although this Court previously has observed that in some

circumstances character evidence relating to events remote in time from the conduct for which the defendant

has been convicted may carry less weight when balanced against aggravating factors, see Stanley v. Zant, 697

F.2d 955, 969 (11th Cir.1983), the evidence at issue in this case was neither general nor temporally remote

from the criminal conduct of which Chandler was convicted. Much of the testimony concerned personal

interactions with Chandler that occurred within five years of the time that the government claims Chandler

became a marijuana grower and dealer. Other witnesses testified that they continued to have contact with

Chandler up until the time of his arrest.31

Finally, the trial court concluded that mitigation witnesses who "were unaware of Chandler's

marijuana operation would have shown themselves to be ignorant of Chandler's character, so their testimony

would have carried little or no mitigating weight." Again, this statement conflicts with all the case law

requiring that a defendant have the opportunity to present mitigating evidence as to the type of person the

defendant has shown himself to be through this actions and behavior. This required mitigating evidence does

not go to a defendant's culpability for the crimes of which he was convicted. As has been repeated, the
 32In determining whether to impose life imprisonment or a death sentence, the jury must consider and

weigh the balance or imbalance of statutory aggravating and mitigating factors. These factors form an

important backdrop to our evaluation of whether the presentation of the omitted mitigating character evidence

would have created a reasonable probability of a different result. In Chandler's case, there were three

aggravating factors presented to the jury: 1) that Chandler intentionally engaged in conduct intending that

Shuler be killed and resulting in Shuler's death, 21 U.S.C. § 848(n)(1)(C); 2) that he procured Shuler's killing

by promising to pay something of pecuniary value, 21 U.S.C. § 848(n)(6); and 3) that he committed Shuler's

murder after "substantial planning and premeditation," 21 U.S.C. § 848(n)(8). The jury rejected the

"substantial planning and premeditation" factor, leaving only two aggravating factors against which to

compare the two statutory mitigating factors introduced by stipulation: 1) that Chandler had no prior criminal

record, 21 U.S.C. § 848(m)(6); and 2) that the actual killer, Jarrell, would not be punished by death, 21

U.S.C. § 848(m)(8). Redden's failure is all the more prejudicial in this case because the statutory aggravating

and mitigating factors in this case were in essential equipoise. 

84

purpose of presenting character witnesses is to offer a complete view of the defendant, one that presents

positive aspects of his humanity and individuality, so that the jury can weigh his good qualities against the

nature of the crime committed to determine whether death is the appropriate sentence for this individual. Had

Chandler been able to present the testimony that he introduced and sought to introduce at his Section 2255

evidentiary hearing, the jury would have been able to perform its constitutional function by giving a "

'reasoned moral response to the defendant's background, character, and crime,' " Penry v. Lynaugh, 492 U.S.

302, 327-28, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), (quoting Franklin v. Lynaugh, 487 U.S. 164, 184, 108

S.Ct. 2320, 101 L.Ed.2d 155 (1988) (O'Connor, J., concurring in judgment), and California v. Brown, 479

U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O'Connor, J., concurring)), and by considering "the

character and record of the individual offender and the circumstances of the particular offense," Woodson,

428 U.S. at 304, 96 S.Ct. 2978. Given the quality and quantity of the evidence that was available at the time

of trial, viewed against the backdrop of the statutory aggravating and mitigating factors the jury was required

to consider,32 there is a reasonable probability that, but for Redden's failure to present any of the available
 33As noted supra in footnote 28, the district court considered the prejudice issue a close one. "[T]he jury

[must] unanimously recommend a death sentence, [otherwise,] the district court shall impose a sentence, other

than death, authorized by law." United States v. Chandler, 996 F.2d 1073, 1088 (11th Cir.1993). Just one

juror would have to be swayed by the mitigation evidence not presented in order for the death penalty to be

eliminated as a sentencing option. 

85

mitigating evidence, Chandler would not have been sentenced to death.33 Accordingly, I find that Chandler

suffered prejudice as a consequence of Redden's ineffective assistance during the penalty phase.

CONCLUSION

The Supreme Court has recognized that the "qualitative difference between death and other penalties

calls for a greater degree of reliability when the death sentence is imposed." Lockett, 438 U.S. at 604, 98

S.Ct. 2954. In Woodson, a plurality of the United States Supreme Court concluded that "in capital cases the

fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the

character and record of the individual offender and the circumstances of the particular offense as a

constitutionally indispensable part of the process of inflicting the penalty of death." Id. at 304, 96 S.Ct. 2978.

When a lawyer does absolutely nothing to investigate whether mitigating evidence exists, he cannot

be said to have made a strategic decision not to present that evidence. When that evidence does exist and it

is reasonably probable that its presentation would have made a difference in the outcome, or conversely, that

its absence "undermines confidence in the outcome," 466 U.S. at 694, 104 S.Ct. 2052, that lawyer cannot be

said to have been "functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," id. at 687,

104 S.Ct. 2052. This is such a case. Accordingly, Ronald Chandler is constitutionally entitled to a new

sentencing hearing.

WILSON, Circuit Judge, dissenting:
 1

If, as the record shows here, a lawyer simply fails "to investigate and to present substantial mitigating

evidence to the sentencing jury," he falls below the objective standard of reasonableness required for effective

representation. Williams v. Taylor, --- U.S. ----, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000). 

 2See Chandler v. United States, 193 F.3d 1297, 1311 (11th Cir.1999) (Edmondson, J., dissenting),

vacated, No. 97-6365 (11th Cir. Dec. 3, 1999). 

86

We held in Tarver v. Hopper, 169 F.3d 710, 715 (11th Cir.1999), that the creation of lingering doubt

can be an effective strategy for avoiding the death penalty. But the choice to use this strategy must be made

by defendant's counsel.1

It is evident from the record that Chandler's counsel made no strategic decision to use a "lingering"

or "residual" doubt defense on Chandler's behalf. Not even the government suggested that he did so until

after the dissent from the panel opinion in this case.2

 The majority opinion retroactively credits Chandler's

lawyer with making a strategic decision that is not indicated by the record. As a result, today's decision

virtually forecloses any future Strickland claim of ineffective assistance during the penalty phase of a capital

proceeding. Because I believe the majority opinion extends Tarver v. Hopper too far, I respectfully dissent.