Hanes v. Dormire (240 F.3d 694, 2001)

BOWMAN, Circuit Judge.

William Hanes appeals from the order of the District Court denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. The District Court issued a certificate of appealability (COA) under 28 U.S.C. § 2253 on a single issue, namely whether Hanes’s counsel was constitutionally ineffective in preparation for trial. We affirm.

I.

A jury found Hanes guilty of the first degree murder of John F. Barlow. In short, the evidence adduced at trial showed that Hanes and Robert Sprouse, who testified against Hanes at trial, injected Barlow with a cleaning fluid called En-ergine and then robbed Barlow’s apartment. Hanes admitted to being at the apartment at the time of the murder and to taking some of Barlow’s property, but claimed that Sprouse committed the murder while Hanes was waiting outside the front door to discuss a business deal with Barlow and that he did not know what Sprouse used to kill Barlow. Other than the testimony of Sprouse, the key evidence against Hanes was police testimony that he told police that Energine was used to kill Barlow, and that only after Hanes provided this information were the police able to determine the exact cause of death.

II.

Because Hanes’s habeas petition was filed in 1995 before the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), this appeal is subject to pre-AEDPA standards of review. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Owens v. Dormire, 198 F.3d 679, 681 n. 2 (8th Cir.1999), cert. denied, 530 U.S. 1265, 120 S.Ct. 2725, 147 L.Ed.2d 988 (2000). Accordingly, we “give deference to the findings of the state court and the burden is on the petitioner to ‘establish by convincing evidence that the factual determination of the state court was erroneous.’ ” McDowell v. Leapley, 984 F.2d 232, 233 (8th Cir.1993) (quoting Sumner v. Mata, 449 U.S. 539, 545, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981)). As is always the case, we review the District Court’s legal conclusions de novo and its factual findings for clear error. See id.; Couch v. Trickey, 892 F.2d 1338, 1341 (8th Cir.1989).

The Missouri Court of Appeals addressed Hanes’s ineffective assistance of counsel claim in affirming the circuit court’s denial of his motion for post-conviction relief. With respect to Hanes’s claim that his counsel was ineffective in preparation for trial, the court described, and adopted, the motion court’s factual findings as follows:

The motion court found that trial counsel obtained copies of all police reports and provided the reports to mov-ant’s mother with the understanding that she would give them to movant and that trial counsel met with movant four times for a total of more than two hours in jail and two other times at the County Courthouse and spoke with movant on the phone numerous times. The motion court further found that, during the course of these conversations, trial counsel discussed the state’s case and possible defenses and that trial counsel believed from movant’s comments that he was aware of the contents of the police reports. The motion court found that trial counsel conducted an independent investigation of the case and personally interviewed the state’s witnesses, lay witnesses and movant’s co-workers. These findings are supported by the record and are not clearly erroneous.

... The motion court found that prior ■to trial movant and his counsel discussed witnesses to be called at trial, and counsel decided to call six witnesses who he felt would benefit movant. The motion court further found that counsel discussed other potential witnesses and their testimony with movant but chose not to call additional witnesses as matters of trial strategy.

Hanes v. State, 825 S.W.2d 633, 637 (Mo.Ct.App.1992). The District Court’s description of the post-conviction record is substantially the same. Having performed yet a third thorough review of the post-conviction record, we are satisfied that the state court factual findings are entitled to deference in accordance with the pre-AEDPA version of 28 U.S.C. § 2254(d) (1994).

Given these findings, we must decide whether Hanes’s allegations amount to constitutionally defective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hanes must show that his counsel’s performance fell outside the wide range of professionally competent assistance and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694,104 S.Ct. 2052.

First, we deal with Hanes’s allegations that his counsel was ineffective in fading to fully and adequately consult with him. Specifically, Hanes alleges that his counsel failed to consult with him in sufficient time to prepare a defense, failed to adequately inform him of possible defenses to the charges, failed to provide him with information concerning the nature of the allegations against him, and failed to discuss with him police reports and other disclosed materials obtained. While there was conflicting evidence on some of these allegations — mainly on whether counsel adequately discussed the case with Hanes — we believe, as we stated earlier, that there was sufficient evidence presented at the post-conviction hearing to support the state court’s finding that “trial counsel discussed the state’s case and possible defenses and that trial counsel believed from movant’s comments that he was aware of the contents of the police reports.” Hanes, at 637.

Counsel testified at the post-conviction hearing that he provided copies of the police reports to Hanes’s mother, that she indicated that she would provide copies to Hanes, and that “when [he] did review the matter with [Hanes] either at the courthouse itself or at the jail, [he] was assured that [Hanes] understood both the nature of the charges against him and, generally speaking, what evidence they had against him.” Transcript of Post-Conviction Relief Hearing at 348-49. Counsel also testified that he reviewed the reports and potential witness testimony with Hanes:

... We had reviewed the reports. We had ample opportunity to know what each of the witnesses were going to say and what answers we were going to try to present in answer to them ....

... Sir, I can remember sitting in a conference room with Mr. Hanes again reviewing the witnesses that were going to come and specifically dealing with the questions that were going to be raised about the Energine ....

Transcript of Post-Conviction Relief Hearing at 370. We do not believe that counsel’s several meetings with Hanes before trial at the St. Louis County Jail, the courthouse, and over the telephone in which he discussed the charges and the evidence with Hanes were constitutionally insufficient.

Second, Hanes alleges that counsel failed to contact witnesses necessary to the defense. Hanes provided long lists of potential witnesses to counsel. Of those potential witnesses, only four testified at the post-conviction hearing as to what their testimony would have been at trial: Alison Hanes, Virginia Hanes, Gary Seiner, and Gary Smith. Hanes’s wife, Alison Hanes, was prepared to testify that a life insurance policy on her had lapsed in order to rebut evidence that Hanes planned to kill her in order to obtain insurance proceeds. Hanes’s mother, Virginia Hanes, was prepared to testify to an alternate version of an ambiguous statement that the State argued was tantamount to a confession. Hanes’s friend, Gary Seiner, was prepared to testify that Hanes often went to Chicago to visit him in order to rebut Sprouse’s testimony that Hanes went to Chicago to sell stolen property. Finally, Sprouse’s short-term roommate, Gary Smith, was prepared to testify that Sprouse threatened him.

We do not believe that counsel’s failure to consult with these potential witnesses prior to trial amounts to constitutionally defective assistance of counsel. “Decisions relating to witness selection are normally left to counsel’s judgment, and ‘this judgment will not be second-guessed by hindsight.’ ” Williams v. Armontrout, 912 F.2d 924, 934 (8th Cir.1990) (en banc) (quoting Frank v. Brookhart, 877 F.2d 671, 674 (8th Cir.1989)), cert. denied, 498 U.S. 1127, 111 S.Ct. 1092 (1991). While some of the potential witnesses’ testimony could have been helpful in rebutting or clarifying some collateral evidence, we do not believe any of the proffered testimony was so important as to put counsel’s failure to consult with or call these witnesses outside the wide bounds of strategic choices that counsel is afforded. The testimony of Alison Hanes was unnecessary as allegations that Hanes plotted to kill her for insurance money never reached the jury. See Trial Transcript at 292-94. The testimony of Virginia Hanes could have clarified Hanes’s statements to her on the phone, but the state’s interpretation of the conversation as a confession was obviously debatable, and counsel attacked that interpretation in closing argument. The testimony of Gary Seiner could have provided an alternate explanation for Hanes’s trips to Chicago, but would not have directly contradicted Sprouse’s testimony that Hanes sold stolen property there — a matter that was, at most, peripheral to the central issues at trial. Finally, although counsel failed to consult with Gary Smith before trial, he was at the trial and did testify that Sprouse threatened him.

In any case, the main strategy employed by counsel was to attack the credibility of Sprouse, who in fact had rather serious credibility problems. Given the nature of the case, essentially a swearing match between Hanes and Sprouse over who planned and carried out the murder after both men admitted to being at the scene and stealing the victim’s property, we believe this strategy was reasonable. Counsel discussed this strategy, with Hanes and, in fact, did considerable preparation for this aspect of the trial, including taking Sprouse’s deposition:

... We [Hanes and his counsel] spent a lot of time talking about the credibility of Mr. Sprouse. I know I talked to Mr. Hanes [sic] mother and father repeatedly about Sprouse’s lack of credibility. We also did some background work on Mr. Sprouse and in taking his deposition

... As I recall, at that time I had several associates and we reviewed — if I’m not mistaken, Mr. Sprouse had faked his own death and I think we came into possession of that information and we used that not only — I know we used it at the time of the trial or attempted to set it into the evidence to destroy his credibility in that regard.

Transcript of Post-Conviction Relief Hearing at 350-51. Overall, then, we cannot say that counsel’s consultations with Hanes and his decision to not contact several potential witnesses, especially given his main trial strategy of attacking Sprouse’s testimony, fell outside the wide range of professionally competent assistance.

Even assuming that counsel was ineffective, we believe that there is not “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at-694, 104 S.Ct. 2052. None of the allegations of ineffective assistance that are before us had any effect on the central evidence against Hanes — that the police were able to determine the exact cause of death only after hearing the name of the poison, Energine, out of Hanes’s own mouth. At the post-conviction hearing, counsel stated:

The problem that we had throughout the trial [was] the fact that the Medical Examiner’s Office claimed that the only way they knew to look for the cleaning fluid in the blood system came from Mr. Hanes. And the testimony of the officers who were involved originally and the Medical Examiner’s Office when they came on gave us a hurdle that was rather difficult because they indicated prior to talking to Mr. Hanes they had not been able to determine cause of death and that it was only through a comment from him that led them to the testing for the cleaning fluid in the blood.

Transcript of Post-Conviction Relief Hearing at 361. Hanes’s statement that Ener-gine was the name of the poison both implicated him in the murder and directly contradicted his story that he was outside the apartment at the time and did not know how Barlow had been killed. Given this strong evidence, we believe Hanes cannot show prejudice within the meaning of Strickland and thus cannot satisfy the second part of the Strickland test.

Accordingly, the judgment of the District Court is affirmed.

. The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri.

. This is our characterization of the issue. The District Court referenced part (d) of the eighth argument in Hanes's petition in issuing the COA, and thus the certificate covers the substance of the following allegations:

Trial counsel failed to consult with Petitioner in sufficient time to prepare a defense. Specifically, counsel met with Petitioner only twice, for a total of one hour, prior to the trial. Counsel also failed to adequately inform Petitioner of possible defenses to the charge, and failed to contact witnesses provided by Petitioner and necessary to present a defense to the allegations. Trial counsel also failed to provide Petitioner with information concerning the nature of the allegations against him and failed to discuss with Petitioner police reports and other disclosed materials that he had obtained.

Petition for Writ of Habeas Corpus at 24; see also Hanes v. Dormire, No. 4:95CV2402 CDP, at 20-21 (E.D.Mo. Sept. 29, 1999).

The Supreme Court has spoken recently on the COA issue, and has determined that when a petitioner seeks to appeal the dismissal of a habeas petition after the effective date of AEDPA (April 24, 1996), the right to appeal is governed by the COA requirements found at 28 U.S.C. § 2253(c), whether the habeas petition was filed in the district court pre- or post-AEDPA. Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1600, 146 L.Ed.2d 542 (2000). Because Hanes filed his Notice of Appeal in October 1999, AEDPA’s COA requirements govern his appeal. See id.

. After Sprouse confessed to his involvement in the murder, the Clayton Police Department had Sprouse confront Hanes in their presence. According to the testimony of Captain James Humphrey, one of the officers present at the confrontation, when Sprouse told Hanes that he had told police that Hanes jumped on Barlow and injected him in the arm with a needle, Hanes responded, "I didn’t jump on his chest, that [Sprouse] premeditated the plan to murder.” Trial Transcript at 451. Captain Humphrey further testified that when he asked Hanes what was injected, Hanes stated, "Energine,” thus directly contradicting his story that he was not involved and did not know what had been used to murder Barlow.

.'' In deciding this case, we have reviewed the sealed transcript of an in camera examination of Sprouse's counsel for its bearing on the ineffective assistance claim before us. Sprouse’s counsel had indicated that she had reason to believe that Hanes’s counsel was ineffective, but refused to explain further due to her obligation under the attorney-client privilege. Sprouse was deceased, having died in 1988. The District Court held an in camera examination of Sprouse’s counsel to determine whether it was necessary to abrogate the privilege in order to protect Hanes’s constitutional rights. The court refused to abrogate the privilege and then sealed the examination transcript. Because we believed this ruling could have had some bearing on the ineffective assistance claims before us, we reviewed the transcript. Having done so, we are convinced that the privilege should remain in force and the transcript remain sealed.

. The District Court described the record as follows:

The post-conviction hearing record shows that trial counsel met with petitioner before trial at least two times for a total of two hours at the St. Louis County Jail, two other times at the courthouse, and spoke with petitioner on several other occasions over the telephone. Counsel also met With petitioner at the jail two days after the trial had begun. Trial counsel provided copies of the police reports to petitioner’s mother and relied on her to give copies to petitioner. Trial counsel testified at petitioner's post-conviction hearing that, during his meetings with petitioner, he specifically discussed with him all the evidence against him and possible defenses, discussed the police reports, and discussed and explained the same to petitioner’s family.

Hanes, No. 4:95CV2402 CDP, at 17-18.

. Hanes called his mother from the police station to tell her that the police would be coming for a suitcase filled with the victim's property. Captain Humphrey testified that at the close of the conversation Hanes stated, "no, mom, that is not all. It’s worse. Please tell Alison to bring my medication and please send my prayerbook and pray for me." Trial Transcript at 452-53. At closing argument, the state argued that an innocent man would have told his mother that he didn’t commit the crime. Virginia Hanes was prepared to testify that Hanes said, "oh, Mom, Mom. They’re accusing me.” Transcript of Post-Conviction Relief Hearing at 169.

. Attempts by the prosecution to put this evidence in front of the jury met with repeated objections by defense counsel that were sustained each time. Trial Transcript at 292, 294, 503-505, 559-563. Only once was an objection to a tangentially-related question overruled. Trial Transcript at 294 (allowing prosecutor to ask Sprouse if Hanes had threatened other people, to which Sprouse responded that Hanes had threatened his wife). Also, at one point during Sprouse’s testimony he answered an improper question to which defense counsel immediately objected; that objection was sustained. Trial Transcript at 292 (responding to prosecution's question, Sprouse stated that Hanes told him of plans to kill his wife and in-laws). These instances do not amount to the trial court’s having allowed evidence of a plot by Hanes to kill his wife for insurance money to come before the jury, as suggested by the dissent.

O’BRIEN, Senior District Judge,

dissenting.

Article I, Section 9 of the Constitution reads; “The privilege of the Writ of Habe-as Corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it.”

Today, as in prior centuries, the writ is a bulwark against convictions that violate “fundamental fairness.” Engle v. Isaac, 456 U.S. 107, 126, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), quoting Wainwinght v. Sykes, 433 U.S. 72, 96-97, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Stevens, J., concurring). Based on the record, I am unwilling to condone what I believe was a conviction in Hanes’ case that violates “fundamental fairness.”

The errors by the lower courts in this case include, but are not limited to: a clear error of law in misconstruing the attorney-client privilege law. Further, they clearly applied inapplicable law in considering the issue of the limits of leeway in allowing trial counsel to use, as an excuse, “trial strategy,” when counsel erroneously failed to call Hanes’ mother and wife to easily refute a claim that Hanes had confessed, and that Hanes had told the star witness against him that he was going to kill his wife for money; further, in buying everything that trial counsel Mr. G said he had done to assure good representation of Hanes when the state of Illinois and Missouri had both suspended Mr. G for 42 months for his awful handling of clients in the exact way Hanes swears Mr. G treated him.

I apologize for the length of this dissent. The Strickland court clearly states that, “a court hearing an ineffectiveness claim must consider the totality of the evidence.” Strickland, 466 U.S. 668 at 695, 104 S.Ct. 2052, 80 L.Ed.2d 674. No dent can be made in the conclusions of the majority without setting out the record.

STATEMENT OF FACTS

On October 30, 1981, John F. Barlow, about 80 years old, was found dead in his apartment in St. Louis, Missouri. Six weeks prior to his death, a man using the name Steve Romer had moved into Barlow’s apartment. Romer, whose real name was Robert Sprouse, had come to St. Louis in August of that year traveling in a car he had stolen from Sandusky, Ohio. On October 28, 1981, the night of Barlow’s death, the garage man at the decedent’s apartment building saw Sprouse and a companion whom he initially identified as Mark DuFrenne, Sprouse’s homosexual lover. Sprouse and DuFrenne were seen by the garage man loading luggage into Barlow’s automobile. Sprouse took Barlow’s car and some personal property from Barlow’s home.

Sprouse pled guilty and later testified against Hanes after he had negotiated a deal with the State to reduce his crime to murder in the first degree (felony murder) with assurance of a sentence that would not include the death penalty.. In his testimony, Sprouse stated that he had met Hanes in August of 1981 and met the deceased some weeks after that. At first, things went well between the deceased and Sprouse, but eventually, the deceased became jealous of Sprouse’s new lover, DuFrenne, and tension in the decedent’s household increased. Sprouse testified that he and Hanes began planning to kill Barlow and steal his property. Sprouse had, before this time, stolen household silver from Barlow, sold it, and kept the proceeds. He had also cashed checks for five thousand two hundred dollars ($5,200.00) drawn on Barlow’s account. Hanes admits that he forged Barlow’s signature on a five thousand dollar ($5,000.00) check, at the request of Sprouse.

According to Sprouse, Hanes suggested that Sprouse poison Barlow, and toward that end, Sprouse says Hanes supplied Sprouse with poison to be put into the victim’s food.

During this time, Sprouse was addicted to cocaine and speed and was ingesting mind-altering drugs. From October 28th, the day of Barlow’s death, to November 3rd, Sprouse consumed five thousand dollars ($5,000.00) worth of drugs. His drug addiction was further aggravated by an impending, nervous breakdown and suggestions of a multiple personality psychosis. Nonetheless, the fragile state of his mental health did not impede his criminal functioning. After the murder, he arranged a flight out of St. Louis which was a decoy reservation that he never used. He made sure that the decedent’s maid would not report to work the next day on October 29th, and at the same time told her he was stealing Barlow’s stock certificates and figurines. He also attempted to make arrangements for her to testify for him, if necessary, promising her something- pretty if she cooperated. He disconnected the decedent’s phone and drove to Minneapolis in a car stolen from the deceased victim. Shortly thereafter, Sprouse was captured in Minneapolis. He initially denied involvement in Barlow’s death, but later told police he “might” have done the killing. The next day, he implicated Hanes. Sprouse testified that Hanes filled the syringe with cleaning fluid, jumped Barlow, and injected him. Laboratory tests of Barlow’s body fluids for Energine were positive. Armed with this information, Hanes was arrested.

Hanes admitted to being at the apartment at the time of the murder and to taking some of Barlow’s property, but claimed that Sprouse committed the murder while Hanes was waiting outside the front door to discuss a business deal with Barlow and that he did not know what Sprouse used to kill Barlow. Other than the testimony of Sprouse, the key evidence against Hanes was that he allegedly told police that Energine was used to kill Barlow, and that only after Hanes provided this information were the police able to determine the exact cause of death. Hanes specifically denies this claimed admission. Hanes had no criminal record of any kind.

CERTIFICATION OF ISSUES TO THIS COURT

As set out in the District Court’s order of September 29, 1999, the petitioner sought habeas corpus relief as to nine separate categories. On pages 8 of the Court’s order it states:

Nothing in this cases would have put the state court on notice that petitioner intended to raise a federal claim in his brief. Thus, in its plain error review of grounds one, three, four, five, and seven, the Missouri Court of Appeals only reviewed state-law issues. Such review does not cure the procedural default with respect to the federal aspects of petitioner’s claims. Sweet v. Delo, 125 F.3d 1144, 1153 (8th Cir.1997). Therefore, federal habeas review of grounds one, three, four, five, and seven is barred, unless petitioner can show cause and prejudice or actual innocence to overcome the procedural bar.

This procedural bar, of course, was another glaring error by appellate counsel because shortly after getting appointed, said counsel had failed to file a motion for a new trial thereby creating the procedural bar. This error and others set out herein by appellate counsel were not certified to this Court, but must be included to demonstrate that the whole proceedings have been fundamentally unfair.

It should be noted that the District Court’s opinion starts discussing the certified claim, paragraph 8d, on page 17 of its order and concludes discussing 8d on page 20, taking almost 20% of the length of the ruling. These pages discuss in detail what the judge considered to be included in 8d. That discussion includes discussion of matters specifically involved in paragraphs 3, 8a, 8b, 8c, and 8d. (For a description of what the paragraphs pertain to, see below). That is what the reviewing judge considered to be part of 8d. Therefore, there should be no argument that, as part of 8d, they were included in the certification.

On page 7 of its opinion, the Missouri Court of Appeals specifically sets out that its consideration of the ineffective assistance of counsel claim includes the claim that counsel failed to prepare for trial, conduct an adequate investigation, consult with Hanes, and failed to interview and call several witnesses. If the District Court had gone by the rule that what is fairly presented to the State Court should be certified, then paragraphs 8a, 8b, 8c, and 8g and a Brady claim, not just paragraph 8d, should have been certified.

With claims one, three, four, five, and seven procedurally barred, it left claim number 3:

The trial court erred in allowing the prosecution to elicit testimony regarding unsubstantiated allegations that petitioner planned to kill his wife and in-laws for financial gain; (This was discussed under 8d in District Court’s Order, page 19).

Claim number 8: (including only those claims still urged by appellant)

Petitioner was denied effective assistance of counsel because trial counsel failed:

(a) To interview, investigate or locate witnesses on petitioner’s behalf or to subpoena records; (Discussed pp. 18-19).

(b) To secure all discovery material from the prosecution, to obtain materials from the prosecution which would tend to negate or mitigate petitioner’s guilt on punishment, to properly inquire of Sprouse at his deposition and again at trial of such matters as would have substantially impacted upon Sprouse’s credibility; (Discussed p. 18).

(c) to obtain evidence or information regarding Sprouse’s background which would have substantially discredited Sprouse’s testimony; (Discussed p. 18).

(d) to consult with petitioner in sufficient time to prepare a defense; (Discussed p. 17).

It should be remembered that on page 5 of the District Court’s order, it is stated as follows:

Respondent acknowledges that petitioner has exhausted all available state remedies in that he has properly presented his claims to the state courts or has otherwise procedurally defaulted his claims.

In its ruling, the U.S. District Court states as follows:

Certificate of Appealability:

... [A] COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A substantial showing is a showing that the issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. (Citations omitted). The Court finds that the only claim on which petitioner can make a substantial showing of a denial of his constitutional rights is the claim of ineffective assistance of counsel in ground 8(d) of his claims for relief. The Court will therefore issue a certificate of appealability as to that ground of the petitioner only. (District Court Opinion, pp. 20-21).

Hanes, of course, is persuaded that the District Court should have certified more of his claims than 8d. When the certification order was entered, appellate counsel should have immediately moved the District Court to reconsider and add additional claims for appeal. Had that not been successful, appellate counsel should have petitioned this Court to add additional claims. It was another situation where Hanes’ counsel was clearly ineffective all to Hanes’ detriment. Since only one claim has been certified, I agree with the majority that the recent ease of Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1600, 146 L.Ed.2d 542 (2000), governs the right to appeal a habeas corpus petition after the effective date of AEDPA (April 24, 1996), even though Hanes’ petition was clearly filed prior to the effective date of the AEDPA. The Slack case specifically holds that said right to appeal is governed by the certificate of appealability (COA) requirements now found at 28 U.S.C. § 2253(c). (1994 ed., Supp. III). This is true whether the habeas corpus petition was filed in the District Court before or after AEDPA’s effective date. Id., 1600.

The Slack case does not affect the consideration of the merits of Hanes’ appeal as it also holds that a petition filed before the AEDPA law is considered on its merits according to pre-AEDPA law.

FUNDAMENTALLY UNFAIR AND/OR UNREASONABLENESS IS THE TRUE TEST

. The bottom line prior to AEDPA was: Was the trial fundamentally unfair and were the acts of counsel unreasonable?

Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense ...

On the other hand, we believe that a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome of the case ... (Emphasis added).

The defendant must show that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonably probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. 668, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Further, the Strickland Court stated: [F]irst the defendant must show ... that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is rehable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Boysiewick v. Schriro, 179 F.3d 616, 619 (8th Cir.1999).

Further, this Court has held:

[T]he focus is on “whether counsel’s deficient performance renders the result of the trial unreliable OR the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). (Emphasis added).

Mansfield v. Dormire, 202 F.3d 1018, 1022 (2000).

The facts in the Hanes case easily show the trial was fundamentally unfair and/or unreasonable and Hanes should get a remand. Mr. G’s acts and omissions were unreasonable so as to render the result of Hanes’ trial unreliable. As the precedent shows, if the trial was fundamentally unfair, there should be either a granting of the Writ or a remand to clarify and expand the record to make sure the result is reliable.

However, if because of glaring errors by Hanes’ counsel we can only consider plain error, I am persuaded that there is enough ineffectiveness to demonstrate a manifest injustice. Since the certification must be governed as post-AEDPA and only paragraph 8d can be considered, I am still persuaded, when the full paragraph 8d as set out in the District Court’s opinion is what is considered, that there is more than enough there to entitle Hanes to a remand.

The majority sets out in its order on page 696:

As is always the case, we review the district court’s legal conclusion as de novo and its factual findings for clear error. Citing Couch v. Trickey, 892 F.2d 1338, 1341 (8th Cir.1989).

The case of Groseclose v. Bell, 130 F.3d 1161, 1163-64 (6th Cir.1997) (citing McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir.1996)), reaches the precise same conclusion but continues the discussion as follows:

Further, federal courts must defer to state court factual findings, according a presumption of correctness that the petitioner may rebut only with clear and convincing evidence. Id.

[I]n a federal habeas corpus challenge to a state criminal judgment, a state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court to the extent stated by 28 U.S.C. § 2254(d). Ineffectiveness is not a question of “basic, primary, or historical fac[t].” Rather, ... it is a mixed question of law and fact. Although state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of § 2254(d), and although district court findings are subject to the clearly erroneous standard of Federal Rules of Civil Procedure 52(a), both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984). (Citations omitted).

Groseclose v. Bell, at 1163-64 (6th Cir.1997).

Because Hanes is a pre-AEDPA case, we must apply 2254(d) as it existed prior to enactment of the AEDPA to the merits of Hanes’ claim. Hanes’ “expanded” claims of ineffectiveness should each be considered de novo.

Judge Beam has provided us with an enlightened view of just what the test should be. In Seehan v. State of Iowa, 72 F.3d 607, 613-14 (8th Cir.1995). Judge Beam in his dissent states as follows:

In considering the prejudice prong of ineffective assistance ... the rulings of both this court and the United States Supreme Court. [Holds that] [r]uling on deficient performance and prejudice require[s] courts to make a legal determination by applying legal standards to the underlying facts.

Judge Beam goes on further to discuss the matter and concludes by saying:.

Thus, whether or not the facts support a finding of Strickland prejudice is a question of federal law which we address de novo.

Judge Beam also sets out that the majority in the Seehan case did not contest his above-set out conclusions. Id. at 612-14.

AMERICAN BAR ASSOCIATION DEFENSE FUNCTION STANDARDS, 4-1 — 4-8.4

The Court is persuaded that it is reasonable to consider the matter of ineffective assistance of counsel in relation to American Bar Association Defense Function Standards discussed in Strickland, at p. 688, 104 S.Ct. 2052) where the Court says that “these standards are guides in determining what is reasonable (to evaluate counsel’s performance), but they are only guides.” Nowhere in anything this Court has seen are the duties of defense counsel set out more clearly and concisely than they are in these standards.

This Judge is persuaded from the record that trial counsel Mr. G never complied with any of the standards 4-1 — 4-8.4. For brevity’s sake, we will now mention some of the most damaging failures. Standard 4-1.2, defense counsel must serve as the accused’s counselor and render effective, quality representation. Standard 4-1.3, defense counsel should act with reasonable diligence and promptness. Standard 4-3.1, defense counsel should establish a relationship of trust and confidence with the accused. (Under the commentary, it states as follows): “Nothing is more fundamental to the lawyer-client relationship than the establishment of trust and confidence.”

Standard 4-3.2, as soon as practicable, counsel should seek and determine all relevant facts known to the accused. Standard 4-3.6, many important rights of the accused can be protected and preserved only by prompt legal action. Standard 4-3.8, defense counsel should keep the client informed of all developments and should promptly comply with reasonable requests for information.

Standard 4-4.1, defense counsel should conduct a prompt investigation including efforts to secure all information from the prosecution and law enforcement authorities. Standard 4-5.1, after counsel is fully aware of the facts and the law, he or she should advise the accused with complete candor concerning all aspects of the case.

Hanes, in the record flatly states that Hanes wrote Mr. G a number of letters, Ex. H, which are in the record as exhibits, wherein he implored Mr. G to confer with him to accomplish the goals of these standards. Trial attorney Mr. G did none of these things!

The majorities’ position appears to be that since Mr. G’s trial strategy was to discredit Sprouse, any shortcoming of Mr. G’s and Hanes’ relationship that did not help in the basic discrediting of Sprouse was not important. This ignores what Hanes knew about Sprouse and what conversations they had had. Hanes swears Mr. G never asked him what he knew about Sprouse or what Sprouse said or did at the murder scene. Mr. G also admitted that he had not seen all the video tapes that had been taken of Sprouse. All of this would be information that would help to impeach Sprouse, but it wasn’t used by Mr. G.

CHRONOLOGY OF ACTS AND OMISSIONS WHICH DEMONSTRATE NOT INEFFECTIVE ASSISTANCE OF COUNSEL, BUT POOR ASSISTANCE OF COUNSEL

Hanes has never had an effective attorney represent him since the day he was arrested. In my 23 years on the District Court bench, this case is far and away the worst case of “lawyering” I have ever encountered. The record clearly demonstrates that trial counsel Mr. G gave ineffective assistance. Hanes was convicted.

Another sad episode in Mr. G’s ineffectiveness was favorable information that Mr. G didn’t follow up on which could have set Hanes free. Diane Brown was a psychologist with her master’s degree working on her doctorate through the psychiatrist at the County Jail. She was Hanes’ counsel who often visited him in the jail. Hanes testified at the post-conviction relief hearing, “At least once or twice a week, we would spend an hour to and hour and a half ... for five months at least (before the trial). [I]t also continued after the trial.” (Emphasis added). “... [T]he day before I was to be sentenced, she called me out ... she said that she had good news for me and the good news was that the psychologist at the Gumbo institution has been seeing Sprouse and that Sprouse had told him that I had not done the crime and that he would testify in my behalf.” Hanes stated that in response to that good news, “... I called my mother to give her this information. She called Mr. G and told him. Mr. G did tell me at the sentencing that he had gotten the information and that he would personally go out and speak to the psychologist and would use it as work on my appeal.”

There is nothing in the record to confirm that Mr. G did anything about this great news. One psychologist was telling Hanes that another psychologist had information that would clear- Hanes. Mr. G blew it. To this day, nobody has talked to those two doctors.

Hanes’ new appellant counsel at the post-conviction relief hearing should have immediately requested that the sentencing be delayed so that he could find Diane Brown, ascertained who had given her the information that Sprouse had cleared Hanes and get that psychologist to make a statement to the Court to be used on a motion for a new trial and/or get a new statement from Sprouse. New appellant counsel heard what Hanes said. Said counsel heard Hanes say Mr. G had ignored it, and then said new appellant counsel ignored this great lead himself.

The post-trial proceedings included Mr. G demanding $5,000.00 before he would appeal, receiving the $5,000.00, and then never appealing. (Ex. 3, 4 and 9).

The acts or omissions of Mr. G representing Hanes post-trial were so bad that the state of Missouri set aside all proceedings and five (5) years later, appointed him a new attorney and then resentenced him. (P.C. Tr. p. 334). This five-year delay made it harder to proceed with an effective appeal. However, this was a great step in the right direction as far as Hanes was concerned, but it did not last long. The new attorney “forgot” to file a motion for a new trial. The Missouri Supreme Court later ruled that since no motion for new trial had been filed, that none of Hanes’ claims had been properly preserved and thereafter only considered his claims under the “plain error standard” which is much stiffer and harder to overcome. As seems to be typical of his new appellant attorneys, those attorneys filed a detailed motion setting out why they had not filed a motion for a new trial and said that it was not necessary to file such a motion under the circumstances. The only thing wrong with their position was that the Missouri Supreme Court did not buy it. So Hanes, again, had been robbed of a fair appeal by poor lawyering. As mentioned, they filed a great brief to try to cover their mistake. But, it was not meant to be. This was a crucial blow to Hanes’ appellate position.

Then came the attorney-client fiasco. This is set out in detail under a separate section entitled, “Attorney-Client Fiasco.” It involves counsel for the co-defendant wanting to tell the courts, how ineffective Mr. G was, and not knowing what to do so that it would help Hanes:

Further incompetence on the part of Hanes’ appellate attorneys occurred after the District Court judge limited the certification in this case to one claim, 8d, which is fully discussed in the “Certification” portion of this dissent. Appellate counsel did not request that the District Court increase the number of issues certified and then make the same request to the Circuit Court if the District Court did not do so.

Hanes’ bad luck, in having ineffective lawyers and/or poor performance by his lawyers, was again with him when his counsel on this habeas corpus matter did not appear for argument before this Court. It is very true that again, the new appellate counsel had a great reason and showed this panel, in a great brief, just why he should not be held responsible. As mentioned above, his greatest briefs are those where he is trying to cover up his own mistakes. The bottom line is, did Hanes ever get a fair shake? The answer is, no. Was his trial fundamentally unfair? The answer is, absolutely yes.

ACTS OR OMISSIONS OF MR. G (TRIAL ATTORNEY)

This is a list of acts or omissions, supported by the record, that clearly demonstrate trial counsel Mr. G gave ineffective assistance.

1. Prior to trial, Mr. G visited Hanes on only two occasions while Hanes was in the St. Louis County Jail for a capital murder trial. These visits occurred November 9, 1981, and then after a lapse of almost 7 months, just before the trial on June 1, 1982. The combined length of these visits was 124 minutes as shown by the records at the jail. (P.C. Tr. pp. 3-6) (Plaintiffs Ex. 8).

Trial counsel claimed he had conferred with the appellant at the Courthouse on several occasions prior to trial, including at a preliminary hearing. These claims were not true because there never was a preliminary hearing and there obviously were no pretrial hearings because there were no pretrial motions filed. The only court appearances would have been at his arraignment. Trial counsel claimed one or more of his associates had also visited appellant, but he was unable to recall which ones. The jail records do not support this, and Hanes denies this ever happened. (P.C. Tr. p. 352).

2. Appellant’s mother, Virginia Hanes, testified that she had made several appointments with Mr. G to discuss her son’s case but that most appointments were can-celled by Mr. G at the last minute. (P.C. Tr. p. 160). She was told by Mr. G, “I did not think it is necessary” to consult with the Appellant. (Emphasis added). (P.C. Tr. pp. 161-62).

Appellant and his mother made several attempts to communicate with trial counsel and sent him numerous letters, designated as exhibit “H,” begging for the opportunity to consult with Mr. G. (P .C. Tr. pp. 27-32).

3. Mr. G failed to consult with Hanes about the nature of the charges, the possible defenses, pretrial strategies, and Hanes’ request to have Mr. G call four (4) defense witnesses.

Mr. G failed to consult with Petitioner in sufficient time to prepare a defense. (App.24).

4. Although Mr. G testified that he had provided a copy of the police reports to Virginia Hanes (mother) to pass on to her son. (P.C. Tr. p. 348). Hanes’ mother flatly contradicted this. (P.C. Tr. p. 166). Mr. G did not give copies of the police reports or any other documents (exhibits) that were introduced at trial to Hanes.

There was no testimony at the post-conviction relief hearing from trial counsel Mr. G that' he ever provided Appellant with any police reports, copies of depositions, documents, or video and tape recordings pertaining to his case and he didn’t deny this omission. (P.C. Tr. pp. 22-23).

5. Mr. G failed to provide Hanes with a copy of the deposition or allow him to see the various videotapes of Sprouse, co-defendant, or even discuss them with him, so Hanes had no notice or pretrial knowledge of what Sprouse was going to say.

Mr. G either never was provided Sprouse’s complete criminal record by the prosecutor or he never personally checked co-defendant Spouse’s criminal record. Had he had it and used it properly, it would have devastated the credibility of the co-defendant Sprouse. (App.33).

6. Mr. G failed to depose or interview any of the states many listed witnesses (except Sprouse) for trial including the police officers who conducted the murder investigation. (P.C. Tr. p. 79). Mr. G claimed to have made some interviews, but he could recall no names. (P.C. Tr. pp. 396, 423).

Even though the jury was to be “death qualified,” trial counsel failed to file a motion for individual voir dire.

7. Mr. G failed to hire a private investigator to help prepare the case for trial.

8. Mr. G failed to file any pretrial motions including but not limited to a motion to suppress the alleged “confession” or to suppress the testimony that he was the first person to mention the term “Ener-gine” or to disclose impeaching {Brady) information, or a motion to get copies of the co-defendant’s statements and videotape, or a motion to sequester the jury, or a motion for individual voir dire. (P.C. Tr. pp. 424-25).

9. Mr. G failed to effectively depose the state’s chief witness, Sprouse, neglecting to ever ask Sprouse at the trial whether Sprouse had mentioned the word “Ener-gine” to the police at the time before the moment that the police now claim they first heard the word “Energine” from Hanes. Hanes denies he ever said this and further states that he had never before heard the word “Energine.”

10. Mr. G filed no motion to reveal the plea agreement between Sprouse and the state even though Sprouse was the state’s key witness.

11. Mr. G failed to advise the Petitioner he had never tried a major criminal case in Missouri before the instant case or that he was unfamiliar with the rules and statues that govern such trials.

12. Mr. G did request a mistrial (T. Tr. pp. 560-562), but he did not request any corrective instruction to disregard or strike when the prosecutor repeatedly tried to get into evidence the fact that Hanes was plotting to kill his wife.

13. Mr. G didn’t call 3 vital witnesses.

14. Mr. G also claimed to have filed a notice of appeal, but none was filed (P.C. Tr. p. 11), and no appeal was pursued despite counsel being paid $5,000.00 to do it.

What Hanes says about the $5,000.00 check and what Sprouse says are miles apart. Mr. G lied about why he demanded the $5,000.00. (P.C. Tr. pp. 11, 12, 180, 380, 384, 453). (See Ex. A, p. 6, No. 27).

15. His post-trial conduct was so egregious that the state of Missouri conceded that his said acts and omissions were ineffective and had him resentenced.

16. The post-conviction relief hearing Court described Mr. G’s handling of the post-trial phase as “outlandish” and expressed surprise that trial counsel was allowed to practice law in the state of Missouri.

ILLINOIS-MISSOURI FIASCO

The next serious shortcoming of counsel for Hanes was the Illinois-Missouri fiasco. In this habeas case, new appellate counsel for Hanes was trying to show that Mr. G was not only ineffective but that he had been suspended in both Illinois and Missouri for precisely the same kind of ineffectiveness of counsel that the record here shows he gave Hanes. Counsel for Hanes had not done his homework and did not know the extent of Mr. G’s identical ineffectiveness that he gave Hanes or just why he had been suspended as is set out in public records in both states.

The state of Missouri has an affirmative duty to want and expect a fair trial. At the hearing before this panel, this was not evident by the conduct of Appellee’s counsel here. Certainly, said counsel has a duty to come before the Court and make the best argument possible; however, when asked a question about Mr. G telling lies to Hanes and his mother and stating that Mr. G had been present at a preliminary hearing in the Hanes’ case and that he had spent a lot of time preparing for it, when there hadn’t been any such hearing, Appellee’s counsel’s answer was the usual stock answer. In effect counsel said,

These prisoners always accuse their lawyers of bad things, poor Mr. G, he had a lot of other cases, it is not surprising that he didn’t not remember that there was no pretrial hearing in this case. Prisoners who commit crimes and then try years later to blame their convictions on their attorneys should not be listened to.

It is clear from the record that Mr. G had been suspended for a long time in both Illinois and Missouri for misconduct that had been going on for over 25 years. This is more fully discussed in the “Deference” portion of this dissent. His suspensions are public records, which this Court has taken judicial notice of, on many other occasions.

It should be remembered that the post-conviction relief judge, after listening to and observing Mr. G’s conduct, described said conduct as “outlandish” and expressed surprise that Mr. G was allowed to practice law in the state of Missouri. (P.C. Tr. p. 451). Later, when what Mr. G had been doing was brought to the attention of both the Illinois and Missouri Supreme Courts, he didn’t have a license.

Why did the post-conviction judge conclude Mr. G was outlandish? One factor would have been his bold faced he approach. As to Mr. G being credible, I would call your attention to post-conviction relief transcript pages 449 to 457. In that portion, Mr. G is being cross-examined by Hanes’ appellate counsel as to Mr. G demanding, right after the trial was over, the sum of $5,000.00 for an appeal. Of course, as Hanes’ counsel was asking these questions, everyone in the place, including Mr. G, knew that there had been no appeal. So, he said that the $5,000.00 that he took wasn’t really for the appeal it was for other matters including a possible post-conviction relief and/or hearings before the parole board and/or possible commutation of the sentence by the Governor of Missouri. Then, he flatly said that the $5,000.00 was for such things as that. He was then shown Ex. 3 and 4 which were letters written by him wherein he flatly said, “I need $5,000.00 for an appeal, and I néed it right now.” As well as Ex. 9, the check he received for $5,000.00. Mr. G, without knowing that the cross-examiner had the exhibits setting out that he is demanding $5,000.00 for an appeal, was trying to say that he had a legitimate reason for demanding the money, and the $5,000.00 was properly paid to him. Even after he was shown these exhibits, his own letters, over his signature, he said that the money was really for getting Hanes a pardon or a commutation of sentence.

At that moment, Mr. G was being a bold-faced liar. He blatantly was trying to tell the post-conviction relief judge that he thought it was appropriate to take that $5,000.00 from Hanes’ mother so that he could go to the Governor and get a commutation of sentence. The chances of doing that within a few days after a fifty year sentence has been imposed are nil as anyone would know.

The majority, in footnote 6 on page 697 of its order, begin to discuss how competent Mr. G was as counsel. They then use all of pages 697-99 adopting as true all the things Mr. G claims he did as an effective counselor. They concede they must give deference. That ignores the fact that he was an awful bar as set out above and as found to be by Supreme Courts of Missouri and Illinois. That ignores the fact that Hanes and his mother emphatically deny such “effective” acts. They also try to explain that not calling Hanes’ wife and Gary Seiner to testify was a proper strategy decision. These “strategic” choices by Mr. G are addressed at some length herein, and said “strategy” is shown to be stupidity because the record shows Hanes’ wife should have been allowed to refute the testimony that Hanes was going to kill her and Seiner should have been there so that the prosecutor could not pound on the table and argue that he wasn’t there because he did not want to commit perjury.

On any remand, what the Illinois Supreme Court and the Missouri Supreme Court have clearly said about Hanes’ trial counsel, i.e., 25 years of serious client neglect, would be most relevant to review the “approval” of Mr. G’s conduct which the majority here has given it.

“CONFESSION” FAILURE TO CALL WITNESSES BOWERSOX FIASCO

On numerous occasions, Hanes and his mother, Virginia Hanes, informed trial attorney Mr. G that both Virginia Hanes, his mother, and his wife, Alison Hanes, should be called as witnesses. Mr. G never talked to the wife, Alison Hanes, but did, prior to trial, talk briefly with Hanes’ mother, Virginia.

An important piece of evidence that was used against Hanes was an alleged statement he made to his mother in a telephone conversation with her from the police station shortly after he was arrested. The police had arranged a confrontation between Hanes and co-defendant Sprouse. Hanes later was allowed to call his mother. During the conversation, the investigator, Captain Humphrey was nearby Hanes. In that conversation, Hanes advised his mother that articles of stolen property from the decedent’s home were in the mother’s house and that the police were coming for them. Captain Humphrey has testified that he listened to what Hanes said on the telephone and states that this is what Hanes said: “No, mom, that is not all. It is worse. Please tell Alison to bring my medication and please send my prayer book and pray for me.”

The prosecutor at the trial and now the respondent contend these words clearly demonstrate that Hanes “confessed” when talking to his mother at the time of his arrest. There was no CONFESSION!

Hanes’ trial counsel never really disputed the contentions as to a confession. As a result, the prosecutor flatly told the jury that Hanes had confessed to his mother and that his mother had not been willing to testify because she knew he was guilty and did not want to commit perjury. (T. Tr. p. 635).

Hanes’ mother was at the original trial, but Mr. G told her that she would have to stay outside in case he did call her as a witness. Despite much urging by Hanes, Mr. G did not call Hanes’ mother to allow her to refute the contention that their conversation did not include any “confession” by Hanes.

Hanes’ mother’s recollection of the conversation with Hanes differs substantially from that of Captain Humphrey. She testified that in that call, Hanes said to her, “Will you please bring my medicine or have Alison bring my medicine and my prayer book to the County Jail,” and I said, “Yes.” Then I asked Bill, I said, “Is that all?” And Bill says, “Oh Mom, Mom,” and he says, “They’re accusing me.” (P.C. Tr. p. 169).

During the closing argument of the guilt phase of Hanes’ trial, the prosecutor, on 14 separate occasions, characterized Captain Humphrey’s version of this conversation as a “confession” made by Hanes to his mother and made pointed references to it as a statement of a guilty man.

And he (Hanes) could never explain away that statement that he made to his mother, the statement he made to his mother on the telephone, the statement of a guilty man, “No, its worse than that. Bring my prayer book and pray for me.” It’s not saying, “I have been falsely charged. I didn’t do it. I didn’t do it.” To his own mother he’s saying, “Bring my prayer book.” If it’s your own mother you would say, “I didn’t do it. I didn’t do it.” His own mother isn’t here to testify to that. (T. Tr. p. 635).

At the trial, Hanes did testify and did dispute the contention that he had made ■any kind of confession to his mother. At that time, he again reminded Mr. G that Hanes’ mother was out in the hall waiting to be called to refute any claimed confession. Mr. G never did call Hanes’ mother. The prosecutor emphasized and exploited this alleged failure of the mother to deny the “confession” as set out above.

Years later at the post-conviction relief hearing, the mother, Virginia Hanes, did testify that trial attorney Mr. G never would discuss with her the State’s contention that her son had confessed to her over the telephone. (P.C. Tr. p. 168).

Hanes’ mother testified she was unaware that the prosecutor was attempting to characterize the telephone conversation as a confession until her husband told her about it during the trial. It should be noted that her husband was inside listening to the trial, but she was outside as a possible witness.

Hanes’ mother testified at the post-conviction relief hearing that after she heard of the prosecutions’ version of the telephone conversation with her son, she “almost begged” Mr. G to let her testify. Hanes’ mother testified that while she was sitting out in the hall during the trial, “a policeman came up to me and said your son did not confess.” (P.C. Tr. p. 191).

There is no doubt that Hanes’ mother was available and very willing to testify. It is also beyond doubt that Mr. G knew she was outside because he had sent her out there: Not to call the mother as a witness was not any strategic move on behalf of trial counsel. This was out and out stupidity. It led the jury to conclude that Hanes’ mother was not testifying because she would have to admit that he had “confessed” to her during the telephone conversation. There is no conceivable, strategic advantage in not calling Hanes’ mother. What possible scenario could there be that would be more damaging to Hanes’ case than the one left, when the prosecutor looked right at the jury, and told them that Hanes’ own mother would not come before them because she can’t refute this confession. Hanes had made it clear to Mr. G that his mother could rebut the allegations of Captain Humphrey that he (Hanes) confessed to his mother. Mr. G never called Hanes’ mother to the stand. Nor did Mr. G make any attempt to suppress the confession testimony.

As devastating as Mr. G’s refusal to counteract the prosecutions’ version of the “confession” as set out above, was the fact that the prosecutor repeatedly sought, in front of