Full opinion text
CLARK, Senior Circuit Judge: The state of Florida appeals the district court’s grant of habeas relief to petitioner-appellee/cross-appellant Omar Blanco as to the sentencing phase of his death penalty trial. Blanco cross-appeals the district court’s refusal to grant habeas relief as to the guilt/innocence phase of his trial. We affirm. I. CIRCUMSTANCES OF THE CRIME Blanco was sentenced to death for murder in Florida in 1982. The circumstances of the crime are set out in the Florida Supreme Court’s opinion on direct appeal, which we quote in relevant part: Fourteen-year-old Thalia Vezos testified that at approximately 11 p.m. on January 14, 1982, she was in her bed reading at her home in Ft. Lauderdale when she saw a man standing in the hallway holding a gun and carrying a brown wallet-type object under his arm. The intruder indicated that Thalia was to keep quiet. He then cut the wires to her telephone and left the room. Thalia’s uncle, John Ryan, appeared in the hall and tried to take the gun from the intruder. Ryan was shot in the scuffle and landed on top of his niece on the bed. The intruder shot Ryan six more times. The intruder then fled. Thalia ran next door to the home of the Wengatzes, where the police were called. The police arrived at the crime scene at 11:14 p.m. Officer Bull went next door and spoke to Thalia, who described the intruder as a Latin male, between 5'8" to 5'10", 180 to 190 pounds, wearing a gray or light green jogging suit, with dark curly hair. Officer Bull sent the description to a dispatcher at approximately 11:24 p.m. A man who lived across the street, George Abdeni, came forward with a report that he had heard shots and screaming and had seen the profile of a person in a gray jogging suit heading east from the Vezos property. This information was contained in a police BOLO that included the fact that the suspect was proceeding eastward. The BOLO as dispatched described the suspect as a Latin male about 5'10" in height with dark complexion, black curly hair, some kind of mustache, wearing a gray or light green jogging suit, and running in an eastwardly direction. Officer Price, who was in the area, positioned his car approximately one and a half miles from the scene in a driving lane facing east on 30th Street next to North A1A to watch for someone fitting the BOLO description. At approximately 11:57 p.m. he saw appellant riding a white bicycle on the sidewalk southbound on A1A and determined that appellant fit the description on the BOLO except for his pants, which at first appeared to be heavy corduroy. He also had full facial hair. Officer Price requested more information. He then followed appellant for approximately one-tenth of a mile before stopping him. The first thing the officer noticed when he got within three to four yards of appellant was that the gray pants were the same material as the top of the sweatsuit. Officer Price requested a backup unit. He asked appellant if he possessed a gun. Appellant replied, “No Ingles.” The officer frisked appellant, but found nothing but a necklace and watch which appellant was wearing. When the backup unit arrived, the officers handcuffed appellant and took him to the murder scene. Mr. Abdeni identified appellant as having the same profile and jogging suit as the figure he had seen earlier. Appellant was then formally arrested. A man’s purse containing appellant’s ID papers and a watch belonging to Thalia Vezos was found near the door to Thalia’s bedroom. On the day following the murder, Thalia Vezos identified appellant in a line-up as the perpetrator. The Broward County Grand Jury indicted appellant on February 2,1982, for first-degree premeditated murder and for armed burglary. Trial began on June 1, 1982, and the jury found appellant guilty on both counts. In compliance with the jury’s recommended verdict, the trial judge sentenced appellant to death for the murder. He was sentenced to 75 years for the armed burglary. One additional piece of evidence linked Blanco to the crime: The state introduced evidence that Blanco’s hands were covered with gunpowder residue at the time of his arrest, which was consistent with Blanco having recently fired a weapon. II. PROCEDURAL HISTORY The Florida Supreme Court affirmed Blanco's conviction and sentence. The Florida courts also denied Blanco’s petitions for post-conviction relief and for ha-beas corpus relief. Blanco petitioned for a writ of habeas corpus in the district court, raising fifteen claims. The district court granted Blanco a new sentencing hearing because it determined that: (1) Blanco’s trial counsel were ineffective during the sentencing phase because they allowed the trial court improperly to interrogate Blanco and because they revealed negative information about Blanco in response to the trial court’s inquiries; (2) counsel were ineffective during sentencing because they revealed the defense strategy; and (3) the trial court improperly diminished the jury’s sense of responsibility in the Florida death penalty sentencing process. We will first address the state’s and Blanco’s contentions that the district court erred in analyzing the facts and law surrounding the principal issue in this appeal. This unique issue simultaneously pertains to the trial court’s interference with the conduct of Blanco’s defense, defense counsels’ ineffectiveness in response to the trial court’s interference, and defense counsels’ failure to present any mitigating evidence during sentencing. We will then proceed to address the state’s argument that the district court erred in granting Blanco an evidentiary hearing, as well as Blanco’s other arguments that the district court should have granted relief as to the guilt phase of his trial. Because we find that the district court correctly granted Blanco a new sentencing trial due to the ineffectiveness of Blanco’s counsel, we do not address any other issues relating to sentencing. III. INEFFECTIVE ASSISTANCE OF COUNSEL Several of Blanco’s fifteen claims before the district court related to the alleged ineffectiveness of his trial counsel resulting from the actions of the trial court in questioning him, in directing his attorneys to call witnesses, and in generally controlling the conduct of the defense during portions of the guilt and sentencing phases of the trial. The facts underlying these claims are lengthy and complex but are necessary to a complete understanding of the interwoven issues they entail. A. Facts The defense theory expressed in the opening statement was simple: Thalia Ve-zos was mistaken, the purse was planted by some mystery killer, and Blanco had lost his purse (which contained his identification) at least a week before the offense. After presenting two defense witnesses who testified that Blanco had lost his purse shortly before the murder, defense counsel informed the court that two other witnesses (Romero and Gonzalez) would not be called on this issue and that Blanco disagreed with the decision not to call the two witnesses. Attorney Tenbrook informed the court: I explained to him, or tried to explain to him through Mr. Rodriguez and the interpreter that as far as any witnesses— of course, with the exception of the defendant — it’s up to the defense counsel to decide which witnesses to call and which witnesses not to call; that in my mind that is a tactical decision, and I don’t have my clients telling me who to call and who not to call, with of course the exception of themselves they have an absolute right to make that decision. He’s asked me to bring this to your attention. I’m not quite sure why, but I’m bringing it to your attention at this time. I’m not going to call them as long as I’m the attorney trying this case, and apparently there is a disagreement about that. The trial court thought the disputed testimony should be proffered so Blanco “can’t raise it at a later time and indicate you were incompetent counsel for not calling these people....” The court asked counsel if further discussion with Blanco might be fruitful. Tenbrook responded: “Considering I can’t talk directly with him, it’s hard.” Rather than resolving the issue immediately, the trial judge told defense counsel to call other witnesses while the pertinent question was mulled over. The judge’s preliminary decision was to side with counsel and not the defendant: I think you are right in what to do but I mean — not factually — I mean as far as your right and his right, but I may even want to double check that. After another witness briefly testified, Blanco took the stand. His testimony was difficult to follow, and there were evident translation problems. After this testimony, the court and counsel held a bench conference off the record. Following a recess, counsel returned and told the trial court in the presence of Blan-co that during the recess the attorney told another lawyer in an elevator that “I had already received some condolences about the case....” He was afraid jurors had heard the comments, and he wished to place the matter on the record. The state’s attorney, Satz, then raised the issue again of whether Blanco should be allowed to call witnesses. Tenbrook stated that there were only two other possible defense witnesses (Gonzalez and Romero). Tenbrook then told the court: Mr. Satz ... feels that the law is that the defendant can require counsel to call a defense witness. I feel that calling a defense witness is a matter of personal judgment and strategy within the prerogative of defense counsel, and so long as there is a reason for not calling a witness or for calling a witness that decision is final. The trial court asked defense counsel about their conversations with their client: “Did you have additional conversation with Mr. Blanco to try to see — .” Defense counsel Rodriguez volunteered that “he is still of the same state of mind as far as calling them as witnesses.” Tenbrook then stated, “I reviewed this with my chief assistant, Bob Wills, in our office. He doesn’t agree with me. He feels the defendant has the final decision on whether or not to call a witness. Respectfully, I don’t. I don’t ... take my orders on how to try my cases from Bob Wills any more than I do from my clients.” The court inquired again about whether Blanco had been informed by counsel of the detrimental effect they thought the requested testimony might have in the case. Rodriguez revealed that he had had conversations with Blanco about the witnesses. Rodriguez then talked to Blanco, again, and revealed to the judge that his client had expressed to him that he was “still of the same state of mind, that is, he would want these witnesses called.” The judge indicated that if he ruled that the defense counsel had to have the witnesses testify, he thought that there should be a record made that counsel had told their client that the testimony would be detrimental, that the client understood that, and that the client still wished to have the testimony presented. Although the record does not reflect how the judge might have known that Blanco had taken the stand against his attorneys’ advice, the court said: “I think you ought to also put on the record that he desired to take the stand over and above your recommendations. That is what you indicated before; is that right?” Rodriguez responded, “That’s correct, Your Honor.” Apparently, counsel had told the court, off the record, that his client had taken the stand against his advice. Satz, the state’s attorney, again pushed for Blanco to be allowed to put his witnesses on the stand. The trial court opined at that point that the appropriate test was whether Blanco was competent to represent himself and waive counsel: THE COURT: What I’m trying to do, I’m trying to analogize this. If Mr. Blan-co decided at this point that he wanted to handle the rest of the case himself— MR. SATZ: He could. THE COURT: Well, wait a minute. I think I’d have to make a determination as to whether he was competent to handle the case himself. If I decided that he was, I would probably ask these attorneys to continue to sit here if he had any questions for them, or to assist him at his request. I almost put that in the same category as this. At this point I’m not — I think it might be a good rule to determine whether Mr. Blanco was competent to make this decision. I think this is what Mr. Tenbrook is saying or it sounds that way. Already, he decided on his own decision to take the stand, which the law is clear on. He can do that whether the attorneys like it or not, but it sounds to me from what I heard it probably hurt his case a little bit and his attorneys probably feel that way, too, and it seems like the attorneys are better judges of how this case should be handled than Mr. Blanco. MR. SATZ: I agree with that. THE COURT: Unless it’s an automatic right for him to say which witnesses he wants to call and which ones he doesn’t I think I’d almost have to handle it, to determine whether he is competent to make a decision of that nature. MR. SATZ: I don’t think so. I think he has an automatic right to call the witnesses he wants to call after he’s had benefit of counsel. The trial court again asked counsel about their conversations with their client. Then Blanco was brought up to the bench and the court asked whether Blanco was satisfied with his attorneys, to which he responded “regular.” Blanco said he was a little angry with them earlier, but that “I’m ok with them now.” The court asked what he was angry about, and Blanco responded, the “problem with the witnesses.” Blanco said he was concerned about the two witnesses discussed earlier, and three other witnesses who he had wanted to call. The court asked Blanco directly what additional witnesses he wanted to call, and Blanco responded that he wanted Theodoro Martinez, Barbara Lazo, and Carmen Alonso called. The court asked whether Blanco had discussed this matter with his attorneys; he responded that he had and they had indicated that they thought it would be detrimental for him to call the witnesses. He still wished for the witnesses to come. He indicated that his attorneys had not told him why the testimony would be detrimental, and the court instructed counsel to do so immediately. The court told counsel Rodriguez to explain to Blanco why counsel believed the witnesses would be detrimental. Rodriguez mentioiied that two out of three of the additional witnesses that Blanco had mentioned had been listed by defense counsel on a witness list filed the first day of trial. Rodriguez indicated that the attorneys had decided not to call these three additional witnesses; he also said he had tried to serve an additional witness, Barbara Lazo, with process, but she had moved. The court asked whether Blanco had been informed that the witnesses’ testimony would be detrimental, and Rodriguez, defending himself, said that he had informed his client. Rodriguez and Blanco then spoke together in Spanish at the side of the courtroom. Rodriguez then told the court about his discussion with his client: MR. RODRIGUEZ: Judge, he’s just filed a motion, I believe, to have us withdrawn as counsel. He’s upset about the situation. He’s upset about the witnesses not being called and most upset, I think he is because I said that I couldn’t get service on [Barbara Lazo], and he indicated to me that to his knowledge she hasn’t moved and is still available. The motion was for a “change of counsel” and stated that the attorneys should withdraw because of a “conflict of interest,” because the defendant was “[n]ot being represented in my best interest,” and because there were “[n]o defense witnesses called in my behalf. I have informed counsel of witnesses for defense, but counsel has refused to call them.” The motion also stated that “[cjounsel does not do in court what he tells me privately he will do in court.” At that point Tenbrook stated, “Your Honor, I join in on that motion. I respectfully join in on that motion.” The trial court, confused by Blanco’s sudden turnabout, asked Blanco why he was unhappy with his counsel, when a few moments earlier it appeared that he was “regular” happy. Blanco responded that he believed his attorneys were lying to him: “they are lying to my face. He’s not telling me the truth.” As the discussion continued, Blanco again indicated his distrust of his attorneys and revealed his lack of understanding of the adversarial process. Blanco informed the court that defense witness Rey Alonso, who had already testified, had not lived with Blanco at the times about which Alonso had testified, and that defense counsel were lying to Blanco: [DEFENSE INTERPRETER GONZALEZ:] [Defense counsel] have only brought a person that’s lived with me three days in Hollywood to question him, but he doesn’t know that much about me because he’s lived in Miami Beach; that he has done a favor for Omar Barrio to stay in the apartment for three days. Those were the days that he stood in the apartment, and that’s the one they want to bring in, the one that’s only been living with me for two or three days. He says I don’t see this as correct. The ones that have lived with me are the ones they should bring here. He says Rey says that he’s known me for four months, that since he lived in Tyler, and he said, but four months ago I was in jail, in Dade County. He says July and through November. He says how is it possible that he can know me from December on back. He said this is what is happening. He said they are lying to me. THE COURT: That’s his own witness. Does he understand that? (Thereupon, Mr. Gonzalez and Mr. Blanco conversed in Spanish.) MR. GONZALEZ: He says no. He’s not my witness. THE COURT: Didn’t he want him called? (Thereupon, Mr. Gonzalez and Mr. Blanco conversed in Spanish.) MR. GONZALEZ: He said yes, to have him here, yes. They had told him that he was a witness for the State, or the police. Then Rodriguez defended the attorneys: MR. RODRIGUEZ: And you know I didn’t mention him — I mentioned him as a witness in the case in our conversations. I didn’t make any distinction between defense witness or State witness. He indicated to me he wanted him called so, therefore, I called him. This is the only way I can guarantee he is going to be called. I can’t guarantee Mr. Satz is going to call him. I’m fairly sure Mr. Satz was not going to call him because he didn’t list him as a State witness. Rodriguez went on to tell the court that the defense made a tactical decision not to call the witnesses Blanco wanted because their testimony was conflicting or irrelevant, and told the judge that he had discussed all this with Blanco. Defense counsel then explained his efforts to locate some of these witnesses. The state offered to help contact the witnesses, and the court ordered that the witnesses be contacted. The court then hit upon a rather incongruous solution. Blanco could call his own witnesses based on his answer to one question: Had his attorneys told him it would be in his best interest if he himself did not testify? THE COURT: What I’d like to know-ask Mr. Blanco one thing, and then I will make a decision whether he should be allowed to call whatever witnesses he wants. Tell him that. (Thereupon, Mr. Gonzalez and Mr. Blanco conversed in Spanish.) THE COURT: My question is: Is it true that his attorneys advised him that they felt that it would not be in his best interest if he himself testified. THE DEFENDANT: (Through the Interpreter) Yes, they did tell me that. THE COURT: Did they tell him why they thought that? (Thereupon, Mr. Gonzalez and Mr. Blanco conversed in Spanish.) MR. GONZALEZ: He said they only told me about Enrique and Fidel. THE COURT: Did they tell him why they felt he should not testify? THE DEFENDANT: (Through the Interpreter) Yes. THE COURT: After they told him that, he made up his own mind and he decided that he wanted to testify anyway; is that true? THE DEFENDANT: (Through the Interpreter) Yes. THE COURT: All right. At this point then I am going to rule this way: Since Mr. Rodriguez has indicated that these witnesses do have some testimony which is beneficial to Mr. Blanco, I feel that it is incumbent upon you to accept Mr. Blanco’s position, even though it be against your wishes, to put these witnesses on. That will be his choice, and if other detrimental evidence comes in because of these witnesses, I think that is just the way it goes. Based on this “yes” answer, the court decided that Blanco could call whatever witnesses he wanted to call. Both defense counsel again moved to withdraw: MR. TENBROOK: .... I feel that when acting as trial counsel for someone I need to be free to exercise my own independent judgment and if my own independent judgment is going to be limited on matters of who to call and what theory to present, and these type of tactical matters, I feel that I am not rendering effective assistance of counsel and I am being reduced essentially to a walking rule one, if you will, and I’m moving to withdraw on that basis. MR. RODRIGUEZ: I will join in that, also. MR. TENBROOK: That will be on behalf of myself and my office. THE COURT: I will deny the motion. The attorneys now had an order, not from a client, but from the court: “I would ask that whatever witnesses are to be presented we get them immediately....” The attorneys were told to conduct direct and cross-examination as usual: [Wjhatever questions are beneficial to your client I think should be asked by you on direct. MR. RODRIGUEZ: Can we limit Mr. Satz on his cross-examination? THE COURT: Only within the rules of evidence. The court told counsel what to do: “I am going to ask defense counsel to contact all those witnesses, if possible.... and we are just going to have to come back in the morning with whatever witnesses you can find....” The discussions centered around who and where the witnesses were, and the court told the attorneys what to do with regard to attempting to locate the witnesses. For example, attorney Rodriguez said an investigator had tried to find Barbara de la Caridad Garcia, and he proceeded to read notes to the court written by an investigator to explain why the witness was not served. The court asked Blanco if he knew where she was, and decided, “Fine, we are going to let him make a call and get her up here. That’s number one.” Defense counsel continued to defend their actions in failing to call certain witnesses. At one point, the court asked Blan-co which witnesses he wanted. When Blanco spoke in Spanish, Rodriguez interpreted that Blanco said “he doesn’t want to tell me.” That witness was Carmen Al-onso. The trial court then asked whether Blanco had read the deposition of Ms. Alon-so: MR. RODRIGUEZ: He can’t read the deposition. I have to read it to him. THE COURT: Have you ever read it to him? MR. RODRIGUEZ: Yes, I have, Judge. I have explained to him what is in it. I have told this to him; that this is what she said in her deposition. I have not taken the time to read, because it is a waste of time, to read it word by word. A person has to have a certain amount of trust in his attorney, that I’m not going to misrepresent to him what is in the deposition of Carmen Alon-so. The court then asked Blanco whether Rodriguez had informed him of what Carmen Alonso said in the deposition. The defendant answered that he had told him she was nervous and did not wish to testify. The court then asked whether Blanco thought the attorney had told him everything that the witness had said in a deposition. Blanco responded “yes.” THE COURT: All right. Is there anything that she said that he feels would be in his best interest if she took the stand? (Thereupon, Mr. Gonzalez and Mr. Blanco conversed in Spanish.) MR. GONZALEZ: He says I just want to tell you one thing before I answer that question. THE COURT: Go ahead. (Thereupon, Mr. Gonzalez and Mr. Blanco conversed in Spanish.) MR. GONZALEZ: He says nobody can do me any harm up there whether it’s against or for me. The only reason I want them to come here to talk is so that you can hear them and find out what motive and why they are lying, and that’s why I want them to come here. He says since they are lying, and if the lawyers could have done a good job, that they would have brought papers showing that he rented in 1980 and 1981 from the managers, and that would have proven that he has no relationship with them, that the one that has relationship with them is Rey Alonso, and the different areas that he has lived with them, and with Enrique Gonzalez, and Enrique Gonzalez, according to what Mr. Rodriguez told me, that he is lying, that he has lived with ... him and Rey Alonso, in Hollywood. He told him that he didn’t know the address exactly, but that he did know the location and the name, but that one of the addresses he had found, where he had lived in May 1981 with Ray Alonso, with Enrique Gonzalez, and with Carmen, and with Carmen, the wife, in Hollywood — because Rey Alonso is lying. Why is it they don’t want to bring them all here to hear them, to see if they are telling the truth or to see if I’m lying. THE COURT: Tell him I want to explain something to him about the rules of a trial which I don’t think he understands. The rules are if you call a witness, you don’t call him to show that they are lying, because if you call a witness you vouch for their truth. (Thereupon, Mr. Gonzalez spoke in Spanish.) THE COURT: And so he’s not going to be able to call Rey Alonso. He could call other witnesses to show Rey Alonso is lying, but he can’t call Rey Alonso as his witness and be hostile to him. Despite the judge’s explanations, Blanco insisted that he “didn’t call Rey Alonso” and that Rey Alonso is “lying.” Blanco said that his lawyer had said that Rey Alonso was a state witness, and then Rodriguez disputed his client’s word, defended himself, and added: MR. RODRIGUEZ: Judge, I really have no recollection whatsoever of telling [my client] that Rey Alonso was a State witness, and I did not really think it was any type of misunderstanding; that if he was to be called he had to be called by us as part of our case, and my client indicated that he wanted him called and put on the stand, as he did here in open court a few months ago, and I cannot require Mr. Satz to call him as a witness. The court quizzed Blanco about whether that was true or not. Blanco then told the court that he believed Rey Alonso had committed the murder, and that he wanted Rey Alonso to testify about that matter. After discussing that with him for a while, the judge told Blanco to be seated. Defense attorney Rodriguez asked the interpreter on the record what his client had just said: MR. RODRIGUEZ: What did he just say? MR. GONZALEZ: He said he doesn’t want any of them as his lawyers. THE COURT: Tell him — just have a seat a minute. Maybe he wants you to call Rey Alonso and ask Rey Alonso if he perpetrated this crime. MR. RODRIGUEZ: Judge, if I thought that Rey Alonso was going to admit to it, I would have asked him that question. THE COURT: At this point, I am going to deny the motion to withdraw, as I previously stated. MR. TENBROOK: His or ours? THE COURT: Yours. I am going to deny Mr. Blanco’s request to have you withdrawn. So far, as far as I’m concerned, I feel that Mr. Blanco has had competent counsel. However, I am going to rule that, as I previously stated, that Mr. Blanco has a right to call these witnesses as long as they have some evidence to present to the jury which may be beneficial to his case and corroborate other evidence which may be involved in the case, even though there may be some evidence which may be detrimental. I think he has a right to have those witnesses called, so I am going to ask defense counsel to contact all those witnesses, if possible. Mr. Blanco will have to have an arrangement to make a phone call to Barbara — what was her name? MR. SATZ: Lazo. THE COURT: Barbara Lazo or through Rey Alonso to try to locate her and also, Mr. Rodriguez, I’d ask if you could try to find her. What we will do — there are other witnesses we can call, Romero and Gonzalez, this afternoon, and try to get these other witnesses. That’s all we can do. Fidel Romero entered the courtroom from jail to testify as per the court’s instructions. Defense counsel had not reviewed the witness’ deposition, since he had not intended to call him, so he asked for a few moments to go over the deposition. They stood in a corner of the courtroom and talked. Then Tenbrook informed the court that his client had just told him that he also wished to call his brother, Rodolfo Blanco, as a witness. The trial court asked if that was correct and petitioner responded that it was. The trial court then had defense counsel call Fidel Romero and Enrique Gonzalez to testify. After their testimony, the court instructed Rodriguez to try to get the three or four more witnesses that Blanco desired. The court instructed petitioner to make similar efforts from jail. At this point, defense attorney Tenbrook mentioned that he was “fortunate” not to be able to speak Spanish, so he would not have to communicate with his client overnight as Blanco was trying to locate witnesses. The court wished to have a charge conference. Rodriguez left, stating: “Ten-brook will handle the charge conference. I will take charge of the investigating.” Blanco thanked the judge. The next morning court resumed. The judge asked for a report from Rodriguez regarding his attempts to find the witnesses the court had ordered him to find. Rodriguez said that he had spoken with his client’s brother directly and had asked him to come to court: MR. RODRIGUEZ: And I told him that I needed him to be here this morning, at 8:30 a.m.; here being the Broward County Courthouse. I said to be in Room 740, which is my office, at 8:30 this morning. He indicated to me that his wife was in the hospital. I have no way of verifying whether she was or not. I have some doubt that she really was in the hospital. I asked him — I said to him, “Look, your brother is on trial for his life. He needs you to be there. He needs you to be there as a witness on some background information which is really what his testimony would entail, and he said, ‘I’ll be there.’ ” Then I pointed out to him that there were several other people that I was trying to get ahold of and have here as witnesses in this case. I asked him if he knew them. He said he did. I asked him to try to round them up and they could all come to my office, in Room 740, at 8:30. I told him I was trying to locate Barbarita Lazo. THE COURT: Barbara Lazo. MR. RODRIGUEZ: Carmen Alonso. THE COURT: Carmen Alonso. MR. RODRIGUEZ: And Theodoro Martinez. THE COURT: Theodoro Martinez. All right, and you told him to try to locate them, also? MR. RODRIGUEZ: Right. That’s correct. THE COURT: That is the last time you talked to him? MR. RODRIGUEZ: That’s correct. THE COURT: Have you tried to call his home this morning to see if he is there? MR. RODRIGUEZ: Judge, I have not tried this morning; no. THE COURT: I don’t understand why — what about Barbarita Lazo? Rodriguez then discussed his efforts to reach Barbarita Lazo. He said he telephoned her home and spoke with her mother, leaving the message that she had been subpoenaed. I said, “I’m an attorney up here in Bro-ward County. I’m in the middle of a trial and I need her to come as a defense witness....” Counsel then stated that Blanco had also reached Lazo’s mother. Rodriguez stated that he had telephoned German Berrios, a witness from the previous day, to “have him try to round up these people.” Berr-ios was not home, and Rodriguez “left a message for Mr. Berrios to try to round up these same people. I gave him the list of the names and to have them here at 8:30.” Rodriguez further stated that he called a person who knew Theodoro Martinez, and told him to get Martinez to court before 8:30. The court then ordered Rodriguez to try harder, because Rodriguez had not called the witnesses that morning. The court “want[ed] it done right now.” After Rodriguez exited, the trial judge spoke with the state’s attorney regarding which witnesses would be called in rebuttal. When that discussion concluded defense counsel Tenbrook decided to relate to the court what he and his client had been discussing: MR. TENBROOK: Judge, I was just speaking with Mr. Blanco about his efforts to contact the witnesses, and apparently he contacted basically the same people that Mr. Rodriguez did but in addition— THE COURT: Could we have Mr. Blanco state through his interpreter which persons he did call and what efforts he did make. MR. TENBROOK: Sure, Judge. I think that would be best. You want to tell the judge. The judge proceeded to quiz Blanco about his jail cell efforts to get witnesses to court. Blanco stated that he tried to reach his brother but he couldn’t communicate with him because no one was there. He indicated that he tried to reach him at his brother’s mother-in-law’s house, but she would not accept the collect phone call, saying “that long distance phone calls cost a lot.” There were further discussions about other witnesses Blanco had difficulty in contacting by collect call from the jail. The trial court repeatedly quizzed Blanco about his efforts to get witnesses into court. One witness told Blanco that he needed someone official to tell him he had to come, from which the court concluded: “In other words, he wouldn’t come voluntarily; is that it?” Blanco then explained that he had learned overnight that one witness had moved to another state. Rodriguez then returned to the courtroom, and the trial court asked him about his luck since he had left. He explained his efforts to contact witnesses, volunteering that when he called one witness’ home he “didn’t want to say Omar Blanco. If they are trying to avoid service, I thought there would be a problem.” The state then told the court that there had been plenty of opportunities to subpoena people needed by the defense, inasmuch as it was June, the case had been pending since January, and had already been continued once. According to the state, “[t]he defendant has had every opportunity to get his witnesses here.” The trial court proceeded to ask Blanco about what he thought his witnesses would testify to if they were brought to court. Blanco proffered that Barbara Lazo would testify about how long he had known Rey Alonso. He also said that he would prove through Lazo that Rey Alonso was lying. He was going to prove that through Carmen Alonso as well. His brother would testify about how Blanco looked in January, and whether Blanco had his “bag” then. The court then commented: “[I]t seems to me as though there’s been substantial effort to raise these people.” The trial court asked defense counsel why they did not wish to call the witnesses, and both defense counsel explained to the court why they thought the testimony would be detrimental. The trial court continued to ask defense counsel about their conversations with their client regarding what their client had indicated the witnesses would provide. For instance, the judge asked Rodriguez what Theodoro Martinez would provide, and Rodriguez indicated that “[w]ell, [Blanco] told me that [Martinez] knew him when he came to this country and that type of information that he told you here today, but as far as anything that would, that I felt would help him in his case, I really haven’t had any discussions with him pertaining to that, or he hasn’t conveyed any information to me pertaining to that. We have discussed Theodora Martinez.” The Court, after one overnight recess to locate witnesses, decided: Well, at this time then I’m going to find that substantial efforts have been made to reach these people. It seems to me that none of these people, including his own brother, wishes to cooperate with him, and it seems like nobody wants anything to do with supporting him in his defense. It seems like every person was contacted, including being directly contacted by Mr. Blanco himself. He’s asked for their help and they would not come. At this point, from what’s been stated, anyway, I think if they did testify as to what Mr. Blanco said, I think it would probably be cumulative. I think those items have already been brought out by the defense. They already know that there is an issue to that effect, and at this time I am ready to go forward. If you have any further witnesses, you can present them. If not, you can rest. Let the court record reflect that it is 11:00 o’clock. The case was called for 9:30. These witnesses were discussed yesterday afternoon, all afternoon, about Mr. Blanco’s dissatisfaction with his counsel, and all this was brought up in the general area of, say, 3 o’clock, and there’s been opportunity to locate these people and they are not here. So I am ready to go forward. Thus, the judge concluded that no one wanted anything to do with Blanco, including his brother, and they would not help him despite his requests. Tenbrook then volunteered that Martinez had said something disparaging to the press about Blan-co, so he would not be a witness. After this discussion, the state asked the court whether subpoenas should be issued for these people. The court responded, “I don’t know. It’s too late now. I’m going forward with the case.” Defense counsel said he did not care if the subpoenas went out, because he did not want to call the witnesses anyway. The court indicated that the subpoenas should have gone out the day before, and again stressed, “[I]t seems like no one wishes to cooperate with Mr. Blanco. They don’t want to come in here in defense, and I think that is important to say, because I think that if they are forced in they possibly may be detrimental to him and may be hostile, so I don’t know what benefit they would be to him.” The jury returned a general verdict of guilty of first degree murder and armed burglary. At that point, defense attorney Rodriguez had the following discussion with the court: MR. RODRIGUEZ: Judge, at this time I would ask the Court what the Court is considering as far as the penalty phase, the time on it. THE COURT: I’m ready to go forward. I told you whatever witnesses you had to have available. MR. RODRIGUEZ: Judge, I have one witness available at this time. I would request more time to prepare and equip me for the penalty phase. Specifically, what I need to prepare is the psychiatric testimony of a Court-appointed psychiatrist. THE COURT: Where is he? MR. RODRIGUEZ: We don’t have a Court-appointed psychiatrist only for the purpose of the penalty phase. In addition to that, I would try to get Omar Blanco’s brother up here. His brother has not appeared here today and I would like the opportunity to— THE COURT: I’m sorry. I’m not going to discharge this jury. I want to go forward. I told you all. You all knew what may happen. You all knew there was a good chance a verdict of this nature would be rendered. I told you all to be ready. After the state indicated there was no objection to any delay, the trial court decided to continue the sentencing hearing until the next Tuesday, four days away. The jury was informed that “it’s been indicated to me that there may be some evidence that the defense wishes to present in connection with that second phase in the proceedings involving some people who might not be available at this minute....” The court continued, “[I]t may take some time to find these people, maybe a day or so.” The trial court told the jurors that the proceedings would be postponed “until some of these witnesses can be located and requested to appear.” After the jury agreed that the continuance would not inconvenience them, the trial court again told them “there may be some evidence presented, and I’m sure there will be evidence presented for you to consider.” The trial court told the jurors that the sentencing hearing “could be an hour or two hours.” Tenbrook then indicated that he had a trial on Monday, the day before the rescheduled sentencing hearing, and that he might be unable to attend a scheduled sentencing charge conference that day. Before adjourning, the court told Rodriguez to spend Saturday, Sunday and Monday “get[ting] all the information you will need from Mr. Blanco as to who he wishes for you to contact to present in connection with the sentencing phase.” Then, the judge had the defense attorney quiz Blanco, and translate: Mr. Rodriguez, would you tell Mr. Blanco the reason why you requested that the sentencing phase be postponed so that he understands it, and if he has any comments to it he can make them at this point. MR. RODRIGUEZ: Judge, I have already advised him why I asked for a continuance on it and I will keep discussing it with him and see if he has any comment. THE COURT: What I mean does he have any comment about not having it now as opposed to next week? (Thereupon, Mr. Rodriguez and Mr. Blanco conversed in Spanish.) THE COURT: Mr. Rodriguez, do you have a comment as to my question? Does he have any comment to make about the fact that you did tell him why you postponed it? MR. RODRIGUEZ: That’s right. I explained it to him. THE COURT: Did he seem to have any objection to that? MR. RODRIGUEZ: No, Judge. He seemed to say leave it up to the lawyers. That is basically what he said at this point. The next Monday evening, Tenbrook did not appear at the charge conference, but Rodriguez did. He was there with Blanco, but no interpreter was present. Since Rodriguez was talking, there was no translator. At this sentencing charge conference, defense counsel again made statements regarding communications he had had with his client. Specifically, the trial court turned to Rodriguez and asked him directly what evidence he intended to present at the sentencing hearing. Rodriguez readily responded. He stated that he had spoken with his client about calling additional witnesses, specifically his client’s brother. He then stated, “I don’t believe he wants to do that.” Rodriguez also said, “I don’t believe his brother wants to come up here.” The trial court immediately said, “Can we get all of this on the record?” The trial court (at the state’s suggestion) had the defendant stand before the court and answer questions through his own at-tomey regarding who he wished to help him at sentencing. Rodriguez was the interpreter: THE COURT: .... I’d like at this point for you to tell him who you thought might be in his best interest to be called, and what you thought they might say, and why you wanted to call them. This I want in open court here, and I want you to get a response from him as to whether he wants these people. I want all this on the record, or whether he doesn’t, and I want, you know— MR. SATZ: Why don’t you do it this way? Why don’t you ask him to come up here, Carlos, and then you ask him and interpret. Why don’t you tell him and then relate in the record what you told him and then— MR. RODRIGUEZ: I asked him if he wanted his brother to come here tomorrow to testify in his behalf and he’s indicated that he doesn’t, Your Honor. THE COURT: He doesn’t? MR. RODRIGUEZ: Let me talk to him a little bit about why I was thinking of calling him. THE COURT: Tell him first it’s his decision so he doesn’t get mad at you, but tell him for the record you are putting down why you thought it might be in his best interest, but again it will be his final decision. MR. RODRIGUEZ: All right. (Thereupon, Mr. Rodriguez and Mr. Blanco conversed in Spanish.) MR. RODRIGUEZ: I have explained to him, Judge, that the reason that I was thinking of calling his brother is to verify his family ties; the fact that he left some of his family in Cuba when he left; the type of strain; the type of emotional state he might have been in because of that, and also tell a little bit about his background, that kind of thing. He’s indicated he doesn’t want me to call his brother as a witness. THE COURT: Who else did you figure you might call? MR. RODRIGUEZ: Judge, I had Dr. Curtis under subpoena for tomorrow morning. I am not planning on calling him. THE COURT: What was he to say? MR. RODRIGUEZ: Judge, he is the linguistics expert on Spanish and English translation, but he is also a cultural expert. That is part of his studies. He studies the Latin cultures and I was contemplating whether I could call him to show some type of cultural shock or mitigating circumstance along those lines. I really do not anticipate calling him as a witness at this point because I don’t think I can establish that. I think it’s the type of argument that would be ridiculed. Certainly, it could be ridiculed by the State and perhaps by the jury simply because what, in effect, I would be arguing is that it is a cultural shock that has caused Mr. Blanco to be under extreme duress, that would cause him to kill somebody, and I just don’t think that argument holds any merit, having reviewed it and looked at it. THE COURT: Mr. Blanco says he didn’t kill anybody so what good would that do? He’s never told the man he killed anybody. MR. RODRIGUEZ: That’s correct. THE COURT: So what kind of an argument would that be? MR. RODRIGUEZ: It wouldn’t be much of an argument. That’s why I don’t anticipate calling him. THE COURT: Have you told Mr. Blan-co you considered it and that you decided it would be a waste of time? MR. RODRIGUEZ: I’ve told him. I’d just like to have a moment to explain why I’m not going to call him. THE COURT: Ask him what his preference would be as to it. (Thereupon, Mr. Rodriguez and Mr. Blanco conversed in Spanish.) MR. RODRIGUEZ: Judge, he understands and he says he didn’t want to call anybody so— THE COURT: Is there any other people that you suggested to him that might be able to invoke some type of reasoning from the jury where they might not— where they may feel it would be in his best interest? MR. RODRIGUEZ: Judge, we had discussed a psychiatrist and if I may just have a moment to discuss that with him. (Thereupon Mr. Rodriguez and Mr. Blanco conversed in Spanish.) MR. RODRIGUEZ: Judge, he is in agreement with me on this issue and we have discussed the possibility of calling a psychiatrist, and I just don’t think it’s a matter where he has any type of — he certainly does not have a competency problem, and he certainly does not have an insanity problem, and I’ve seen no evidence of any type of emotional duress that would constitute a mitigating factor in this case. Frankly, I just don’t think it would aid matters at all to call a psychiatrist and he is in agreement with me. THE COURT: What about members of his family besides his brother? Does he have any here? Friends? MR. RODRIGUEZ: His sponsor. THE COURT: His sponsor, Rey Alon-so? MR. SATZ: Anybody, anybody? THE COURT: Mrs. Alonso. (Thereupon, Mr. Rodriguez and Mr. Blanco conversed in Spanish.) MR. SATZ: He doesn’t? MR. RODRIGUEZ: Nada means nobody. THE COURT: So he doesn’t want to present any people to come up here and testify in his behalf regarding this phase of the proceedings? MR. RODRIGUEZ: That’s what he just stated, Your Honor. THE COURT: You have explained to him the nature of the phase and what he might be able to present? MR. RODRIGUEZ: That’s right. I have explained to him what we are proceeding on and what I’m trying to show or possibly show through these witnesses. The only one that I would be wanting to call would be possibly his brother and his brother, as I said, has shown a complete total disregard for Mr. Blanco insofar as wanting to appear here or appearing here, and I just don’t think that type of attitude or that type of testimony is going to be beneficial to him at all. Certainly, I could have his brother arrested if we had service on him and brought in here, but that is not going to do any good as far as any type of mitigating circumstances or background, or anything else. * * * * * # THE COURT: Have you called his brother about this phase? MR. RODRIGUEZ: I explained to him both phases when I called him on Friday, and I explained to him I might want him to appear, not only for the trial part but if it went into a sentencing phase, for the sentencing phase, and he indicated his willingness, but yet he hasn’t contacted me. He hasn’t appeared. In an abundance of caution, I sent another subpoena out there. According to Norman Ouslander, one of our investigators, it was taken to the address where Rodolfo Blanco lived and given to his family. Rodolfo was not there but he left it there with his family and he went through an explanation, explained to them what we were doing and served him with a subpoena for tomorrow. Even if he did show up tomorrow, which I seriously doubt— THE COURT: You won’t call him? MR. RODRIGUEZ: I don’t think we will call him. THE COURT: If he does show up, I’d like you again to ask Mr. Blanco if he wants his brother to testify, if he does show. MR. RODRIGUEZ: I will, Judge. MR. SATZ: He doesn’t want anybody? MR. RODRIGUEZ: That is exactly what I asked him. He said, “Nada.” MR. SATZ: Did you tell him he has a right to testify? THE COURT: How about him? (Thereupon, Mr. Rodriguez and Mr. Blanco conversed in Spanish.) MR. RODRIGUEZ: Judge, I have explained to him he has a right to be a witness and the preliminary indication I just got from him is that he does not want to be a witness. THE COURT: He does not want to say anything in his own behalf? MR. RODRIGUEZ: That is exactly what he just indicated. THE COURT: Tell him if he changes his mind between now and tomorrow morning, that he can still speak in his own behalf if he’d like to. (Thereupon, Mr. Rodriguez and Mr. Blanco conversed in Spanish.) MR. RODRIGUEZ: He says he explained himself on the stand and they found him guilty and he really doesn’t have much else to say. THE COURT: Tell him he doesn’t have to discuss the case itself. At this phase he can say something about himself, who he is, and his background, and if he wants to himself he can ask the jury to recommend life imprisonment if he wants to. Explain that he doesn’t have to go over the case again. (Thereupon, Mr. Rodriguez and Mr. Blanco conversed in Spanish.) MR. RODRIGUEZ: Judge, he says he’s indicated — I explained to him what you just wanted me to explain to him as far as this phase and not having to review the case, or anything along those lines, and he indicated that he didn’t really care what they recommended. THE COURT: All right, Tell him he can have a seat again. MR. RODRIGUEZ: Okay. The next morning, June 15, 1982, the sentencing hearing was held. The state introduced evidence of a prior armed burglary conviction, and the defense offered no evidence. The trial court once again asked the defendant whether he wished to testify, and he said that he did not. The court then asked Rodriguez whether anyone had contacted him about speaking in Blanco’s behalf, and he said no. Following closing arguments and the judge’s charge, the jury retired to deliberate. The jury returned with their recommendation in fifteen minutes, voting eight to four in favor of the death penalty. A week later, the trial court imposed the death sentence. The trial court found four statutory aggravating circumstances (two of which were reversed on appeal) and found no mitigating circumstances. B. Guilt Phase Errors Blanco’s guilt phase claims arising out of the above-recited facts relate to whether he received effective assistance of counsel. Although Blanco contends at times that he was denied altogether the assistance of counsel, our interpretation of the interaction between the trial court, the attorneys, and Blanco indicates that Blanco had the advice of counsel at all times but that Blan-co at one point was allowed by the trial court to make decisions traditionally reserved for counsel. 1. Actual Prejudice We have examined whether Blanco suffered actual prejudice during the guilt phase of the trial without first attempting to analyze the precise errors that might have been made by counsel. The Supreme Court has described the appropriate inquiry in an assessment of prejudice stemming from ineffective assistance of counsel during a guilt phase trial: When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. Under this standard, we conclude that the trial court’s actions and defense counsels’ responses did not prejudice Blanco during the guilt phase of his death penalty trial. While attempting to be helpful to Blanco the trial court overreached its authority and infringed upon the relationship between Blanco and his attorneys by requiring defense counsel to call two additional witnesses. Generally, trial tactics are for defense counsel to formulate. The decision as to which witnesses to call is an aspect of trial tactics that is normally entrusted to counsel. Yet the only impact the trial court’s actions had during the guilt phase of the trial was to cause two witnesses, Gonzalez and Romero, to be called. The extensive colloquy discussed above was out of the hearing of the jury and so did not have an effect upon their verdict. The testimony of these two witnesses was essentially in accordance with that presented by the two defense witnesses already called by Blanco’s attorneys on the issue of Blanco’s purse, which Blanco claimed was left at the murder scene by someone else. Two previous witnesses had testified that Blanco lost his purse and identification papers shortly before the offense. Gonzalez and Romero also testified that Blanco had lost his purse in the period of time preceding the murder. The additional testimony was thus essentially cumulative and supportive of Blanco’s defensive theory. Blanco argues that he was prejudiced because, although the first two purse witnesses did not have criminal records, both Gonzalez and Romero previously had been charged with crimes. And, the prosecution emphasized this fact during closing argument. However, the district court determined (and we agree) that “[i]n light of all the testimony presented, especially that offered by [the state] in its case-in-chief, the evidence so overwhelmingly established Blanco’s guilt that any contradiction presented by these two witnesses had a de minimis impact upon the guilt-innocence portion of Blanco’s trial.” As the Florida Supreme Court’s above-quoted summary of the facts reveals, Blanco’s guilt was clearly established by the state. Thalia Yezos observed Blanco for several minutes in her room immediately prior to the murder. Blanco was arrested shortly after the murder while riding a bicycle one and one-half miles from the murder scene. A neighbor saw a figure leaving the murder scene dressed in clothes like those Blanco was wearing when arrested. Blanco’s purse and identification papers were found at the scene of the crime. Also, gunpowder residue was found on the back of Blanco’s hands, indicating that he had recently fired a weapon. Omitting the testimony of the two additional witnesses that the trial court caused to be called does not create a “reasonable probability” that “the factfinder would have had a reasonable doubt respecting guilt.” The strength of the evidence against Blanco makes it extremely unlikely that the jury would have had a reasonable doubt about Blanco’s guilt. Blanco’s argument that the jury might have had such a reasonable doubt if Gonzalez and Romero had not testified does not fill the large hole in Blanco’s trial defense: Even if the jury had believed the testimony of the first two witnesses, the fact that Blanco lost his purse shortly before the murder does not necessarily show that Blanco did not find his purse prior to the murder. And the state impeached Blanco’s statements at trial that he had lost his purse prior to the murder by introducing the testimony of an interrogating officer to the effect that Blanco stated after his arrest that his identification papers were at his apartment. 2. Presumed Prejudice Blanco additionally argues that prejudice should be presumed due to the trial court’s interference. The Supreme Court held in Washington that “[i]n certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel’s assistance.” Also, “Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense.” In United States v. Cronic, the Supreme Court held that prejudice sometimes may be presumed “when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Moreover, “The Court has uniformly found constitutional error without a showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceedings.” This circuit has interpreted the Supreme Court’s opinions concerning presumptions of prejudice in ineffective assistance of counsel claims. We have held, [Exceptions to the [Washington} [prejudice] standard are appropriate only when the circumstances would offend basic concepts of due process. When such prejudicial circumstances exist, the concern is with procedural fair trial requirements, and not with whether the defendant would have been found guilty. We have also held, In Cronic, the Court carved out a narrow exception to Washington’s general rule that a defendant must demonstrate prejudice: a showing of prejudice is not necessary if there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Circumstances which would warrant a presumption of prejudice from counsel’s ineffectiveness are those where “the adversary process itself is [rendered] presumptively unreliable [by the circumstances].” This case does not involve circumstances appropriate for a presumption of prejudice. While the trial court did interfere with the conduct of the defense during the guilt phase to some degree, this interference was not great, and the particular prejudice flowing from it is easily discernible and therefore not costly to litigate. The interference amounted to countermanding the attorneys’ strategic decision not to call two witnesses, nothing more. Blanco’s attorneys were not otherwise hampered in their conduct of the guilt phase defense. Blanco’s attorneys examined the witnesses on the stand. And Blan-co was not prevented from consulting with his attorneys for any period of time. “Basic concepts of due process” were not offended by the trial court’s actions. We refuse Blanco’s invitation to presume prejudice. As part of his claim that guilt phase prejudice should be presumed as a result of the trial court’s intervention, Blanco makes the additional argument that the trial court essentially allowed Blanco to represent himself but failed to conduct an inquiry under Faretta v. California, The district court found that Blanco never indicated a desire to represent himself and simply asked for a change of counsel, which request was denied. Blanco is correct that he in effect represented himself as to the single decision to call the two additional defense witnesses. But this brief lapse in representation by counsel does not constitute a total absence of counsel or prohibition from providing assistance such that a presumption of prejudice is appropriate. During Blanco’s limited period of self-representation, his attorneys advised him as to the reasons they did not think the two additional witnesses should be called. Blanco thus did have the advice of counsel in making his decision to call Gonza