Full opinion text
MEMORANDUM AND ORDER ON SUMMARY DISMISSAL WOLF, District Judge. I. SUMMARY On October 24, 2001, a federal grand jury charged Gary Lee Sampson with two counts of carjacking resulting in death in violation of 18 U.S.C. § 2119(3). As described in United States v. Sampson, 335 F.Supp.2d 166, 174-75 (D.Mass.2004), the charges arose out of the murders of Philip McCloskey and Jonathan Rizzo by Sampson in Massachusetts in July, 2001. Sampson also killed Robert Whitney in New Hampshire and carjacked William Gregory in Vermont in July, 2001. Those crimes, while not charged in this case, were considered nonstatutory aggravating factors for sentencing purposes. The maximum penalty for the charged crimes was death. See § 2119(3). Sampson pled guilty to the charged offenses. After a trial, a jury unanimously decided that he should be sentenced to death on both counts. The court sentenced Sampson to death on January 29, 2004, 300 F.Supp.2d 278 (D.Mass.2004). Sampson appealed unsuccessfully. Following, his appeal Sampson had a constitutional right to seek relief from his conviction and death sentence through a writ of habeas corpus, which for federal prisoners is codified in 28 U.S.C. § 2255. Section 2255 is a vehicle for determining, among other things, whether a defendant was deprived at trial of his constitutional right to the effective assistance of counsel. For such a claim, a motion under § 2255 is often the sole avenue for relief. See, e.g., United States v. Martins, 413 F.3d 139, 155 (1st Cir.2005) (citing United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.1993)). Proceedings under § 2255, therefore, serve an important function in our system of criminal justice. Sampson must satisfy a “ ‘highly demanding’ and ‘heavy burden’ ” to justify relief based on ineffective assistance of counsel. Knight v. Spencer, 447 F.3d 6, 15 (1st Cir.2006)(quoting Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). He faces similar challenges with respect to his other allegations. The court is, however, required by statute, by the Rules Governing Section 2255 Proceedings for the United States District Courts (the “§ 2255 Rules”), and by a substantial body of precedent to give careful attention to each of Sampson’s claims. Such attention is particularly required in capital cases, “in which avoidance of error has a very high premium.” See Trapp v. Spencer, 479 F.3d 53, 62 (1st Cir.2007). Following some preliminary litigation, Sampson filed a First Amended Motion for a New Trial and to Vacate, Set Aside, and Correct Conviction and Death Sentence Made Pursuant to 28 U.S.C. § 2255 and/or Rule 33 of the Federal Rules of Criminal Procedure (the “Amended § 2255 Motion”), in which he claims, among other things that his constitutional rights were violated because he received ineffective assistance of counsel. The government has requested that the court summarily dismiss all of the claims in the Amended § 2255 Motion. The court will summarily dismiss some but not all of Sampson’s claims. As explained in detail in this Memorandum, summary dismissal under § 2255 Rule 4(b) is appropriate only in limited circumstances, specifically only when “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” § 2255 Rule 4(b); see 28 U.S.C. § 2255(b)(permitting dismissal only when “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief’). Potentially meritorious claims that allege specific facts, that are based on information outside the presiding judge’s knowledge and the records of the case, and that are not barred by procedural considerations may not be summarily dismissed, even if the ultimate likelihood of success on the merits appears relatively low to those familiar with the trial. In this case, many of Sampson’s claims will be summarily dismissed. Specifically, the court will dismiss Sampson’s claims that he was denied effective assistance of counsel on the basis of trial counsel’s failure to advise him to plead guilty prior to the Supreme Court’s June 24, 2002 decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), on the basis of counsel’s advice that he plead guilty to the Second Superseding Indictment after the Ring decision, and on the basis of counsel’s failure to move for an immediate mistrial when the bloody shirts of the victims were inadvertently exposed and may have been seen by some jurors (Claims III(G), (H) and (M), respectively). The court will also dismiss Sampson’s claims that he is entitled to a new trial because the government failed to disclose certain exculpatory evidence, and abused the grand jury process (Claims V and VI, respectively). In addition, the court will dismiss Sampson’s challenges to the constitutionality of the carjacking statute, 18 U.S.C. § 2119, and the Federal Death Penalty Act (“FDPA”) (Claims VIII and IX, respectively). As to each of these claims, the court concludes that the motion, attached exhibits and the record of the prior proceedings “conclusively show that the prisoner is entitled to no relief.” See 28 U.S.C. § 2255(b). However, other claims cannot be conclusively resolved based on the motion and the record before the court. For example, Sampson alleges that his trial counsel failed to give his medical experts certain medical records that, if considered, would have led to additional investigation and, in turn, would have led to substantial additional evidence of brain abnormality, an important mitigating factor to be considered by the sentencing jury in a capital case (Claim 111(C)). See, e.g., Porter v. McCollum, — U.S. -, 130 S.Ct. 447, 454, 175 L.Ed.2d 398 (2009) (per curiam). On the present record, the court cannot conclude that Sampson’s characterization of these events is inaccurate. Nor can it conclude that Sampson was not prejudiced at trial by the absence of this information. Similarly, the court cannot conclude that Sampson is not entitled to relief based on his claims that his counsel were ineffective because their investigation and presentation of mitigating evidence was inadequate in other respects, because their investigation and impeachment of a government witness was inadequate, because they did not present evidence to the jury that Sampson’s demeanor in court was caused by medication, or because they did not raise a question with the court about Sampson’s competency (Claims III(B),(D)(F), (I)-(L) and (N)). Nor can the court conclude that Sampson is not entitled to relief based on the cumulative effect of some or all of these alleged errors (Claim X). As to these claims, dismissal without an expansion of the record which would permit the accuracy of Sampson’s claim to be tested would be contrary to the requirements of 28 U.S.C. § 2255(b) because Sampson’s “allegations are not implausible, and because they could, if true, entitle him to relief.” Owens v. United States, 483 F.3d 48, 60 (1st Cir.2007). Therefore, the court must permit discovery and expansion of the record and, if necessary, hold an evidentiary hearing to resolve genuine disputes of material fact. See Blackledge v. Allison, 431 U.S. 63, 82 n. 25, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); United States v. Butt, 731 F.2d 75, 78 (1st Cir.1984); De Vincent v. United States, 602 F.2d 1006, 1010 (1st Cir.1979). Where courts have dismissed colorable § 2255 claims, the First Circuit has commonly remanded the case for further proceedings. See, e.g., Owens, 483 F.3d at 60-61, 70; Dziurgot v. Luther, 897 F.2d 1222, 1227 (1st Cir.1990). A remand at any stage of the proceeding can cause significant delay in resolving a capital case, where finality is both important and often elusive. See, e.g., Sears v. Upton, - — U.S. -, 130 S.Ct. 3259, 3267, 177 L.Ed.2d 1025 (2010) (Supreme Court vacating judgment in capital case seventeen years after conviction on the basis of ineffectiveness of counsel, where state post-conviction court did not apply proper prejudice standard); Porter, 130 S.Ct. at 448 (granting habeas relief more than twenty years after sentencing phase of capital trial on grounds of ineffective assistance of counsel, where state supreme court unreasonably concluded that defendant was not prejudiced by counsel’s failures); Rompilla v. Beard, 545 U.S. 374, 389, 393, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005)(requiring retrial of penalty phase of capital case or stipulation to life sentence for a murder committed in 1988, where state court erroneously found counsel had adequately investigated mitigating evidence); Wiggins v. Smith, 539 U.S. 510, 535-36, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)(finding investigation into mitigating evidence was constitutionally inadequate and prejudiced defendant in 1989 capital case); Scott v. Schriro, 567 F.3d 573, 577 (9th Cir.2009) (per curiam) (remanding a case for an evidentiary hearing approximately eighteen years after conviction). Accordingly, it is essential that the court make decisions that are properly informed, legally correct, and do not require reversal and remand on appeal. For the reasons stated below, at the appropriate time an order will enter allowing the Request for Summary Dismissal as to seven of Sampson’s claims and sub-claims and denying it with regard to the remainder. II. BACKGROUND A. Summary of Evidence The evidence at trial proved the following chronology of events. Gary Lee Sampson was born on September 29, 1959, and spent his childhood in Abington, Massachusetts. He relocated to New Hampshire in 1979. Between 1979 and 1995, he spent much of his time in prison, after which he was released on parole. In 1997 and 1998, he was charged with several new offenses, including a burglary that could have resulted in a substantial prison sentence. While released on bail, he fled from New Hampshire to North Carolina in late 1998. He worked for a time in North Carolina and then, in May, 2001, embarked on a series of bank robberies. In July, 2001, he returned to Massachusetts by bus. On July 23, 2001, while in Abington, he called the Boston office of the FBI in an attempt to turn himself in. The FBI disconnected the call and, consequently, failed to take him into custody. On July 24, 2001, Philip McCloskey was sixty-nine years old. He had a history of heart problems and shortness of breath. That day, Sampson was hitchhiking in Weymouth, Massachusetts, and McCloskey picked him up. After seeing a police officer in the vicinity of the car, Sampson pulled out a knife and ordered McCloskey to keep driving. Sampson compelled McCloskey to drive to Marshfield, Massachusetts and then to pull over near a wooded area. Sampson forced McCloskey to walk into the wooded area and up a very steep hill. Sampson attempted to tie McCloskey with a belt and then attacked McCloskey with the knife. Sampson inflicted twenty-four separate wounds, in-eluding wounds to McCloskey’s neck, chest, abdomen, and back. One of the wounds to the neck, a nearly eight inch incision, damaged the trachea and completely severed the carotid artery. According to Sampson, McCloskey exclaimed, “Ah, I’m dying,” shortly before Sampson “almost decapitated him.” Trial Ex. CC at 8. After the killing, Sampson took McCloskey’s wallet and tried, but failed, to take McCloskey’s car. On July 27, 2001, Jonathan Rizzo was a nineteen-year-old college student. Sampson was again hitchhiking, this time in Plymouth, Massachusetts. Rizzo picked up Sampson and, five or ten minutes later, Sampson pulled out his knife and forced Rizzo to drive him to Abington. Sampson directed Rizzo to park the car and to carry Sampson’s belongings into a wooded area. Sampson tied Rizzo to a tree and gagged him by stuffing a sock into his mouth. Attacking Rizzo with the knife, Sampson inflicted numerous wounds to Rizzo’s neck and chest. The knife severed Rizzo’s jugular vein and trachea and pierced his heart, lungs, and liver. At least seven of the wounds would have been independently, rapidly fatal. According to Sampson, this killing “was premeditated.” Trial Ex. IB at 43. Sampson took Rizzo’s car and money. Sampson subsequently drove to New Hampshire and broke into a vacation home on Lake Winnipesaukee. On July 30, 2001, Robert “Eli” Whitney, the fifty-eight-year-old caretaker of the property, discovered Sampson. Sampson threatened Whitney with a knife and tied him to a chair. Sampson wrapped a nylon line around Whitney’s neck and strangled him to death. According to Sampson, Whitney “died slowly” over the course of about five minutes. See Trial Ex. IB at 38. Sampson took Whitney’s car and drove to Vermont, where the car broke down. Sampson again began to hitchhike. On July 31, 2001, William Gregory picked up Sampson on the side of the road. Sampson pulled out his knife and ordered Gregory to park the car in a secluded area. Gregory pulled the car into a rest area, jumped out, and ran away. Sampson tried to run him over with the car. This attempt to kill Gregory was unsuccessful, and Sampson drove away. A short time later, Sampson broke into a house, called 911, and surrendered himself. He gave multiple detailed confessions and assisted police with the recovery of evidence. The government developed substantial forensic evidence linking Sampson to the crimes that he admitted. B. Federal Proceedings In federal court, Sampson was charged with the carjackings of McCloskey and Rizzo. Because death resulted from both carjackings, the maximum statutory penalty was death. See 18 U.S.C. § 2119(3). To represent Sampson in this case, the court appointed David Ruhnke, an attorney experienced in death penalty cases, as well as two other experienced attorneys, Robert Sheketoff and Stephanie Page, who had previously been appointed to represent. Sampson in the Massachusetts state court case which was later dismissed in deference to the federal case. The court denied a motion to dismiss the charges against Sampson. See United States v. Sampson, 275 F.Supp.2d 49, 109 (D.Mass.2003). Sampson pled guilty to both charges on September 9, 2003. In accordance with the provisions of the Federal Death Penalty Act (“FDPA”), 18 U.S.C. §§ 3591-3598, a six-week penalty-phase trial was conducted. The jury unanimously decided that Sampson should be sentenced to death on both counts. The jury found numerous aggravating factors, including that Sampson committed his crimes in an especially cruel and depraved manner, that McCloskey was particularly vulnerable due to infirmity, that Sampson killed Rizzo after substantial planning and premeditation, and that Sampson killed Whitney, carjacked Gregory, and robbed four banks. Of the mitigating factors enumerated on the verdict forms, the jury found several factors proven unanimously, including that Sampson would be sentenced to life in prison without possibility of release if he was not sentenced to death, that Sampson surrendered himself after committing the charged offenses, that Sampson’s post-arrest statements led to the recovery of Rizzo’s body and of physical evidence, that Sampson offered to plead guilty and accept a life sentence in February, 2002, and that Sampson pled guilty in September, 2003. Some, but not all, of the jurors found additional mitigating factors proven, including that Sampson attempted to surrender himself to the FBI before the killings (eight jurors), that Sampson cooperated with every investigating agency after his surrender (eleven jurors), that Sampson accepted responsibility for his crimes (five jurors), and that one or more people would suffer grief and loss if Sampson were executed (eleven jurors). No juror found that Sampson’s capacity to conform his conduct to the requirements of the law was significantly impaired at the time of the killings, that he was under severe mental or emotional disturbance at those times, that he was mentally ill at those times, that he was mentally ill at the time of trial, that he had a brain dysfunction at the time of trial, that he was verbally, emotionally, or physically abused as a child, or that he was remorseful for his conduct. After the verdict, based on the information available, the court praised the performance of all counsel who participated in the case. See Dec. 23, 2003 Tr. at 29. The court denied Sampson’s motion for a new trial. See United States v. Sampson, 332 F.Supp.2d 325, 341 (D.Mass.2004). The court sentenced Sampson to death on both counts on January 29, 2004. See United States v. Sampson, 300 F.Supp.2d 275, 276 (D.Mass.2004). The United States Court of Appeals for the First Circuit affirmed the death sentence in May, 2007. See United States v. Sampson, 486 F.3d 13, 52 (1st Cir.), reh’g and reh’g en banc denied, 497 F.3d 55 (1st Cir.2007). In doing so, the First Circuit noted that “Sampson has been ably represented by learned counsel” and that “[h]is positions have been vigorously asserted.” Sampson, 486 F.3d at 52. Sampson sought review by the United States Supreme Court. It denied his petition for a writ of certiorari on May 12, 2008. See Sampson v. United States, 553 U.S. 1035, 128 S.Ct. 2424, 171 L.Ed.2d 234 (2008). As required by 18 U.S.C. § 3599, on June 25, 2008, 2008 WL 2563374, shortly after the Supreme Court denied Sampson’s request for review, the court appointed new counsel for post-conviction proceedings. See June 25, 2008 Order at 8. The court subsequently denied without prejudice Sampson’s request for discovery prior to the filing of the § 2255 Motion. See May 6, 2009 Order at 2. On May 11, 2009, Sampson filed his § 2255 Motion. The government filed a Request for Summary Dismissal of the entire § 2255 Motion. It also requested discovery from Sampson, which the court denied without prejudice pending the outcome of the Request for Summary Dismissal. See March 1, 2010 Order at 4-5. On March 29, 2010, Sampson filed an Amended § 2255 Motion. The government did not object to the amendment and again requested summary dismissal. See Gov’t’s Response to Pet’r’s Mem. of Law Regarding Fed.R.Civ.P. 15. Contained within the 250-page Amended § 2255 Motion are eight distinct claims for relief, several of which include multiple subclaims. On July 23, 2010, having submitted about 700 pages of text and approximately 220 exhibits, the parties completed their briefing on the Request for Summary Dismissal. The court held three days of hearings on the Request for Summary Dismissal from August 30 to September 1, 2010. At the conclusion of those hearings, the court expressed the tentative view that certain claims should be summarily dismissed and that others could not properly be decided without discovery, expansion of the record, and an evidentiary hearing if the evidence places material facts in dispute. See § 2255 Rules 4, 6, 7, 8. Since that time, the court has received substantial additional briefing and conducted a series of evidentiary hearings with respect to a claim (Claim IV) involving allegations of juror misconduct, which is being decided in a separate Memorandum and Order. III. LEGAL STANDARDS A. Summary Dismissal The Rules Governing Section 2255 Proceedings for the United States District Courts provide a three-step process for deciding § 2255 motions: preliminary review under Rule 4(b); review to determine the necessity of holding an evidentiary hearing after discovery and expansion of the record under Rules 6, 7, and 8(a); and decision following an evidentiary hearing pursuant to Rule 8(c). In a March 1, 2010 Order, the court ruled that the government’s Request for Summary Dismissal arises under Rule 4(b) and is essentially an aid to the court’s preliminary review. 28 U.S.C. § 2255(b) requires service of a motion on the government and a hearing “[ujnless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Consistent with this principle, Rule 4(b) states: The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order. § 2255 Rule 4(b). Under Rule 4(b), a “ § 2255 motion which is facially inadequate may be summarily denied.” Butt, 731 F.2d at 77 (citing Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir.1974)); see David v. United States, 134 F.3d 470, 477 (1st Cir.l998)(citing Rule 4(b)). Facially inadequate claims include those “which state grounds for relief not cognizable at all under § 2255, as well as motions which contain only ‘bald’ assertions of cognizable claims without adequate supporting factual allegations.” Moran, 494 F.2d at 1222 (footnote omitted); see Butt, 731 F.2d at 77 (holding facially inadequate claims include those which are “wholly incredible” or which state “conclusions without specific and detailed supporting facts”). “[A] district court can often ‘test’ the adequacy of accompanying factual allegations by assuming arguendo their truth, and then assessing their sufficiency in light of the relevant constitutional standards and the record.” Moran, 494 F.2d at 1222; see Mack v. United States, 635 F.2d 20, 27 (1st Cir.1980)(“The ‘district court may deny a hearing so long as it does so on the basis of the facts as alleged by the defendant and so long as it would be within the court’s discretion to do so were the facts alleged by the defendant true.’ ” (quoting United States v. Fournier, 594 F.2d 276, 279 (1st Cir.1979))). However, the court “need not give weight to conclusory allegations, self-interested characterizations, discredited inventions, or opprobrious epithets.” United States v. McGill, 11 F.3d 223, 225 (1st Cir.1993)(citing Mack, 635 F.2d at 27). In addition, under Rule 4(b), “[fjaeially adequate § 2255 claims may be summarily denied when the record conclusively contradicts them.” Butt, 731 F.2d at 77 (citing Domenica v. United States, 292 F.2d 483, 484 (1st Cir.1961)); see Ouellette v. United States, 862 F.2d 371, 377 (1st Cir.1988) (indicating Rule 4(b) permits rejection of claims without a hearing where claims are conclusively contradicted by the record). This approach may be applied only to claims “predicated on facts inside the record, because only as to these can a district court know definitely, without a hearing, whether the petitioner’s facially adequate supporting allegations are in fact untrue.” Moran, 494 F.2d at 1222 n. 1; see Sanders v. United States, 373 U.S. 1, 19-20, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Machibroda v. United States, 368 U.S. 487, 494-95, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Dziurgot, 897 F.2d at 1225. When, as here, a § 2255 motion “is presented to the judge who presided at the [movant’s] trial, the judge is at liberty to employ the knowledge gleaned during previous proceedings and make findings based thereon without convening an additional hearing.” McGill, 11 F.3d at 225. In essence, a § 2255 motion may be summarily dismissed “if the [movant’s] allegations, accepted as true, would not entitle [him] to relief, or if the allegations cannot be accepted as true because ‘they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.’ ” Dziurgot, 897 F.2d at 1225 (quoting Myatt v. United States, 875 F.2d 8, 11 (1st Cir.1989)); see Owens, 483 F.3d at 57 (same); McGill, 11 F.3d at 226 (same); see also United States v. Giardino, 797 F.2d 30, 31-33 (1st Cir.1986). Doubts at this stage must be resolved in favor of the defendant. See 28 U.S.C. § 2255(b); Owens, 483 F.3d at 61 (emphasizing that dismissal without an evidentiary hearing is appropriate only when the allegations and files and records conclusively show that relief is unwarranted); Giardino, 797 F.2d at 32-33 (reversing summary dismissal where the court could not conclusively determine that the defendant was entitled to no relief and requiring the district court to “take further steps to determine the truth and significance of what is alleged”). This is particularly appropriate with respect to claims of ineffective assistance of counsel, the facts of which generally cannot be investigated and developed prior to the § 2255 process. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003)(holding § 2255 is the preferred method to raise ineffective assistance claims because factual development beyond the trial record will often be necessary to resolve the claim); United States v. Rodriguez, 457 F.3d 109, 117-18 (1st Cir.2006)(same). B. Ineffective Assistance of Counsel 1. Generally “The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel,” but it “does not guarantee a defendant a letter-perfect defense or a successful defense.” Lema v. United States, 987 F.2d 48, 51 (1st Cir.1993). “Not every error amounts to ineffectiveness.” Cofske v. United States, 290 F.3d 437, 441 (1st Cir.2002). “To succeed on a claim of ineffective assistance of counsel under the Sixth Amendment, [a movant] must show both deficient performance by counsel and resulting prejudice.” Peralta v. United States, 597 F.3d 74, 79 (1st Cir.2010) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); see Argencourt v. United States, 78 F.3d 14, 16 (1st Cir.1996). “[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052. “The burden is on the petitioner to demonstrate ineffective assistance by a preponderance of the evidence.” Lema, 987 F.2d at 51. “In order to satisfy the ‘deficient performance’ prong, [a movant] must show that his trial counsel’s representation ‘fell below an objective standard of reasonableness.’ ” Peralta, 597 F.3d at 79 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). The court must determine “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “Judicial scrutiny of counsel’s performance must be highly deferential,” and “a court must indulge in a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance.” Id. “The defendant, as a result, must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Phoenix v. Matesanz, 233 F.3d 77, 81 (1st Cir.2000) (internal quotations omitted); see Prou v. United States, 199 F.3d 37, 47-48 (1st Cir.1999) (“[T]he petitioner must show that his attorney’s representation was objectively unreasonable under prevailing professional norms and cannot be reconciled with sound strategy.”); Arroyo v. United States, 195 F.3d 54, 55 (1st Cir.l999)(stating that “counsel is not incompetent merely because he may not be perfect,” because the relevant inquiry was whether the omitted suppression motion “was so obvious and promising that no competent lawyer could have failed to pursue it”). Therefore, “as long as counsel performed as a competent lawyer would, his or her detailed subjective reasoning is beside the point.” Cofske, 290 F.3d at 444; see Abrante v. St. Amand, 595 F.3d 11, 19 (1st Cir.2010) (holding that an attorney’s performance is considered deficient only when, “ ‘given the facts known at the time, counsel’s choice was so patently unreasonable that no competent attorney would have made it’ ” (quoting Knight, 447 F.3d at 15)); Paul v. United States, 534 F.3d 832, 837 (8th Cir.2008)(citing Cofske for the proposition that the First Circuit, unlike some other circuits, permits an assessment of reasonableness “solely by reference to strategy that a hypothetical attorney might have pursued under the circumstances, without any inquiry as to counsel’s actual strategy”); Dugas v. Coplan, 428 F.3d 317, 328 n. 10 (1st Cir.2005)(citing Cofske and emphasizing that the Strickland standard is objective). In evaluating this first prong, “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. “Prevailing norms of practice as reflected in American Bar Association standards and the like ... are guides to determining what is reasonable, but they are only guides.” Id.; see Bobby v. Van Hook,— U.S.-, 130 S.Ct. 13, 16-17 & n. 1, 175 L.Ed.2d 255 (2009) (per curiam) (rejecting reliance on ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases because the guidelines were announced eighteen years after trial and should be regarded as evidence of what reasonable capital defense counsel would do rather than as inexorable commands, so long as they are not overly specific); Rompilla, 545 U.S. at 387, 125 S.Ct. 2456 (relying on ABA Standards for Criminal Justice to find performance objectively unreasonable); Wiggins, 539 U.S. at 524, 123 S.Ct. 2527 (citing standard local practice in capital cases and ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases as sources of prevailing professional standards); see also United States v. Natanel, 938 F.2d 302, 310 (1st Cir.1991)(“[N]o particular set of rules can be established to define effective assistance, as hard-and-fast rules would inevitably restrict the independence and latitude counsel must have in making tactical and strategic decision.”). As to the second prong, “[u]nder Strickland, a defendant is prejudiced by his counsel’s deficient performance if ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Porter, 130 S.Ct. at 453 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see Peralta, 597 F.3d at 79-80. “When a defendant challenges a death sentence ..., the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. 2. Regarding Mitigation Evidence When assessing an attack on a capital sentencing based on trial counsel’s alleged failure to investigate, discover, and present additional mitigation evidence, the proper questions are: (1) whether the investigation conducted by trial counsel was objectively unreasonable; and (2) whether the resulting lack of evidence was prejudicial. See Sears, 130 S.Ct. at 3265; Wiggins, 539 U.S. at 522-23, 534-35, 123 S.Ct. 2527. Trial 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. Counsel’s obligation is “to conduct a thorough investigation of the defendant’s background.” Williams, 529 U.S. at 396, 120 S.Ct. 1495; see Porter, 130 S.Ct. at 452; Wiggins, 539 U.S. at 524, 123 S.Ct. 2527. “[T]he duty to investigate, does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.” Rompilla, 545 U.S. at 383, 125 S.Ct. 2456; see Bobby, 130 S.Ct. at 19 (“[T]here comes a point at which evidence ... can reasonably be expected to be only cumulative, and the search for it distractive from more important duties.”); Wiggins, 539 U.S. at 533, 123 S.Ct. 2527 (“[W]e emphasize that Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing.”); see also Dugas, 428 F.3d at 328. Counsel may limit their investigation “when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Counsel is not, however, relieved of the duty to investigate merely because a defendant is uncooperative. See Porter, 130 S.Ct. at 453. Prejudice is assessed by “ ‘considering] the totality of the available mitigation evidence-both that adduced at trial, and the evidence adduced in the habeas proceeding-and reweighfing] it against the evidence in aggravation.’ ” Sears, 130 S.Ct. at 3266 (quoting Porter, 130 S.Ct. at 453-54). “[T]here is no prejudice when the new mitigating evidence “would barely have altered the sentencing profile presented’ to the decisionmaker.” Id. (quoting Strickland, 466 U.S. at 700, 104 S.Ct. 2052). However, the possibility of prejudice is not limited only to those cases in which “little or no mitigation evidence [was] presented.” See id. (internal quotation marks omitted). Rather, prejudice can be found to exist in cases “in which counsel presented what could be described as a superficially reasonable mitigation theory during the penalty phase,” but failed to present additional mitigation evidence due to a constitutionally deficient investigation by trial counsel. See id. Such an inquiry requires a “probing and fact-specific” analysis. Id. C. Procedural Default As the First Circuit has explained: A significant bar on habeas corpus relief is imposed when a prisoner did not raise claims at trial or on direct review. In such cases, a court may hear those claims for the first time on habeas corpus review only if the petitioner has “cause” for having procedurally defaulted his claims, and if the petitioner suffered “actual prejudice” from the errors of which he complains. Owens, 483 F.3d at 56 (citations omitted); see Oakes v. United States, 400 F.3d 92, 95 (1st Cir.2005) (“If a federal habeas petitioner challenges his conviction or sentence on a ground that he did not advance on direct appeal, his claim is deemed procedurally defaulted.”); Knight v. United States, 37 F.3d 769, 774 (1st Cir.1994)(“Normally, failure to raise a constitutional issue on direct appeal will bar raising the issue on collateral attack unless the defendant can show cause for the failure and actual prejudice.”); see also Berthoff v. United States, 308 F.3d 124, 127-28 (1st Cir.2002); Goldman v. Winn, 565 F.Supp.2d 200, 213-14 (D.Mass.2008). However, “[constitutionally ineffective assistance of counsel constitutes cause sufficient to excuse a procedural default.” Prou, 199 F.3d at 47. In addition, there is an exception to the procedural default rule for claims of actual innocence supported by new evidence. See House v. Bell, 547 U.S. 518, 536-37, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006); Owens, 483 F.3d at 56 n. 6. IV. CLAIMS THAT WILL BE DISMISSED Seven of the claims or sub-claims in Sampson’s Amended § 2255 Motion will be dismissed. A. Ineffective Assistance of Counsel Based on Trial Counsel’s Failure to Advise Sampson to Plead Guilty Prior to June 21, 2002 Claim III(G) alleges trial counsel were ineffective because they unreasonably failed to consider whether the Supreme Court’s forthcoming decision in Ring, 536 U.S. 584, 122 S.Ct. 2428, would preclude imposition of the death penalty in this case and, therefore, unreasonably failed to advise Sampson to plead guilty before Ring was decided. Sampson alleges these failures were prejudicial because, had trial counsel recommended that Sampson plead guilty before Ring was decided, it is reasonably likely that Sampson would have done so and would then have become ineligible for the death penalty once Ring was decided. Taking Sampson’s allegations as true, this claim fails as a matter of law because, even if trial counsel had considered advising Sampson to plead guilty pri- or to the decision in Ring, reasonable trial counsel could fail to know the outcome of Ring in advance and could reasonably decide not to advise a guilty plea in the absence of such knowledge. Sampson alleges the following sequence of events, which are essentially consistent with the court’s recitation of procedural history in United States v. Sampson, 245 F.Supp.2d 327, 328 (D.Mass.2003). On January 11, 2002, the Supreme Court granted certiorari in Ring. At that time, Sampson was subject to the grand jury’s original October 24, 2001 indictment, to which Sampson had earlier pled not guilty. The original indictment did not allege any of the aggravating circumstances that must be proven for Sampson to be eligible for the imposition of the death penalty pursuant to the FDPA, which provides that those factors should be alleged in the government’s notice of intent to seek the death penalty. See 18 U.S.C. §§ 3591(a)(2), 3592(c), 3593(a), (c)-(e). Trial counsel did not, at that time, recommend that Sampson enter a guilty plea, and Sampson, therefore, maintained his plea of not guilty. On June 5, 2002, the grand jury returned the first superseding indictment, which did not substantively alter the charges. Trial counsel advised Sampson to enter a plea of not guilty, and, following their advice, he did so on June 14, 2002. On June 24, 2002, the Supreme Court decided Ring, which overruled Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), and held that the Constitution requires that the aggravating circumstances required to impose the death penalty must be found by a jury beyond a reasonable doubt. See Ring, 536 U.S. at 609, 122 S.Ct. 2428. This court subsequently held that, in light of Ring, the aggravating circumstances required to impose the death penalty must be charged in the indictment. See Sampson, 245 F.Supp.2d at 333. On August 5, 2002, trial counsel moved to withdraw Sampson’s not guilty plea and to enter a plea of guilty to the first superseding indictment, which, under Ring, could not have supported the death penalty. However, on August 8, 2002, the grand jury returned the second superseding indictment, which was sufficient to permit the death penalty under Ring. Sampson’s motion to plead guilty to the first superseding indictment was denied in early 2003. See id. at 339. As Sampson frames his claim, he alleges that trial counsel’s behavior was deficient based on a two-step argument: (1) trial counsel unreasonably failed to consider the implications of the forthcoming Ring decision; and (2) had trial counsel done so, the only reasonable course of action would have been to advise Sampson to plead guilty before Ring was decided. See Aug. 31, 2010 Tr. at 82 (clarifying claim). Sampson alleges he suffered prejudice because it is reasonably probable that: (1) Sampson would have pled guilty before Ring was decided (and, therefore, before the grand jury returned the second superseding indictment) if advised to do so; and (2) the court would not have permitted imposition of the death penalty if Sampson had pled guilty to a constitutionally deficient indictment. This claim fails as a matter of law at the second step of the deficient performance analysis because, even if trial counsel considered the pendency of Ring (as Sampson alleges they should have), they could reasonably fail to know the outcome of Ring and, absent a duty to make such a prediction, could reasonably recommend that Sampson plead not guilty. Prior to Ring, the law clearly established that for Sixth Amendment purposes, aggravating circumstances in a capital case were sentencing factors rather than elements of the offense, even if death was only permitted after the finding of one or more aggravating factors. See Walton, 497 U.S. at 644, 648, 110 S.Ct. 3047 (citing Ariz.Rev.Stat. Ann. § 13-703 (1989)). In both Jones v. United States, 526 U.S. 227, 251, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 496-97, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Court held that facts that increase the possible sentence are elements of the offense but carefully distinguished Walton on the ground that aggravating factors in capital cases only apply after conviction of a crime for which the maximum penalty is death. In Ring, the Court examined the same statutory scheme at issue in Walton, overruled Walton, and held that an aggravating circumstance necessary to impose the death penalty is an element of the offense that must be found by a jury. See Ring, 536 U.S. at 609, 122 S.Ct. 2428. In such circumstances, trial counsel had no duty to predict the outcome of Ring in advance. As a general matter, failure to anticipate a new rule of law is not deficient performance. See United States v. Fields, 565 F.3d 290, 296 (5th Cir.2009)(holding that counsel need not anticipate changes in the law and that failure to predict outcome in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), was, therefore, not ineffective after Apprendi); Knox v. United States, 400 F.3d 519, 522 (7th Cir.2005) (“A failure to anticipate shifts in legal doctrine cannot be condemned as objectively deficient.”); Kornahrens v. Evatt, 66 F.3d 1350, 1360 (4th Cir.1995)(holding failure to anticipate outcome of a case pending before the Supreme Court was not unreasonable); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir.1994)(holding attorney was not required to anticipate future decisions); Randolph v. Delo, 952 F.2d 243, 246 (8th Cir.1991) (per curiam) (holding it was not unreasonable to fail to make a Batson challenge two days before that case was decided). Failure to anticipate the holding of Ring was particularly understandable, because, prior to Ring, Walton had been expressly excepted from the Court’s evolving Sixth Amendment jurisprudence. See Apprendi 530 U.S. at 496-97, 120 S.Ct. 2348; Jones, 526 U.S. at 251, 119 S.Ct. 1215. It was, therefore, not clearly foreshadowed that Walton would be overruled rather than persist as an exception to Apprendi Moreover, the Supreme Court is typically reluctant to overrule prior precedent, particularly where the political branches have relied on precedent to craft legislation. See Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000)(stating that overruling prior precedent requires some “special justification”); City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (noting that, where political branches have relied on precedent, the Court will usually adhere to stare decisis principles); United States v. Mikos, 539 F.3d 706, 715 (7th Cir.2008)(stating Federal Death Penalty Act was enacted based on Walton). For these reasons, reasonable trial counsel could have failed to predict the outcome of Ring with certainty. Virgin Islands v. Forte, 865 F.2d 59 (3d Cir.1989), a case cited by Sampson, does not alter this conclusion. In Forte, the Third Circuit held that it was objectively unreasonable for an attorney to fail to challenge a prosecutor’s racially motivated peremptory challenges while Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was pending. See 865 F.2d at 62-63. However, the court in that case stated that “there is no general duty on the part of defense counsel to anticipate changes in the law” and instead based its holding on the fact that the attorney had been specifically instructed by the defendant and by co-counsel to raise such a challenge but failed to do so without any reasonable excuse. See id. at 61-63. The Third Circuit expressly limited its holding to these “unique circumstances” and noted that “we are not holding that the trial attorney could be held to be ineffective if she had not on her own, even if she had known that Batson was pending, failed to object to the prosecutor’s challenges.” See id. at 62-63. As there is no allegation that Sampson instructed his counsel to preserve Ring issues or to assume a particular outcome in Ring, Forte is not on point. See id. at 61-63. Because trial counsel had no duty to accurately predict the outcome of Ring, trial counsel could reasonably advise Sampson to plead not guilty to the original and first superseding indictments. The First Circuit has noted that competent counsel, without predicting future changes in the law, may nevertheless have a duty to challenge existing law in “unusual circumstances.” See Powell v. United States, 430 F.3d 490, 491 (1st Cir.2005)(per curiam). In an opinion later vacated for rehearing en banc, the Sixth Circuit held that, where a change in law is likely but not certain, counsel has a duty to create opportunities for a defendant to benefit from the likely change. See Nichols v. United States, 501 F.3d 542, 546-47 (6th Cir.2007)(holding that counsel unreasonably failed, after Apprendi, to preserve a challenge to the constitutionality of the sentencing guidelines), reh’g en banc granted and opinion vacated (Jan. 3, 2008). Here, however, trial counsel had no duty to advise Sampson to plead guilty in order to create the opportunity for a challenge to existing law or to take advantage of possible changes in the law. Unlike the challenges to sentencing calculations at issue in Powell and Nichols, a guilty plea prior to Ring would have involved significant costs to Sampson. Obviously, a guilty plea would have waived Sampson’s right to a trial on the issue of guilt. Additionally, because the government did not file its Notice of Intent to Seek the Death Penalty until after Ring was decided, an unconditional guilty plea prior to Ring would have eliminated the opportunity to negotiate a plea in exchange for a sentence of life in prison. If Ring was not decided in Sampson’s favor, the court would not necessarily have permitted withdrawal of the plea. See United States v. Padilla-Galarza, 351 F.3d 594, 597 (1st Cir.2003)(affirming district court’s denial of a motion to withdraw a guilty plea because a district court may deny such a motion after weighing a variety of factors). Thus, without a duty to predict correctly the outcome of Ring in advance, trial counsel could reasonably conclude that a guilty plea before Ring would involve substantial risk and promise only a speculative benefit. To grant relief for such a claim, the court would have to impose on counsel a constitutional duty far in excess of the limited duty to advocate changes suggested by Powell, in which the First Circuit failed to find such a duty even in a situation where counsel’s advocacy could not possibly have prejudiced the defendant. See Powell, 430 F.3d at 491. Even in Nichols, the now-vacated panel decision imposing a duty to challenge the sentencing guidelines after Apprendi, the duty to preserve the Sixth Amendment challenge arose only where doing so imposed an insignificant cost. See Nichols, 501 F.3d at 547. For this reason, the decisions on which Sampson relies do not persuade the court that his trial counsel were obliged in this case to advise Sampson to plead guilty in order to create the opportunity for a constitutional challenge to existing law or to take advantage of potential changes in the law. In Anew of the foregoing, it would not be unreasonable for counsel to consider the pendency of Ring but to conclude that Sampson should plead not guilty. Thus, an essential step in the deficient performance analysis fails as a matter of law, and this claim, taken as true, fails to justify relief under Strickland. This claim Avill be dismissed. B. Ineffective Assistance of Counsel Based on Trial Counsel’s Advice that Sampson Plead Guilty After June 21, 2002 Claim III(H) alleges trial counsel were ineffective by advising Sampson to plead guilty to the Second Superseding Indictment after the decision in Ring. Sampson alleges that, although Sampson had initially pled not guilty, on September 9, 2003, shortly before trial, Sampson entered a plea of guilty to both charges upon advice of trial counsel, Avithout an agreement by the government not to seek the death penalty. This claim also fails for failure to allege facts that, if true, would show deficient performance. Regarding objectively unreasonable performance, Sampson must allege facts showing “that his attorney’s representation was objectively unreasonable under prevailing professional norms and cannot be reconciled Avith sound strategy.” Prou, 199 F.3d at 47-48. Sampson essentially cites three sources of authority for the proposition that the challenged act was objectively unreasonable: Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004); the 2003 ABA guidelines; and the Hill Declaration (an exhibit to the Amended § 2255 Motion). In 2004, in Nixon, the Supreme Court examined a case in which the defendant tricked his victim into giving him a ride in her car, took control of the car by force, drove the victim to a wooded area, tied her to a tree, and killed her to protect his identity. See Nixon, 543 U.S. at 179-80, 125 S.Ct. 551. The defendant made multiple confessions (one to his brother, another to his girlfriend), and the police gathered overwhelming physical and eyewitness evidence. See id. Although the defendant did not plead guilty, his attorney orally conceded the defendant’s guilt during the guilt phase of the death penalty proceeding. Id. at 182-83, 125 S.Ct. 551. Because the defendant had been unresponsive when trial counsel attempted to discuss trial strategy with him, trial counsel made the concession without the express permission of the defendant. See id. The courts of Florida treated the matter as if counsel had entered the functional equivalent of a guilty plea without consent and, therefore, found unreasonable performance. See id. at 188-89, 125 S.Ct. 551. The courts of Florida then presumed prejudice under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). See id. The Supreme Court reversed and remanded on the grounds that the concession was not the functional equivalent of guilty plea and should have been analyzed under the Strickland standard only. See id. at 192, 125 S.Ct. 551. Applying Nixon to this case is difficult for several reasons. First, regarding the reasonableness of advising a client to enter a guilty plea without an assurance that the government will not seek the death penalty, the decision points in two different directions. On the one hand, in footnote 6, the Court noted that “pleading guilty without a guarantee that the prosecution will recommend a life sentence holds little if any benefit for the defendant” and that pleading guilty increases the likelihood that gruesome details will be presented during the sentencing phase. Nixon, 543 U.S. at 191 n. 6, 125 S.Ct. 551. Elsewhere in the opinion, however, the Court indicated that avoiding a death sentence may be the best and only realistic outcome in capital cases and that counsel may reasonably decide to sacrifice guilt-phase defenses to avoid undermining penalty-phase mitigation arguments. See id. at 191-92, 125 S.Ct. 551. Second, because the defendant in Nixon did not plead guilty, footnote 6 is unnecessary to the decision and is, therefore, dicta. See id. at 191 n. 6, 125 S.Ct. 551. Third, to the extent the Court evaluated reasonableness of counsel’s conduct, it did so under the standard of Cronic, which requires not merely proof that counsel was objectively unreasonable, but rather proof that counsel failed to function in any meaningful sense as the government’s adversary. See id. at 190-91, 125 S.Ct. 551. Accordingly, it is difficult to draw meaningful guidance from Nixon one way or the other. The other sources of authority cited by Sampson to show objective unreasonableness also are not persuasive. The language Sampson cites from the 2003 ABA Guidelines advises that counsel should “be extremely reluctant” to advise a defendant to plead guilty in these circumstances but establishes no definitive bar to doing so in all circumstances. See 2003 ABA Guidelines 10.9.2 cmt. Similarly, the Hill Declaration establishes that “there is a heavy default in favor of a guilt phase” and argues that guilt phase would have been helpful to Sampson, but it does not state that foregoing a guilt phase is never permissible. See Ex. D at 18. Although Sampson alleges (and the government does not dispute) that, at the time of trial, only two federal capital defendants had pled guilty and that neither avoided the death penalty, the fact that a particular defense tactic has failed twice before in different circumstances does not preclude the use of that tactic by reasonable counsel in every future case. Countering Sampson’s argument, the government has cited one case in which a court held that advising a defendant in a capital case to enter a guilty plea is reasonable under Strickland. See In re Elmore, 162 Wash.2d 236, 172 P.3d 335, 345-46 (2007). In Elmore, the Supreme Court of Washington held that it was objectively reasonable to advise a capital defendant to enter a guilty plea where: (1) there was no viable defense to guilt because the defendant gave a full confession; (2) two of the defense themes for sentencing were remorse and taking responsibility; (3) the defendant had a desire to plead guilty from the beginning in order to take responsibility and to spare his family from experiencing publicity associated with a trial. See id. Notably, the court in Elmore reached this conclusion despite submission by the defendant of affidavits from experts presenting essentially the same arguments as the Hill Declaration. Compare id. at 345, with Ex. D at 18. Taking Sampson’s alleged facts as true, and considering the record, trial counsel’s advice to plead guilty after the Ring decision was not objectively unreasonable. In deciding whether to recommend proceeding with a guilt phase, trial counsel were presented with a number of competing considerations: First, as Sampson argues, a guilt phase could have created an opportunity to address the most gruesome and damaging evidence prior to the penalty phase and to satisfy the jurors’ desire to pass judgment. See Nixon, 543 U.S. at 191 n. 6, 125 S.Ct. 551. However, no matter what strategy trial counsel selected, the evidence in this case was going to graphically portray the brutal killing of three helpless, innocent people. Trial counsel could not be certain that a few additional weeks or the opportunity to decide guilt would, in any meaningful way, cause jurors to forget the most damaging evidence or assuage their sense of moral outrage. Second, there was substantial evidence available that Sampson had accepted responsibility for his crimes and felt remorse. For example, after the murders, he contacted authorities to turn himself in, surrendered peacefully, confessed on multiple occasions, and assisted the police in recovering evidence. These mitigation arguments were among the most helpful available to Sampson for the penalty phase. Although, as Sampson argues, employing a guilt phase to focus on Sampson’s mental state may not have been entirely inconsistent with making these penalty phase mitigation arguments, there was a risk that jurors presented with an initial denial of guilt would view skeptically any later attempt to claim acceptance of responsibility or remorse. See Nixon, 543 U.S. at 191-92, 125 S.Ct. 551. Therefore, a plea of not guilty could have significantly undermined two of the most important mitigating factors available to Sampson. See Elmore, 172 P.3d at 346. Moreover, as demonstrated by the verdict form, the guilty plea was itself a mitigating factor to be considered. Third, by September 9, 2003, given the confessions, forensic evidence, and eyewitness accounts, the evidence of Sampson’s guilt was overwhelming. Sampson’s Motion to Dismiss had been denied. See Sampson, 275 F.Supp.2d at 109 (dated Aug. 11, 2003). There was no realistic probability that the court would dismiss the case or that the guilt phase would result in an acquittal. Counsel for Sampson was, therefore, required to exercise strategic judgment in order to balance these complex and competing considerations. The strategy of recommending a guilty plea, while ultimately unsuccessful, fell within the wide range of reasonable professional assistance protected by Strickland. See Elmore, 172 P.3d at 345-46. Sampson has not alleged facts that, if true, would entitle him to relief. Therefore, this claim will be dismissed. C. Ineffective Assistance of Counsel Based on Trial Counsel’s Failure to Move for an Immediate Mistrial When the Victims’ Bloody Shirts Were Exposed to the Jury Claim III(M) alleges trial counsel were ineffective for failing to move for a mistrial when the victims’ shirts were inadvertently exposed to the jury. As described in Sampson, 335 F.Supp.2d at 184, the shirts in question were worn by McCloskey and Rizzo when Sampson killed them. The shirts, mounted on a display, were stained with blood and torn in locations corresponding to each victim’s stab wounds. Insects had laid eggs in the folds of one of the shirts. The court considered the admissibility of the victims’ shirts on multiple occasions between November 6, 2003, and December 17, 2003. See id. The court concluded on December 17, 2003, that the shirts were not admissible because, although relevant to whether the offenses involved serious physical abuse, the shirts: (1) were not the best evidence of the victims’ wounds; (2) could have inspired inappropriate emotional responses from the jury, particularly during closing arguments and during deliberations; and (3) could have caused emotional behavior by the victims’ families, which would constitute inappropriate victim impact information. Id. at 184-86 & nn. 7, 8. The event giving rise to this claim occurred on November 10, 2003. Early that day, the court indicated that it had not yet made a final decision on the admissibility of the shirts and would not make such a decision until after receiving supplemental briefing the following day. Nov. 10, 2003 Tr. at 11-13. The parties agreed that this approach was appropriate. Id. at 13. Later that day, at the conclusion of the direct examination of Dr. James Weiner, the medical examiner who examined Jonathan Rizzo, the court called the parties to side bar. Id. at 102. The court discussed the possible admission of two diagrams. Id. at 103. In the course of its examination of Dr. Weiner, the government moved those diagrams, which had covered one of the shirts. As a result, the court could glimpse the shirt among the various exhibits and perceived that it might be exposed to some of the jurors, if they chose to look over at the group of exhibits instead of at the witness. The court told the government that “[the diagrams] have been covering the shirt, and now the shirt is exposed and can be seen from a certain area of the jury. So take them now, put them there. When the jurors leave, we’ll give them a number, if there’s no objection.” Id. After the conclusion of the side bar conference, the court called counsel back to side bar almost immediately. Id. at 104. The court told the government that “[t]he shirt is still not completely covered” and instructed counsel to cover it. Id. at 105. That was the end of the matter. The facts alleged do not establish prejudice, in that they do not raise a reasonable probability that the court would have granted the mistrial if asked to do so or would have committed a reversible error in denying a mistrial. Even assuming some members of the jury did see the shirt or shirts, the court would have been required to grant a mistrial “as a ‘last resort, only to be implemented if the taint is ineradicable, that is, only if the trial judge believes that the jury’s exposure to the evidence is likely to prove beyond realistic hope of repair.’ ” United States v. Dunbar, 553 F.3d 48, 58 (1st Cir.2009) (quoting United Sta