Full opinion text
MEMORANDUM AND ORDER ALLEN SHARP, Chief Judge. Nearly seventeen years after committing the crime for which he was found guilty and sentenced to death, and after an abundance of state and federal review, the petitioner, Gary Burris (“Burris”), now returns to this court for the third time pursuant to a petition for writ of habeas corpus under 28 U.S.C. § 2254. The petition now before this court is Burris’s second § 2254 petition and was originally filed on November 14, 1995. This second petition has already taken one extended tour of the Seventh Federal Circuit. Now, pursuant to the order of the United States Court of Appeals for the Seventh Circuit dated September 12, 1996, see Burris v. Parke, 95 F.3d 465 (7th Cir.1996), this court is required to address the merits of Burris’s second federal habeas petition. In furtherance of the Seventh Circuit’s mandate, this court held oral argument on this petition in Lafayette, Indiana, on November 18, 1996. This memorandum will follow up on the proceedings held in open court in Lafayette on November 18 and deal with the issues that were there presented. I. FACTUAL BACKGROUND The facts underlying Burris’s death sentence now before the court were succinctly summarized by the Supreme Court of Indiana on direct appeal of his felony murder conviction and first death sentence. The Supreme Court of Indiana found the facts underlying Burris’s guilt to be as follows: The evidence most favorable to the State reveals that on the morning of January 29, 1980, Gwen Tevebaugh and her neighbor, Calvin Howard, discovered the body of a dead man in an alley in the 3200 block of East Fall Creek Parkway in Indianapolis. Tevebaugh had been awakened earlier that morning by a noise and then heard what she clearly knew to be a gunshot. Tevebaugh was not able to see anything because of the darkness but she noted the time of 2:23 on her clock. After Mr. Howard phoned the police, Sergeant Donald Campbell and Officer Jon Layton received the dispatch on the homicide. Upon arriving at the alley, the two men discovered the body, nude except for a pair of socks, lying face down and stuck to the ground by a pool of its frozen blood. Identification found at the scene showed that the deceased was Kenneth W. Chambers, age 31. The police also noticed what appeared to be a small caliber gunshot wound to the right temple. Elizabeth Gardner, a dispatcher for the Northside Cab Company, identified Chambers as a driver for the company. Chambers drove Cab 305. On the morning of January 29, 1980, both Chambers and Gardner were working. Around 1:30 a.m. Gardner received a call for a cab to pick up fares at the 1800 block of North College. Gardner put a request out for a cab and Chambers responded that he would take the call. Both parties stipulated that a call to Northside Cab was received at 1:48 a.m. for transportation from 1821 North College to 1501 East 38th and that this call was assigned to Cab 305. The call was made by a person identified as “Williams.” 1821 North College is the address of the M & J Social Club where Thelma Williams was employed as a barmaid. Williams testified that she telephoned the cab company at the request of defendant Burris. Williams said she knew the defendant and stated he usually ran around with two other men, named “Emmet” and “James.” As Williams recalled, Emmet was with Burris at the M & J Social Club on the morning of the murder. Williams assumed the cab arrived within fifteen minutes of her call because Burris left at that time. Carol Wilkins was another witness called by the State. At the time of the murder, Carol Wilkins was living at 1827 North College above the M & J Social Club. Carol stated that defendant Burris rented the apartment and that he was dating her sister, Debra Wilkins. On January 28, the day before the murder, the defendant arrived at the apartment around 5:40 p.m. Carol testified that James Thompson and Emmet Merriweather joined the defendant. Burris had told Carol that he had a deadline to pay $230 back rent and telephone bills. That evening when Burris left the apartment, he put a .38 pistol in his pocket. Carol identified State’s Exhibit 16 as being similar to the .38 pistol. Later, Burris, Merriweather, and Thompson returned to the apartment. Burris was carrying a clipboard with a paper on it, which he tossed on the bed. Carol had ridden in taxicabs before and recognized the paper on the clipboard as a cab driver’s run sheet. The defendant burned the run sheet and flushed the remains down the toilet. Merriweather and the defendant then had a dispute over a gun. The defendant wanted to give Merriweather the gun but Merriweather refused to take it. The defendant kept the gun. Carol also saw that the defendant had quite a bit of money. There were two wads of money, big enough to create a noticeable bulge in both of the defendant’s front pockets. Carol later heard about the cab driver who had been shot and she put the pieces together. After some police investigation, Emmet Merriweather and James Thompson were arrested in connection with the death of Chambers. Both men, along with other sources, informed the police that the defendant was with them at the time of the murder. Acting upon information that defendant Burris was at Debra Wilkins’ apartment and planned to leave town, the police moved quickly and arrested Burris at 2035 North Meridian in Indianapolis. A search of the apartment revealed that a sawed-off shotgun and a .38 pistol were hidden in a stereo speaker. A member of the Indianapolis Police Department Crime Lab testified that the .38 pistol was used to kill Chambers. This witness, during the penalty phase of the trial, also testified that the pull of the pistol’s trigger made it a little harder to shoot than an average weapon. The gun had no observable mechanical defect and did not exhibit any propensity for accidental discharge. A pathologist, Dr. Robert Ransburg, testified that the body had a gunshot entrance wound in the right temple. Dr. Ransburg stated that the wound was a “contact wound.” By this he meant that the muzzle of the gun would have had to have been held against the temple to create such a wound. Other forensic specialists testified that the victim’s blood type and the bloodstain on the recovered .38 pistol were both type A. One of the chief witnesses for the prosecution was William Allen Kirby. Kirby had shared a cell with defendant Burris in the Marion County Jail where the defendant admitted his involvement and culpability in the murder. Kirby agreed to testify against the defendant and recounted the defendant’s story as follows: The defendant and his friends were in need of money. They entered a dance contest but failed to win anything. They took a cab to the “M & L Club” (Kirby said he was not sure “M & J Social Club” was what the defendant said but he knew the name was alphabetical) and on the way to the club, the defendant saw an envelope containing money on the front seat of the cab. Kirby asked why the men did not take the money at that time. The defendant replied they were not prepared to do so because they did not have their “roscoes” (pistols). Inside the “M & J Social Club” the defendant said to his friends that he was ready to get some “paper” (money). Defendant Burris told his accomplices that he would kill during the robbery if that would keep him out of prison. Burris went up to his apartment, picked up a pistol, and had Thelma Williams call for a cab. After the cab arrived, the defendant and the other two men told the driver to proceed to 21st and Alvord. -After proceeding only a couple of blocks on 21st, the three men drew their pistols, forced the driver to call in that his run was completed, and ordered the driver into the back seat. The cab was driven to an alley off 34th Street where the cab driver’s clothes were thrown out. Then, in an alley between Guilford and Fall Creek Parkway, the driver was forced out of the cab. The driver pleaded for his life, saying, “Man, take the money, take the cab, leave me alone, I’m not going to bust you, you know, I’m a street fellow, too.” This plea for mercy had no effect on the defendant. The victim’s hands were bound and then the defendant shot Chambers in the head. The defendant told Kirby he used .38 hollow point shells because he thought they would explode on impact and thus leave nothing that could be identified through ballistics. Burris v. State, 465 N.E.2d 171, 175-77 (Ind.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809 (1985). II. PROCEDURAL HISTORY As Justice Fortas once wrote, “a habeas corpus proceeding must not be allowed to founder in a ‘procedural morass.’ ” Harris v. Nelson, 394 U.S. 286, 291, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969) (quoting Price v. Johnston, 334 U.S. 266, 269, 68 S.Ct. 1049, 1052, 92 L.Ed. 1356 (1948)). Upon review of the extensive record in this case, it appears that Justice Fortas’s admonition has not been adhered to. This case began in late January 1980 when Burris was arrested for the murder of Kenneth Chambers, an African-American taxi driver from Indianapolis, Indiana. The State of Indiana sought the death penalty in Burris’s case because the murder was an intentional killing committed in the course of a robbery. See Ind.Code §§ 35-50-2-9(a), (b)(1)(G). On December 4, 1980, a jury in the Superior Court of Marion County convicted Burris for the felony murder of Kenneth Chambers. The following day, the same jury recommended that Burris receive the death penalty for his crimes. On February 20, 1981, Judge John Tranberg agreed with the jury’s recommendation and sentenced Bums to death. Burris’s conviction and sentence were affirmed by the Supreme Court of Indiana on June 22, 1984, and the Supreme Court of the United States denied Burris’s petition for writ of certiorari on January 7,1985. After failing on his direct appeal, Burris filed a petition for post-conviction relief (“PCR”) in the Marion County Superior Court. On May 30, 1986, Judge Roy Jones, acting as special judge, denied Burris’s PCR petition. Burris then appealed this decision directly to the Supreme Court of Indiana. On August 24, 1990, the Supreme Court of Indiana affirmed the denial of Burris’s PCR petition as to the determination of guilt. However, in a 3-2 decision, the Supreme Court reversed the post-conviction court’s finding that Burris was not denied the effective assistance of counsel at the penalty phase of his trial and remanded the case to the trial court for a new sentencing trial. Burris v. State, 558 N.E.2d at 1076-77. It is this decision which bifurcated Burris’s conviction from his sentence, and the point when the petitioner’s claims began the trek into the “judicial morass.” The court will first address the procedural background of Burris’s conviction. On December 20, 1992, Burris first sought federal review of his felony murder conviction in this court. He filed this first habeas petition even though the direct appeal challenging his second death sentence was still pending before the Supreme Court of Indiana. For the first habeas petition, David Vandercoy, a professor at Valparaiso University School of Law, was appointed as counsel for Burris. Both Burris and Professor Vandercoy were well aware that issues affecting Burris’s second death sentence had not yet been exhausted, but the decision was made to confine Burris’s first habeas petition to claims affecting only his conviction. On January 27, 1994, after careful and extensive consideration, this court denied Burris’s first habeas petition on the merits. Burris v. Farley, 845 F.Supp. 636 (N.D.Ind.1994). On March 28, 1995, the United States Court of Appeals for the Seventh Circuit, speaking through Circuit Judge Easterbrook, affirmed this court’s denial of Burris’s first habeas petition. Burns v. Farley, 51 F.3d 655 (7th Cir.1995). Burris did not seek a writ of certiorari on his first habeas petition. The procedural history of Burris’s sentence after the Supreme Court of Indiana’s remand to the state trial court began when a completely new jury was empaneled for the second sentencing trial in the Marion County Superior Court. After hearing the evidence presented during the second sentencing trial, this jury was unable to reach a unanimous sentencing recommendation and, consequently, was discharged by Judge Patricia J. Gifford. Judge Gifford then sentenced Burris to death for the second time on November 22, 1991. Burris again took a direct appeal of his second death sentence to the Supreme Court of Indiana. This time, on November 4, 1994, the Supreme Court affirmed Judge Gifford’s decision to sentence Burris to death. Burris v. State, 642 N.E.2d 961 (Ind.1994). Subsequently, the Supreme Court of the United States denied Burris’s petition for writ of certiorari. Burris v. Indiana, -U.S. -, 116 S.Ct. 319, 133 L.Ed.2d 221 (1995). On June 14, 1995, the Marion County Superior Court set Burris’s execution date for July 19, 1995. However on June 16, 1995, Burris filed with the state trial court a notice of intent to file a new PCR petition to challenge, for the first time, aspects of his second death sentence. On June 30, 1995, the state trial court held that any PCR petition filed by Burris would be considered a successive petition that must be first tendered to the Supreme Court of Indiana pursuant to Rule 1, Section 12 of the Indiana Rules of Procedure for Post-Conviction Remedies. Also on June 30, the Marion County Superior Court stayed the July 19 execution date. On July 27, 1995, the Supreme Court of Indiana held that the state trial court correctly determined that any PCR petition that Burris intended to file would be successive. However, the Supreme Court also held that the state trial court lacked jurisdiction to stay Burris’s execution. As a result, the Supreme Court vacated the stay, and ordered that another execution date be set by the state trial court. Judge Gifford subsequently set September 13, 1995, as the new date for Burris’s execution. On August 22, 1995, at Burris’s request, the Supreme Court of Indiana vacated the September 13 execution date and granted the petitioner until September 30, 1995, to file a successive PCR petition. In such a petition, Burris was required to state with particularity the issues and evidence which would establish that a successive PCR proceeding was warranted. On September 29, 1995, by counsel acting pro bono, Burris filed his “successive” PCR petition. However, the PCR petition was denied by the Supreme Court of Indiana on October 19, 1995. Subsequently, the state trial court set November 29, 1995, as the new execution date. On October 26, 1995, Burris requested the Supreme Court of Indiana to stay the execution date pending the filing of his second habeas petition in federal court. However, the Supreme Court denied this request. As a result, Burris filed his second petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 14, 1995 — little more than two weeks before the scheduled execution date. In this second petition (the petition that is now before the court), Burris raises six separate constitutional challenges to his second death sentence. The State of Indiana responded to that petition by asserting the affirmative defense of abuse of the writ. On November 20, 1995, this court dismissed Burris’s second petition as an abuse of the writ. Bums appealed that decision to the United States Court of Appeals for the Seventh Circuit. The panel of the Seventh Circuit assigned to the Burris case affirmed this court’s dismissal of the second petition, with Senior Circuit Judge Cudahy dissenting. Burris v. Parke, 72 F.3d 47 (7th Cir.1995) (per curiam). However, shortly before Burris was due to be executed, the Seventh Circuit granted the petitioner a stay of execution and decided to hear the ease en bane. On December 19, 1995, oral argument was heard on this case en bane. Before the Seventh Circuit rendered a decision on the appeal, the President of the United States, on April 24, 1996, signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (“AEDPA”), which contains provisions that amend the scope of federal habeas corpus for prisoners generally and inmates sentenced to death row in particular. Consequently, the Seventh Circuit ordered that the case be reheard again in order to consider how the passage of the AEDPA affected Burris’s petition. On September 12, 1996, the Seventh Circuit, in an opinion authored by Chief Circuit Judge Posner, reversed this court’s decision, holding that the State of Indiana waived its abuse of the writ defense in the first petition. Burris v. Parke, 95 F.3d 465 (7th Cir.1996) (en bane) (Manion, J. and Kanne, J., concurring). Specifically, the Seventh Circuit held that § 106(b)(2) of the AEDPA (amending 28 U.S.C. § 2244(b)(2) which deals with the filing of successive habeas petitions) was not to be applied retroactively to Burris’s second petition. Id. at 469. Thus, applying the law as it existed prior to the AEDPA, the court found that Burris had been “mousetrapped” in the first petition since this court and the State of Indiana neglected to inform him during oral argument of the implications of proceeding solely on the determination of his guilt without waiting for the death sentence claims to be fully exhausted in the courts of the State of Indiana. Id. at 469-70. The court held: We are mindful that abuse of the writ is an affirmative defense and that, technically speaking, the pleading of the defense is premature until a second petition is filed; for it is a defense to the second petition, not to the first. But we must be realistic about the circumstances in which the state declined to mention the possibility of such a defense. For page after page of transcript the district judge and the lawyers discussed the ripeness (exhaustion of state remedies) and merits of the petition. The judge was an active participant, displaying his extensive knowledge of habeas corpus jurisprudence. The state urged him to decide the petition on the merits then and there. Everyone knew that Burris had been resentenced to death and that his appeal was pending. Yet no one saw fit to warn Burris of the possible consequences. No one suggested that maybe the district judge should stay action on the petition until, state remedies exhausted, Burris could add a challenge to his new sentence. Silence can mislead, and when it does it is treated as speech. We think that in the circumstances the state’s silence concerning the implications of an immediate decision on the petition was tantamount to a statement that for the sake of a prompt decision on the merits of Burris’s challenge to his conviction the state would forgo the defense of abuse of the writ should he file a subsequent petition limited to the sentence. Id. at 470. In essence, the Seventh Circuit held that the State waived its affirmative defense even before it was possible and proper to raise it in the second habeas petition. Accordingly, the Seventh Circuit remanded Burris’s second habeas petition to this court for a determination on the merits. Id. On September 19, 1996, this court ordered the parties to submit supplemental briefs following the Seventh Circuit’s decision. The petitioner, by counsel, filed his supplemental memorandum on October 21, 1996. The respondent, by the Indiana Attorney General, filed his supplemental brief .on November 12, 1996. On November 18, 1996, consistent with the Seventh Circuit’s remand order, this court heard oral argument on the merits of Burris’s second habeas petition in Lafayette, Indiana. In this petition, the petitioner raises six separate constitutional challenges. First, he claims that his counsel during the second sentencing trial — court appointed Indianapolis attorneys Michael R. Fisher and R. Mark Inman — -were ineffective because they failed to adequately investigate and introduce mitigating evidence which they allegedly possessed at the time of the second sentencing trial. Second, the petitioner alleges that both sentencing counsel and counsel on appeal — Mr. Inman and court appointed Indianapolis attorney Nancy L. Broyles — were ineffective when they either failed to object to, to preserve for appeal and to present on appeal six separate grounds for relief. Third, Burris claims that the state trial court violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution by allowing the State to introduce, and the jury to consider, evidence pertaining to an improper, non-statutory aggravating circumstance — -victim impact evidence. Fourth, Burris argues that Indiana’s death penalty statute fails to narrow the class of death penalty-eligible defendants, making his second death sentence arbitrary and capricious under the Eighth and Fourteenth Amendments. Fifth, he claims that the Indiana death penalty statute as applied in this case is unconstitutional because the sole aggravating factor alleged by the State also functioned as an element of the crime and, thus, required a jury determination. Sixth, Burris argues that the state trial court violated the Eighth and Fourteenth Amendments by improperly overruling his objection to a jury instruction that erroneously informed the jurors that, if they did not recommend the death penalty, the state trial court was mandated to sentence Burris to a term of years in prison. Additionally, the petitioner argues that he is entitled to receive an evidentiary hearing on his claims that sentencing and appellate counsel were constitutionally ineffective because he did not receive a full and fair opportunity to present evidence on these claims in his state court petition for post-conviction relief. In conjunction with this request, Burris also moves the court to appoint a neuropsychologist, pursuant to 21 U.S.C. § 848(q)(9) and (10), to examine him in order to develop his claim that he suffers from brain dysfunction or other neurocognitive defect. Because the Seventh Circuit has decided that the petition before the court is a successive petition which does not abuse the writ under pre-AEDPA standards, this court must now address the standards of review which are applicable to the merits of this petition following the enactment of the AED-PA. III. STANDARDS OF REVIEW In order to keep the nature of habeas corpus in the United States courts in proper perspective, all concerned are referred to this court’s memorandum and order in Smith v. Farley, 873 F.Supp. 1199, 1203-05 (N.D.Ind.1994), which briefly traces the origins of habeas corpus jurisprudence in the United States. A claim under 28 U.S.C. § 2254 requires the federal habeas court to ensure that the state criminal conviction was not achieved at the expense of the petitioner’s constitutional rights. Justice Stewart, speaking for the Supreme Court of the United States in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), described the role of the federal district courts in habeas proceedings: A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress .in § 2254 has .selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal habeas corpus court to appraise a claim that constitutional error did occur— reflecting as it does the belief that the “finality” of a deprivation of liberty through the invocation of the criminal sanction is simply hot to be achieved at' the expense of a constitutional right — is not one that can be so lightly abjured. Id. at 323, 99 S.Ct. at 2791 (citation omitted). The Congress of the United States has recently codified the holdings of Jackson and its progeny through the AEDPA, which amended 28 U.S.C. § 2254, in relevant part, as follows: In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant .to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). When Congress passed the AEDPA, the standards of review that the court must apply to the merits of a petition for writ of habeas corpus under § 2254 also changed significantly. Section 2254 was further amended in pertinent part: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). In Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996), the Seventh Circuit, speaking through Circuit Judge Easterbrook, held that § 2254(d), as amended, should be applied to petitions pending when the AEDPA was enacted. The Seventh Circuit found that “[t]he 1996 Act does not ‘impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.’ ” Id. at 867 (quoting Landgraf v. USI Film Products, 511 U.S. 244, 280-81, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994)). Burris argues that based upon the unique factual background of this case, coupled with an analysis of Lindh, the court must apply a de novo standard of review on his ineffective assistance of counsel claims. He contends that the Supreme Court of Indiana denied him an opportunity to litigate fully his ineffective assistance claims during post-conviction review in the state courts, as required by Lindh. See 96 F.3d at 871. Further, he claims that said failure to litigate the claims in the state courts was through no fault of his own. In addition, the petitioner claims that the decision by Supreme Court of Indiana not to allow him to file a PCR petition on the second sentencing trial cannot be considered a careful and well-reasoned opinion requiring deference by this court — again, requiring this court to review the ineffective assistance claims de novo. See Id. at 877. The State contends that the court should reject Burris’s argument for de novo review. The respondent argues that the Supreme Court of Indiana reviewed Burris’s PCR petition, the affidavits attached thereto, its own three prior opinions in this case, and the various orders which it had issued before deciding that Burris’s PCR petition on the second sentencing trial was successive under Indiana law. Thus, the respondent requests that the court analyze Burris’s ineffective assistance claims under the amended standards of § 2254(d). The decision at issue here is the October 19, 1995, ruling of the Supreme Court of Indiana that denied Burris’s PCR petition on the second sentencing trial as a successive petition under Indiana Post-Conviction Rule 1 § 12. In that order, the Supreme Court of Indiana, speaking through Chief Justice Shepard, held: Burris now claims his counsel was ineffective in connection with his sentencing, primarily because certain facts were not presented as part of his mitigation strategy. He asserts these facts should be considered in a successive post-conviction proceeding. The Court has reviewed these claims and the materials submitted in support of them. Though pled as an ineffective assistance claim, Burris’s contentions are essentially an assault on the adequacy of the mitigating evidence submitted on his behalf, an issue we have already examined twice. We find that these claims are either barred by the doctrine of res judicata or otherwise barred by the Indiana Rules of Procedure for Post-Conviction Relief. Burris v. State, No. 49S00-9509-SD-1112, at 1-2 (Ind. Oct. 19, 1995). This court must review the above-referenced order of the Supreme Court of Indiana to determine whether it can be considered a careful and well-reasoned opinion requiring deference under Lindh, 96 F.3d at 877. In Lindh, the Seventh Circuit found that the opinion of the Supreme Court of Wisconsin on petitioner Lindh’s appeal was carefully entered because the opinion correctly stated the holdings of precedential decisions from the Supreme Court of the United States and did not transgress any clearly established principles. Id. Thus, the Seventh Circuit found that the decision of the Supreme Court of Wisconsin was entitled to deference. Id. In this case, the court finds that the October 19, 1995, decision of the Supreme Court of Indiana cannot be considered a careful and well-reasoned opinion requiring deference under § 2254(d). As the respondent noted in his brief, the post-conviction process in Indiana “is not a substitute for a direct appeal, but is a process for raising issues not known at the time of the original trial or for some reason not available to the defendant at that time,” citing Wallace v. State, 553 N.E.2d 456, 458 (Ind.1990), cert. denied, 500 U.S. 948, 111 S.Ct. 2250, 114 L.Ed.2d 491 (1991). A review of the lengthy record in this case establishes that the PCR petition which was denied as successive by the Supreme Court of Indiana was in fact the first such petition challenging certain aspects of Burris’s second death sentence. It cannot be disputed that Burris has time and again challenged the sufficiency of the mitigating evidence presented on his behalf. However, in the PCR petition, Burris was for the first time attempting to challenge the effectiveness of his counsel in the second sentencing trial and subsequent appeal. Further, it would have been impossible for Burris to raise his ineffective assistance of counsel claims on direct appeal of his second death sentence for two reasons. First, Burris’s sentencing counsel and appellate counsel were, in part, the same attorney. Second, Burris claims not only that his sentencing counsel were ineffective but also that counsel on appeal violated his Sixth Amendment rights by failing to present several grounds for review on direct appeal. Additionally, unlike the decision of the Supreme Court of Wisconsin in Lindh, which clearly delineated the applicable law on the issues presented in Lindh’s appeal, the Supreme Court of Indiana did not even address Burris’s ineffective assistance claims for what they were: allegations that counsel violated his rights under the Sixth Amendment to the United States Constitution. Therefore, the court finds that the October 19, 1995, decision of the Supreme Court of Indiana is not entitled to deference under § 2254(d), and the court will review de novo Burris’s claims of ineffective assistance of counsel under the Sixth Amendment. As for the remaining claims that were raised for the first time on direct appeal of the second death sentence, Burris argues that such claims simply involve pure questions of law which he contends are still reviewed de novo, citing Lindh, 96 F.3d at 874-75. On the other hand, the State argues that the remaining claims are clearly grounds that were “adjudicated , on the merits in State court proceedings” within the meaning of § 2254(d), as amended. Thus, the State maintains that the remaining claims must be addressed under the narrower standards of the AEDPA. This court does not read Lindh as holding that pure questions of law are reviewed de novo under § 2254(d), as amended. Although federal courts are allowed to express an independent opinion on all legal issues raised in a habeas petition, see Lindh, 96 F.3d at 869, that opinion is limited to the law “as determined by the Supreme Court of the United States.” See 28 U.S.C. § 2254(d)(1). Therefore, labeling the review of purely legal issues as de novo under the new § 2254(d) is a misnomer; for a petitioner now “must be able to point to an authoritative decision of the Supreme Court in order to secure a writ.” Lindh, 96 F.3d at 869. Accordingly, this court will review the remaining claims raised by the petitioner under the standards of § 2254(d), as amended;, that is, the court will independently determine whether the state court’s decision on the merits of such claims is “contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States.” TV. REQUEST FOR EVIDENTIARY HEARING AND EX PARTE MOTION FOR APPOINTMENT OF NEUROPSYCHOLOGIST The court must first address Burris’s request for an evidentiary hearing and ex parte motion for the appointment of a neuropsyehologist pursuant to 21 U.S.C. § 848(q)(9) and (10). The petitioner contends that since he is entitled to receive de novo review of his ineffective assistance of counsel claims, he should be allowed to further develop the facts underlying such claims. Thus, he seeks an evidentiary hearing on those claims in this court, to be held after a neuropsychologist is appointed to examine and test the petitioner to determine whether he suffers from brain dysfunction or other neurocognitive damage. The State argues that the appointment of a neuropsychologist and the holding of an evidentiary hearing are unnecessary in this case. The respondent claims that such events would only serve to further delay the imposition of Burris’s ultimate sentence and, thus, are unnecessary to the resolution of the issues raised in this petition. The respondent argues that the appointment of investigative or expert assistance need not be made unless it is reasonably necessary for the representation of the petitioner. See 21 U.S.C. § 848(q)(9). In addition, under § 2254(e)(2) as amended by the AEDPA, the respondent contends that Burris is not entitled to an evidentiary hearing because he is unable to satisfy the statutory test. Even if the new statute is not applied, the State argues that an evidentiary hearing is unwarranted under pre-AEDPA standards. A. EVIDENTIARY HEARING The court will first address Burris’s request for an evidentiary hearing. Burris claims that he initially attempted to develop his facts concerning the ineffective assistance of counsel claims in the state courts. However, after filing his PCR petition on the second death sentence, the Supreme Court of Indiana summarily rejected the PCR petition, finding that it was a successive petition under Indiana Post-Conviction Rule 1 § 12. See Burris v. State, No. 49S00-9509-SD-1112, at 1-2 (Ind. Oct. 19, 1995). As a result, the petitioner alleges that the decision of the Supreme Court of Indiana made it impossible for him to adequately develop the factual basis of his ineffective assistance claims in the state courts. Therefore, under the principles of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the petitioner argues that he has met the necessary requirements to warrant holding an evidentiary hearing in order to develop the factual basis for his ineffective assistance claims. 1. Pre-AEDPA Standards To fully analyze whether an evidentiary hearing is mandated in this case, it is necessary to address the petitioner’s request under the applicable standards as they existed prior to the signing of the AEDPA on April 24, 1996, as well as the standards of § 2254(e)(2) as amended by the Act. In Townsend v. Sain, supra, the Supreme Court of the United States set forth with particularity the standard a petitioner must fulfill to warrant the holding of an evidentiary hearing on a habeas corpus petition in federal court. The Court held: [A] federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. Townsend, 372 U.S. at 313, 83 S.Ct. at 757 (emphasis supplied). Following Townsend, the Supreme Court of the United States next addressed the issue of evidentiary hearings on habeas corpus petitions in Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). In Keeney, the Supreme Court did not alter the Townsend standard with regard to when an evidentiary hearing is mandated — the Court merely changed the standard that a petitioner must satisfy when the petitioner, himself, caused the failure to adequately develop the facts in the state court. Id. at 6, 112 S.Ct. at 1717- 18. In a case where the failure to adequately develop the factual background rests at the petitioner’s own doorstep, the Court in Keeney overruled Townsend, holding that a “cause and prejudice” standard should be applied rather than the “knowing waiver” or “deliberate bypass” standards set forth in Townsend. Id. at 7-8, 112 S.Ct. at 1718- 19. However, in a case where the failure to adequately develop the facts in state court cannot be blamed on the petitioner, the Townsend factors are still the pre-AEDPA standard. Applying the Townsend factors to this case, it appears that the petitioner can satisfy his burden which would mandate this court to hold the requested evidentiary hearing. Burris alleges that he did not receive a full and fair hearing in the state courts, and that the failure to develop the ineffective assistance claims in state court was not a result of his own negligence. Thus, it appears that Burris attempts to meet the Townsend test by pleading compliance with factor (3) (that the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing) and factor (6) (that for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing). At the state court level, ■ the Supreme Court of Indiana dismissed Burris’s attempt to challenge the effectiveness of his sentencing and appellate counsel on his second death sentence without allowing for discovery or holding an evidentiary hearing. See Burris v. State, No. 49S00-9509-SD-1112, at 1-2 (Ind. Oct. 19, 1995). The Supreme Court of Indiana held that Burris had already challenged the sufficiency of the mitigating evidence presented in his second sentencing trial on direct appeal and during post-conviction review of his underlying conviction; therefore, a hearing on his ineffective assistance claims was unnecessary. Id. The Seventh Circuit has held that upholding the failure of a state court to provide a petitioner with a full and fair hearing would reward that state court for its denial of due process. See Bracy v. Gramley, 81 F.3d 684, 693 (7th Cir.), petition for cert. filed (Sept. 23, 1996). In this case, the court finds that the courts of the State of Indiana failed to provide Burris with a full and fair hearing on his ineffective assistance claims. Thus, under the pre-AEDPA standards of Townsend and Keeney, because the Supreme Court of Indiana dismissed Burris’s PCR petition as successive without allowing for discovery, holding an evidentiary hearing or addressing the merits of Burris’s ineffective assistance claims which were before the court in the first instance, it would appear that this court would be mandated to hold the requested evidentiary hearing. 2. Standards of Section 2254(e)(2) as amended by the AEDPA With the passage of the AEDPA, the rules governing the holding of evidentiary hearings on habeas corpus petitions in the federal courts changed dramatically. Accordingly, this court must first address whether the petitioner’s request for an evidentiary hearing should be addressed under the new standards of § 2254(e)(2). Second, if the new standards are applicable, this court must determine whether the petitioner can satisfy the new standards. The AEDPA amended § 2254 in pertinent part as follows: (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings,, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. , 28 U.S.C. § 2254(e)(2). The first question that must be answered is whether § 2254(e)(2), as amended, should apply to eases that were pending on the date the AEDPA was enacted. In Lindh, supra, the Seventh Circuit, in finding that § 2254(d) should be applied retroactively, implied that all of the amendments to § 2254 contained in § 104 of the AEDPA should apply to cases pending on the date of enactment. Lindh, 96 F.3d at 867. The court found that retroactive application of the AEDPA does not “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Id. However, because the Seventh Circuit did not explicitly hold that § 2254(e)(2) should be applied to cases pending on April 24, 1996, this court must analyze that section under the decision of the Supreme Court of the United States in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). In Landgraf, the Supreme Court set forth the sequence of issues that must be addressed to determine whether a newly enacted statute should be applied to cases which were pending on the date of enactment. First, it must be determined whether Congress has decided to which eases a new law applies; “if it has, the only task is to follow the statute.” Lindh, 96 F.3d at 861. If Congress has not addressed that issue, then the court must apply the law in effect at the time of the decision — in this case § 2254(e)(2) as amended — unless “the new provision attaches new legal consequences to events completed before its enactment.” Id. (quoting Landgraf 511 U.S. at 269, 114 S.Ct. at 1499). In Landgraf, the Supreme Court specifically addressed the issue of applying procedural rules to cases pending when a new statute is enacted: Changes in procedural rules may often be applied in suits arising before their enactment without raising concerns about retro-activity. For example, in Ex Parte Collett, 337 U.S. 55, 71, 69 S.Ct. 944, 952-53, 93 L.Ed. 1207 (1949), we held that 28 U.S.C. § 1404(a) governed the transfer of an action instituted prior to that statute’s enactment. We noted the diminished reliance interests in matters of procedure. Id., at 71, 69 S.Ct., at 952-53. Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive. Cf. McBurney v. Carson, 99 U.S. 567, 569, 25 L.Ed. 378 (1879). 511 U.S. at 275, 114 S.Ct. at 1502. The issue of procedural rules is relevant to the discussion of § 2254(e)(2) because it is well settled that the decision whether or not to hold an evidentiary hearing is an issue that is procedural rather than substantive in nature. See Pittman v. Warden, Pontiac Correctional Ctr., 960 F.2d 688, 690 (7th Cir.) (finding that before beginning substantive analysis of petitioner’s habeas petition, it was necessary for court to address the denial of petitioner’s request for evidentiary hearing), cert. denied, 506 U.S. 880, 113 S.Ct. 229, 121 L.Ed.2d 165 (1992); see also, Mars Steel Corp. v. Continental Illinois Nat’l Bank and Trust Co. of Chicago, 834 F.2d 677, 683 (7th Cir.1987) (stating that issue of holding evidentiary hearing was included in a “variety of procedural rulings challenged”). Therefore, because the issue whether an evidentiary hearing should be held on.a habeas petition is procedural in nature, application of the new § 2254(e)(2) will not attach any new legal consequences to this petition; for the decision to hold an evidentiary hearing will not, by itself, affect any of this court’s legal conclusions with respect to the grounds for review presented in Burris’s second habeas petition. As a result, following the Seventh Circuit’s holding in Lindh, because the procedural decision whether or not to hold an evidentiary hearing under § 2254(e)(2) does not attach new legal consequences to events completed before its enactment, the court must apply the amended standards of § 2254(e)(2) to Burris’s request for an evidentiary hearing rather than the pre-AEDPA Townsend standards. With respect to his request for an evidentiary hearing under § 2254(e)(2), the petitioner argues that the new standards of § 2254(e)(2) are merely a codification of the decision of the Supreme Court of the United States in Keeney v. Tamayo-Reyes, supra—that an evidentiary hearing shall not be granted if the petitioner fails to develop the facts of his claim in the state court and fails to show cause and prejudice to excuse such failure. 504 U.S. at 8-11, 112 S.Ct. at 1719-21. In support of this contention, the petitioner cites to four unpublished United States District Court opinions. See Silva v. Calderon, No. CV 90-3311 DT (C.D.Cal. June 26, 1996); Douglas v. Calderon, No. CV 91-3055 RSWL (C.D.Cal. June 11, 1996); Bean v. Calderon, No. CIV S-90-0648 WBS/GGH (E.D.Cal. May 15, 1996); Wilkins v. Bowersox, 933 F.Supp. 1496 (W.D.Mo.1996). Burris contends that since his own negligence was not the cause for the failure to develop the facts underlying his ineffective assistance claims in the state courts, the holding of Keeney does not apply and, consequently, § 2254(e)(2) should not control in this ease. After careful review of this argument, the court finds that it cannot agree with the petitioner’s reading that § 2254(e)(2) is merely a codification of the Supreme Court’s holding in Keeney. To identify the proper scope of § 2254(e)(2), it is necessary to analyze the wording of the statute itself. The section begins by stating, “[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless----” 28 U.S.C. § 2254(e)(2) (emphasis supplied). The court notes that this phrase can best be described as vague and unclear. However, the key to this section is how the phrase “the applicant has failed to develop” should be interpreted by this court. The petitioner contends that the phrase “the applicant has failed to develop” is a merely a codification of Keeney — i.e., that the section applies only if the failure to develop facts in the state court was the petitioner’s fault. However, this court reads the opening phrase of § 2254(e)(2) in accord with Magistrate Judge Hollows of the Eastern District of California, who stated “the ‘fail to develop’ language applies to the non-development of any claim in state proceedings regardless of the fault of the petitioner in not developing the claim which is then in turn subject to two stated exceptions.” Bean v. Calderon, No. CIV S-90-0648 WBS/GGH, at 8 (E.D.Cal. May 15, 1996) (emphasis supplied). A review of § 2254(e)(2)(A) establishes that Congress intended to except from the mandate against holding an evidentiary hearing two scenarios: (i) where the claim is based on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; and (ii) where the petitioner could not have previously discovered the factual predicate of the claim through the exercise of due diligence. The latter scenario, thus, allows a petitioner to comply with § 2254(e)(2)(A) if the failure to develop the facts in the state courts was not due to the petitioner’s own negligence. Accordingly, it would be incongruous to require a petitioner to demonstrate that the facts sought to be introduced at an evidentiary hearing could not have been obtained previously through the exercise of his own due diligence if the section applied only to those scenarios where the facts were not developed in the state court due to the petitioner’s own negligence. As a result, the opening phrase must be read to include any non-development of the facts in the state court, for any other reading would make the second prong of § 2254(e)(2)(A) mere surplusage. Accordingly, the court finds that § 2254(e)(2) applies to the petitioner’s request for an evidentiary hearing in this case. 3. Application of Section 2254(e)(2) Following the plain meaning of the statute, this court is not to hold an evidentiary hearing unless Burris can meet the two-prong test of subsections (A) and (B). First, Burris must establish that the failure to develop facts in the state court was based upon either (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court of the United States, that was previously unavailable, or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence. In this case, it is clear that Burris can satisfy the second prong. As discussed above, Burris was not provided an opportunity to develop his ineffective assistance claims in the state court because the Supreme Court of Indiana “lumped” said claims together with his previous challenges to the sufficiency of the mitigation evidence presented. Therefore, the .court finds that Burris was diligent in his attempt to develop the facts underlying his ineffective assistance claims in the state courts, however, he was denied such an opportunity by the Supreme Court of Indiana. Aside from showing cause for the failure to develop facts in the state court, Burris must also show “that the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). A strict read of this subsection automatically precludes Burris from receiving an evidentiary hearing because Burris’s guilt has already been conclusively determined in the state courts and through his first federal habeas petition. Thus, it would be impossible for Burris to establish that no reasonable factfinder would have found him guilty of the underlying offense; for it is undisputed that Burris is guilty of the underlying felony murder. Nevertheless, under the unusual circumstances of this ease, it would be inequitable to apply a strict interpretation of this statute. Accordingly, it is this court’s opinion that Burris must instead prove that the facts underlying his claims would be sufficient to establish by clear and convincing evidence that but for constitutional error— here, a Sixth Amendment violation — no reasonable factfinder would have recommended the death penalty for Burris in this case. This court has before it the entire record of Burris’s second sentencing trial — a record which consists of 2,440 pages of transcript in ten (10) separate volumes. In addition, the court has reviewed the exhibits filed by the petitioner, specifically the affidavits of several psychologists and one of the attorneys whose very effectiveness is challenged in this petition — R. Mark Inman — in which Inman explains the reasoning behind counsel’s actions both in the sentencing trial and on appeal. The Seventh Circuit has held that with regard to evidentiary hearings on habeas petitions, in-person testimony is unnecessary where the court has before it the affidavits of probable witnesses because the affidavits represent the most favorable version of a petitioner’s arguments. See Kavanagh v. Berge, 73 F.3d 733, 737 (7th Cir.1996). For these reasons, and the reasons set forth in Section V below, the court finds that Burris cannot establish that the facts underlying his ineffective assistance claims would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have recommended the death penalty. As a result, the court now denies Burris’s request for an evidentiary hearing. B. MOTION FOR APPOINTMENT OF NEUROPSYCHOLOGIST The petitioner also has requested that the court appoint a neuropsychologist, pursuant to 21 U.S.C. § 848(q)(9), to examine Bums in order to folly develop the factual background of his ineffective assistance claims. Section 848(q)(9) states in relevant part: Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefore, under paragraph (10). 21 U.S.C. § 848(q)(9) (emphasis supplied). The petitioner argues that the appointment of a neuropsychologist to examine and test him is necessary to determine whether he suffers from brain dysfunction or other neuroeognitive defects. The court interprets Burris’s ineffective assistance claims as alleging that counsel was ineffective because they failed to adequately investigate whether Burris suffered from brain dysfunction and to introduce evidence of brain dysfunction at the second sentencing trial. With regard to the allegation that counsel failed to introduce evidence, it does not appear that an expert is reasonably necessary since the evidence must have already been in existence at the time of trial. As for the claim that counsel faded to properly investigate the evidence, the question is not so much whether Burris actually suffers from brain dysfunction as it is whether counsel failed to properly investigate whether such evidence existed at the time of trial. Further, as stated above, this court found that Burris is not entitled to an evidentiary hearing on his ineffective assistance claims. In addition, the United States Court of Appeals for the Fourth Circuit has held that there is no need to appoint' an expert under § 848(q)(9) if the petitioner’s petition does not raise claims which entitle him to an evidentiary hearing at which the expert could present evidence on the petitioner’s condition. Lawson v. Dixon, 3 F.3d 743, 752 (4th Cir.1993), cert. denied, 510 U.S. 1171, 114 S.Ct. 1208, 127 L.Ed.2d 556 (1994). Therefore, the court finds that there is no “reasonable necessity” for the appointment of a neuropsychologist in this ease. Consequently, the court will now address the merits of the claims raised in Burris’s petition. V. INEFFECTIVE ASSISTANCE OF SENTENCING COUNSEL The grounds for review raised by Burris in this petition can be broken down into two groups: (1) those issues raised for the first time in his PCR petition; and (2) those issues raised on direct appeal of his second death sentence. The court will first address the issues raised initially in Burris’s PCR petition. Burris first claims that his sentencing counsel — attorneys R. Mark Inman and Michael R. Fisher — failed to adequately investigate and introduce available mitigation evidence which counsel allegedly possessed at the time of the second sentencing trial, violating his rights under the Sixth Amendment to the United States Constitution. Specifically, Burris alleges that his sentencing counsel were ineffective because they failed to fully investigate and adequately present the following evidence which the petitioner alleges would have established that he suffers for brain dysfunction or other neuroeognitive defect: (1) that Burris had been shot in the head in 1976; (2) that Burris suffered from severe migraine headaches, blackout spells, tinnitus, blurred vision and other visual disturbances; (3) that Burris’s medical records indicated that he was given an EEG test prior to the sentencing trial, but that the results of said test had not yet been received by counsel; (4) that Burris was seen on September 7, 1977, for a neurological evaluation at Lake Shore Hospital while incarcerated at the Indiana State Prison; (5) that Burris was prescribed medication for his migraine headaches, which included such drugs as Sinequan, Haldol, Cogentin, Sansert, Cafergot and Percogesie; and (6) that Burris’s medical records indicate that he was examined at Wishard Memorial Hospital in Indianapolis, Indiana. In addition, Burris claims that his sentencing counsel failed to introduce evidence that he was sexually abused as a child in support of his mitigation case. The petitioner further contends that attorneys Inman and Fisher should have known about the evidence of brain dysfunction in light of the fact that they possessed Burris’s medical records which contained the information at the time of the second sentencing trial. In support of this contention, Burris submits the sworn affidavit of his attorney Mark Inman, in which Inman admits that counsel possessed no strategy reason for not investigating and introducing evidence of brain dysfunction and sexual abuse during the second sentencing trial. Based upon such an alleged failure, Burris argues that his sentencing counsel were constitutionally ineffective under the Sixth Amendment. The State argues that the allegation that counsel failed to properly investigate and introduce certain mitigation evidence fails for three reasons. First, the State contends that the theory of brain dysfunction was inconsistent with the mitigation evidence that counsel discovered and actually presented to the jury; thus, to suggest a brain disorder would have undermined the credibility of Burris’s own witnesses. Second, the affidavits and records that Burris offers fall short of establishing that further investigation by counsel would have uncovered that Burris actually suffers from organic brain dysfunction. Third, the State claims that the facts underlying the allegation of sexual abuse are- at best speculative since they are only supported by Burris’s own self-serving affidavit. Thus, even under de novo review, the State argues that counsel’s performances during the second sentencing trial were not constitutionally deficient. A. STANDARDS OF REVIEW UNDER THE SIXTH AMENDMENT The Sixth Amendment guarantees to criminal defendants the right to assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 339-40, 83 S.Ct. 792, 793-94, 9 L.Ed.2d 799 (1963). The Supreme Court of the United States has recognized that “the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (emphasis supplied). However, as the Supreme Court explained in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), whether counsel is effective or ineffective does not turn on a petitioner’s subjective pleasure or displeasure with counsel