Full opinion text
ORDER HAWKINS, District Judge. Petitioner William Gibbs Hyman was found guilty of murder and armed robbery by a jury. In a separate proceeding he was sentenced to death. Hyman now petitions this court for habeas corpus relief, 28 U.S.C. § 2254. The case was referred to United States Magistrate Robert S. Carr pursuant to 28 U.S.C. § 636(b)(1)(B) and the local rules of this court. Magistrate Carr recommends that this court enter its order denying the respondents’ motion for summary judgment and granting the writ of habeas corpus unless the State of South Carolina grants Hyman a new trial within a reasonable period of time. His recommendation is based, in part, upon the finding that the trial judge’s jury charge of a presumption of malice unconstitutionally es-' tablished a mandatory or burden-shifting presumption which conflicted with the petitioner’s presumption of innocence. He also found the same portion of the charge unconstitutionally confusing. In addition, he concluded that the trial court unconstitutionally precluded the jury from considering nonstatutory mitigating circumstances. Finally, Magistrate Carr found Hyman’s trial counsel ineffective in several particulars, but he also found that, absent these errors, there was not a reasonable probability that the outcome of the trial would have been different. The respondents and Hyman filed exceptions to Magistrate Carr’s report. After carefully considering all the exceptions, this court is of the opinion that a writ of habeas corpus should not be granted. This court is also of the opinion that the respondents’ motion for summary judgment should be granted. PROCEDURAL HISTORY After a four day trial, Hyman was convicted of murder and armed robbery on October 11, 1979. The next day, the jury recommended the death sentence in a separate proceeding conducted in accordance with S.C.CODE ANN. § 16-3-20-26 (cum. supp. 1984). The conviction and sentence were upheld on direct appeal to the South Carolina Supreme Court in State v. Hyman, 276 S.C. 559, 281 S.E.2d 209 (1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3510, 73 L.Ed.2d 1384 (1982), reh. denied, 458 U.S. 1132, 103 S.Ct. 18, 73 L.Ed.2d 1403 (1982). On July 7, 1982, Hyman filed his first application for post-conviction relief. S.C. CODE ANN. § 17-27-10 et seq. (Law.Coop.1976). South Carolina State Circuit Court Judge James M. Morris held an extensive evidentiary hearing, the transcript of proceedings covers nearly 1700 pages. On March 8, 1983, Judge Morris dismissed Hyman’s application in a thorough 45-page order. Following this, Hyman petitioned the State Supreme Court for a writ of certiorari. This, too, was denied. A second application for post-conviction relief was filed on July 11,1984. This application was also denied by the South Carolina Supreme Court on July 25, 1984. On July 26, 1984, Hyman filed this application for habeas corpus relief, asserting a plethora of grounds. On August 9, 1984, the respondents filed their return to the petitioner’s application and moved for summary judgment. BACKGROUND On Saturday night, March 24, 1979, William Gibbs Hyman, his wife, Doris, Sue Allday, Robert Hinson and Iris Midgett arrived at the Winchester Club, a bar and lounge in North Charleston, South Carolina. After seating themselves at a booth, the group ordered a round of drinks. At some point, the conversation turned to “shortage of money.” [Tr. 41]. According to Sue Allday, “Gibbs said something about let’s go out to Ravenel and get Iris’s [sic] boys.” [Tr. 41]. “Iris’ boys” were Teagus and Collins Griffis. They were two elderly men who lived in a mobile home or trailer in Ravenel, South Carolina. They were called “Iris’ boys” because Iris Midgett and another woman, Mary Taylor, previously robbed them of $1,690. Hoping that the men would again have a large amount of cash on hand, the group decided to rob them by either deception or violence. After procuring a 20-gauge double-barreled shotgun and a bag full of shotgun shells, the group proceeded to Ravenel in Hyman’s car. Sue Allday was given the responsibility of driving because she was considered to be more sober than anyone else in the party. After arriving at the Griffis home and parking the car, Gibbs Hyman, Doris Hyman, Sue Allday and Robert Hinson approached the trailer. Iris Midgett remained in the car. To avoid being seen by the occupants, Hinson and the petitioner took positions against the wall of the trailer on either side of the trailer door. Sue Allday and Doris Hyman knocked on the door. Someone inside the trailer asked for their identity. The women gave fictitious names and stated that they were experiencing car trouble. Collins Griffis opened the door. A short conversation followed; Mr. Griffis then invited the ladies inside the trailer to have a drink. Doris Hyman refused. Griffis, apparently angry over the refusal, went back inside the trailer, shut the door, and the women returned to the car. Hinson and the petitioner followed them. Hyman and his wife had a heated exchange of words because she had angered their victims. At this point, it was suggested that the robbery be aborted. Hyman said “he wasn’t going no where without the money.” [Tr. 60]. Thereafter, the petitioner, Sue Allday and Robert Hinson went back to the trailer door. While Allday knocked on the door, Hinson and Hyman “crouched down right beside the steps.” [Tr. 62]. Someone inside the trailer asked them to leave, “and he inferred that he knew that [they] were there for a robbery.” [Tr. 63], The party did not retreat even though the occupant threatened to shoot them. Suddenly the door swung open and one of the Griffis brothers shot Robert Hinson in the leg. Allday, from the ground, fired a shot up inside the trailer. A melle ensued. Collins Griffis was struck in the head several times with the butt and barrel of a shotgun. Blood was splattered throughout the trailer. Teagus Griffis was shot twice. One shot, fired from a distance of greater than two to three feet, entered his chest at a downward angle. The wound it inflicted was about the size of a quarter. As a result of this shot, “the main part of the right side of the heart was destroyed____” [Tr. 264]. The second shot, fired at an upward angle, caused “a grazed wound” [Tr. 265] to the right shoulder. Teagus Griffis died immediately. The shotgun owned by the Griffis’ was taken from the trailer. After assisting the wounded Hinson to the car, the party drove back to Charleston and dropped him off at a local hospital. About a week later, Hyman, as well as all the other participants, were arrested and charged with murder and armed robbery. Hyman’s family, through his brother, retained D.J. Stratos, Esq. of the Charleston County Bar to represent the petitioner and his wife. Doris Hyman subsequently obtained other counsel. At the May 1979 term of the Court of General Sessions for Charleston County, Gibbs Hyman, Doris Hyman, Iris Midgett, Robert Hinson and Sue Allday were indicted for the shotgun murder of Teagus Griffis. They were also indicted for armed robbery because they allegedly took the victims’ shotgun. Pursuant to a plea agreement with the Charleston County Solicitor, Robert Hinson pled guilty to common law murder on July 20, 1979. He received a life sentence. Under a similar agreement, Sue Allday pled guilty to common law murder and received a life sentence. Iris Midgett pled guilty to accessory before the fact of armed robbery. She was sentenced to serve 18 years in prison. Until the eve of trial, the solicitor offered Gibbs Hyman the same plea agreement that was offered to Hinson and Allday. Despite numerous recommendations by his attorneys that he accept the plea, Hyman was adamant that he did not kill Teagus Griffis and that he was “going forward with the trial.” [Tr. 6]. Sometime between July 6 and July 9, 1979, the solicitor notified Hyman of his intent to seek the death penalty in accordance with S.C.CODE ANN. § 16-3-26(A) (cum. supp. 1984). On July 9, 1979, Clyde A. Eltzroth, Presiding Judge, Ninth Judicial Circuit, denied petitioner’s motion to relieve Mr. Stratos as counsel. Because the death penalty was being sought, Judge Eltzroth, pursuant to S.C.CODE ANN. § 16-3-26(B) (cum. supp. 1984), instructed the Clerk of Court to appoint an additional attorney. Landon Louthian, Esq., also of the Charleston County Bar, was appointed as Hyman’s second attorney on July 24, 1979. As mentioned above, the solicitor continued to offer a plea bargain whereby the state would abandon its request for the death penalty in return for a guilty plea to murder. Mrs. Stratos and Mr. Louthian met separately and together with Hyman and advised him that the evidence against him was overwhelming. Therefore, they strongly recommended that it would be in his best interest to plead guilty and accept a life sentence. On October 8, 1979, the case proceeded to trial. Hyman was convicted of murder and armed robbery. Following a mitigation trial, the jury recommended the sentence of death on October 12, 1979. I. THE JURY CHARGE A. Presumption of Malice Hyman’s claim for habeas relief is that the trial court’s jury charge on a presumption of malice created either a mandatory presumption or a burden-shifting presumption. As such, the petitioner claims that the charge deprived him of due process of law in violation of the fourteenth amendment to the United States Constitution. Magistrate Carr agreed with him. At pages 36-46 of his report, he set forth his reasoning and then reached the following conclusion of law The trial court’s charge of a presumption of malice unconstitutionally established a conclusive presumption which conflicted with the presumption of innocence, shifted the burden of persuasion to the petitioner on the element of malice, and was unconstitutionally confusing. [Mag.Rep. 59], The respondents object to this conclusion and the reasoning upon which it is based. When reviewing jury instructions, a court must keep in mind that “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973). To state this proposition another way, “[reviewing courts must resist the temptation to read jury instructions myopically.” Briley v. Bass, 750 F.2d 1238, 1243 (4th Cir.1984). In collateral proceedings, the Supreme Court has made it clear that the “burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). A petitioner requesting habeas corpus relief must show that “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. at 147, 94 S.Ct. at 400. “Before a federal court may overturn a conviction resulting from a state trial ... it must be established not merely that the instruction is undesirable, erroneous, or even ‘universally condemned,’ but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.” Id. at 146, 94 S.Ct. at 400. It is also important to note that “it is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Henderson v. Kibbe, 431 U.S. at 154, 97 S.Ct. at 1736; Briley v. Bass, 750 F.2d at 1243. See also, United States v. McCaskill, 676 F.2d 995, 999, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982). As stated in Henderson, the state’s power is not unlimited. The due process clause of the fourteenth amendment of the United States Constitution “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.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); accord, Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). Murder is defined by S.C.CODE ANN. § 16-3-10 (Law.Co-op.1976) as “the killing of any person with malice aforethought, either express or implied.” While malice is a necessary ingredient of murder, it is not relevant until and unless it be found that the accused person did in fact wrongfully kill the victim---When one is found to have wrongfully taken the life of another, the element of malice becomes important in determining the degree of unlawfulness. If the unlawful killing is without malice, the offense is reduced to manslaughter under § 16-3-50. If the unlawful killing is through criminal negligence, the offense is involuntary manslaughter under § 16-3-60. If the killing is in self-defense, there is no crime. State v. Gaskins, 326 S.E.2d 132 (1985). The jury charge complained of in this instance reads: Now, I’ll deal first with the offense charging count one of the Indictment, murder; and then after that, deal with the second count charge of armed robbery. Murder as you have been advised is the killing of any person with malice aforethought; that’s either expressed malice or implied malice. So in order to convict a person of the offense of murder, the State must not only prove the killing of the deceased by the Defendant, but that it was done with malice aforethought. And this proof must be beyond a reasonable doubt. Malice in the definition of murder is a technical term. Malice imposes wickedness. Malice excludes any just cause or excuse for the act. Malice is something which springs from wickedness, from depravity, from a depraved spirit, a heart which is devoid of social duty, one fatally bent on mischief. Malice in the definition of the offense of murder which I’ve explained to you, is the killing of any person with malice aforethought, either expressed or implied malice. Malice may be expressed or it may be implied. These words, expressed or implied, don’t mean different kinds of malice, but the manner in which malice may be shown to exist; that is, malice may be shown either by direct evidence or by circumstantial evidence or inference. Malice may be expressed; for example, where you have previous threats of vengeance or where there is a lying in wait or where the circumstances show directly that an intent to kill was entertained. It may be implied; for example, where there’s no expressed intent to kill proven by the direct evidence, it is indirectly and necessarily inferred from the facts and the circumstances which were in fact proven. And malice is implied, it's presumed from the willful, the deliberate, the intentional doing of an unlawful act without just cause or excuse. So, generally speaking, malice means the doing of a wrongful act, intentionally and without any justification or excuse. Now, even if all the facts has fsic] proven and is sufficient to raise a presumption of malice, this presumption would be rebuttable and it’s for you on the Jury to determine from all of the evidence whether or not malice has been proven beyond a reasonable doubt. Malice is presumed or implied from the use of a deadly weapon. Where the circumstances relating to the death of the deceased are brought out in the evidence, the presumption of malice which is implied from the use of tha fsic] deadly weapon vanishes and the burden is on the State to prove malice whenever a deadly weapon is used by evidence which satisfies you on the Jury beyond a reasonable doubt. To convict a person of murder, the malice must be aforethought. And it must be present, aforethought. The law doesn’t require that malice shall exist for any particular length of time before the act is committed; but it must be aforethought. It must be the accommodation of the previous evil intent and of the act which produces the fatal result. And it must be proven beyond a reasonable doubt. The State is not required to prove any motive for the killing. So that is the law with regard to the offense of murder which is the killing of any person, with malice aforethought, either expressed malice or implied malice.” [Tr. 417-420]. (Emphasis added). The upshot of the respondents’ objection is that the magistrate improperly characterized the above underlined language as creating a mandatory or burden-shifting presumption. The court agrees with the respondents. Neither portion of the disputed malice charge creates a mandatory or burden-shifting presumption. Several principles must be kept in mind when a court characterizes the type of presumption present in a jury charge. First, [Inferences and presumptions are a staple of our adversary system of fact finding. It is often necessary for the trier of fact to determine the existence of an element of the crime — that is, an “ultimate” or “elemental” fact — from the existence of one or more “evidentiary” or “basic” facts. The value of these evidentiary devices, and their validity under the Due Process Clause, vary from case to case, however, depending on the strength of the connection between the basic and elemental facts involved and on the degree to which the device curtails the fact-finder’s freedom to assess the evidence independently. Nonetheless, in criminal cases, the ultimate test of any device’s constitutional validity in a given case remains constant: the device must not undermine the factfinder’s responsibility at trial, based on the evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. County Court of Ulster County v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979) (citations omitted). (Emphasis added). Second, the court must first correctly determine the type of presumption presented in the jury charge in order to apply the correct constitutional analysis. The threshold inquiry in ascertaining the constitutional analysis applicable to kind of jury instruction is to determine the nature of the presumption it describes. That determination requires careful attention to the words actually spoken to the jury, for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction. Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979) (citations omitted). Third, presumptions are divided into two (2) categories, mandatory and permissive. At the very least, mandatory presumptions shift the burden of production of some evidence to the defendant; “it tells the trier [of fact] that he or they must find the elemental fact upon proof of the basic fact at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.” County Court of Ulster County v. Allen, 442 U.S. at 157, 99 S.Ct. at 2224. (Emphasis in original). This class of more or less mandatory presumptions can be subdivided into two parts: presumptions that merely shift . the burden of production to the defendant, following the satisfaction of which the ultimate burden of persuasion returns to the prosecution; and presumptions that entirely shift the burden of proof to the defendant. Id. at 157, n. 16, 99 S.Ct. at 2225, n. 16. A permissive presumption is one which allows, but does not require, the trier of fact to infer the presumed fact from proof of the basic facts. The nature of the presumption also determines the applicable test of constitutional validity. Because [the] permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the ‘beyond a reasonable doubt standard’ only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. Id. at 157, 99 S.Ct. at 2224. On the other hand, a mandatory presumption is analyzed on its face to determine the extent to which basic and elemental facts coincide. To the extent that the trier of fact is forced to abide by the presumption, and may not reject it based on an independent evaluation of the particular facts presented by the State, the analysis of the presumption’s constitutional validity is logically divorced from those facts and based on the presumption’s accuracy in the run of cases. Id. at 159, 99 S.Ct. at 2226. Concededly, the jury charge contains two passages which must be construed to determine the nature of the presumption created. The first passage, containing four sentences, reads: [Malice] may be implied; for example, when there’s no expressed intent to kill proven by the direct evidence, it is indirectly and necessarily inferred from the facts and circumstances which were in fact proven. And malice is implied, it’s presumed from the willful, the deliberate, the intentional doing of an unlawful act without just cause or excuse. So generally speaking, malice means the doing of a wrongful act, intentionally and without any justification or excuse. Now, even if all the facts has [sic] proven and is sufficient to create a presumption of malice, this presumption would be rebuttable and it’s for you the Jury to determine from all the evidence whether This passage of the charge created a mere permissive presumption. The first sentence made it clear that malice “may ” be implied or “inferred ” from the facts and circumstances proved by the state. The second sentence clarified and restated the first sentence, “it defined implied malice.” Collins v. Francis, 728 F.2d 1322, 1330 (1984); Lamb v. Jernigan, 683 F.2d 1332 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983). This sentence reflects “substantially the famous definition of malice by Bayley, J., in Bromage v. Proser, 10 E.C.L. 321: ‘Malice, in common acceptation, means ill will against a person but in its legal sense it means a wrongful act done intentionally without just cause or excuse.’ ” State v. McDaniel, 68 S.C. 304, 312, 47 S.E. 384, 387 (1904). The petitioner would have a much stronger position if the second sentence read, “and malice must be implied, it must be presumed,” or “malice shall be presumed, it shall be implied.” Given the language used, “malice is implied, it’s presumed and its context in the charge, the jury was left free to credit or reject the inference suggested by the court. The third sentence made it clear that the jury was under no mandate to find that malice existed. The trial judge restated what he had said seconds before and qualified the statement with the words “generally speaking.” There was not a hint of a suggestion that the jury’s fact finding duty was being curtailed or that it had to find that Hyman had acted with malice. The fourth sentence began with three (3) critical words: “Now even if____” By the use of these words, a reasonable juror would have understood that he was entirely free to draw or reject the inference suggested by the court. Moreover, the jury was not told that the defendant was required to rebut malice if it found it to exist. Instead, the charge only pointed out that it was possible to rebut the presumption. Immediately after the word “rebuttable,” the judge drew the jury’s attention back to its unique province to find malice from “all of the evidence” and then properly allocated the burden of proof on this issue to the state. Assuming for the sake of argument that a reasonable juror would have understood the fourth sentence to impose a burden of producing evidence, and, thus, the presumption should be characterized as a mandatory one, “it may well be that its impact is no greater than that of a permissive inference, and it may be proper to analyze it as such.” County Court of Ulster County v. Allen, 442 U.S. at 157, n. 16, 99 S.Ct. at 2225, n. 16. ' The case law does not provide a ready analysis for distinguishing such presumptions. In Sandstrom, however, the court addressed the constitutionality of the charge, “ ‘[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.’ ” 442 U.S. at 517, 99 S.Ct. at 2455. (Emphasis in original). This instruction was left standing alone with no curative instructions. Justice Brennan noted that the jury was “not told that the presumption could be rebutted ... by the defendant’s simple presentation of ‘some’ evidence; nor even that it could be rebutted at all.” Id. at 517, 99 S.Ct. at 2455. While it is true that the charge in Hyman’s case does not instruct the jury that the presumption could be rebutted by “some” evidence, this omission was not left standing alone but was surrounded by curative instructions that no reasonable juror could ignore — the State still had to prove malice, from all the evidence in the case, beyond a reasonable doubt. See e.g., Corn v. Zant, 708 F.2d 549 (11th Cir.1983); Davis v. Zant, 721 F.2d 1478 (11th Cir.1984). In addition, the words at issue were accompanied by a strong explanation of circumstantial evidence which would tend to indicate, by way of example, the ways in which the state could prove implied malice. Because of these factors, even if the words created some type of a rebuttable presumption, its impact upon the reasonable juror was likely no greater than that of a permissive inference. The magistrate’s report also fails to apprehend the “mechanics” of this charge. Not only is the permissive nature of presumption ignored but also the way in which it operates. Under this charge, the State had to prove beyond a reasonable doubt: (1) that Teagus Griffis was intentionally killed; (2) that it had been done by another person, in this case found to be Hyman; and, (3) that there was no just cause or excuse for the killing. Once the state proved these three (3) elements, the jury was permitted, not required, to draw or to presume an inference of malice. They were also free to not draw or presume an inference of malice. Had the jury utilized the presumption, then Hyman was free to rebut it or not to rebut it. But he was not required to. Furthermore, the charge does not tell the jury that only the defendant could rebut the presumption. Rather, the jury was left free to even draw from the state’s evidence to determine if the presumption had been rebutted. Finally, the magistrate focused on a single sentence in a charge that otherwise covered 12 pages. In connection with the charge on murder, the trial court instructed the jury no less than ten times that the state had to prove the defendant guilty beyond a reasonable doubt. The second portion of the disputed charge contains two (2) sentences. The trial judge stated: Malice is presumed or implied from the use of a deadly weapon. Were circumstances relating to the death of the deceased are brought into evidence, the presumption of malice which is implied from the use of tha [sic] deadly weapon vanishes and the burden is on the State to prove malice whenever a deadly weapon is used by evidence which satisfies you on the Jury beyond a reasonable doubt. [Tr. 418]. The magistrate found that “a reasonable juror could have interpreted the presumption as shifting to the defendant the burden of producing some evidence of the deceased’s death to cause the presumption to vanish. [Mag.Rep. 45]. The court cannot agree with the magistrate. This passage of the charge created no presumption, not even a permissive one. This first sentence of the charge is derived from common law. “ ‘As a general doctrine, subject, ... to some qualification, the malice of murder is conclusively inferred from the unlawful use of a deadly weapon, resulting in death.’ ” State v. Levelle, 34 S.C. 120, 127, 13 S.E. 319, 320 (1891). When charging this doctrine, judges were apt to give it life by this kind of illustration. “If one were to fire a loaded gun into a crowd, or throw a piece of heavy timber from the top of a house into a street filled with people, the law would infer malice from the wickedness of the act.” State v. Smith, 2 Strob 77, 80 (1947); see also, State v. Ferguson, 2 Hill 619 (1835). This general statement of the law is usually qualified by the instruction that the presumption “vanishes.” This presumption is not applicable when the facts and circumstances attending the homicide are disclosed in evidence so as to draw a conclusion of malice or want of malice, as one fact, from the evidence. Presumptions of this class are intended as substitutes in the absence of direct proof, and are in their nature indirect and constructive. The best evidence of the state of mind attending any act is what was said and what was done by the person whose motive is sought for. The motive that impels to the taking of human life is no exception to this rule, and the importance of the consequences that depend on the accurate ascertainment of its nature in such cases, affords the strongest ground for limiting indirect and constructive proof to the narrow grounds within which they belong. State v. Hopkins, 15 S.C. 153, 157 (1880). The first sentence is absent mandatory language indicating that the jury had to reach a certain result. Instead, it is a definition of malice. There is no reference to the defendant or any duty on his part to produce “some” evidence. If the judge had charged the first sentence without more explanation, Hyman would have a stronger claim. But this did not occur. The charge made it clear that where the circumstances of the victim’s death are brought out into evidence, the presumption “vanishes.” A reasonable juror could only have understood that once the circumstances of the victim’s death were in evidence, the state was not entitled to a presumption or inference of any kind. The jury was free to find malice, or the lack of it, based upon what was said or done by Hyman. One would have to construct an argument out of whole cloth to conclude that this portion of the charge worked to Hyman’s detriment. “On the contrary it was as favorable to him as the law allowed.” State v. Alexander, 30 S.C. 74, 84, 8 S.E. 440, 442 (1889). Moreover, it strains credulity to argue that a reasonable juror could believe that the defendant had a burden to put into evidence circumstances of the victim’s death. Such language is plainly not present anywhere in the charge. The first sentence of the charge may have been superfluous. But it cannot be said that a reasonable juror could have thought it placed upon the defendant a burden to produce evidence. In light of several recent South Carolina cases, one can easily understand the Supreme Court’s admonition that federal courts not concern themselves with jury instructions that are only “undesirable, erroneous or even ‘universally condemned’____” Cupp v. Naughten, 414 U.S. at 146, 94 S.Ct. at 400. The magistrate seemed to be influenced by a line of South Carolina cases which disproved similar malice charges. See State v. Mattison, 276 S.C. 235, 277 S.E.2d 598 (1981); State v. Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983); State v. Llewellyn, 281 S.C. 199, 314 S.E.2d 326 (1984); State v. Woods, 282 S.C. 18, 316 S.E.2d 673 (1984). However, after the magistrate’s report was received by this court, the South Carolina Supreme Court, considering charges like the one at issue here, affirmed three convictions despite the prior threats that continued use would constitute “reversible error.” See State v. Gaskins, State v. Singleton, 326 S.E.2d 153 (1985); State v. Lucas, 328 S.E.2d 63 (S.C.1985). The more recent cases are not mentioned in order to support any conclusions reached by this court. The point is simply made to show the futility of relying upon state decisions when the inquiry is not what lan- guage is preferred in a jury charge but rather what is constitutionally permissible. More importantly, when one reads the cases cited in the magistrate’s report, it becomes evident that the South Carolina Supreme Court “was primarily concerned with directing inferior courts to refrain ... from giving the instruction because it was thought confusing, of little positive value to the jury or simply undesirable.” Cupp v. Naughten, 414 U.S. at 145, 94 S.Ct. at 399. The state court was, “in effect, exercising the so-called supervisory powers of an appellate court to review proceedings of trial courts and to reverse judgments of such courts which ... [it] conclude [d] were wrong.” Id. at 146, 94 S.Ct. at 400. For this reason, these state decisions are of little or no value in a collateral proceeding of this type. The line of cases referred to in the magistrate’s report is not helpful in reaching a judgment on Hyman’s claim. The magistrate also thought the charge defective because it, as a whole, was so conflicting and confusing as to be constitutionally infirm. See Thomas v. Leeke, 725 F.2d 246 (4th Cir.) cert. denied, — U.S. -, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984). A reasonable juror could have interpreted the charge literally as establishing two different burdens of proof. The first would require [Hyman] to come forward with proof beyond a reasonable doubt of justification or excuse. The second would put on the state the burden of proving beyond a reasonable doubt “malice whenever a deadly weapon is used.” Also a reasonable juror could have concluded that the burden is on the State to prove malice only when a deadly weapon is used, and not when malice is presumed from an unlawful act. [Mag.Rep.46]. To adopt this conclusion, this court would have to engage in a tortured reading of the charge. Moreover, the charge at issue here bears no resemblance to the one present in Thomas. In Thomas, the defendant was required to shoulder the burden of proof and the burden of persuasion; she had to prove, by a preponderance of the evidence, the four (4) elements of self-defense. The State was required to prove, beyond a reasonable doubt, the elements of murder or manslaughter. The district court rejected Thomas’ claims that she was required to disprove an element of murder and denied her petition for habeas corpus. The Fourth Circuit Court of Appeals reversed. It held that the trial court “had in one breath instructed that the accused had the burden of proving self defense by a preponderance of the evidence, yet in the other that the prosecution had to prove beyond a reasonable doubt that the killing had been felonious (and therefore unlawful) and with malice.” Thomas v. Leeke, 725 F.2d at 250-51. Without determining that the charge unconstitutionally shifted the burden of proof on self defense, the court struck it down because “the instructions regarding the burden of proof were so inherently contradictory and confusing as to rise to the level of a constitutional infirmity under the principles of Winship, Mullaney, Guthrie and Wynn." Id. at 252. (Emphasis added). Hyman’s case, however, is completely different. At no time was any burden placed upon him to show justification or excuse to any degree. The state solely had the burden of proof on the element of malice. Accordingly, it cannot be said that a reasonable juror could have understood it to establish two different burdens of proof. Also, under either portion of the charge, with or without the use of a permissive or “vanishing” presumption, the burden was always the state’s. A reasonable juror could not have understood that the State was required to prove malice ohly when a deadly weapon is used. The charge, read with reason and common sense, makes this crystal clear. For these reasons, the court rejects the magistrate’s recommendation that it should find the charge “conflicting and confusing.” B. Harmless Error Having found that there is no Sandstrom error, there is no need for the court to go further. However, assuming, arguendo, that the charge violated Sandstrom, the respondents ask the court to consider its harmlessness under Fulton v. Warden, Maryland Penitentiary, 744 F.2d 1026 (4th Cir.1984). In Fulton, Chief Judge Winter noted that there is no per se rule of reversal for Sandstrom constitutional violations. He stated that “[i]n cases involving similar errors, we have always assessed the impact of those errors by carefully considering the record as a whole in each instance. See e.g., Anderson v. Warden, Maryland Penitentiary, 696 F.2d 296 (4th Cir.1982), and Guthrie v. Warden, Maryland Penitentiary, 683 F.2d 820 (4th Cir.1982).” 744 F.2d at 1031-32. The court went on to hold the test for a Sandstrom violation is that laid down in Henderson v. Kibbe — “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Henderson, 431 U.S. at 154, 97 S.Ct. at 400 (citations omitted); Morris v. Maryland, 715 F.2d 106, 108 (4th Cir.1983). If a reasonable juror could have understood the charge to create a conclusive presumption of malice, then the question is whether the instruction rendered the trial “fundamentally unfair.” This court is of the opinion that the evidence of “expressed” malice and Hyman’s guilt was overwhelming as to not render his trial fundamentally unfair. Three (3) of Hyman’s coperpetrators testified against him. Eye witness Allday told the jury that Hyman hatched the plan to commit the robbery. [Tr. 46]. After she and Hinson and Midgett returned to the nightclub without a shotgun, Hyman rebuked them saying, “That’s the main reason I wanted you to go by there and get shotgun shells too, to get the shotgun.” [Tr. 47]. Hyman directed them to “his next door neighbor’s apartment and ... Hyman come [sic] out with a shotgun in. his hand. [Tr. 221]. When given a chance to abort the robbery, Hyman replied “he wasn’t going no where without the money.” [Tr. 60]. Hyman instructed Allday to shoot Collins Griffis. She was unable to operate the gun so he grabbed it from her and began beating Griffis. “[S]everal times he chopped him, like you know, across the head with it.” [Tr. 68]. Hyman then shot into the ceiling and “started asking for the money____ When the man told him he didn’t have any ... he started hitting him again.” [Tr. 69-70]. The double barrel shotgun broke, so that petitioner started “beating Collins Griffis with his own gun.” [Tr. 70]. After Allday heard a shot, she saw “Gibbs Hyman standing there with a gun in his hand and Teagus Griffis standing over just a little ways from the front of him with his hands up, stumbling, [sic] and fell back on the couch.” [Tr. 72]. The petitioner returned to the car with two (2) guns. [Tr. 226]. Hinson was unable to make it back to the car. Hyman “hollored several times ... I’ll shoot you and leave you here.” [Tr. 74]. The guns were thrown out of the car. On the way back to North Charleston, Hyman “told Iris that he had shot the man in the heart and he was dead and he had killed him.” [Tr. 85-6]. Hinson, unconscious, was left on the ground at the hospital. Back in North Charleston, the group washed blood out of their clothing at Sue Allday’s house. Hyman and his wife dropped Allday off at the Western Social Club; the two of them went to Red Coulston’s house to arrange an alibi. Hyman, his wife, Midgett and Allday met at the Kangaroo Club early Sunday morning. There, they discussed their alibi. Realizing that the guns might be found on the side of the road, they drove back to Ravenel. Hyman “started looking for the guns up and down the road and found them.” [Tr. 83]. The guns were thrown into the Ashley River, North Charleston. Hyman did not testify during the guilt phase of the trial. He did, however, testify during the penalty phase. Essentially, he maintained that on March 24th he intended to go to Walterboro, South Carolina, to speak with his brother-in-law. Hyman was upset because his sister had allegedly been beaten up by her husband. He asserted that he was too intoxicated to remember any of the night’s incidents. He did not assert that the killing was without malice, or that it was negligent, or that it was in self-defense. Therefore, the only question that could have existed in the jury’s mind was whether Hyman, or someone else, fired the fatal shot. The corrupting effect of a Sandstrom instruction depends upon the nature of the defense, if any, made at the trial. Where a defense of non-participation in the criminal act is urged at trial, the effect of a Sandstrom instruction as a factor upon which the verdict was based may diminish particularly where the conduct or nature of the crime as evidenced by the record, firmly negates any reasonable possibility that the perpetrator of the crime, whoever it may have been, lacked the requisite intent. Garland v. Maggio, 717 F.2d 199, 203-4 (1983). Throughout the trial there was never a serious contention by anyone that the perpetrators] of the crime lacked the requisite malice. The brutal and disgusting nature of the crime is self-evident. Hyman twice “laid in wait” for the victims. He made several other statements and undertook action which support an uncontradicted inference of express malice. Hyman’s guilt is amply supported by the record. The evidence of malice is overwhelming and requires no more elaboration. Therefore, even if the malice charge violated Sandstrom, the court finds that it did not render Hyman’s trial “fundamentally unfair.” C. Non-Statutory Mitigating Circumstances Hyman also seeks a new trial for alleged error in the penalty phase jury instructions. The magistrate found that the “trial judge’s instructions could, and undoubtedly would, have been considered by a reasonable juror as limiting their [sic] consideration to the two mitigating circumstances outlined in the charge and written down on the jury instructions.” [Mag.Rep. 54-5]. This court is of the opinion that the magistrate misconceived the constitutional requirements of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). In Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), the Supreme Court struck down a North Carolina statute that required imposition of the death penalty for first degree murder. In a plurality decision, the Court reasoned that the statute foreclosed the use of the sentencer’s discretion in a capital case. This violates the principle that “justice ... requires consideration of ... the circumstances of the offense together with the character and propensities of the offender.” Id. at 304, 96 S.Ct. at 2991 (quoting Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937)). This principle was given further life in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). In Lockett, the Supreme Court struck down the Ohio death penalty statute because it did not permit the sentencer to consider mitigating factors of age or family history. Under the Ohio statute, once a defendant was found guilty of aggravated murder, the sentencer was precluded from considering non-statutory mitigating circumstances unless it substantiated any of the state’s three statutory mitigating circumstances. The Supreme Court held that the eighth and fourteenth amendments required that the sentencer “not be precluded from considering ... any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio at 604, 98 S.Ct. at 2964. (Emphasis added). This concept was further refined in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). In Eddings, the sentencing judge felt that he could not, as a matter of law, “ ‘consider the fact of this [defendant’s] violent background.’ ” 455 U.S. at 113, 102 S.Ct. at 876. There was no dispute that the violent background was non-statutory evidence of mitigation. Further, the Oklahoma death penalty statute clearly permitted the defendant to produce such evidence and have it considered. The Court held that [i]n this instance, it was as if the trial judge had instructed a jury to disregard the mitigating evidence____The sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration. 455 U.S. at 114-15, 102 S.Ct. at 876-77. More recently, the Supreme Court, in Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), made it clear that “the Constitution does not require a State to adopt specific standards for instructing the jury in its consideration of aggravating and mitigating circumstances ____” 103 S.Ct. at 2750; Briley v. Bass, 750 F.2d at 1244. Under Zant, “[w]hat is important at the selection [mitigation] phase is an individualized determination on the basis of the character of the individual and the circumstances of the crime,” 103 S.Ct. at 2743-44 (emphasis in original), and the “absence of legislative or court-imposed standards to govern the jury in weighing the significance” of various factors is not dispositive. Id. at 2743-44. The procedure for the mitigation phase of the trial is set forth in S.C. CODE ANN. § 16-3-20 (cum.supp.1984). Subsection (C) provides: “The judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances otherwise authorized or allowed by law and any of the following statutory aggravating and mitigating circumstances which may be supported by the evidence ” Apparently, the magistrate found the jury charge defective because the jury was not specifically told of other “mitigating circumstances otherwise authorized or allowed by law.” In addition, it appears as if he thought the charge overemphasized the role of statutory mitigating and aggravating circumstances to the exclusion of other factors. Even if all this was true, Lockett and its progeny demand no more. The statute allows the defendant to proffer any evidence of mitigation otherwise authorized or allowed by law. Hyman was permitted to do this. He produced testimony from six (6) witnesses that covered his age, childhood, familial history, religious conversion, etc. This is plainly evidence that is “authorized or otherwise allowed by law.” In addition, the judge instructed the jury no less than five (5) times that it was to consider “all” the evidence. “There is no requirement that the court (or a jury agree) with the defendant’s view that it is mitigating, only that the proffer be given consideration.” Raulerson v. Wainwright, 732 F.2d 803, 807 (11th Cir.1984). Accord, Dobbert v. Strickland, 718 F.2d 1518, 1524 (11th Cir. 1983). Lockett does not demand that the trial judge specifically comment on a non-statutory mitigating circumstance. Nor does it demand a jury charge which proportionally discusses non-statutory and statutory circumstances. All that is required is that the statute permit the proffer and the “sentencer ... listen.” Eddings v. Oklahoma, 455 U.S. at 115, n. 10, 102 S.Ct. at 877, n. 10. This court cannot conclude that the charge, as a whole, precluded the jury from considering all the evidence proffered. In fact, “[t]he instructions leave the definite impression that the jury was to take into account such evidence as was presented in mitigation and to exercise discretion in reaching a verdict on sentencing, rather than automatically imposing the death sentence upon finding an aggravating circumstance.” Briley v. Bass, 750 F.2d at 1244. Hyman’s assertion falls far short of the standard that the “ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 415 U.S. at 147, 94 S.Ct. at 400. Moreover, if any prejudice resulted from the charge, it was cured by a later instruction. When quizzed by the foreman, the judge responded: “You have to judge the testimony that you’ve heard [sic] from in this sentencing proceeding now, taking into consideration the entire testimony in this case, the exhibits which you’ve heard [sic], and reach a decision on the recommendation that you, the Jury, would make.” [Tr. 529], (Emphasis added). If the earlier instruction placed a doubt in the jury’s mind, then these words obviously removed it. For these reasons, ' the recommendation of the magistrate is rejected. II. THE “TRIGGERMAN” ISSUE Magistrate Carr found that the petitioner was not denied due process because of the trial judge’s failure to present a charge to the jury based on Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). [Mag.Rep. 19-20]. Hyman objects to this finding. He argues that the magistrate misapprehended the proper place in the trial proceedings for a charge based on Enmund. “The Enmund instruction would not be given to a jury at the guilt phase, but instead, is a charge to be given to the jury when the jury is being required to sentence a defendant.” [Pet.Obj. 4]. (Emphasis in original). This court does not agree. On this point, the findings of the magistrate are adopted and incorporated into this order by specific reference. In Enmund, the petitioner and a co-defendant were convicted at a jury trial in a Florida court of first-degree murder and armed robbery of two elderly persons. In a separate proceeding, the jury recommended the death penalty for both defendants. The trial judge found four statutory aggravating circumstances and sentenced Enmund to death. Enmund appealed. The Florida Supreme Court affirmed the convicting despite the fact that “[t]here was no direct evidence at trial that Earl Enmund was present at the back door of the Kersey home when the plan to rob the elderly couple led to their being murdered.” Enmund v. State, 399 So.2d 1362, 1370 (Fla.1981). In reaching its decision to remand the case, the United States Supreme Court noted that “the record supported no more than an inference that Enmund was the person in the car by the side of the road at the time of the killing, waiting to help the robbers escape.” Enmund, 102 S.Ct. at 3372. The Court held that the eighth amendment bars the imposition of the death penalty for “one ... who aids and abets a felony in the course of a murder ... but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force ... be employed.” 102 S.Ct. at 3376-77. In so holding, the Court stated that the “focus must be on [the particular defendant’s] culpability, not on that of those who committed the robbery and shot the victims for we insist on ‘individualized consideration as a constitutional requirement in imposing the death sentence.’ ” Id. at 3377 (quoting Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978)). The facts of Hyman’s case are significantly different from those presented in Enmund. Here, the evidence was uncontradicted that Hyman conceived the robbery. Then he, his wife, Iris Midgett, Sue Allday and Bob Hinson drove in Hyman’s car with a double-barreled shotgun to the victims’ home. Two of the women tried to gain access to the victim’s house trailer by asking for help with a flat tire while Hyman, armed with a shotgun, and Hinson, laid in wait to rob the victims. The first attempt failed. Hyman, Allday and Hinson regrouped and again mounted an assault on the trailer. While Allday, now armed with the shotgun, continued to try to coax the victims into opening the door to their residence, Hinson tried to force the door. Hyman laid in wait by the side of the residence. Once inside, Hyman terrorized the elderly men, beating one senseless and shooting the other. It is true that Hyman did not testify at the guilt phase of the trial. Based on the evidence then before the jury, Hyman’s culpability was practically undisputed. He could not seriously contend that he “did not himself kill,” let alone that he did not intend that lethal force be employed. Therefore, a charge based on Enmund would not have been appropriate. At the penalty phase, Hyman’s direct testimony was that he was upset because his brother-in-law had beaten up Hyman’s sister. Iris Midgett called a friend of Hyman’s and left a message that he should meet her at the Winchester Club because she knew where to locate Hyman’s brother-in-law. Iris gave him some kind of pill at the nightclub. On cross-examination, he stated that he had arrived at the victims’ trailer but that he did not intend to go there. Instead, he asserted that he thought he was going to find his brother-in-law. He did not deny any of the events that led up to the shooting. He only denied that he killed Teagus Griffis. Despite this denial, the state’s evidence was uncontradicted that Hyman intended to kill. Enmund does not provide direct guidance for resolving the issue of the stage in the proceeding where the jury should be instructed. In reaching its decision, the Court relied heavily on the fact that there was no “direct evidence” at trial that Enmund ever intended that lethal force be used. But this cannot be said for Hyman. At the very least, Enmund would require there be some evidence to negate the state’s proof that the defendant intended that lethal force be employed. Unless this can be shown, a charge based on Enmund would not be proper at any stage of the proceeding. Hyman does not make this showing. For these reasons, the trial judge committed no error by failing to give a jury charge based on Enmund. III. INEFFECTIVE ASSISTANCE OF COUNSEL Hyman’s major claim for habeas relief is that his trial counsel was ineffective. The magistrate found that [cjounsel’s errors include a failure to take an adversarial position with regard to the selection of a penalty neutral jury. Further counsel, while going through the motions of calling witnesses in mitigation, seemingly failed to zealously attempt to justify a penalty less than death. Counsel failed to adequately prepare the defendant for or insulate him from devastating cross-examination during the penalty phase which cast him in a highly prejudicial light. Finally, counsel failed to capitalize on the “confusion” surrounding the petitioner’s role in the shooting to establish further mitigation. However, there is not a reasonable probability that, absent these errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. [Mag.Kep. 33]. Hyman and the respondents object to these findings. Hyman has three arguments. First, he asserts that counsel did commit these errors and as a result he was prejudiced. Second, he argues that the magistrate did not apply the proper analysis recently enunciated in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Third, he contends that the proper analysis is not even applicable to his case because the counsel was so ineffective the court is justified in presuming prejudice. The respondents challenge the magistrate’s findings and argue that no error existed. In essence, they contend the state court reached the correct result in the post-conviction proceedings. The court will first consider, in reverse order, Hyman’s contentions. Then it will treat together Hyman’s first argument and respondents’ objections. Hyman argues that his counsel was so ineffective the court need not inquire whether prejudice exists. Accordingly, he concludes that the principles announced in Strickland are not applicable to his case. Instead, he likens his case to the more recent Evitts v. Lucey, — U.S. -, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). This court does not agree. Hyman must demonstrate error and prejudice to make out a claim for ineffective assistance of counsel. In Strickland, the United States Supreme Court gave specific guidance for evaluation of ineffective assistance of counsel claims. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. 104 S.Ct. at 2064. The two components of a claim for ineffective assistance of counsel are commonly called error and prejudice. To demonstrate error, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 2065. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Turner v. Bass, 753 F.2d 342, 348 (4th Cir.1985). Furthermore, prejudice to the defense must be present for reversal. Strickland requires that [t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, 104 S.Ct. at 2068, Briley v. Bass, 750 F.2d at 1247. In Strickland, the Court was quick to point out that in a narrow class of cases a defendant does not have to demonstrate prejudice. In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel’s assistance. Prejudice in these circumstances is so likely that case by case inquiry into prejudice is not worth the cost. Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent. 104 S.Ct. at 2067 (citations omitted). (Emphasis added). In United States v. Cronic, — U.S. -, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), a case decided the same day as Strickland, the Court discussed at length “certain Sixth Amendment contexts” where the defendant does not have to demonstrate prejudice because it is presumed. Cronic and two associates were indicted for mail fraud. Shortly before the scheduled trial date, Cronic’s retained counsel withdrew. The district court appointed a young real estate lawyer to represent Cronic but allowed him only twenty-five days for pretrial preparation, even though it had taken the government four and one-half years to investigate the case. Cronic was convicted and sentenced after a four-day trial. The Tenth Circuit Court of Appeals reversed the conviction. It inferred that Cronic’s counsel had been ineffective because: “(1) [T]he time afforded for investigation and preparation; (2) the experience of counsel; (3) the gravity of the charge; (4) the complexity of possible defenses; and (5) the accessibility of witnesses to counsel.” United States v. Cronic, 675 F.2d 1126, 1129 (10th Cir.1982). The Supreme Court reversed the Tenth Circuit, stating that the five factors listed in the Court of Appeals’ opinion are relevant to an evaluation of a lawyer’s effectiveness in a particular case but neither separately nor in combination do they provide a basis for concluding that competent counsel was not able to provide this respondent with the guiding hand that the Constitution guarantees. Cronic, 104 at 2049. In so ruling, the Court stated that there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Id. at 2047. For example, there are those cases where the defendant was completely denied counsel, or, w