Full opinion text
OPINION SCHLESINGER, District Judge. Before the Court is Petitioner Allen Lee Davis’ Petition for Writ of Habeas Corpus by Person in State Custody (Doc. No. 1, filed March 9, 1992). Respondent filed an anticipatory response on March 9, 1992 (Doc. No. 10). On March 16, 1992, the Court ordered Petitioner to submit a supplemental memorandum detailing the procedural history of each of his twenty-five claims and, where appropriate, addressing his right to bring those claims in light of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). The Court also ordered Respondent to file an additional response to the Petition and supplemental memorandum. Petitioner complied by filing a supplemental memorandum on March 26, 1992 (Doc. No. 16) and Respondent complied by filing an amended response on April 6,1992 (Doc. No. 17). The Court heard oral argument on the Petition on April 27, 1992. Subsequently, the Court found that Petitioner was entitled to an evidentiary hearing on the following issues: (1) whether Petitioner’s trial counsel rendered ineffective assistance in his investigation of Petitioner’s family and social history; (2) whether Petitioner’s trial counsel rendered ineffective assistance in failing to challenge the hypnotically induced testimony of a prosecution witness; and (3) whether Petitioner was competent to stand trial. The evidentiary hearing was conducted January 25 through January 27, 1993. PROCEDURAL HISTORY On May 11, 1982, Nancy Weiler and her two young daughters, Katherine and Kristina, aged five and ten, respectively, were brutally murdered in their home near San Pablo Boulevard, in Jacksonville, Florida. Nancy Weiler was beaten over the head with a pistol, “almost beyond recognition.” Davis v. State, 461 So.2d 67, 72 (Fla.1984), cert. denied, 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663 (1985). One daughter was tied up and shot twice, and the other was shot in the back once, then beaten. Id. All the acts occurred in the mother’s bedroom and the short hallway to that bedroom. Id. On March 2,1983, Petitioner was convicted and sentenced to death on each of three counts of first degree murder. Petitioner appealed his convictions and sentences of death directly to the Florida Supreme Court. On October 4, 1984, the court rejected Petitioner’s five claims of error. Davis, 461 So.2d at 68-72. Petitioner then sought clemency before the Florida Board of Executive Clemency. The board held a hearing on June 26, 1986, and on August 20, 1986, the Governor denied Petitioner’s request for clemency. On that date the Governor also signed a death warrant for the week of September 17-23, 1986. On September 20, 1986, Petitioner filed a petition for extraordinary relief and an application for a stay in the Florida Supreme Court. The court denied the petition on September 22, 1986, and entered an opinion on October 30, 1986. Davis v. Wainwright, 498 So.2d 857 (Fla.1986). On September 22, 1986, Petitioner applied for a stay of his execution with the United States Supreme Court. At 11:30 p.m. on September 22,1986, Justice Powell granted a stay until 3:00 p.m. on September 23, 1986, pending consideration of the stay issue by the entire Court. On September 23, 1986, the United States Supreme Court granted the stay pending the resolution of an application by Petitioner for a writ of certiorari to review the Florida Supreme Court’s denial of the petition for extraordinary relief. The Court denied cer-tiorari on October 5, 1987. Davis v. Dugger, 484 U.S. 873, 108 S.Ct. 208, 98 L.Ed.2d 159 (1987). On September 22, 1986, after the denial of the petition for extraordinary relief by the Florida Supreme Court, but before the stay of the execution by the United States Supreme Court, Petitioner filed a motion pursuant to Fla.R.Crim.P. 3.850 and a motion for a stay of execution in the state trial court. The trial judge denied both motions on September 22, 1986. Transcript of Record of First 3.850 Motion [hereinafter “PC”] at R5-827-28. Petitioner appealed to the Florida Supreme Court, which on September 23, 1986, summarily affirmed the trial court’s denial of both motions. Davis v. State, 496 So.2d 142 (Fla.1986). Petitioner filed a Petition for Writ of Ha-beas Corpus by a Person in State Custody on September 22, 1986, at 10:30 p.m., in this Court, during the pendency of the appeal to the Florida Supreme Court of the denial of the 3.850 Motion, but before the stay by the United States Supreme Court. On September 23, 1986 at 9:30 a.m., this Court denied the petition because it contained unexhausted claims and because the Court found that it constituted an abuse of the writ. Davis v. Wainwright, 644 F.Supp. 269 (M.D.Fla.1986). The court of appeals reversed, and remanded the matter for consideration of the petition on its merits. Davis v. Dugger, 829 F.2d 1513 (11th Cir.1987). 8. Counsel was prejudicially ineffective in presenting the motion to suppress statements elicited by law enforcement officers, and for failing to challenge illegal searches and resulting evidence, and appellate counsel was ineffective for failing to challenge the trial court’s denial of the motion, in violation of the fifth, Sixth and Fourteenth Amendments. On December 23, 1988, this Court dismissed the prior petition without prejudice so that Petitioner could exhaust his fourteenth claim, the one unexhausted claim, or file an amended petition without the unexhausted claim. Davis v. Dugger, 703 F.Supp. 916 (M.D.Fla.1988). The fourteenth claim originally was Claim 13 in Petitioner’s first 3.850 motion. That claim was considered by the state courts prior to the decision of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). The Court, therefore, found that Petitioner’s Hitchcock claim had not been fairly presented to the state courts. 703 F.Supp. at 920. On July 31, 1989, Petitioner filed another motion pursuant to Fla.R.Crim.P. 3.850, in which he presented the Hitchcock claim, as well as nine other claims. The state trial court held that all of Petitioner’s claims except the Hitchcock claim were procedurally barred. Transcript of Record of Second 3.850 Motion [hereinafter “PC2”] at Rl-141-42. That court also held that the Hitchcock claim had no merit. Id. at 141. On October 31, 1991, the Florida Supreme Court affirmed the trial court’s rulings. Davis v. State, 589 So.2d 896 (Fla.1991). The Governor signed a Death Warrant on February 12, 1992 for the week beginning Tuesday, March 10, 1992 at 12:00 p.m. and ending Tuesday, March 17,1992 at 12:00 p.m. On March 9, 1992, the instant petition was filed, raising 25 claims. By an Order dated that same date (Doc. No. 11), this Court stayed the execution then scheduled for March 11, 1992. STANDARD OF REVIEW The current version of the habeas corpus statute states that a determination on the merits of a factual issue made by a state court shall be presumed to be correct, unless the applicant for the writ can establish one of the enumerated causes for exception. 28 U.S.C. § 2254(d) (listing enumerated causes); Cuyler v. Sullivan, 446 U.S. 335, 341, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980). In the Eleventh Circuit, a district court entertaining a petition under 28 U.S.C. § 2254 must resolve all claims for relief raised therein, regardless of whether habeas relief is granted or denied. Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.1992). A claim for relief is deemed to be any allegation of a constitutional violation. Id. CLAIM I — CHANGE OF VENUE In Claim I Petitioner alleges that in light of the extensive and highly prejudicial pretrial media coverage of his case, the trial court’s failure to grant his motion for a change of venue deprived Petitioner of his right to a fair and impartial jury at the guilt/innocence and sentencing phases of his trial, in violation of the Sixth, Eighth, and Fourteenth amendments. Petitioner asserts that this error, and the alleged resulting prejudice to Petitioner’s rights, was compounded by the court’s additional failure to grant Petitioner’s motion for individual and sequestered voir dire. Petition for Writ of Habeas Corpus (Doc. No. 1) [“Pet.”] at 8. This claim originally was raised in Petitioner’s direct appeal. The Florida Supreme Court denied the claim, on its merits, on October 4, 1984. Davis, 461 So.2d at 70. Therefore, the Court finds that Claim I has been exhausted and is properly before the Court. With respect to the change of venue issue, Petitioner contends that the greater Jacksonville, Florida, community was exposed to extensive and highly prejudicial pretrial publicity, by both the print and electronic media. Petitioner further contends that this pretrial publicity met both the inherent and actual prejudice standards outlined by the Eleventh Circuit. The examples of pretrial publicity to which Petitioner alludes include: (1) inadmissible evidence of Petitioner’s prior criminal record, which contained convictions for manslaughter, two armed robberies, and attempted robbery; (2) inadmissible evidence that Petitioner was on parole at the time of the murders; (3) inadmissible evidence that Petitioner failed a polygraph test; (4) Petitioner’s statements to police (the admissibility of which had yet to be determined) placing him in the victims’ home at the time the medical examiner believed the murders occurred, and statements claiming that he had a lapse of memory while in the house; (5) ex parte inculpatory statements which the police had assembled, including facts that a handgun belonging to Petitioner’s father was missing, that a cord found in the Petitioner’s truck matched the cord which bound Kristy Weiler’s wrists, and that police had found three eyewitnesses who could “pin down” Petitioner’s whereabouts, one of whom saw him in the neighborhood with a gun in his hand; (6) statements by state officials expressing their certainty of Petitioner’s guilt, e.g., that they had “the right suspect,” and that they had a “very significant case” against him; (7) statements by police to the effect that Petitioner’s friends or relatives might interfere with their efforts to find evidence, in particular the missing gun; (8) inflammatory commentary strongly tending to evoke community sympathy for the victims — “and, concomitantly, prejudice against Petitioner, the named suspect” — including an article about Kristy Weiler’s school teacher having to impart the news of her death to her classmates, neweasts emphasizing the reaction in the victims’ “close-knit, upper middle class, family-oriented” neighborhood, references to Mrs. Weller having been pregnant at the time of her death, references to Kristy Weiler’s tenth birthday party, which was to be held the next day, and the medical examiner’s emotional reaction as he left the house; and (9) a telecast denouncing parole authorities for releasing prisoners back onto the streets to commit crimes, and referring specifically to Petitioner as one who “needed to serve, a little more time” and who subsequently murdered a child. Pet. at 22-23. Petitioner also alleges that in addition to the reported items described above, the news reports also contained descriptions, of the victims, photographs of the bodies being removed from the Weiler home, photographs of Petitioner in handcuffs, and an editorial attacking the system that released Petitioner on parole. Respondent notes that following a hearing on the Motion the trial court deferred ruling on the change of venue motion until an attempt was made to seat a jury. Respondent further contends that the jury selected was satisfactory to Petitioner, thereby mooting the issue. Additionally, the state argues that the publicity cited by the Petitioner occurred primarily during the weeks immediately following the murders, namely, the latter half of May, 1982, while the motion for change of venue was heard in August, 1982, and jury selection did not begin until January, 1983'. Amended Response to Petition (Doc. No. 17) [“Resp.”] at 13. On August 11, 1982, Petitioner filed a Motion for Change of Venue. Transcript of Trial Record, Volume 1 [“Rl”] at 205. The court heard argument on the motion on August 23, 1982. R4-182, et seq. The court received the following evidence: (1) information regarding the total number of registered voters in Duval County, Florida, R3-126; (2) an affidavit from representatives of a local radio station regarding the times stories about Petitioner and/or the murders were aired, id. at 127; (3) an audit report of the circulation of the Florida Times-Union and the Jacksonville Journal newspapers, id. at 128-29; (4) photocopies of local newspaper articles, id at 130-34; (5) the affidavit of a defense investigator regarding a radio canvas, id. at 134-35; and (6) the deposition of next door neighbor John Strand, id. at 135-37. The court also heard testimony from representatives of local television stations, including estimates of their potential viewing audiences, and watched videotapes of their broadcasts regarding Petitioner and the murders. Id. at 138-76. The court also heard argument by both sides. R4-182-223. On August 27, 1982, the Court stated that it would defer ruling on the Motion until an attempt to select a panel had been made. Id. at 271. The Court ultimately denied the Motion, and on February 1, 1983, the court empanelled the jury. The standard governing change of venue issues is derived from the Fourteenth Amendment’s due process clause, which safeguards a defendant’s Sixth Amendment right to be tried by “a panel of impartial, ‘indifferent’ jurors.” Coleman v. Kemp, 778 F.2d 1487, 1489 (11th Cir.1985) (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961)), (cert. denied, 476 U.S. 1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986)). When pretrial publicity “has so prejudiced the community atmosphere surrounding a trial that an impartial jury cannot be seated, due process requires that a trial court must grant a defendant’s motion for a change of venue.” Devier v. Zant, 3 F.3d 1445, 1461 (11th Cir.1993). “At issue is the fundamental fairness of the defendant’s trial.” Coleman, 778 F.2d at 1489. There are two standards which guide the analysis of this question: the “actual prejudice” standard and the “presumed prejudice” standard. Id. Actual prejudice occurs when “the prejudice actually enters the jury box and affects the jurors.” Heath v. Jones, 941 F.2d 1126, 1134 (11th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 981, 117 L.Ed.2d 144 (1992). A court in this instance must examine the totality of circumstances to determine the extent of the prejudice. Id. Prejudice is “presumed” from pretrial publicity when such publicity is sufficiently prejudicial and inflammatory, and it saturates the community where the .trial is held. Bundy v. Dugger, 850 F.2d 1402, 1424 (11th Cir.1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 849, 102 L.Ed.2d 980 (1989); Coleman, 778 F.2d at 1490. In determining whether news coverage is inflammatory, a court may distinguish, and deem acceptable, any pretrial publicity which is purely factual in nature, as opposed to pretrial publicity which includes prejudicial or inflammatory commentary. Heath, 941 F.2d at 1134-35. In order to prove that media coverage saturated the market, a Petitioner must prove (1) that a substantial number of people in the relevant community could have been exposed to some of the prejudicial media coverage, and (2) that the effects of the media saturation continued until the trial. Id. Presumed prejudice is rarely applicable, and is reserved for an extreme situation. Coleman, 778 F.2d at 1490. With respect to the “presumed” prejudice standard, the Court will review some instances in which courts have considered allegations of prejudicial, inflammatory and community-saturating pretrial publicity. In Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), the defendant confessed in detail to robbing a bank, kidnapping three of its employees, and killing one of them. The videotaped confession subsequently was broadcast three times by local television stations. Id. at 724, 83 S.Ct. at 1418. In a community of 150,000 people, the broadcasts reached approximately 106,000 persons. Id. The United States Supreme Court was willing to presume prejudice because, in its view, “the conclusion cannot be avoided that this spectacle ... in a very real sense was Rideau’s trial.” Id. at 726, 83 S.Ct. at 1419. “Any subsequent proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.” Id. In Coleman, the Eleventh Circuit utilized the presumed prejudice standard. There the Petitioner had been convicted of murdering six family members in rural Seminole County, Georgia. 778 F.2d at 1488. The county had a population of approximately 7,000, with slightly more than 2,000 households. After reviewing the extensive and inflammatory pretrial publicity that surrounded the case, including the newspaper accounts in the Donalsonville News, a weekly publication that reached 1,800 households in the county, the court of appeals concluded that the showing made by Coleman “equals that made in Rideau.” Id. at 1539. The court found that the press saturated the community with overwhelming evidence of Coleman’s guilt, id., and concluded that the “Petitioner has adduced evidence of inflammatory and prejudicial pretrial publicity that so pervades the community as to render virtually impossible a fair trial before an impartial jury.” Id. at 1540. In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975) the Supreme Court considered several of its earlier rulings in which prejudice was presumed, including Rideau, and advised that: “They cannot be made to stand for the proposition that juror exposure to information about a state defendant’s prior convictions or to new accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.” Id. at 799, 95 S.Ct. at 2036. Rather, a court must look to the totality of the circumstances to determine if a defendant’s trial was not fundamentally fair. Id. In Murphy the Court reviewed the voir dire transcript and determined that there was no indication of hostility toward the Petitioner, no suggestion of a partiality that could not be laid aside. Id. at 800. In addition, the news articles regarding the Petitioner appeared almost entirely seven months before the jury was selected. Id. at 802. Furthermore, the articles were largely factual in nature. Id. In Bundy, the Eleventh Circuit rejected the Petitioner’s claim that the extensive adverse pretrial publicity resulted in a jury that was both presumptively and actually prejudiced. 850 F.2d at 1424. Among the pretrial publicity at issue was the extensive media coverage of Bundy’s previous trial in Leon County, Florida, in which he was convicted and sentenced to death for two murders committed in Tallahassee, Florida. Id. at 1406 n. 1 and 1425. The court of appeals instructed therein: Although publicity concerning a defendant’s involvement in other crimes is relevant in presuming jury prejudice, especially if the defendant’s involvement in that crime is inadmissible in the guilt/innocence phase, Murphy stands for the proposition that prejudice is not presumed simply because the defendant’s criminal record is well publicized. Id. at 1425. The court also noted that the publicity concerning the Leon County ease was factual in nature, and not infested with inflammatory and prejudicial remarks from the police and the prosecutor. Id.; see also Henderson v. Dugger, 925 F.2d 1309 (11th Cir.1991), cert. denied sub nom. Henderson v. Singletary, — U.S.-, 113 S.Ct. 621, 121 L.Ed.2d 554 (1992); Bertolotti v. Dugger, 883 F.2d 1503 (11th Cir.1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3296, 111 L.Ed.2d 804 (1990) (showing of pretrial publicity in each case inadequate to presume prejudice; actual prejudice standard applied). Upon review of the record, the Court finds that the pretrial publicity in the instant case does not rise to the levels found to be “presumably prejudicial” — and, thus, unacceptable — in Rideau and Coleman. In this case, the pretrial publicity was primarily factually based, and primarily occurred shortly after the murders, during the latter weeks of May, 1982. In support of his change of venue motion, Petitioner submitted nine newspaper articles; an affidavit from WQIK 99 FM Radio; the testimony of the assistant news director of WJXT Television (Channel 4); the testimony of the news director of WJSK Television (Channel 17); the testimony of the administrative assistant to the news desk at WTLV Television (Channel 12); and the videotapes of the televised segments relating to this case. R3-127-76. Also submitted for the trial court’s review was demographic information regarding registered voters in Duval County, Florida, and estimates of the circulation of the local newspapers, and the listening audiences of the area’s electronic media. Id. The Court acknowledges that the articles and newscasts addressed the following: Petitioner’s criminal history, including his status as a parolee; his failed polygraph examination; his statements regarding his conversation with Mrs. Weiler on the evening of the murders and his lapse of memory; the reactions of Kristy Weiler’s teacher and classmates; the reaction of the coroner; photographs of Petitioner in handcuffs; the Jacksonville Sheriffs Office’s failure to recover the gun and its fear that relations or friends might hamper its search efforts; the incriminating evidence found in Petitioner’s truck; and Mrs. Weiler’s pregnancy. R3-126-76. In addition to these primarily factual accounts, in July, 1982 a local television station broadcast an editorial addressing the fact that Petitioner was on parole at the time of the Weiler murders, and attacking the wisdom of the parole system. Id. at 173. Despite Petitioner’s claim to the contrary, the Court finds that the community was not so saturated by adverse pretrial publicity as to render it “‘virtually impossible [for the Petitioner to receive] a fair trial by an impartial jury drawn from the community.’ ” Bundy, 850 F.2d at 1424 (quoting Mayola v. Alabama, 628 F.2d 992, 997 (5th Cir.1980), cert. denied, 451 U.S. 918, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981)). While Petitioner offers evidence that the print and electronic media potentially reached large numbers of Duval County residents, most of the media attention given this case occurred in May and June, 1982, shortly after the murders. Argument on the motion for change of venue was heard on August 23, 1982, and the jury was not selected until January 31,1983. Clearly, there was a significant “cooling off’ period prior to the selection of the jury. See Heath, 941 F.2d at 1135. In addition, most of the pretrial publicity was factual in nature, and, as Petitioner points out, much of what was reported was eventually introduced into evidence by the state, Pet. at 25, making it subject “to the crucible of the adversarial process.” Woods v. Dugger, 923 F.2d 1454, 1460 (11th Cir.) (footnote omitted), cert. denied sub nom. Singletary v. Woods, — U.S. -, 112 S.Ct. 407, 116 L.Ed.2d 355 (1991). Therefore, for the reasons stated above and in the Court’s analysis of Claim II, infra, the Court finds that Petitioner has failed to demonstrate that the pretrial publicity surrounding his case either was “presumably” prejudicial, or that it resulted in actual prejudice of the jury. Accordingly, Claim I is without merit. CLAIM II — INDIVIDUAL AND SEQUESTERED VOIR DIRE In Claim II Petitioner contends that the trial court’s denial of his motion for individual and sequestered voir dire regarding prospective jurors’ knowledge of massive inflammatory publicity deprived him of his right to a fair and impartial jury, in violation of the Sixth, Eighth and Fourteenth Amendments. This claim originally was raised in Petitioner’s direct appeal. The Florida Supreme Court denied the claim on its merits. Davis, 461 So.2d at 70. Therefore, the Court finds that Claim II has been exhausted and is properly before the Court. Petitioner contends that the trial court erred in denying his motion for individual and sequestered voir dire. This form of voir dire was requested so that potential jurors could be individually questioned regarding the pretrial publicity, and so their answers would not taint the entire venire by imparting any personal knowledge to other veniremen. Rl-142. Petitioner contends that five members of the final jury admitted to having prior knowledge of the case, but due to the lack of individual voir dire, only broad questions were put to them, and thus it was impossible to determine the extent of their knowledge. Petitioner argues that the court’s individual questioning was too superficial to apprise him of the extent of the potential jurors’ bias. Therefore, Petitioner asserts, he lacked sufficient information to exercise his peremptory challenges in a reasonably intelligent manner, and the trial court lacked sufficient information to truly evaluate the credibility of the jurors. Pet. at 38. Respondent contends that Petitioner accepted the jury without utilizing his final peremptory challenge. On the record, both defense counsel and Petitioner stated that they were satisfied with the jury despite the remaining available challenge. Resp. at 16. Respondent further contends that Petitioner fails to establish “manifest error” by the trial judge, and asserts that Petitioner’s speculation that some jurors may have been secretly biased, lied during voir dire, or violated his/ her sworn oath is “self-serving conjecture.” Id. Additionally, Respondent alleges, there is no constitutional obligation imposed on states for individual and sequestered voir dire, even in cases involving extensive pretrial publicity. Thus, Petitioner had a right to a fair and impartial jury, not to a particular selection process, and Petitioner was not entitled to an “ignorant” or “sterile” jury. Id. at 17. Therefore, Respondent adds, the existence of “informed” jurors or pretrial publicity does not satisfy the prejudice component. Thus, Respondent contends that because Petitioner was not entitled to a sterile jury, was not entitled to a particular form of voir dire, accepted the final jury without objection, and never exhausted his peremptory challenges, he is not entitled to habeas relief. “The' purpose of voir dire is to enable the defendant to evaluate the prospective jurors and select a fair and impartial jury.” United States v. Vera, 701 F.2d 1349, 1355 (11th Cir.1983). The question of the partiality of an individual juror “is one of historical fact to which the presumption of correctness of a state court’s factual findings under 28 U.S.C. § 2254(d) applies.” Bundy, 850 F.2d at 1426; (citing Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 2892, 81 L.Ed.2d 847 (1984)). Absent evidence to the contrary, the reviewing court must presume that the jurors were fair and impartial, “as indeed they were swore to be.” United States v. Khoury, 901 F.2d 948, 955 (11th Cir.1990) (footnote omitted). “Thus the question is whether there is fair support in the record for the state courts’ conclusion that the jurors here would be impartial.” Patton, 467 U.S. at 1038, 104 S.Ct. at 2892-93 (citing 28 U.S.C. § 2254(d)(8)). The Supreme Court reiterated this position in Mu’Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991), noting that “[a] trial court’s findings of juror impartiality may ‘be overturned only for “manifest error.” ’ ” 500 U.S. at 428, 111 S.Ct. at 1907 (quoting Patton, 467 U.S. at 1031, 104 S.Ct. at 2888 (quoting Irvin, 366 U.S. at 723, 81 S.Ct. at 1643)). In further relevant part, the Court stated: Particularly with respect to pretrial publicity, we think this primary reliance on the judgment of the trial court makes good sense. The judge of that court sits in the locale where the publicity is said to have had its effect, and brings to his evaluation of any such claim his own perception of the depth and extent of news stories that might influence a juror_ [T]hese perceptions should be of assistance to [the court] in deciding how detailed an inquiry to make of the members of the jury venire. Mu’Min, 500 U.S. at 427, 111 S.Ct. at 1906. Additionally, the method of conducting voir dire “is left to the sound discretion of the trial court and will be upheld unless an abuse of discretion is found.” Vera, 701 F.2d at 1355. “The voir dire conducted by the trial court need only provide ‘reasonable assurance that prejudice will be discovered if present.’ ” Id. (quoting United States v. Holman, 680 F.2d 1340, 1344 (11th Cir.1982)). If jurors can “lay aside preconceptions and base their verdict on' the evidence adduced at trial, they need not be completely unaware of the facts in a given ease.” Bertolotti, 883 F.2d at 1521 (citing Murphy, 421 U.S. at 799-800, 95 S.Ct. at 2036). Although the use of content questions exploring exactly what pretrial publicity potential jurors had been exposed to may assist counsel in exercising peremptory challenges, “peremptory challenges are not required by the Constitution, Ross v. Oklahoma, 487 U.S. 81, 88 [108 S.Ct. 2273, 2278, 101 L.Ed.2d 80] (1988), [and] this benefit cannot be a basis for making ‘content’ questions about pretrial publicity a constitutional requirement.” Mu’Min, 500 U.S. at 425, 111 S.Ct. at 1905. “Under the constitutional standard ... ‘[t]he relevant question is not whether the community remembered the case, but whether the jurors ... had such fixed opinions that they could not judge impartially the guilt of the defendant.’” Id. at 430, 111 S.Ct. at 1908 (quoting Patton, 467 U.S. at 1035,104 S.Ct. at 2891). It is not a violation of the Sixth Amendment or the Due Process Clause for a judge not to inquire into the venire’s knowledge of the specific contents of pre-trial publicity. Mu’Min, 500 U.S. at 430, 111 S.Ct. at 1908. On June 9, 1982, Petitioner filed a Motion for Individual and Sequestered Voir Dire. Rl-142. The trial court denied the motion in open court, prior to the commencement of jury selection. R6-532. The court granted each side three additional peremptory challenges. Id. Although the court denied the Petitioner’s motion for individual and sequestered voir dire, the court allowed both the prosecutor and defense counsel the opportunity to examine all potential jurors for possible bias. At the beginning of voir dire, the judge, addressing the potential jurors said: “The Court is going to give you some preliminary instructions and then the Court and the attorneys will have the opportunity to ask you some questions.” Id. at 536-37. Among other instructions, the Court informed the potential jurors: (1) that an Indictment is not to be considered evidence of the Petitioner’s guilt; (2) that the defendant is presumed innocent and does not have any duty to prove himself innocent; (3) that the burden is on the State to prove the defendant guilty beyond and to the exclusion of every reasonable doubt; (4) that at the end of the trial, they would be given rules to use in testing the credibility and truthfulness of witnesses, including experts; and (5) that prejudice or sympathy for either side has no place in the consideration of the verdict. Id. at 537-38. The judge also told the potential jurors that the jury would be sequestered, and arrangements would be made for their transportation, lodging and meals. Id. at 541. The judge then introduced the prosecutor, defense counsel and the Petitioner to the potential jurors. Id. at 541-42. He then stated: Now, I am going to ask the entire panel some few individual questions and if your answer is affirmative, I would appreciate it if you would please stand. Do any of you know anything about the facts and circumstances of this case to be tried? If your answer is affirmative, would you please stand? Id. at 542. Mr. Griswold, Mr. Cannon, Mrs. Jackson, and Mrs. Arceneaux were among the jurors that stood in response to the question. The Court then asked the Clerk to call twenty-one prospective jurors and for those called, to take a seat in the jury box. Id. Among those called were Mr. Griswold, Mrs. Jackson, Mrs. Arceneaux and Mrs. Richardson. Id. at 544-45. After questioning each of the potential jurors about their background, the court asked the group, “Do any of you know any reasons that you could not sit as a fair and impartial juror and render a verdict based on the evidence and the law presented in the courtroom?” Id. at 554. He received no response. Id. The judge then allowed counsel to question the potential jurors. During his introductory remarks, the prosecutor stated: I want to ask you at this time if anything occurs to you that causes you to have some doubt, even a flicker of a doubt, to have some doubt as to whether or not you could sit as a fair' and impartial juror in this case, will you raise your hand and volunteer that, if we don’t ask the question? What we are looking for is open minds to issues and the facts alone. Will you, if you think of something that we don’t ask you, volunteer if you think it might affect you, will each of you do that for us? Id. at 556. The prospective jurors answered affirmatively. Id. Shortly thereafter, the prosecutor asked the potential jurors if anyone had heard about the case, either on television or from the newspapers. Id. at 560. Five potential jurors indicated affirmatively. Id. The prosecutor then asked, “How many of you feel that you could not reach a fair and impartial verdict based on the law and the evidence because you read or heard or know something about this case?” Id. at 561-62. Two prospective jurors raised their hands. Id. Each of those who raised their hand were individually asked if anything they had heard would interfere with their ability to give the Petitioner a fair trial. Id. at 561. During this line of questioning, the transcript does not identify the potential jurors by name. Id. at 561-63. Petitioner identifies five members of the jury panel — Mrs. Richardson, Mrs. Jackson, Mr. Griswold, Mrs. Arceneaux and Mr. Cannon — who acknowledged during voir dire that they had been exposed to media coverage. Pet. at 25. Accordingly, the Court will review those sections of the voir dire transcript in which each of these jurors responded to questions posed by the prosecutor and defense counsel. Richardson indicated that she had heard or read something about the case. R6-599. She further affirmed that she could put aside any prior knowledge and reach a verdict based on the evidence introduced at trial. Id. at 600. Defense counsel also questioned Richardson, and she clarified that she had learned about the case from the newspaper and television. Id. at 651. She affirmed that she could set aside anything she had learned from the newspaper and television. Id. at 651-52. Jackson stated that someone had told her about the case, but could not remember who had told her about it. Id. at 601-02, 651. When asked by the prosecution if what she had heard would in any way influence her ability to sit and give the defendant a fair trial, she replied: “I could with an open and fair mind.” Id. at 602. When further questioned if she could give the State a fair trial, she responded: “Yes.” Id. Defense counsel also asked her if she could judge the ease based solely on what she heard from the witness stand, and she replied that she could. Id. at 651. When asked if there was any question in her mind whether she could do that, she replied: “No.” Id. The prosecutor verified from Griswold that he had been one of the potential jurors who raised his hand in response to the prosecutor’s question regarding previous knowledge of the case. Id. at 609. When asked if he had an open mind and could and would give the State and the defendant a fair trial, Griswold stated that he could and he would. Id. In the early stages of voir dire, the prosecutor asked Arceneaux if she could vote for the death penalty, and she responded: “I guess so.” Id. at 590. “But have you an open mind about it?” the prosecutor inquired. ‘Yes,” Arceneaux replied. Id. Defense counsel discussed with Arceneaux the concepts of reasonable doubt and individual and jury decisions, and she indicated that she understood the concepts as explained. Id. at 647-48. Defense counsel also specifically asked Arceneaux if she could remove from her mind that which she had previously heard about the case and base her verdict on what “comes from the witness stand,” and she replied: “Right.” Id. at 661. Defense counsel followed up with “And you would be able to do that?” and she replied: ‘Yes, I would.” Id. at 661-62. In reference to the fact that she had children, and the case involved child victims, when asked if she could give a fair and impartial trial, she responded: “I think I could give a fair and impartial trial.” Id. at 662. Cannon was in the third group of prospective jurors called to the jury box. R7-732. At the court’s request, Cannon, along with all of the other members of the third group of prospective jurors, recited standard personal information about themselves. Id. at 733-37. The court then asked, “[TJhose of you who are new to the jury box, the questions that have been asked earlier by the court and the attorneys, do you know anything that you need to tell us?” Id. at 737. Two unidentified prospective jurors stated they could not render a guilty verdict if it meant the death penalty, and Price was unsure on the issue. Id. at 737-38. The court then asked the following questions: [D]oes anyone know of any reason that you could not sit as a fair and impartial juror and render a verdict based on the evidence and the law taking into consideration the charges pending against Mr. Allen Lee Davis and also the circumstances relating to the jury not being able to stay at home for this week? Does anyone know of any reason other than those expressed why they could not sit as a fair and impartial juror? Id. at 739. Potential juror Watson expressed concern over the needs of his wife. Id. A review of the transcript indicates that Cannon was not singled out for additional questioning regarding his impartiality. However, he was among the group of jurors who responded to the following questions posed by the prosecutor and defense counsel. The prosecutor stated: “[I]f anything occurs to occurs to you, please volunteer it.” Id. He also reminded the potential jurors that “citizens are presumed innocent and if he goes to trial for a crime, it is up to the government or the state to prove that he is guilty beyond and to the exclusion of every reasonable doubt, you understand, and accept those principles?” Id. at 751-52. The group answered yes. Id. at 752. He also asked the group, “Do any of you know of any reason besides the two jurors that have told me when I asked about the death penalty, do any of the other nineteen of you know of any reason at all that you could not give this defendant, Allen Lee Davis, who is charged with three counts of first degree murder on the 11th day of May, 1982, do any of you [know] why you could not give Allen Lee Davis a fair trial in this case?” Id. at 759. The group responded, “No.” Id. He asked again, “Do any of you know of a reason?” Id. The group responded, “No.” Id. The prosecutor then asked the corollary question, “Do any of you know of any reason that you could not give the people of the State of Florida a fair trial in this case? Do any of you know why you can’t give either side a fair trial?” Id. The group responded, “No.” Id. The prosecutor rephrased the question, asking: Is there anything eating at any of you, bothering you in any way at this point, personal, private, what we’ve said, anything eating at you in any way that would cause you to be apprehensive in your answer to that question? Now, do any of you, reaching deep down in answering that question, do any of you have any inkling at all that you couldn’t be impartial jurors in this case and give both sides a fair trial? Id. at 759, 759-60. The group responded, “No.” Id. at 760. Cannon did respond to defense counsel’s direct questions that if he felt the defendant was not guilty that he could hold firm to that position, id. at 765, and that he would not hold it against the defendant if the defendant chose not to testify in his own behalf, id. at 766. Defense counsel also asked the group if they could hold the state to its burden of proving the guilt of the defendant beyond and to the exclusion of every reasonable doubt. Id. at 767. The group responded, ‘Tes.” Id. Defense counsel chose not to strike Cannon. The following morning, at side bar, defense counsel, accompanied by the Petitioner, made the following statement on the record: I would like to point out for the record that during the course of the jury selection, Mr. Davis and I had the opportunity to consult with each other and that Mr. Davis participated in the decisions that went to preemptory [sic] challenges and Mr. Davis advised me yesterday that he was satisfied with the jury selection, even though there was one preemptory [sic] challenge left and that he was satisfied with the jury selection process. Is that correct sir? Id. at 792. Petitioner responded, “Yes, sir.” Id. The Court finds that the trial court allowed both the prosecution and defense counsel ample opportunity to individually examine each of the potential jurors to determine whether they were biased and/or had been so influenced by any pretrial publicity that they could not render a fair and impartial verdict based only on the evidence introduced during the trial. The Court further finds that Petitioner fails to meet his burden of showing that the trial court abused its discretion in the method it selected for conducting voir dire. Petitioner’s contention that the trial court’s questioning of the potential jurors was too superficial to adequately apprise him of the extent of juror bias based on their possible exposure to pretrial publicity, resulting in his inability to intelligently exercise his peremptory challenges, is without merit. As the Supreme Court recently reiterated, peremptory challenges are not required by the Constitution. Mu’min, 500 U.S. at 424, 111 S.Ct. at 1905. The Constitution similarly does not require a trial judge to inquire into the venire’s knowledge of the specific contents of pre-trial publicity. Id. at 430, 111 S.Ct. at 1908. Rather, what is required is that jurors not have such fixed opinions that they could not judge impartially the guilt of the defendant. Id. Petitioner has failed to demonstrate that any of the jurors did not meet this test. The Court further finds that neither the denial of Petitioner’s motion for change of venue, nor the denial of his motion for individual and sequestered voir dire, deprived Petitioner of his right to a fair and impartial jury at the guilt/innocence and sentencing phases of his trial, in violation of the Sixth, Eighth or Fourteenth amendments. Therefore, the Court finds that Claim II is without merit. CLAIM III — POTENTIAL JUROR LANE In Claim III Petitioner contends that the trial court’s denial of challenge for cause of venireman Lane, who had expressly admitted to having formed an opinion, denied Petitioner a fair and impartial jury in violation of the Sixth and Fourteenth amendments. This claim originally was raised in Petitioner’s direct appeal. The Florida Supreme Court denied this claim on its merits. Davis, 461 So.2d at 70. Therefore, the Court finds that Claim III has been exhausted and is properly before the Court. Petitioner contends that during defense counsel’s questioning, venireman Lane indicated that she had knowledge of the ease from television, had discussed the case with her husband, had certain emotional feelings about the case, knew in her heart how she felt, and questioned whether or not she should serve on the jury. She further stated that she had made up her mind, “more or less.” Pet. at 40. Defense counsel challenged Lane for cause, but the trial court denied the challenge stating that the last time defense counsel questioned her she said she could listen to the evidence and render a verdict based thereon. R6-667. Defense counsel struck Lane peremptorily. Id. at 667-68. Petitioner further contends that even if the judge and prosecutor were correct that Lane said she could be fair and impartial, she was still properly subject to a challenge for cause based on the “obvious incompatibility of her bland assurances of impartiality” in light of her previous statements. Pet. at 41. It is Petitioner’s position that the court’s error in denying the challenge for cause was not cured or waived by the fact that Davis did not exhaust his peremptory challenges. It would have been futile, Petitioner asserts, to use his last peremptory challenge, because five of the actual jurors had prior knowledge of the case. Pet. at 42. Respondent avers that this entire issue is “de minimis.” Resp. at 18. When the trial court denied Petitioner’s challenge of Lane for cause, Petitioner struck her peremptorily. Petitioner subsequently accepted the final jury without using all of his peremptory challenges. Therefore, according to Respondent, no objectionable jurors sat on the jury. Additionally, Respondent contends that if the juror satisfied the judge that she could be fair, the judge was not required to strike the juror merely because she had “heard about” the case. Finally, Respondent contends that the issue of whether a particular juror was biased is an issue of historical fact, not subject to second-guessing in a § 2254 proceeding. A federal court, Respondent argues, should defer to the state trial judge who was “on the scene and observed the challenged juror.” Id. Petitioner’s “lack of a federal question,” the state concludes, is further complicated by the total absence of prejudice: Lane did not serve on the jury, and Petitioner accepted the jury with one peremptory challenge unused. Id. at 19. The partiality of an individual juror is not a mixed question of law and fact, but rather “is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed.” Patton, 467 U.S. at 1036, 104 S.Ct. at 2891. “A prospective juror must be removed for cause if his or her views ‘ “would prevent or substantially impair the performance of his [or her] duties as a juror.” ’ ” Heath, 941 F.2d at 1132 (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980))). “A habeas petition will be granted for a state trial court’s failure to strike a juror for cause only when there is not fair support in the record for the trial court’s determination that the juror was unbiased.” Heath, 941 F.2d at 1132 (citing Bundy, 850 F.2d at 1426). The Eleventh Circuit added in Heath: However, even if a veniremember should have been struck for cause, the Supreme Court in Ross v. Oklahoma, 487 U.S. 81 [108 S.Ct. 2273, 101 L.Ed.2d 80] (1988), held that there is no constitutional violation where the biased veniremember does not eventually sit on the jury. The Court in Ross held that a habeas Petitioner’s constitutional rights were not violated when he was forced to waste a peremptory challenge to remove a veniremember whom the court should have removed for cause. Heath, 941 F.2d at 1132-33. During voir dire examination of the prospective jurors, Lane indicated that she had some knowledge of the case from having watched news accounts on television. R6-644. When asked by defense counsel if that particular knowledge would prevent her from sitting as a fair and impartial juror, she stated: “Well, I have mentioned emotions; I know what I feel about it and not very much.” Id. She further indicated that she had discussed the case with her husband, and stated, “I don’t know whether I should serve or not.” Id. at 645. When asked if she could set aside any preconceived notions of guilt or innocence and give the Petitioner a fair trial, she stated: “I still have my feelings. I feel that I know in my heart how I feel.” Id. Defense counsel then specifically recounted the charges against Petitioner and reminded Lane that the State was seeking the death penalty. When he asked Lane again if she could give Petitioner a fair trial, she stated: ‘Well, I guess I can give him a fair trial but, really, I know how I feel about it.” Id. at 645-46. Defense counsel subsequently asked the court to strike Lane for cause because she indicated that she could not render a fair and impartial verdict. Id. at 667. The state objected. Id. The court responded: “She said that initially but then the last time you inquired of her, she said that she could listen to all of the evidence and render a verdict based on that, so I will deny your motion.” Id. Defense counsel then chose to strike Lane peremptorily. Id. at 667-68. After the entire jury was selected, defense counsel still had one remaining unused peremptory challenge. While the Court agrees with Petitioner that the record indicates that Lane had formed an opinion regarding the Petitioner’s guilt or innocence, the Court cannot agree that the trial court’s denial of defense counsel’s challenge for cause was error which requires habeas relief. Despite Lane’s statement that she knew how she felt, she did indicate that she could give Petitioner a fair trial. Notwithstanding this, however, Petitioner’s argument here is truly moot, for even assuming error in the trial court’s refusal to strike Lane for cause, she was peremptorily struck, and thus never served on the jury. It is clearly settled that there is no constitutional violation where a biased venireman does not eventually sit on the jury. Ross, 487 U.S. at 88, 108 S.Ct. at 2278; Heath, 941 F.2d at 1132. Moreover, the loss of a peremptory challenge does not constitute a violation of the constitutional right to an impartial jury. Ross, 487 U.S. at 88, 108 S.Ct. at 2278 (peremptory challenges not of constitutional dimension; merely a means to achieve an impartial jury). Therefore, the Court finds that Claim III is without merit. CLAIM IV — INEFFECTIVE ASSISTANCE OF COUNSEL: FAILURE TO INVESTIGATE GUILT-INNOCENCE PHASE ISSUES In Claim IV Petitioner contends that he was denied the effective assistance of counsel during the guilt-innocence phase of the trial, in violation of the Sixth, Eighth, and Fourteenth Amendments, in that defense counsel failed to adequately investigate defenses and issues. The Court finds that this Claim, to which Petitioner devotes only three pages of his 314 page Petition, is merely a generalized introduction to Petitioner’s specific claims of ineffective assistance of counsel, including the claims related to counsel’s performance at the sentencing phase. These claims are set forth at greater length and detail in Claims V through XIII, and the Court will defer its resolution of these issues to those analyses, infra. One subclaim in Claim IV, deficient voir dire examination and ineffective exercise of peremptory challenges, is not discussed by Petitioner at greater length elsewhere, although this subclaim is related to the allegations of trial court error in Claim II and III. The Court will address this subclaim after a discussion of the legal standards to be applied in the context of allegations of ineffective assistance of counsel. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, ... and to have the assistance of counsel for his defence.” U.S. CONST, amend. VI. Without counsel, the constitutional right to trial “would be of little avail.” United States v. Cronic, 466 U.S. 648, 653, 104 S.Ct. 2039, 2043, 80 L.Ed.2d 657 (1984). The right to counsel “is meant to assure fairness in the adversary criminal process.” United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). While the right to counsel includes the right to effective assistance of counsel, McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 n. 14 (1970), the modern meaning of effective assistance was not enunciated until the seminal case Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). There the Supreme Court set forth a two-part test to be applied to all claims of constitutionally deficient representation. First, a claimant must show that counsel’s representation of him “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. Significantly, however, the Court eschewed any dictation of specific, detailed guidelines (the existence of which “could distract counsel from the overriding mission of vigorous advocacy” of his client’s case, id. at 689, 104 S.Ct. at 2065), stating instead that the performance inquiry must be whether counsel’s assistance was “reasonable considering all the circumstances,” id. at 688, 104 S.Ct. at 2064 (emphasis supplied). Any set of particular rules “would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.” Id. at 689, 104 S.Ct. at 2065. In relevant part, the Court added: Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after a conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. ... There are countless ways to provide assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. ... Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 689, 690, 104 S.Ct. at 2065, 2066 (quotations and citations omitted) (emphasis supplied). Thus, a strong presumption exists that counsel rendered adequate assistance. Yeck v. Goodwin, 985 F.2d 538, 542 (11th Cir.1993); Harich v. Dugger, 844 F.2d 1464, 1469 (11th Cir.1988) (en banc), cert. denied, 489 U.S. 1071, 109 S.Ct. 1355, 103 L.Ed.2d 822 (1989). However, an error by counsel, “even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. The Court added: The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. Id. at 691-92, 104 S.Ct. at 2067 (emphasis supplied). Thus, a defendant must show that particular errors “had an actual effect on the defense,” not merely that the errors had “some conceivable effect on the outcome of the proceeding.” Id. at 693, 104 S.Ct. at 2067. The defendant must show that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” a reasonable probability being “a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. In determining the prejudice component of an ineffectiveness claim, the court must “consider the totality of the evidence before the judge or jury.” Id. at 695,104 S.Ct. at 2069. The court must ask whether the claimant has met the burden of showing that the decision reached by the factfinder “would reasonably likely have been different absent the errors.” Id. at 696, 104 S.Ct. at 2069. However, the Supreme Court recently has categorized as “defective” analyses which focus “solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable.” Lockhart v. Fretwell, — U.S. -,-, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993). Strickland itself recognized that while the “outcome-determinative standard has several strengths,” it is “not quite appropriate,” Strickland, 466 U.S. at 693, 694, 104 S.Ct. at 2067, 2068, and the Court in Lock-hart made it clear that it was merely “straightforward[ly]” applying the “rule of law announced in Strickland,” Lockhart, — U.S. at - n. 3, 113 S.Ct. at 843 n. 3. Furthermore, as opposed to the standard of contemporary assessment to be applied in determining the “conduct” component, the habeas court is not bound by the law existing at the time of trial in its determination of the prejudice element. See id. at -, 113 S.Ct. at 844. “Unreliability or unfairness,” the Supreme Court held, “does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.” Id. Concerns mitigating in favor of contemporary assessment for the “conduct” prong simply are not implicated by the. “prejudice” component of the Strickland test. Id. Although it discussed the conduct/error component before it discussed the prejudice component, the Court in Strickland stated quite clearly that a court need not determine these components in that order. 466 U.S. at 697, 104 S.Ct. at 2069. The object of this inquiry “is not to grade counsel’s performance,” and if it is “easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id. See also Bolender v. Singletary, 16 F.3d 1547, 1560 n. 17 (11th Cir.1994) (court deciding ineffective assistance claim may elect to address either performance or prejudice prong first). As to the standard of precedence to be given any state court conclusions on effective assistance, only findings of fact made in the course of a state court’s evaluation of an ineffectiveness claim are to be given deference. Whether there is ineffective assistance of counsel, however, is a mixed question of law and fact. McCoy v. Newsome, 953 F.2d 1252, 1262 (11th Cir.), cert. denied, — U.S.-, 112 S.Ct. 2283, 119 L.Ed.2d 208 (1992). Thus, a state court’s ultimate f