Full opinion text
MEMORANDUM OPINION KRENTZMAN, Senior District Judge. Gary Eldon Alvord, a Florida state prisoner under sentence of death for a triple murder, petitions this Court for a writ of habeas corpus, 28 U.S.C. § 2254, attacking his conviction and sentence on numerous grounds. In 1970, petitioner was tried for kidnapping and rape in Michigan, found not guilty by reason of insanity, and committed to the custody of the Michigan Department of Mental Health. In January 1973, Alvord escaped from Michigan’s Ionia State Hospital and eventually came to Tampa, Florida. He was indicted on August 1, 1973 for the June 1973 murders of three women, and Thomas Meyers, Esquire, a part-time public defender in the Circuit Court for Hillsbor-ough County, was appointed to represent him. The trial court found Alvord competent to stand trial. Alvord plead not guilty and took the stand at trial to present an unsupported alibi defense. The state presented circumstantial evidence, a statement made by Alvord upon his arrest, and the testimony of Alvord’s girlfriend, to whom he had allegedly confessed the crimes. Petitioner was convicted on all three counts of first degree murder on April 4, 1974. Later that day, the court held the sentencing phase, at which Dr. Ames Robey, a psychiatrist who had treated Alvord in Michigan, was the only witness. The jury returned an advisory sentence recommending the death penalty, and the judge sentenced Alvord to death. The conviction and sentence were affirmed by the Florida Supreme Court on direct appeal. Alvord v. State, 322 So.2d 533 (Fla.1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). Petitioner’s motion for post-conviction relief pursuant to Rule 3.850, Fla.R.Crim.P., was denied by a state circuit judge on August 27, 1979, and that denial was affirmed by the Florida Supreme Court on April 9,1981. Alvord v. State, 396 So.2d 184 (Fla.1981). Petitioner was scheduled to be executed on May 6, 1981. Alvord petitioned this Court for habeas corpus and moved to stay his execution on April 21, 1981. The state’s response was, and for the most part remains, that petitioner received a full and fair hearing in the state courts, and that the state court findings and conclusions must be presumed correct under section 2254(d), 28 U.S.C. This Court stayed petitioner’s execution and denied the state’s motion for judgment on the pleadings. Petitioner’s ' motion for discovery on the issues of ineffective assistance of counsel and inadequate psychiatric examination was granted, and the Court conducted an evidentiary hearing on those two grounds on May 13 and 14, 1982. Depositions of Drs. Sprehe and Gonzalez were received in evidence, and Dr. Robey, trial counsel Thomas Meyers, and appellate counsel Richard Seymour each testified at the hearing. The parties submitted pre-hear-ing, post-hearing, and final memoranda. Alvord bases his petition on twelve grounds. Two of those grounds raise issues that have for some time been pending in the courts of appeals. On April 28, 1982, the Eleventh Circuit ordered rehearing en banc in Ford v. Strickland, 676 F.2d 434 (11th Cir.1982), the case presenting as an issue the constitutionality of the Florida Supreme Court’s review of nonrecord material in the course of considering capital appeals. The decision of the en banc court was released on January 7, 1983. 696 F.2d 804 (11th Cir.1983). Also, on May 14, 1982, Unit B of the former Fifth Circuit ordered rehearing en banc in Washington v. Strickland, 673 F.2d 879 (5th Cir. Unit B), rehearing granted, 679 F.2d 23 (5th Cir. Unit B 1982), a case presenting important issues underlying the claim of ineffective assistance of counsel asserted by petitioner herein. The decision of the en banc court in Washington was rendered on December 23, 1982. 693 F.2d 1243 (5th Cir.1982). Resolution of this petition while Ford and Washington v. Strickland were pending would have been premature. I. INEFFECTIVE ASSISTANCE OF COUNSEL A. Representation at Trial Petitioner raised his ineffective assistance claim on state collateral review pursuant to Rule 3.850, Fla.R.Crim.P. In denying petitioner’s motion, the state court made certain findings of historical fact which this Court generally presumes correct, 28 U.S.C. § 2254(d), but the conclusion of the state court that petitioner received, effective assistance of counsel is not to be presumed correct under 2254(d). Whether counsel has rendered effective assistance is a mixed question of law and fact, requiring this Court to apply sixth amendment principles to the historical facts of the case. Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982); Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980); Sullivan v. Wainwright, 695 F.2d 1306, 1308 (11th Cir. 1983); Young v. Zant, 677 F.2d 792, 798 (11th Cir.1982); Harris v. Oliver, 645 F.2d 327, 330 (5th Cir.1981). The state court found, in addition to the facts recited above, that petitioner’s trial counsel, Mr. Meyers, “was aware of [Al-vord’s] adjudication of insanity and that [Alvord] was presumed to remain incompetent until adjudicated otherwise.” State v. Alvord, No. 73-1398 (Cir.Ct. August 27, 1979) (order denying post-conviction relief) (hereafter, Rule 3.850 Order). The collateral review court also found that Mr. Meyers moved the trial court on several occasions to appoint Drs. Sprehe and Gonzalez to examine his client and that counsel tried in vain to persuade Alvord to cooperate. Alvord did not want to raise the insanity defense, however, and refused to cooperate each time the doctors were appointed to examine him. Finally, the court stated that “no proof of [Alvord’s] prior adjudication was ever submitted to the Court and no such defense was raised.” Rule 3.850 Order at 10. This Court presumes correct each factual finding made by the state court, with the single exception of its finding that no proof of the Michigan adjudication was submitted to the trial court. Nevertheless, additional facts not inconsistent with the state court’s findings are relevant to petitioner’s sixth amendment claim. 1. Background and Trial Petitioner was in and out of mental hospitals in Michigan since the age of 13; his mother also suffered from mental illness. He was charged with the kidnapping and rape of a ten-year-old girl in 1967, and spent more than two years in a mental institution before being declared competent to stand trial. In 1970, he was adjudicated not guilty by reason of insanity by a Michigan judge after a bench trial. Alvord was institutionalized and, in January 1973, he escaped from the Ionia State Hospital irl Michigan. The murders were committed in Florida in June 1973, and Alvord was indicted on August 1, 1973. Mr. Meyers was appointed to represent petitioner about two weeks after the indictment was returned. Mr. Meyers had tried some fifteen or twenty felony cases to a jury at the time of his appointment, but he had tried none in which an insanity defense was raised. Meyers Depo. at 69. This was one of the first capital cases tried in the Thirteenth Judicial Circuit under Florida’s revised death penalty statute. Mr. Meyers was assigned three first degree murder cases during 1973, and was in trial in his first such case in the fall of that year. The attorney first saw his client in September 1973 for about fifteen minutes. Alvord refused to talk to counsel other than to ask him to collect all the evidence he could and to come back. Meyers Depo. at 11. Mr. Meyers learned from the prosecutor that Alvord had suffered from mental problems since an early age, had spent many years in mental institutions, and had been adjudicated not guilty by reason of insanity in Michigan. Meyers’ subsequent pre-trial contact with his apparently uncooperative client was primarily at court hearings. In early October, Mr. Meyers moved off the record for a mental examination of his client. See Trial Rec. at 164, 227. But see Trial Rec. at 4 (order to determine mental condition of defendant). On October 9, 1973, the trial court directed that Alvord be examined by two court-appointed psychiatrists, Drs. Sprehe and Gonzalez. Both doctors attempted to examine Alvord, but he refused to talk to them without his attorney present. At a competency hearing on October 12, 1973, the doctors described Alvord’s response, but could give no opinions as to his mental state. Trial Rec. at 129-32. Mr. Meyers informed the doctors and the court of Alvord’s six-year history in mental institutions whereupon both Doctor Gonzalez and the prosecutor stated that in similar cases in Florida the defendant was sent to a state hospital for observation. The court continued the hearing until October 19, 1973, when it stated that the prosecutor had suggested the defendant be sent to the state hospital for observation and that his Michigan records be obtained. Trial Rec. at 133-35. The prosecutor had also mentioned Dr. Robey as a psychiatrist who had treated Alvord for several years in Michigan. The hearing was continued until November 2, 1973, when the court announced its order committing Alvord to the Florida State Hospital for observation and examination. Trial Rec. at 136-37; see Trial Rec. at 10 (Order of Commitment). A month later, on December 6, 1973, the court set aside its commitment order without a hearing, having been told by the state hospital that the court had no authority to commit Alvord for observation. Trial Rec. at 14 (Order Setting Aside Commitment); see Trial Rec. at 140. About the middle of December, Mr. Meyers learned from the prosecutor that Alvord had not gone to the mental hospital. He did not move to have his client committed for observation until March 26, 1974, a few days before trial. At the invitation of the state, Dr. Robey came to Florida on January 3, 1974 to examine Alvord; it was the doctor’s understanding that the court and both counsel had requested the examination. Trial Rec. at 161-63. Alvord was surprised to see Dr. Robey, complained that he had not seen his attorney for three months, and talked to the doctor for several hours. On January 5, 1974, the court had a hearing at which Mr. Meyers learned for the first time that Dr. Robey had examined his client. Trial Rec. at 138-74; Meyers Depo. at 30-31. Meyers objected to the lack of notice, Trial Rec. at 168, but Dr. Robey was allowed to testify at the hearing that his examination of Alvord led him to the opinion that petitioner was indeed competent to stand trial. The doctor also testified that the Michigan courts had referred Alvord for examination some five times over the years during which he had supervised Alvord’s mental treatment, that Alvord had escaped from a Michigan mental institution, and that his illness was of a type that could suddenly recur or go into long remissions. He stated that he knew more about Alvord than any other doctor in Michigan, but gave Mr. Meyers the names of two other treating psychiatrists. Trial Rec. at 160-61. The trial court granted the state’s motion, in which Mr. Meyers joined, for further mental examination by Dr. Robey to determine Al-vord’s sanity at the time of the offense, but stated that “if the defendant continues to refuse to talk to [Drs. Sprehe and Gonzalez], then the Court has no alternative but to deny any defense of insanity that may be raised in this case.” Trial Rec. at 167. Just before the hearing ended, Alvord moved the court to discharge Mr. Meyers as his counsel, stating he had “no faith in any persons representing the Public Defender’s Office.” Trial Rec. at 171. The court responded by letting Alvord “take this up with the Public Defender .... You might accommodate him by filing a written motion, Mr. Meyers, if you so desire.” Trial Rec. at 171-72; see Trial Rec. at 188-89. Thereafter, Alvord apparently asked Mr. Meyers not to file such a motion. Meyers Depo. at 34. Dr. Robey examined Alvord later that day for slightly over two hours and wrote a letter to the court and counsel from Michigan on January 9, 1974, giving his opinion that under Florida’s M’Naughten standard, Alvord was criminally responsible at the time of the offense. Trial Rec. at 15 (opinion letter of Dr. Robey). On January 10, 1974, the court again directed that Alvord be examined by the court-appointed psychiatrists. Trial Rec. at 17. At a competency hearing on January 11, 1974, Dr. Sprehe gave a qualified opinion that Alvord was competent to stand trial; the doctor was uncertain because he had been able to spend less than ten minutes with petitioner, who was still uncooperative. Trial Rec. at 175. Dr. Gonzalez stated no opinion because Al-vord had only spoken to him for three to five minutes. The court found Alvord competent to stand trial: “I have no alternative under the circumstances but to presume, first of all, that the defendant is competent to stand trial until I am shown otherwise, and that the presumption is now even strongly enhanced by the psychiatric report' of Dr. Robey. So, I will adjudicate the defendant competent to stand trial.” Trial Rec. at 189. On February 5, 1974, with a February 25 trial date approaching, the court issued a third order, again directing the court-appointed doctors to try to examine Alvord. At hearing on February 8,1974, Dr. Sprehe, having spent fifteen minutes with Alvord, testified that in his opinion Alvord was competent to stand trial. Trial Rec. at 200-10. Dr. Gonzalez testified a week later that he still was without an opinion because he had again found Alvord uncooperative; he suggested that Alvord be committed for observation. Trial Rec. at 211-22. Neither doctor stated an opinion about Alvord’s sanity at the time of the offense. The following colloquy between the court and Mr. Meyers took place at the February 15, 1974 hearing: The Court: [H]e failed to cooperate with the doctors. He then through his attorney requested that I give him another opportunity. He evidently did cooperate with one doctor. But now refused to with this doctor. Mr. Meyers: The problem here, Judge, he was up in Michigan been adjudicated incompetent. The Court: I don’t know that. Mr. Meyers: There is a legal presumption that a person is, once adjudicated, is incompetent until adjudicated otherwise. The Court: I have no knowledge of this. There has been nothing shown to this Court that he has ever been adjudicated incompetent on the basis of any document or testimony. This Court doesn’t have that before it. And until such time as the Court has something of that nature before it, I have to presume the defendant to be competent. Mr. Meyers: Okay. Well, I have no further questions, Judge. Trial Rec. at 216-17. The Court again declared Alvord competent to stand trial. On the prosecutor’s motion, trial was continued from February 25 to April 1, 1974. On March 26, 1974, Mr. Meyers filed a notice of intent to claim insanity, now inexplicably absent from the trial record. He also filed a motion to transfer Alvord to a state hospital, to which motion he attached the Michigan adjudication of insanity and order of commitment. The motion was denied. See Trial Rec. at 71-75. Mr. Meyers moved to dismiss the indictment on March 28, 1974, citing legal grounds ranging from the age of those serving on the indicting grand jury to the unconstitutionality of the death penalty. Trial Rec. at 78. Trial began on April 1, 1974. As part of its strong case against Alvord, the state introduced a statement made by petitioner to a detective upon his arrest in Michigan for theft; Alvord apparently stated that he was not a thief, he was a rapist. Trial Rec. at 922. On direct examination, Mr. Meyers asked Alvord to explain that statement: Mr. Meyers: Well, did you make the statement that he said you made, though? Alvord: Probably did, yes. Mr. Meyers: And why did you say that? Alvord: Well, then, again — can I ask somebody a question here? Mr. Meyers: No. Just go ahead and answer the question. Why did you say that statement to him. Alvord: Because I was acquitted for kidnap and rape previously. Maybe— Mr. Meyers: For what reason? Alvord: By reasons of insanity. Mr. Meyers: All right. Is that what you were referring to? Alvord: Yes. Mr. Meyers: And were you at all referring to any murders in Tampa? Alvord: Definitely not. Trial Rec. at 975-976. The fact that Alvord had previously been found not guilty of kidnapping and rape by reason of insanity and the fact that he escaped from a Michigan mental hospital in 1973 arose at several other points during the trial. Mr. Meyers moved for a mistrial on the morning of the third day of trial, arguing that a newspaper article had appeared that morning describing “Mr. Al-vord’s acquittal previously by reason of insanity on charges of kidnap and statutory rape,” and his subsequent “escape from the hospital up in Michigan in January of 1973.” Trial Rec. at 735. Alvord testified, as set out above, that he had been “acquitted” “by reasons [sic] of insanity.” On cross-examination, the prosecutor quibbled with Al-vord’s use of the word acquitted: “Isn’t that rather not guilty because of your insanity, rather than an acquittal of not guilty?” Trial Rec. at 979. He brought out the fact that Alvord had escaped from the mental hospital before coming to Florida, Trial Rec. at 980, and, when questioning petitioner about a gun he had allegedly sold immediately after the killings, the prosecutor commented on an “[e]scapee from a mental hospital walking around with a gun like that.” Trial Rec. at 981. Mr. Meyers did not request an instruction on the presumption of insanity because he “wasn’t able to develop the insanity defense the way it ... should be developed because of the lack of cooperation with [A]lvord.” Meyers Depo at 49. The jury returned verdicts of guilt on all three counts. 2. Ineffective Assistance of Counsel. The sixth amendment guarantees to criminal defendants the effective assistance of counsel; that is, of an attorney reasonably likely to render and rendering reasonably effective assistance given the totality of the circumstances. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Washington v. Strickland, 693 F.2d 1243, 1250 (5th Cir. Unit B 1982) (en banc); Washington v. Watkins, 655 F.2d 1346, 1355 (5th Cir. 1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982); Herring v. Estelle, 491 F.2d 125, 127 (5th Cir.1974). The standard remains the same whether counsel was retained or appointed. Cuyler v. Sullivan, 446 U.S. 335, 344-45, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In order to succeed on a claim of ineffective assistance of counsel, a federal habeas petitioner must prove his entitlement to relief by a preponderance of the evidence. Washington v. Strickland, 693 F.2d at 1250; United States v. Killian, 639 F.2d 206, 210 (5th Cir.), cert. denied, 451 U.S. 1021, 101 S.Ct. 3014, 69 L.Ed.2d 394 (1981). The major ground of petitioner’s ineffective assistance claim is Mr. Meyers’ failure to investigate and present Alvord’s insanity defense. Constitutionally effective counsel must conduct a “reasonable amount of pretrial investigation.” Washington v. Strickland, 693 F.2d at 1251; see Washington v. Watkins, 655 F.2d at 1355-56. The standard governing the amount of pretrial investigation that is reasonable cannot be articulated with precision, for it “necessarily depend[s] upon a variety of factors including the number of issues in the case, the relative complexity of those issues, the strength of the government’s case, and the overall strategy of trial counsel.” Washington v. Strickland, 693 F.2d at 1251; Washington v. Watkins, 655 F.2d at 1357. The Fifth Circuit has noted, however, that its admonition against assessing counsel’s performance “through the finely ground lenses of 20/20 hindsight” “is especially compelling in reviewing claims ... grounded in allegations of inadequate investigation and preparation.” Washington v. Watkins, 655 F.2d at 1356. Instead, the reasonableness of counsel’s assistance must be judged “ ‘from the perspective of counsel, taking into account all the circumstances of the case, but only as those circumstances were known to him at the time in question.’ ” Washington v. Strickland, 693 F.2d at 1251 (quoting Washington v. Watkins, 655 F.2d at 1356). The en banc Washington v. Strickland court recently analyzed a failure-to-investigate claim by describing in five paradigms those situations that might underlie such a claim. 693 F.2d at 1252-58. The court began with perhaps the clearest breach of the duty to investigate: cases in which trial counsel perceived only one plausible line of defense for his client, but failed to conduct a substantial investigation thereof. Id. at 1252-53. “[P]ermissible trial strategy can never include the failure to conduct a reasonably substantial investigation into a defendant’s one plausible line of defense.” Id. at 1252; e.g. Gomez v. Beto, 462 F.2d 596 (5th Cir.1972). Against this clear case, the court compared two other paradigms that are relevant to this petition. It focused on the necessary content of a “reasonably substantial investigation” by positing its second class of cases, holding to the now routine conclusion that effective defense counsel “ ‘is not required to pursue every path until it bears fruit or until all conceivable hope withers.’ ” 693 F.2d at 1253 (quoting Lo-vett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980)). “Rather, attorneys must conduct a substantial investigation which includes ‘an independent examination of the facts, circumstances, pleadings and laws involved.’ ” Id. at 1253 (quoting Rummel v. Estelle, 590 F.2d 103, 104 (5th Cir.1979)). Finally, the court identified the role of trial strategy in cases of this kind by describing as its fourth paradigm cases in which “counsel fail[ed] to conduct a substantial investigation into one plausible line of defense because of his reasonable strategic choice to rely upon another plausible line of defense at trial.” Id. at 1254. Ideally, an attorney should investigate all possible defenses before choosing to exclude some at trial, but achievement of that ideal is not required by the sixth amendment. “Often, counsel will make a choice of trial strategy relatively early in the representation process after conferring with his client, reviewing the state’s evidence, and bringing to bear his experience and professional judgment.” Id. (footnote omitted). The distance between ideal and constitutional minimum is significant under Washington v. Strickland, however: “Whereas a strategy chosen after full investigation is entitled to almost automatic approval by the courts, a strategy chosen after partial investigation must be scrutinized more closely .... ” Id. at 1255. This petition presents a difficult variation on the paradigms set out in Washington v. Strickland. The facts as trial counsel knew them suggested two possible defenses: the available insanity defense, which Meyers considered Alvord’s only real hope, and the unsupported alibi, which Alvord consistently asserted and to which he eventually testified at trial. Primarily because of Alvord’s opposition to an insanity defense, counsel went to very little effort to investigate that defense before trial. The major issue underlying Alvord’s claim of ineffective assistance, then, is whether and to what extent a criminal defendant’s expressed unwillingness to raise a particular defense absolves his attorney of the responsibility to investigate and present that defense. The record reveals that Mr. Meyers did very little independent investigation of Al-vord’s potential insanity defense. He obtained only a small portion of his client’s voluminous medical record, and made no effort to have even that small part interpreted by a qualified psychiatrist. Meyers Depo. at 29, 42-43. He made no effort to contact anyone in Michigan, where Alvord spent 25 of his 26 years; specifically, he never contacted the doctors who had treated his client at the Ionia State Hospital. Id. at 57. After Alvord refused for the first time to speak to the two court-appointed psychiatrists, counsel chose not to be present at the several subsequent examinations, even though he knew that Alvord’s uncooperativeness was on the stated ground that his attorney was not present. He also made no effort until a few days before trial to seek reconsideration of the trial court’s ex parte December 6, 1973 order vacating the order of commitment. In the absence of an independent investigation, counsel neither explored the helpful facts and opinions to which Dr. Robey might have testified nor brought out the substantial qualifications that the doctor himself placed on his opinion that Alvord was sane at the time of the offense. In short, Mr. Meyers undertook virtually no investigation of the one defense he considered viable in Alvord’s case, choosing instead to comply with Al-vord’s request that he put petitioner on the stand and proceed with an alibi defense. The question presented in this claim, as framed by the court in Washington v. Strickland, is whether trial counsel made a reasonable choice based upon reasonable assumptions when he rejected the uninvestigated insanity defense in favor of Alvord’s alibi: The choice by defense counsel to rely upon certain lines of defense to the exclusion of others before investigating all such lines is a strategic choice. A strategy chosen without the benefit of a reasonably substantial investigation into all plausible lines of defense is generally based upon counsel’s professional assumptions regarding the prospects for success offered by the various lines. The cases generally conform to a workable and sensible rule: when counsel’s assumptions are reasonable given the totality of the circumstances and when counsel’s strategy represents a reasonable choice based upon those assumptions, counsel need not investigate lines of defense that he has chosen not to employ at trial. 693 F.2d at 1254-55 (citations and footnotes omitted). To resolve that question, the Court must briefly review the strength of the state’s case and of the alternative defenses and must consider the impact of Alvord’s refusal to proceed with an insanity defense upon his attorney’s exercise of professional judgment. The state presented a strong case that petitioner had committed the acts of which he was charged. Zelma Hurley, Alvord’s girlfriend, testified that he had confessed committing the crimes to her the morning after they allegedly took place. Trial Rec. at 753-54. The prosecution also introduced testimony concerning certain items — a cigarette lighter, jewelry, a watch, and some cash — allegedly stolen from the victims. Hurley testified that Alvord had some of these items just after the killings took place, Trial Rec. at 750, 757-59, and Terri Williams, another friend of Alvord, stated she saw them in his possession in Detroit about one week after the crimes occurred. Trial Rec. at 879-82. The items were apparently never found. Trial Rec. at 853 (testimony of Detective John W. Reed). Other circumstantial evidence was introduced further tying Alvord to the crime scene. Finally, as described above, the state introduced a statement made by petitioner upon his arrest in Michigan for theft to the effect that he was not a thief, he was a rapist. Trial Rec. at 922. See section IV, infra. Against this strong case, Alvord’s sole defense was an uncorroborated alibi. He took the stand and testified that from nine to midnight on the night of the killings he was with Zelma Hurley at the home of one Joe Duncan, that they left around midnight and spent the next hour to hour and a half at a bar, the Sportsman’s Lounge, and that they returned to their apartment about 1:15 a.m. Alvord stated that he had seen a friend, Jeanine Brautigan, at the lounge that night, but she did not testify. After dropping Hurley off at the apartment, Al-vord assertedly went to the Davis Island Hotel to find a friend. Unable to locate the friend, he spent another hour to hour and a half at a bar adjoining the hotel and returned home, where he passed out in the car until daybreak. He also stated that he had consumed' a substantial quantity of beer and had smoked a certain amount of marijuana during the course of the evening. No other witness testified in support of this alibi defense. The alternative defense, of course, was that of insanity. Had he chosen to do so, Mr. Meyers could easily have raised the presumption of incompetence and insanity available to Alvord by virtue of his prior adjudication in Michigan. See Parkin v. State, 238 So.2d 817 (Fla.1970); Horace v. Culver, 111 So.2d 670 (Fla.1959); Wells v. State, 98 So.2d 795 (Fla.1957); Livingston v. State, 383 So.2d 947 (Fla.App.1980); Hixon v. State, 165 So.2d 436 (Fla.App.1964). The state would thereby have been put to the burden of proving beyond a reasonable doubt that Alvord was sane at the time of the offense. Horace v. Culver; Parkin v. State. The apparent importance of this presumption is diminished somewhat by the fact that one who has never been adjudicated insane need only produce evidence raising a “reasonable doubt as to sanity” in order to put the state to its burden of proving sanity beyond a reasonable doubt. See Byrd v. State, 297 So.2d 22 (Fla.1974). By affording defendants the presumption of insanity, Florida has simply provided an easy avenue by which those who have been adjudicated insane might raise the “reasonable doubt as to sanity” that ordinarily puts the prosecutor to his heavy burden of proof on the issue. Resolution of Alvord’s ineffective assistance claim necessarily involves consideration of Mr. Meyers’ reasons for choosing not to assert the largely uninvestigated insanity defense. Washington v. Strickland, 693 F.2d at 1254-55. Counsel testified both before this Court and in his deposition that his major reason was Alvord’s unwillingness to raise the defense or cooperate in its preparation and presentation. This is not a case in which the accused was willing to assert the defense, but was of little help in its preparation. In Davis v. Alabama, 596 F.2d 1214 (5th Cir.1979), vacated as moot, 446 U.S. 903, 100 S.Ct. 1827, 64 L.Ed.2d 256 (1980), the court chided the state of Alabama for attempting to exonerate Davis’ attorneys by suggesting that Davis “might have given them more leads, more evidence of his insanity ... . ” 596 F.2d at 1219. “[A] defendant’s failure to disclose certain information to his attorney is not necessarily, or obviously, or even probably the defendant’s fault.” Id. Alvord was much more than simply reticent in his statements to Mr. Meyers; in the face of the contrary advite of counsel, petitioner stated repeatedly that he was unwilling to assert the defense of insanity at all. The wishes of a client on a matter of this kind cannot be disregarded by defense counsel. In deciding among various defenses, an attorney must be mindful of his client’s willingness to proceed on a particular theory, for he may reasonably assume at the very least that the lack of cooperation from an unwilling client would doom the defense — he may also reach the more weighty conclusion that the decision whether to plead insanity is for the accused, not his attorney. See American Bar Association, Code of Professional Responsibility EC 7-7, 7-8 (1969); American Bar Association, Project on Standards for Criminal Justice, Standards Relating to the Defense Function § 5.2 (App. Draft 1971). To say that defense counsel may at least consider his client’s wishes in deciding whether to enter a plea of insanity is not to say that the attorney may lightly reject a potential defense of insanity, raising as it does the possibility that the accused’s decision-making faculties may be clouded. See Davis, 596 F.2d at 1220. The sixth amendment requires that defense counsel do more than simply obey the possibly pathological wishes of an accused; counsel must, however, take those Wishes into account when deciding whether to raise the insanity defense. A second consideration was the damning opinion of Dr. Robey that petitioner was sane at the time of the offense. Although he might have discovered qualifications on that opinion upon inquiry, Mr. Meyers was not unreasonable in assuming that this opinion, rendered by the psychiatrist who knew Alvord best, would effectively undermine an insanity defense. Other of Mr. Meyers’ concerns may have been more perceived than real. Like the Federal Rules, Florida’s Rules of Criminal Procedure did and do require that a defendant who intends to raise the defense of insanity file notice of that intent; in the absence of such a notice, a defendant may not introduce evidence of his insanity. Fla. R.Cr.P. 3.210(e) (now at Fla.R.Crim.P. 3.216(b)); see Fed.R.Cr.P. 12.2. But the Florida rule did permit exceptions for good cause shown. Fla.R.Cr.P. 3.210(e) (altered version currently in force, Fla.R.Cr.P. 3.216(f)). Parkin v. State, 238 So.2d 817 (Fla.1970), was also not necessarily an insurmountable obstacle. Parkin held that a defendant who raises an insanity defense must cooperate with doctors for the prosecution or the court, reasoning that such a defendant ought not be able to refuse to meet with all but his own doctors. But Alvord did cooperate with Dr. Robey, who was sent for by the state and was its key witness at the sentencing hearing, and with Dr. Sprehe — at least long enough on two occasions for that doctor to advance the opinion that Alvord was competent to stand trial. Petitioner does not contend that his attorney failed to advise him to raise the insanity defense and to cooperate more fully with the court-appointed psychiatrists. Cf. Brennan v. Blankenship, 472 F.Supp. 149 (W.D.Va.1979). To the contrary, the record reveals that counsel repeatedly so advised his client. Mr. Meyers could have, and probably should have, done more to investigate the insanity defense of his obviously unstable defendant. But the sixth amendment was not offended when counsel, knowing the essential facts underlying the insanity defense and aware of Dr. Robey’s damaging opinion, acceeded to his client’s stated and adamant objections to asserting that defense. Ethical considerations aside, his assumptions that success on an insanity theory would have been impossible without Alvord’s cooperation was reasonable under the circumstances, and cannot now be second-guessed. Having found other aspects of petitioner’s claim of ineffective assistance of counsel to be without merit, this Court concludes that Alvord received constitutionally adequate assistance of counsel before and at trial. B. Representation at Sentencing. 1. The Sentencing Hearing. Petitioner also claims that trial counsel failed to provide constitutionally effective assistance at the sentencing phase. Al-vord’s sentencing was conducted during the evening of April 4, 1974, the same day the jury returned its verdict of guilt. The state called Dr. Robey. Although Mr. Meyers called no witnesses, he testified before this Court that he had planned to call Dr. Robey had the state not done so, for counsel knew that the doctor would testify to two statutory mitigating factors. After stating his professional qualifications and the general circumstances in which he had come to know Alvord, Dr. Robey testified to certain details of the 1967 Michigan kidnapping and statutory rape of which Alvord was charged. Trial Rec. at 1153-55. He stated that Alvord had been tried to a judge and found not guilty by reason of insanity on the basis of another psychiatrist’s testimony that Al-vord did not know right from wrong. Dr. Robey’s view of Alvord’s condition at the time of the Michigan crime was somewhat different, however; he stated at the sentencing hearing in this case that he considered Alvord to have known right from wrong at the time of the Michigan crimes, but to have been acting under irresistible impulse — the second prong of Michigan’s insanity standard. The doctor went on to recount Alvord’s committment to Ionia State Hospital and his two subsequent escapes. He also described two minor offenses of which Alvord had been convicted. Dr. Robey next described his examinations of Alvord in early 1974, and recited again his opinions that Alvord was competent to stand trial and that he knew right from wrong at the time of the Florida crimes. After explaining Alvord’s mental illness in psychological terms, the witness then testified to two mitigating factors: he stated his opinion that Alvord had been “under a great deal of emotional stress” at the time of the offenses, Fla.Stat. § 921.-141(6)(b) (1973), and that his capacity to conform his behavior to the requirements of law was “clearly impaired,” id. § 921, 141(6)(f). See Trial Rec. at 1178. His direct testimony concluded with his statement that Alvord was dangerous to women. On cross-examination by Mr. Meyers, Dr. Robey described in fair detail the history of Alvord’s mental illness, extending back to the age of thirteen. He stated that Alvord was married and had a child age six. He reiterated his view that Alvord had been under great emotional stress and that he lacked capacity to conform his conduct to the requirements of law. He then stated in quite compelling terms his belief that Al-vord’s mental illness was not such as to prevent rehabilitation. After closing arguments, the jury returned an advisory verdict recommending the death penalty, and on April 9,1974, the trial judge sentenced Alvord to death and entered findings in support of that sentence as required by section 921.141(3), Fla.Stat. 2. Ineffective Assistance of Counsel. Petitioner contends that counsel rendered ineffective assistance at the penalty phase because: first, he failed to collect and present in mitigation Alvord’s extensive medical record indicating his history of mental illness; second, he failed to cross-examine Dr. Robey effectively due to his general lack of familiarity with Alvord’s psychiatric history; third, he failed to produce as “rebuttal witnesses” other doctors, including Alvord’s treating psychiatrists in Michigan; and fourth, he failed to produce character witnesses to humanize Alvord in the eyes of judge and jury. One accused of capital crime has a sixth amendment right to effective assistance of counsel at the penalty phase, as well as during certain pretrial proceedings and at the trial itself. See Stanley v. Zant, 697 F.2d 955 (11th Cir.1983); Washington v. Strickland; Proffitt v. Wainwright, 685 F.2d 1227, 1245 (11th Cir.1982); Davis v. Alabama, 596 F.2d at 1217. Essentially the same standard applies when assessing counsel’s performance at the sentencing hearing as applies in gauging his effectiveness at trial, that of “reasonably effective assistance.” Proffitt, 685 F.2d at 1245. The Constitution does not require errorless counsel, and although its requirements are theoretically no more strict in capital cases than in other criminal cases, “ ‘the seriousness of the charges against the defendant is a factor that must be considered in assessing counsel’s performance.’ ” Stanley, at 962 (quoting Proffitt, 685 F.2d at 1287). Upon detailed review of the record, this Court concludes that the adequacy of counsel’s performance at and in preparation for the sentencing hearing may have fallen below constitutional requirements. His almost total failure to investigate the facts supporting mitigating circumstances simply cannot be overlooked. . First, as was true in connection with his investigation of the insanity defense, Mr. Meyers failed to seek out and interview Alvord’s treating psychiatrists in Michigan. He made no effort to obtain Alvord’s complete medical history, nor did he retain an independent psychiatrist to review the small portion of the medical record that he did have. It may well be repeated that counsel never chose to appear with one of the court-appointed psychiatrists at one of their attempted examinations of Alvord, even though he knew that Alvord’s stated objection to being examined was that his attorney was not present. Largely these same failings in Mr. Meyers’ investigation were considered in assessing his performance in preparation for and during the trial. Specifically, this Court concluded that counsel’s failure to investigate matters relating to the insanity defense did not render his representation of petitioner constitutionally ineffective in light of Alvord’s absolute unwillingness to pursue that defense. That element is absent with regard to the sentencing phase, however. Indeed, respondent has suggested no assumption to the Court, reasonable or otherwise, that might explain counsel’s failure to investigate Al-vord’s medical history for the purposes of the sentencing hearing. Mr. Meyers’ tactic was to rely on those mitigating factors that relate to the mental condition of the accused at the time of the offense, but he made no effort to obtain or present any facts relating to those mitigating circumstances other than the conclusions of Dr. Robey brought out on direct examination and accentuated on cross. Second, counsel made no effort to contact or interview anyone who might have testified as a character witness in Alvord’s behalf. Cf. Proffitt, 685 F.2d at 1247-48. The Eleventh Circuit has now rejected the argument that counsel acts under an absolute duty to investigate and present mitigating character evidence in every capital case. See Stanley, at 958-62. Indeed, the Stanley court noted that to the date of that decision no panel of the Fifth or Eleventh Circuits had found ineffective assistance on the basis of defense counsel’s failure to produce character witnesses at the penalty phase. Id., slip op. at 1486. Mr. Meyers explained his failure to introduce character witnesses as the result of Alvord’s “lack of communication” with his family. An attorney's responsibility to make an independent investigation is not discharged by his client’s lack of communication with potential witnesses, see Davis, 596 F.2d at 1219, but this fact may reasonably lead counsel to assume that petitioner’s family might not prove fertile ground in which to search for character witnesses. Moreover, reliance on general character witnesses may have proved somewhat inconsistent with counsel’s chosen tactic to rely on petitioner’s psychiatric condition in mitigation of sentence. See Stanley, at 966-70. The Supreme Court has emphasized in a recent line of cases the importance at the penalty phase of character evidence and evidence of any personal circumstance that might lead the sentencer to be merciful. E.g. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). See Songer v. State, 365 So.2d 696, 700 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979). Such evidence is often critical to balance the inevitable impression of an accused’s character left upon his conviction for murder. Although it is patently insufficient to explain counsel’s inadequate investigation of Alvord’s psychiatric history, Mr. Meyers’ tactical choice to rely on the mitigating factors relating to the accused’s mental condition may justify his failure to do more than he did in the way of investigating possible character witnesses. The Court is prepared to conclude that counsel rendered constitutionally deficient representation by failing to undertake a reasonable investigation into Alvord’s psychiatric history. It need not formally so conclude, however, for petitioner has shown no prejudice arising from any of the aspect’s of Mr. Meyers’ performance that were assertedly ineffective. 3. Prejudice. Petitioner has offered the testimony of no independent psychiatrist available at the time who might have testified more favorably than Dr. Robey at sentencing. A federal habeas petitioner must demonstrate his entitlement to relief by a preponderance of the evidence. Washington v. Strickland, 693 F.2d at 1250. Indeed, the major appellate decisions dealing with the necessary performance of counsel at sentencing have been predicated upon petitioner’s introduction of evidence that might have been brought out upon adequate investigation. Eg. Stanley; Washington v. Strickland. See Washington v. Watkins, 655 F.2d at 1363. Petitioner herein has simply not offered any evidence of psychiatric testimony that might have been revealed upon a more thorough investigation. Furthermore, although independent experts might have disagreed with Dr. Robey’s view that Alvord was sane at the time of the offenses, they could have added nothing to Dr. Robey’s testimony at sentencing, for that testimony fully supported Alvord’s position with regard to both of the mitigating factors that focus on mental condition. Fla.Stat. §§ 921.141(6)(b), .121(6)(f). The sentencing judge found these factors to have been established in this case. Trial Rec. at 97. Accordingly, even assuming that helpful testimony of independent experts might have been available, Mr. Meyers’ failure to investigate and present it did not result in “actual and substantial disadvantage” to petitioner in the course of the sentencing hearing. Washington v. Strickland, 693 F.2d at 1262. Similarly, the Court finds no prejudice arising from Mr. Meyers’ failure to identify and produce character witnesses; again, petitioner has not indicated to this Court any such testimony that might have been revealed upon adequate investigation. Accordingly, this Court concludes that counsel’s failure to investigate possible character witnesses did not work to petitioner’s “actual and substantial disadvantage.” Id. Petitioner having suffered no legally cognizable prejudice, this Court concludes that his claim of ineffective assistance of counsel at the sentencing hearing is without merit. C. Representation on Appeal. Petitioner’s second ground for relief is that he was denied effective assistance of counsel on his direct appeal to the Florida Supreme Court. Specifically, petitioner contends that appellate counsel, Richard Seymour, Esquire, provided constitutionally deficient representation because he failed to raise five “significant issues which should have been brought to the reviewing court’s attention.” These issues were whether the trial court erred: first, by not “responding to petitioner’s pro se plea to remove the public defender” as his attorney; second, by not instructing the jury sua sponte on the presumption of insanity; third, by setting aside its November 2, 1973 order committing petitioner for psychiatric examination; fourth, by allowing Dr. Robey to testify to Alvord’s competency and sanity based on an examination made without notice to defense counsel and in violation of Alvord’s fifth amendment privilege; and fifth, by allowing the doctor to testify at the sentencing hearing to certain prior crimes of which Alvord was not convicted and which were otherwise excludable. Although it may be unnecessary, each of these several contentions will be discussed in turn. 1. The Standard. The level of effectiveness constitutionally required of appellate counsel has been considered far less frequently than has that of trial counsel. The Supreme Court has stated in a slightly different context, however, that counsel on appeal must take “the role of an active advocate in behalf of his client.” Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). Various courts of appeal, including those for the Fifth and Eleventh Circuits, have applied an analysis substantially similar to that applied in claims of ineffective assistance at trial. E.g. Mylar v. Alabama, 671 F.2d 1299 (11th Cir.1982); Mendiola v. Estelle, 635 F.2d 487 (5th Cir.1981). See Cuyler v. Sullivan, 446 U.S. 335, 344-45,100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). Typically, claims of ineffective assistance on appeal turn on counsel’s complete failure to file or prosecute the appeal, e.g. Sullivan v. Wainwright, 695 F.2d 1306, 1309 (11th Cir.1983); Mack v. Smith, 659 F.2d 23 (5th Cir.1981); Chapman v. United States, 469 F.2d 634 (5th Cir.1972); see Perez v. Wainwright, 640 F.2d 596 (5th Cir.1981), and appellate counsel ordinarily need not assert, on a properly perfected appeal, grounds that he reasonably considers meritless. Mendiola; Hooks v. Roberts, 480 F.2d 1196 (5th Cir.1973), cert. denied, 414 U.S. 1163, 94 S.Ct. 926, 39 L.Ed.2d 116 (1974); see Mylar, 671 F.2d at 1300-01 (appellate counsel must render “ ‘reasonably effective performance.’ ”) (quoting United States v. Phillips, 664 F.2d 971, 1040 (5th Cir.1981)). This Court will therefore proceed to assess whether Mr. Seymour’s advocacy fell below the standard of reasonably effective assistance when he failed to raise the various legal arguments listed by petitioner. 2. The Public Defender. The first ground proposed by petitioner for finding ineffective assistance on appeal is easily disposed of: Alvord contends that appellate counsel should have raised the trial court’s failure to remove the public defender as defense counsel. The state collateral review court found as a matter of historical fact that Alvord “ultimately consented to being represented by Assistant Public Defender Thomas Meyers .... ” Rule 3.850 Order at 2. See also Alvord v. State, 396 So.2d at 188. This finding is fairly supported by the record, 28 U.S.C. § 2254(d)(8), which was certainly strong enough on this point to have lead reasonable counsel to decide not to raise the issue on appeal. See United States v. Young, 482 F.2d 993 (5th Cir.1973). 3. Sua Sponte Insanity Instruction. Petitioner also contends that appellate counsel was ineffective because he did not raise the trial court’s failure to instruct sua sponte on the continued presumption of insanity. The simple answer to this contention is that trial counsel, not the trial court, bears responsibility to raise defenses and to request instructions in accordance therewith. In a typical case, the trial judge cannot and should not be saddled with the duty to second-guess counsel’s tactical choice of defenses and to instruct sua sponte on defenses that might have been raised. Petitioner cites In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), to the contrary. Winship held that due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id. at 364, 90 S.Ct. at 1073. In the line of cases of which this aspect of Winship is part, the Supreme Court has articulated the circumstances in which due process is violated by placing upon a criminal defendant the burden of proving a particular fact. E.g. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (no violation in defendant’s burden to prove affirmative defense of “extreme emotional disturbance”); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (due process violated in requiring defendant to prove heat of passion to rebut presumption of murder); Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (no violation of defendant’s burden to prove insanity beyond a reasonable doubt). See also Mason v. Balkcom, 669 F.2d 222 (5th Cir. Unit B 1982) (violation in presuming intent to kill). No matter how a state designs its presumptions on the issue, insanity remains an affirmative defense unless the sanity of the accused is expressly defined as part of the crime charged. Leland; see Walker v. Butterworth, 599 F.2d 1074 (1st Cir.), cert. denied, 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197 (1979); United States v. Greene, 489 F.2d 1145 (D.C.Cir. 1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1974). Florida’s statute does not require proof of a defendant’s sanity as an element of first degree murder, Fla.Stat. § 782.04(l)(a), and petitioner’s appeal to due process principles in this regard therefore fails. The trial court had neither procedural nor constitutional responsibility to raise the defense on his own. This was precisely the reason Mr. Seymour did not raise the issue, Seymour Depo. at 35, and he certainly cannot be faulted for that decision. 4. Refusal to Commit for Observation. Petitioner next contends that appellate counsel provided ineffective assistance by failing to raise the trial court’s error in setting aside its November 2, 1973 order committing Alvord to the state mental hospital for observation. The trial judge set aside his commitment order because, apparently after consulting with state agency officials, he became convinced that he was without authority to commit Alvord under the circumstances. Petitioner argues that the trial judge had that authority under Rule 3.210, Fla.R.Crim.P., that he erred in not exercising it, and that appellate counsel should have cited that error on appeal. Respondent contends that Rule 3.210 does not grant the authority to commit for determination of sanity, and that appellate counsel was prevented from raising the issue before the Florida Supreme Court by such cases as Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Respondent misunderstands the Supreme Court’s holding in the three cases cited to this Court, Engle v. Isaac, 456 U.S. 107,102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Wainwright v. Sykes. Wainwright and Engle hold that a state habeas petitioner may not obtain federal collateral relief based on trial errors to which no required contemporaneous objection was made unless he can make the now familiar showing of cause and prejudice. Frady applied that principle to a movant under 28 U.S.C. § 2255. Whether Mr. Seymour could have raised this alleged error of the trial court on appeal before the Florida Supreme Court is entirely a question of state law. The Florida Supreme Court, like most other appellate courts, adheres to the principle that it should not reach issues which the trial court did not have a “full and adequate opportunity to consider.” In re Beverly, 342 So.2d 481, 489 (Fla.1977); see Dober v. Worrell, 401 So.2d 1322 (Fla.1981); Silver v. State, 188 So.2d 300, 301 (Fla. 1966). This contemporaneous objection rule is grounded in the familiar purpose of giving the trial court an opportunity to consider the issue in question. See Corbett v. Dade County Board of Public Instruction, 372 So.2d 971, 974-75 n. 3 (Fla.App.1979). In this case, however, the trial judge had ample “opportunity to consider” the commitment issue. Indeed, he considered it once in November 1973, when he committed Alvord, and again in December when he vacated the commitment order. Moreover, on March 26, 1974, Mr. Meyers moved, albeit belatedly, to transfer Alvord to a state hospital. It is clear, however, that Mr. Seymour considered this issue to be only arguably preserved for appellate review. In reaching this conclusion, counsel was under the mistaken impression that Mr. Meyers had never moved to have Alvord committed. Seymour Depo. at 31-33; see Trial Rec. at 74 (Motion to Transfer Defendant to State Mental Hospital for Observation to Determine Sanity). The law was notably unclear in 1973 and 1974 on the obligation — not to mention authority — of a Florida judge to order a criminal defendant committed for observation to determine his competency to stand trial or insanity at the time of the offense. The prevailing procedures at that time were in Rule 3.210, Fla.R.Crim.P., headed “Insanity.” Subsection (a) dealt with what has come to be known as competence to stand trial. It provided that when, upon its or the defendant’s motion, the trial court develops “reasonable ground to believe” that the defendant is incompetent, it must “immediately fix a time for a hearing to determine the defendant’s mental condition.” See Fowler v. State, 255 So.2d 513 (Fla. 1971) (construing essentially identical predecessor to quoted section). In order to determine whether a defendant is competent to stand trial, the court was authorized to appoint up to three psychiatric experts to examine him and testify. If necessary, “the court may order the defendant taken into custody until the determination of his sanity [i.e. competence] can be made.” Fla. R.Crim.P. 3.210(d). See Lederer v. Stack, 294 So.2d 107 (Fla. 4th DCA 1974) (court must “fix a time” for competency hearing before defendant may be incarcerated under subsection). If the defendant is found competent he proceeds to trial; if he is found incompetent, he is then committed “to the Division of Mental Health for hospitalization under the provisions of Fla.Stat. § 394.467, F.S.A.,” subject to continuing review. Fla.R.Crim.P. 3.210(a)(3); see Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). The rule did not contain specific provision for commitment as a first step in determining competence to stand trial, nor did it expressly allow commitment to enable psychiatric examination of an accused’s mental state at the time of the crime. See Fla.R.Crim.P. 3.210(c). Petitioner argues that the trial court was nevertheless constitutionally compelled to commit him for observation. One prong of this contention is that commitment was required in order to make a constitutionally adequate determination of Alvord’s competency to stand trial. Years ago the Supreme Court settled the proposition that due process is violated by conviction of an accused while he is legally incompetent to stand trial. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440,100 L.Ed. 835 (1956). A decade later, the Court safeguarded that due process guarantee by a separate procedural due process right to a competency hearing whenever the facts or events before the trial court raise a “bona fide doubt” as to the defendant’s competency to stand trial. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); see Acosta v. Turner, 666 F.2d 949 (5th Cir. Unit B 1982). Several hearings were held in this case to determine petitioner’s competence to stand trial, and this Court cannot say that the procedures undertaken by the trial court were insufficient under Pate. See Reese v. Wainwright, 600 F.2d 1085, 1090-92 (5th Cir.), cert. denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979); Greenfield v. Gunn, 556 F.2d 935 (9th Cir.), cert. denied, 434 U.S. 928, 98 S.Ct. 413, 54 L.Ed.2d 288 (1977). The trial court was therefore not required by Pate to commit Alvord for observation. The second prong of petitioner’s constitutional argument is that commitment was required because it afforded “the best opportunity to determine the viability of an insanity defense.” Petitioner’s Memorandum, March 10, 1982, at 30. Two court-appointed psychiatrists tried several times to examine Alvord, but he refused each time on the stated ground that his lawyer was not present. Dr. Robey, an expert brought to Florida by the state and subsequently requested by the court to examine Alvord to determine sanity, succeeded in talking to Alvord for some two hours and concluded, although qualifiedly, that petitioner was sane under Florida’s M’Naghten standard at the time of the offense. This Court can find no constitutional violation in the extent of expert psychiatric assistance provided by the state in this case. See United States ex rel. Smith v. Baldi, 344 U.S. 561, 568, 73 S.Ct. 391, 395, 97 L.Ed. 549 (1953); Payne v. Thompson, 622 F.2d 254, 255 (6th Cir.1980); cf. United States v. Taylor, 437 F.2d 371, 383-84 n. 6 (4th Cir.1971) (Sobe-loff, J., concurring and dissenting). See Section II, infra. Thus, appellate counsel faced an issue only arguably preserved for appeal and of dubious legal merit. His decision not to raise such an issue cannot ground a finding of ineffective assistance. Mendiola. 5. The “Estelle v. Smith” Issue. Petitioner’s next asserted ground for finding appellate counsel ineffective is his failure to argue on appea