William E. GROSECLOSE, Petitioner-Appellee, v. Ricky BELL, Warden, Respondent-Appellant, 130 F.3d 1161

RYAN, J., delivered the opinion of the court, in which KEITH, J., joined. SUHRHEINRICH, J. (pp. 1171-1179), delivered a separate dissenting opinion. RYAN, Circuit Judge. Ricky Bell, the warden of the Tennessee Riverbend Maximum Security Institution and the respondent in these proceedings, appeals from the district court’s judgment granting a writ of habeas corpus to petitioner William E. Groseclose pursuant to 28 U.S.C. § 2254.

Although the State of Tennessee presents numerous allegations of error with respect to the various bases for the district court’s issuance of the writ, we find only one issue necessary to the resolution of this appeal. Because we conclude that the district court correctly found that Groseclose was unconstitutionally denied effective assistance of counsel under the Sixth Amendment, we will affirm. I. A. In February 1978, William E.

Groseclose was convicted in the Shelly County, Tennessee, Circuit Court of murder in the first degree in connection with the killing of his wife, Deborah Lee Groseclose, on June 29, 1977. Groseclose was alleged to have contacted Barton Wayne Mount, a naval recruit Groseclose met while Groseclose was employed in the Navy Recruiting Service, in an effort to find someone to murder Mrs. Gro-seclose. State v. Groseclose, 615 S.W.2d 142, 144 (Tenn.1981). Mount referred Groseclose to an acquaintance, Phillip Michael Britt, who in turn contacted Ronald Eugene Rickman, Britt’s former brother-in-law.

Rickman agreed to commit the murder in cooperation with Britt. Groseclose agreed to pay a certain price, in which Rickman, Britt, and Mount would all share. During its prosecution of the case, the State never ascribed one particular motive to Groseclose, but instead pointed to evidence that “[h]is motives may have been apprehension that [his wife] was about to sue him for divorce, desire to obtain [substantial] life insurance proceeds, or interest in another woman.” Id. The Tennessee Supreme Court described the murder as “one of the most atrocious and inhuman conceivable.” Id. at 145.

According to the evidence presented by the State at trial, the scheme was for Rickman to accost Deborah the day before the murder and, in an attempt to divert suspicion for the later murder from her husband, “to frighten her to the point that she would report ... the incident to the police.” Id. The next morning, Groseclose left his house with the couple’s infant son, leaving the back door unlocked. Rickman and Britt then entered the house; each raped Deborah Groseclose, and then told her “there was a ‘contract’ on her life.” Id.

After listening to Deborah plead for her life by offering money to her assailants, Rick-man “proceeded to strangle Mrs. Groseclose into unconsciousness,” and then, because he detected a pulse, to stab her three or four times in the back. Id. Rickman and Britt placed Deborah in the trunk of her car, apparently believing her to be dead, “and drove the vehicle to a parking lot adjacent to the main Memphis Public Library.” Id. During the trip, Rickman learned that she was not in fact dead because he “could hear her cries for help from the trunk.” Id.

Rickman and Britt nonetheless left her in the trunk of her car; she was discovered five days later, and the medical testimony at trial suggested that while she would not have died from her injuries alone, the excessive heat in her car trunk caused her death. During the subsequent investigation, police were led to Rickman and Mount through information given by Rickman’s roommate. Although Rickman, Britt, and Mount all gave statements to the police, Groseclose did not. Groseclose, Rickman, and Britt were all charged with murder in the first degree, tried jointly, and convicted. B.

Jury selection began on February 13,1978, and was completed on February 17. Grosec-lose, along with Rickman and Britt, pleaded not guilty. The trial began on February 18 and was concluded on February 28. The sentencing hearing was held between March 1 and March 3. The State presented 39 witnesses during the guilt phase of the trial. None of the defendants testified during the guilt phase. All three defendants were convicted of murder in the first degree. Grosec-lose and Rickman were then sentenced to death, while Britt received a sentence of life imprisonment.

Groseclose appealed to the Tennessee Supreme Court, which affirmed his conviction in 1981. Groseclose, 615 S.W.2d 142. The U.S. Supreme Court then denied Grosec-lose’s petition for writ of certiorari. Groseclose v. Tennessee, 454 U.S. 882,102 S.Ct. 366, 70 L.Ed.2d 193 (1981). Groseclose next filed a petition for post-conviction relief in January 1982, arguing, inter alia, that he had received constitutionally ineffective assistance of counsel. After holding an evidentia-ry hearing, the trial court denied the petition in December 1982. The Court of Criminal Appeals affirmed the denial in February 1984.

Groseclose v. Tennessee, No. 9 (Tenn.Crim.App. Feb. 16, 1984). The Supreme Court of Tennessee denied a subsequent application for permission to appeal, and the U.S. Supreme Court denied a petition for writ of certiorari. Groseclose v. Tennessee, 469 U.S. 1066, 105 S.Ct. 549, 83 L.Ed.2d 436 (1984). Groseclose filed a second and third petition for post-conviction relief in the state court, both of which proceeded through the system and were denied. Groseclose also filed a petition for a state writ of habeas corpus, which was denied. Groseclose filed his petition for writ of habeas corpus in the U.S.

District Court for the Middle District of Tennessee in August 1989. In February and November 1990, the State filed two motions for judgment on the pleadings, alleging that Groseclose had procedurally defaulted on several of his claims. In November 1994, the district court denied these motions. In January 1995, Groseclose filed a motion for

summary judgment as to some of his claims. The district court granted

summary judgment with respect to many of Groseelose’s claims, but denied it with respect to others, instead granting it, sua sponte, to the State. Groseclose has not filed an appeal from those latter rulings, and they are not at issue. On April 10, 1995, the district court conducted an evidentiary hearing on Grosee-lose’s claims that remained following the

summary judgment disposition, and in due course, issued an order directing that a writ issue unless the State afforded Groseclose a new trial within 120 days. Groseclose v. Bell, 895 F.Supp. 935 (M.D.Tenn.1995). The court based its granting the writ on the constitutionally ineffective assistance of Groseclose’s trial counsel, and, as an alternative basis, on the cumulative effect of the errors for which the court had earlier granted

summary judgment. The court declined to reach, however, an argument by Groseclose that the Shelby County Circuit Court systematically discriminated against blacks and women in the selection of grand jury foremen. The State filed a motion to alter or amend the judgment, pursuant to Fed.R.Civ.P. 59, which was denied by the district court in August 1995, and then filed this timely appeal. The district court stayed its judgment pending this appeal. II.

This court reviews de novo a district court’s disposition of a petition for writ of habeas corpus, but nonetheless reviews the district court’s factual findings only for clear error. See McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 2422, 138 L.Ed.2d 185 (1997). 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. “The presumption ... applies to implicit findings of fact, logically deduced because of the trial court’s ability to adjudge the witnesses’ demeanor and credibility.” Id. However, “[t]he presumption only applies to basic, primary facts, and not to mixed questions of law and fact,” which receive de novo review. Id. An ineffective assistance of counsel claim presents a mixed question of law and fact, for which both the state-court and district-court determinations are subject to de novo review by this court. See Sims v. Livesay, 970 F.2d 1575, 1579 (6th Cir.1992); Smith v.

Jago, 888 F.2d 399, 407 (6th Cir.1989). [I]n a federal habeas 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 Rule 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); accord McQueen, 99 F.3d at 1310-11.

In setting forth this applicable standard of review, we take note of the disagreement expressed in the parties’ briefs as to the effect of the recent amendments to 28 U.S.C. § 2254 set forth in

section 104 of the Antiter-rorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (1996). Although the AEDPA became effective on April 24, 1996, and although it mandates significant changes to the federal courts’ treatment of both factual and legal issues in the habeas setting, the Supreme Court’s recent decision in Lindh v. Murphy, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), instructs that those changes do not apply to this case, or any case pending at the time of the AEDPA’s enactment; instead, those changes “generally apply only to cases filed after the Act became effective.” Id. at -, 117 S.Ct. at 2068. We are, instead, left to apply

section 2254(

d) as it existed prior to enactment of the AEDPA. See id. III. A. 1. Groseclose’s contention that his privately retained trial counsel, Fernand D. Brack-stone, had been constitutionally ineffective was initially raised by Groseclose at the time of his first post-conviction proceeding.

According to representations made by the State in this appeal, Groseclose based his contention that Brackstone was ineffective on ten separate grounds: (1) the failure of Brack-stone to keep Groseclose adequately advised; (2) his failure to investigate and prepare a defense; (3) his failure to file appropriate pretrial motions; (4) his failure to make timely and necessary objections; (5) his failure to conduct appropriate jury voir dire; (6) his failure to call witnesses to impeach prosecution witnesses although requested to do so by Groseclose; (7) his failure to independently represent Groseclose, instead following the lead of Rickman’s attorney; (8) his failure to make proper inquiry concerning Groseclose’s State-administered medication at trial; (9) his failure to properly communicate with Groseclose after trial; and (10) his failure to request appropriate jury instructions.

The state courts rejected Groseclose’s arguments. In formulating its denial, the state trial court explicitly based its findings on “the transcript of th[e] [post-conviction] hearing as well as the trial transcript, pleadings and ... its own memory as to what transpired diming the course of the trial.” The court then wrote as follows:

(2) The Court finds that the attorney of record, Mr. Fernand D. Brackstone, met the legal standard of effective representation in [sic] behalf of the petitioner as required in Tennessee. The alleged failure of Mr. Brackstone to exhaust his peremptory challenges during voir dire does not constitute ineffective assistance. The transcript of the voir dire reveals there was an abundance of information available to Mr. Brackstone to make a proper decision on the qualifications of the prospective jurors. Mr. Brackstone commencing in volume five joins Mr.

Adams[, counsel for codefendant Britt,] in objecting to the exclusion of certain jurors by the Court on their views as to considering the death penalty.

(3) The Court finds that Mr. Brackstone in interviewing the petitioner attempted to substantiate the petitioner’s position that he was not present during the murder.

(5) The Court finds that Mr. Brackstone did not completely turn over the representation of his client to Mr. Robert I. Livingston[, counsel for codefendant Rickman]. Commencing on the second day of the voir dire ..., the attorneys for all three defendants agreed to work as a team for the benefit of all parties. This continued during the course of the trial.

(6) The Court finds that Mr. Brack-stone’s representation was not incompetent due to a failure to produce any proof during the guilt phase of the trial. Rather at the close of the State’s proof the attorneys agreed to not produce any proof. The petitioner testified in the absence of the jury after a consultation with his fellow co-defendants, their attorneys, and his counsel, Mr. Brackstone, he did not desire to testify in his own behalf. This is set out in the trial transcript.

(7) The Court finds that Mr. Brackstone did produce witnesses during the penalty phase, that is those witnesses who knew of the petitioner’s whereabouts on June 29, 1977, his work associates and service record .... There was evidence produced on the petitioner’s part that he had no criminal record____

(8) The Court finds no merit to the allegation that Mr. Brackstone rendered the petitioner ineffective assistance during the appellate stage not withstanding [sic] the fact that Mr. Brackstone lost his trial notes.

(9) The Court finds that Mr. Brackstone did[,] after numerous discussions with the petitioner, conduct an investigation of the petitioner’s case. This was done by talking to state witnesses, petitioner’s neighbors, visiting the petitioner’s home and crime scene, reviewing the State’s physical evidence, talking to the co-defendants and the petitioner’s co-employees. (10)The Court finds that Mr. Brack-stone has been practicing law since 1937, primarily in a general practice.

There was a hiatus between 1956 and 1971 while he was in the mercantile business in Mississippi; that he had made himself aware of legal procedure and legal issues in murder cases. Based on these findings, the trial court concluded that Brackstone “has met the standard of competence as required by [Tennessee law]: "Whether the advise [sic] given, or the services rendered by an attorney are within the range of competence demanded by attorneys in criminal cases.’ ” (Citation omitted.) The appellate court affirmed the trial court’s judgment, making no additional findings of significance.

In addressing Groseclose’s claim, the district court made extensive findings, which in large measure we will repeat here. We note that none of the district court’s findings of primary fact is in any measure inconsistent with the state courts’ findings. Instead, the district court simply addressed facts not focused on by the state courts, which focus in turn led the district court to a different legal conclusion. We note that the district court’s findings, in addition to being wholly consistent with the state courts’ findings, are amply supported by the record.

Indeed, the State does not argue that the findings in question are clearly erroneous.

The district court found, as follows: Brackstone graduated from law school in 1937, and practiced in Mississippi until 1941; after World War II, he worked for the Veterans Administration until 1950; between 1950 and 1956, he operated a business while practicing law part-time; between 1956 and 1971, he did not practice law at all while he operated another business; and between 1971, when he again began practicing law, and Groseclose’s trial in 1977, Brackstone had four to six criminal jury trials, none of which was a murder trial.

Indeed, before Grosec-lose’s ease, Braekstone had never had a murder case that went to a jury. And between his return to practice in 1971 and Grosec-lose’s trial in 1977, Braekstone attended a total of three or four legal seminars, only one part of one of which dealt with defending murder cases.

Braekstone “never said and never reported [to Groseclose] what he investigated or what his results were” during pretrial investigation, and told “Groseclose that he should just plead guilty and throw himself on the mercy of the court.” Braekstone never described to Groseclose the nature of the State’s evidence against him. Braekstone almost entirely failed to investigate the case; he never, for example, interviewed the crime-incident witnesses or any family members. Braekstone failed to develop a defense theory.

When questioned at the state post-conviction hearing regarding his theory of the ease, Brackstone’s only response was, “My theory was to do the best I could with what I had.” He explained that “attacking the story of Rickman and Britt was not part of his theory of defense.” Thus, he testified, he did not consider mounting “a defense of blaming co-defendants Rickman and Britt who for reasons known only to them had decided to implicate Mr.

Groseclose into the murder conspiracy by fabricating his involvement.” During the guilt phase of the trial, Braekstone failed to call a single witness or put on any proof, and, further, advised Gro-seclose not to testify, despite his lack of a criminal record and despite the fact that he had consistently maintained his innocence. Braekstone made one independent objection in the course of the 2400-page transcript. He cross-examined fewer than half of the State’s 39 witnesses; his cross-examination of Mount, perhaps the most crucial witness for the State, consisted of a total of 11 pages of transcript.

And after failing to present the jury with any evidence on his client’s behalf, Braekstone culminated his performance by waiving his closing argument. When asked during the federal evidentiary hearing whether he thought Braekstone was “effective” or “competent,” the attorney for codefendant Britt — who testified for the State as an expert witness — responded, “[N]o[,] he was not effective.” According to Britt’s attorney, “Braekstone was more or less doing what [Rickman’s attorney] did to represent his client.

He was kind of following [Rickman’s attorney’s] lead.” And as Groseclose’s expert witness pointed out, this course was especially ill-judged because “there was no reasonable possibility of a unified defense,” given the disparity, indeed hostility, between the parties’ interests. According to Britt’s attorney, Braekstone failed to prepare at all for the presentation of mitigation evidence during the sentencing stage of the proceedings. Indeed, Brack-stone called only four mitigation witnesses.

Moreover, he waived his opening statement — a decision that Groseclose’s expert witness in this habeas proceeding termed “remarkable.” He failed to introduce Gro-seclose’s fairly impressive military record, and failed to present witnesses concerning Groseclose’s extensive religious and volunteer activities, despite Groseclose’s suggestions and despite the witnesses’ ready availability. He failed to call any experts who could have testified about sociological and psychological factors. And while he did opt to make a closing argument during this stage of the proceedings, it occupied all of nine minutes.

Based on these findings, the district court concluded that Brackstone’s performance was deficient in many respects, and that the “deficiencies prejudiced the defense so as to deprive the defendant of a fair trial.” The court concluded, alternatively, that Brack-stone’s performance was so deficient — in that it failed to subject the prosecution’s case to meaningful adversarial testing — that it was unnecessary to demonstrate prejudice. 2.

With any ineffective-assistance claim, the obvious starting point is Strickland, in which the Court “considered] the proper standards for judging a criminal defendant’s contention that the Constitution requires a conviction or death sentence to be set aside because counsel’s assistance at the trial or sentencing was ineffective.” 466 U.S. at 671, 104 S.Ct. at 2056. Never before Strickland had the Court “directly and fully addressed a claim of ‘actual ineffectiveness’ of counsel’s assistance in a case going to trial.” Id. at 683, 104 S.Ct. at 2062.

Nonetheless, the Court’s recognition “that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial,” may be observed “[i]n a long line of eases” dating as far back as 1932. Id. at 684, 104 S.Ct. at 2063. As the Court explained, a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.

The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the “ample opportunity to meet the case of the prosecution” to which they are entitled. Id. at 685, 104 S.Ct. at 2063. A defendant may be deprived of his right to effective assistance of counsel when his attorney has “simply ... fail[ed] to render ‘adequate legal assistance.’ ” Id. at 686, 104 S.Ct. at 2064.

According to the Strickland Court, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. This standard is equally “applicable] to a capital sentencing proceeding,” as it “is sufficiently like a trial in its adversarial format and in the existence of standards for decision, that counsel’s role in the proceeding is comparable to counsel’s role at trial.” Id. at 686-87, 104 S.Ct. at 2064 (citations omitted).

The Strickland Court established a two-part test: A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.

This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687, 104 S.Ct. at 2064.

The first prong of this test — the showing of deficient performance — is an objective one: “When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness,” as judged simply by “prevailing professional norms.” Id. at 687-88, 104 S.Ct. at 2064-65; accord Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975).

The Court cautioned that in undertaking an ineffective-assistance review, “[j]udicial scrutiny of counsel’s performance must be highly deferential,” and must avoid the “second-guess[ing of] counsel’s assistance ..., [as] it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

In order to avoid “the distorting effects of hindsight,” a reviewing “court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that ... the challenged action ‘might be considered sound trial strategy.’ ” Id. (citation omitted).

And in considering whether an action, including a failure to investigate, is a strategic decision, one must consider the effect of information conveyed by the defendant to his counsel. [Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.

In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.

Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether.

And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable. Id. at 690-91, 104 S.Ct. at 2066. After these explanations, the Strickland Court turned to a consideration of the second, “prejudice” prong of its test, noting that even professionally unreasonable errors do “not warrant setting aside the judgment of a criminal proceeding if the error[s] had no effect on the judgment.” Id. at 691, 104 S.Ct. at 2066. But see United States v.

Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Except in certain limited circumstances, “ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.” Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. To do so, the Court explained, [i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.

Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding____ On the other hand, we believe that a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.... ... [T]he appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness.

The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 693-94, 104 S.Ct. at 2067-68 (emphasis added) (citations omitted). The Court then explained how to apply this general standard to specific circumstances: The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel’s errors.

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. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Id. at 695, 104 S.Ct. at 2069 (emphasis added). 3.

In assessing whether Groseelose was unconstitutionally deprived of the effective assistance of counsel, in the constitutional sense, we turn first to the State’s contentions on appeal. The State’s challenges to the district court’s conclusions, however, are notably sparse. It argues, first, that the district court erroneously ignored the presumption of correctness to be accorded to state-court findings, and essentially performed a de novo review of the case.

Without pointing to a single factual finding of the state court that was ignored by the district court, the State argues that the underlying findings should have been presumed to be correct, and that if this presumption were applied, it would be clear that Groseclose failed to prove his counsel’s performance was prejudicially defective. As we have already observed, however, there is no state-court finding of historical fact that is inconsistent with the district court’s findings, and there were no state-court findings that were inappropriately ignored by the district court.

And since the ultimate questions of the adequacy of counsel’s performance and prejudice to the petitioner are mixed questions of law and fact, not subject to clearly erroneous review, we are constrained to conclude that this part of the State’s argument fails.

The State’s second argument is a rather unclear procedural-default claim: that, in state court, Groseclose raised “only” ten specific arguments in connection with his ineffective-assistance claim, and that the state court rejected all those claims, “either explicitly or implicitly.” The State then argues that Groseclose is now limited to the claims that he raised in state court — yet the State does not specify which of the arguments Groseclose raised in the district court, or which of the legal bases relied on by the district court, it believes are now barred from consideration.

We have no difficulty in concluding that this procedural-default contention is completely lacking in merit. Our review of the record reveals that the arguments that the State acknowledges were preserved in the state court are precisely those that Groseclose relied on in federal court. 4. Strangely, the State has failed to offer any substantive challenge to the district court’s issuance of the writ on the ground of ineffective assistance. Conducting our own de novo review, we are satisfied that the district court’s action was correct.

That is, as we shall explain, we have absolutely no hesitation in concluding that Brackstone’s performance was objectively unreasonable and well below the minimum standards of professional competence, and that competent representation may well have garnered a different outcome. Given the record in this case, it is perhaps unsurprising that the State does not present a more vigorous challenge to the district court’s conclusion. This is not to say, however, that Grosec-lose’s arguments are uniformly well-taken.

In arguing Brackstone’s ineffectiveness, Gro-seclose mistakenly tends to focus upon perceived shortcomings that may arguably be attributable to trial strategy, such as Brack-stone’s failure to call certain family members as witnesses during the guilt phase or the failure to file various pretrial motions. A better advocate may very well have done these things, but that is not the constitutional standard to which an attorney is held under Strickland.

In addition, some of the arguments Groseclose makes are simply not reliable bases for concluding that Brackstone was ineffective, such as Groseclose’s claims that Brackstone did not understand the nature of the trial, and erroneously thought it was a bifurcated proceeding. Turning now to an assessment of Brack-stone’s representation of Groseclose in light of the requirements of Strickland, we begin first with the so-called performance prong of Strickland.

As the Strickland Court stated, “[t]hat a person who happens to be a lawyer is present at trial alongside the accused ... is not enough to satisfy the constitutional command.” Strickland, 466 U.S. at 685, 104 S.Ct. at 2063.

Brackstone was, at best, “a person who happens to be a lawyer.” In reaching this conclusion, we find three aspects of Brackstone’s representation in this capital case to be especially appalling: (1) his failure to have any defense theory whatsoever; (2) his failure to conduct any meaningful adversarial challenge, as shown by his failure to cross-examine more than half of the prosecution’s witnesses, to object to any evidence, to put on any defense witnesses, to make a closing argument, and, at sentencing, to put on any meaningful mitigation evidence; and (3) perhaps most importantly, his abdication of his client’s case to Rickman’s counsel.

Also significant, as noted by the Strickland Court, was Brackstone’s failure to adequately communicate with Groseclose prior to trial. While the justification for our conclusion that the first and second failures listed above amounted to an ineffective performance is presumably self-evident, our third criticism merits a fuller explanation. Certainly, there are cases in which defense counsel for one defendant may defer to counsel for another defendant, allowing that attorney to act as lead counsel. But in this case, Rickman’s defense was completely antagonistic to Gro-seclose’s defense.

This was a case in which a competent defense attorney would wish for severance. Rickman had confessed and implicated Groseclose. Groseclose, on the other hand, had never made any inculpatory statement to police, and there was little evidence tying him to the crime beyond the statements of his coconspirators. Thus, to align Groseclose’s defense with that of Rick-man and then to yield the adversarial lead to Rickman’s counsel, given the necessary antagonism, is, to use the current vernacular, mind-boggling.

But Brackstone’s decision to simply follow the lead of Rickman’s court-appointed counsel was an exceptionally egregious decision for Groseclose’s fortunes, given the extraordinary tactics employed by that gentleman. First, Rickman’s attorney was not a model of preparation. Indeed, he testified during the habeas proceeding in the district court that because he believed there was no defense available during the guilt phase of Rickman’s trial, he simply failed to prepare for trial. He did not interview any witnesses, conduct any legal research, or obtain and review any records.

Second, in what the state court described as a “desperate” strategy, Rick-man’s attorney decided that his client’s best hope was in being portrayed as “subnormal.” His defense strategy, therefore, was to attempt “to show the jury that we had a sick boy on trial, a subnormal, abnormal human being on trial.... That was my whole object of the whole defense, was [to] try to convince the jury that we had a sick man on trial.” To that end, he had Rickman testify about past violent crimes and drug use, and, in general, repeatedly elicited testimony that portrayed Rickman in a deviant, destructive, and terrifying light.

It is difficult to imagine anything more ill-considered than a decision to hitch Groseclose’s wagon to that star; there is no conceivable way that the line of defense followed by Rickman’s attorney could do anything but further damage Gro-seclose in ways that a defense tailored to Groseclose would not have done. We note, too, that there is no conceivable way in which the sum of Braekstone’s deficiencies can be ascribed to trial strategy gone awry. As his own testimony in the state post-conviction proceeding made clear, he simply had no strategy.

Thus, his inaction cannot be characterized as bad judgment stemming from a misguided, but competent, factual or legal investigation. He made no investigation; he made no judgment. The question then becomes whether it is necessary for Groseclose to demonstrate prejudice, under Strickland’s second prong, or whether, as the district court believed, Brackstone’s performance was so inept as to amount to a constructive denial of counsel, relieving Groseclose of the need to show prejudice. This is not a dispute we need decide, because the prejudice resulting from Brackstone’s lawyering is so patent.

We find it quite clear that there were defense tactics available to a reasonably competent attorney that create a reasonable probability that, in the absence of Brackstone’s incompetence, the jury would have had a reasonable doubt respecting Groseclose’s guilt. The State’s evidence tying Groseclose to the perpetrators of the murder was relatively weak. A defense that capitalized on that weakness, and that marshaled evidence emphasizing it, could certainly have led to a different verdict.

Indeed, all that Brack-stone need have done to create a much greater probability of a favorable verdict would have been to employ any defense, however anemic, that was specifically tailored to Gro-seclose, rather than a defense that linked Groseclose to Rickman, a man whose lawyer painted him as a vile and dangerous killer. The prejudice to Groseclose resulting from his lawyer’s performance is even easier to discern in the context of the sentencing phase.

In addition to having no criminal history, Groseclose was very active in his church, had a positive military record, and had a plethora of family members willing to testify on his behalf. There is a reasonable probability that, absent Brackstone’s utter failure to develop or even advert to these mitigating factors, the jury would have concluded that the balance of aggravating and mitigating circumstances did not warrant the death sentence. B.

Given our unambivalent conclusion that Groseclose was denied effective assistance of counsel in a constitutional sense, we find it unnecessary to examine the voluminous remaining assignments of error brought forward by the State in this appeal.

Thus, even if we were to agree that the district court erroneously concluded that the State knowingly presented false and misleading testimony and withheld evidence, or unconstitutionally administered medication to Groseclose during trial, or that the jury instructions were flawed in a variety of ways, that would not change the outcome of this appeal, nor does it matter whether the district court correctly concluded that the cumulative effect of the errors it found resulted in a constitutionally unfair trial.

It is, likewise, unnecessary to reach the merits of Grosec-lose’s claims regarding the composition of the jury venire, despite the State’s urging that we rectify the district court’s decision not to reach that issue. The tenets of judicial economy mandate that we not resolve issues that cannot alter our final decision. We note in passing, however, the complete lack of merit to Groseelose’s position that because various jury instructions were constitutionally defective, the Double Jeopardy Clause prohibits the State from retrying him.

The Double Jeopardy Clause is implicated by the issuance of a writ of habeas corpus when the basis for the issuance is an insufficiency of the evidence — the failure of the prosecution to prove its case. See Poland v. Arizona, 476 U.S. 147, 152-53, 106 S.Ct. 1749, 1753-55, 90 L.Ed.2d 123 (1986). Otherwise, as a general matter, “there is no double jeopardy bar to retrying a defendant who has succeeded in overturning his conviction.” Bullington v.

Missouri, 451 U.S. 430, 442, 101 S.Ct. 1852, 1860, 68 L.Ed.2d 270 (1981). “ ‘[Reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its cases.’ ” Id. (citation omitted). Erroneous instructions plainly fall in the category of trial error. See Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978); see also Saylor v. Cornelius, 845 F.2d 1401, 1403 (6th Cir.1988). There is, in short, no bar to retrial. IV.

Because Groseclose received constitutionally ineffective assistance of counsel, we AF- • FIRM the district court’s issuance of a writ of habeas corpus.