Ronald Eugene RICKMAN, Petitioner-Appellee/Cross-Appellant, v. Ricky BELL, Warden, Respondent-Appellant/Cross-Appellant, 131 F.3d 1150

RYAN, J., delivered the opinion of the court, in which KEITH, J., joined. SUHRHEINRICH, J. (pp: 1160-1167), delivered a separate dissenting opinion. OPINION RYAN, Circuit Judge. Ricky Bell, the warden of the Tennessee Riverbend Maximum Security Institution and the respondent in this proceeding, appeals from the district court’s judgment granting a writ of habeas corpus to petitioner Ronald Eugene Rickman pursuant to 28 U.S.C. § 2254. Rickman has filed a cross-appeal from the district court’s denial of several of his constitutional claims.

Although both parties advance numerous issues, we find only one necessary to our resolution of this appeal. Concluding that the district court correctly found Rickman to have been unconstitutionally denied effective assistance of counsel under the Sixth Amendment, we will affirm. I. A. In February 1978, William E. Groseclose was convicted of murder in the first degree in connection with the killing of his wife, Deborah Lee Groseclose, on June 29, 1977. The prosecution’s theory was that Groseclose hired petitioner Rickman and another man, Phillip Michael Britt, to kill Deborah.

Gro-seclose 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 employ someone to murder Mrs. Groseclose. State v. Groseclose, 615 S.W.2d 142, 144 (Tenn.1981). Mount referred Groseclose to Britt, who, in turn, contacted Rickman, Britt’s former brother-in-law. Rickman agreed to commit-the murder in cooperation with Britt, a fact of which Mount was aware. Groseclose agreed to pay a particular price in which Rickman, Britt, and Mount would all share.

The Tennessee Supreme Court in its joint opinion affirming both Groseclose’s and Rickman’s convictions 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, Rickman, acting pursuant to the conspiracy, accosted Deborah the day before the murder “to frighten her to the point that she would report ... the incident to the police,” in an attempt to later divert suspicion for the planned murder from her husband. 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 Gro-seclose, 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.

Despite hearing Deborah’s “cries for help from the trunk,” id., Rickman left her there, abandoning the car. Deborah’s body was discovered five days later, and the medical testimony at trial suggested that she would not have died from her injuries, but died instead as a result of the excessive heat in her car trunk. During the investigation that followed, police were led to Rickman and Mount through information given by Rickman’s roommate. Rickman and Britt both gave inculpatory statements to the police, as did Mount.

Mount, in fact, testified for the State at the trial of Rickman, Britt, and Groseclose, and later pleaded guilty to second-degree murder. B. Jury selection began for the joint trial on February 13, 1978, and was completed on February 17. 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 and both Rickman and Groseelose were sentenced to death.

Britt received a sentence of life imprisonment. The Tennessee Supreme Court affirmed Rickman’s conviction in 1981, Groseclose, 615 S.W.2d 142, and the U.S. Supreme Court denied his petition for writ of certiorari, Rickman v. Tennessee, 454 U.S. 882, 102 S.Ct. 367, 70 L.Ed.2d 193 (1981). Rickman then filed a petition for post-conviction relief in January 1982, arguing, inter alia, that he had received constitutionally ineffective assistance of counsel. The trial court denied the petition in December 1982, after holding an evidentiary hearing. 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 the subsequent application for permission to appeal, and the 'U.S. Supreme Court denied the petition for writ of certiorari. Rickman v. Tennessee, 469 U.S. 963, 105 S.Ct. 363, 83 L.Ed.2d 299 (1984). Rickman filed the petition for writ of habe-as corpus at issue here on March 5, 1985, amending it in July 1990, November 1992, and January 1994. In 1994, Rickman filed a motion for partial

summary judgment, and the State filed a cross-motion for partial

summary judgment in response. The district court granted Rickman’s motion in part, and ordered a new sentencing proceeding based on perceived flaws in the jury instructions on capital punishment. Rickman v. Dutton, 854 F.Supp. 1305 (M.D.Tenn.1994). The State filed a notice of appeal following the district court’s determination that there was no just reason to delay entry of its partial judgment, pursuant to Fed.R.Civ.P. 54(b). The district court later addressed the remaining issues in Rickman’s habeas petition, first holding an evidentiary hearing.

The court held Rickman’s conviction to have been unconstitutional for two reasons: the constitutionally ineffective assistance of counsel and the cumulative effect of other errors resulting in a denial of due process. Rickman v. Dutton, 864 F.Supp. 686 (M.D.Tenn.1994). The district court simultaneously rejected, however, several of Rickman’s arguments. The State again filed a timely appeal, and amended its notice of appeal following the district court’s partial grant of Rickman’s motion to amend the judgment. Rickman filed a cross-appeal following the district court’s grant of a certificate of probable cause. II.

Although we review de novo the district court’s disposition of a petition for writ of habeas corpus, we review 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 to them a presumption of correctness that the petitioner may rebut only with clear and convincing evidence. 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. A claim of ineffective assistance of counsel 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 standard of review, we note the parties’ disagreement as to the effect of the recent amendments to 28 U.S.C. § 2254 contained in

section 104 of the Anti-terrorism 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 to 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. Because Rickman filed his habeas petition in 1985, we are left to apply

section 2254(

d) as it existed prior to enactment of the AEDPA. See id. III. Rickman was represented at trial by Robert I. Livingston, court-appointed counsel. Although Rickman’s habeas petition challenges Livingston’s performance during both the guilt and the penalty phases of his trial, the district court below addressed only the guilt phase, finding it unnecessary to address the penalty phase.

It concluded that Livingston had rendered ineffective assistance of counsel to Rickman, as evidenced by a variety of deficiencies, including Livingston’s failure to investigate the case or to prepare for trial; his failure to consider the possibility of an insanity defense for Rick-man; and the overwhelming hostility he evidenced toward his client throughout the proceedings.

The district court nonetheless concluded that Rickman failed to show that Livingston’s deficient performance resulted in any prejudice, both because the evidence against Rickman was so overwhelming and because Rickman was unable to show that any line of defense, including an insanity defense, would have benefitted him. This absence of actual prejudice, however, was not fatal to Rickman’s claim, according to the district court, because Livingston’s hostility and inadequacy effectively robbed Rickman of any representation whatsoever, thus eliminating the need for a showing of actual prejudice.

The district court’s reasoning relied on its

interpretation of United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the companion case to the bellwether ineffective-assistance case, Strickland v. Washington. In Strickland, the Court for the first time “eonsider[ed] 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.

The Court concluded that, whether the focus is the trial or the sentencing, “[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. at 686, 104 S.Ct. at 2064. ■ The Strickland Court announced a two-part test to be applied in the usual case: a showing of seriously deficient performance coupled with a showing “that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. at 2064.

The Court established an objective test for the first prong: “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; accord Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975).

Indicia of objective unreasonableness include the violation of “certain basic duties” inherent in the representation of a criminal defendant, among them a “duty of loyalty” to the client, from which derive “the overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2065.

In addition, “[c]ounsel ... has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Id. In assessing deficient performance, the Court cautioned, reviewing-courts must take care to avoid “second-guess[ing]” strategic decisions that failed to bear fruit. Id. at 689, 104 S.Ct. at 2065.

Turning to the second, “prejudice” prong of its test, the Strickland Court held that a defendant must show more than “that the errors had some conceivable effect on the outcome of the proceeding”; instead, the defendant must be able to demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 693-94, 104 S.Ct. at 2067-68.

No matter how deficient an attorney’s performance, the Strickland Court reasoned, in the absence of a showing of prejudice, “it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable,” and a defendant is, thus, not entitled to a new trial or sentencing. Id. at 687, 104 S.Ct. at 2064. But following immediately on the heels of its articulation of the prejudice requirement, the Strickland Court provided for an exception in rare circumstances.

In some instances, a court must simply presume that prejudice resulted: In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel’s assistance. Prejudice in these circumstances is so likely that case-by-ease inquiry into prejudice is not worth the cost.

Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent. One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice.... [Prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties.

Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Id. at 692, 104 S.Ct. at 2067 (citations omitted). In Cronic,. the Court elaborated on the presumed-prejudice exception to which it alluded in Strickland, recognizing that “[tjhere are ... circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658, 104 S.Ct. at 2046.

The fundamental question, the Cronic Court suggested, is whether the trial “process [has lost] its character as a confrontation between adversaries”; if so, then “the constitutional guarantee is violated.” Id. at 656-57, 104 S.Ct. at 2045-46. And then, it is not necessary to demonstrate actual prejudice. This circumstance may arise in several different contexts. “Most obvious,” the Court noted, “is the complete [(i.e., actual)] denial of counsel.” Id. at 659, 104 S.Ct. at 2047. That, of course, is not at issue here.

But the Cronic Court also noted the possibility of a constructive denial of counsel, when, although counsel is present, “the performance of counsel [is] so inadequate that, in effect, no assistance of counsel is provided.” Id. at 654 n. 11, 104 S.Ct. at 2044 n. 11. Equally important, the Court held, is the case in which “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” because “then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” Id. at 659, 104 S.Ct. at 2047.

The Court concluded with a rather imprecise dictate: that the inquiry into actual prejudice may be dispensed with “only when surrounding circumstances justify a presumption of ineffectiveness.” Id. at 662, 104 S.Ct. at 2048. The “narrow” exception carved out by Cronic, then, provides a reviewing court with some difficulty in application. See Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir.1997). And it is the State’s principal argument on appeal that the district court erred in applying the Cronic exception. The circumstances here, it argues, were not of sufficient magnitude to invoke Cronic.

Here, it contends, there simply was no bona fide defense available, and the Sixth Amendment does not require a lawyer to invent one. The State characterizes the hostility and disgust Livingston exhibited toward his own client, the particulars of which we will fully describe below, concomitant with his unnecessarily eliciting testimony from witnesses that would necessarily horrify the jury, as a legitimate strategy, albeit one that, predictably, was doomed to failure.

The State then concludes that, it being inappropriate to presume prejudice, the writ of habeas corpus should not have issued because there was no showing of actual prejudice; that is, there is no reasonable probability that but for Livingston’s errors, Rickman would have been found not guilty. The State claims, and the district court found, that Rickman is unable to show actual prejudice resulting from Livingston’s representation as that concept is understood in the second prong of the Strickland analysis.

Rickman argues that if Livingston had investigated and presented a defense of lack of mens rea, there is a reasonable likelihood that Rickman would not have been convicted of first-degree murder, and contends that such a defense was viable because the physical evidence and even his confession were consistent with the position that he merely sought to incapacitate Deborah Groseclose, not to kill her. The premise underlying this argument is simply incorrect.

As the State points out, Rickman’s statement and the physical evidence showed that Rickman contracted with Groseclose to kill Deborah, and that he intentionally killed her. The fact that he was ineffective in his initial attempts to kill her simply does not amount to a lack of intent to kill.

And as the State also observes, even Rickman’s own expert at the habeas evidentiary hearing “candidly acknowledged that Rickman understood the wrongfulness of his actions, [and] could conform his behavior to the requirements of the law.” We agree, then, that the district court correctly concluded that Rickman has not shown prejudice as understood in Strickland. Thus, only if Livingston’s performance was so egregious as to amount to the virtual or constructive denial of the assistance of counsel, and thus implicate the Cronic presumption of prejudice, can Rickman succeed. And this, we conclude, was the case.

Livingston’s behavior can be termed nothing short of shocking and professionally outrageous. We are aware, of course, that the Tennessee trial court rejected Rickman’s ineffective-assistance claim. That court, however, focused only on Livingston’s more routine failures— his failure to investigate the case, and his failure to communicate with his client— which, while certainly indicative of a seriously deficient performance, were not so inept as to give rise to a presumption of prejudice.

The only mention of Livingston’s abusive treatment of his own client is rather jejune, however, with no consideration of the particulars of Livingston’s behavior: The Court does not find that Mr. Livingston’s trial techniques or strategic procedures are shocking as submitted by the petitioner. From the outset, Mr. Livingston’s strategy was to save the life of the petitioner. The Court has had the opportunity to observe Mr. Livingston for a number of years as an adversary counsel and from the trial bench and always found him to be a worthy and resourceful lawyer.

In affirming the trial court’s decision, the Tennessee Court of Criminal Appeals was less reluctant to confront the egregiousness of Livingston’s behavior, deeming it a “serious issue.” It apparently failed to recognize, however, that Livingston’s behavior was exhibited both during the guilt phase as well as during the sentencing phase; this failure led it to be content to treat Livingston’s actions simply as sentencing strategy gone awry: In the post-conviction hearing, [Livingston] testified that after the state’s evidence was completed in the guilt phase, there was no doubt that Rickman and the others were going to be sentenced to death.

Based on this judgment, the lawyer decided that the only thing he could do in an effort to save Rickman was to show his sordid past. The lawyer testified that there was a last ditch effort to persuade the jury that Rickman was abnormal, that he had had a more difficult childhood and history than the normal person in the hope that this would gain sympathy with the jury and avoid a sentence of death. This approach by the lawyer may very well be described as desperate, with little hope of success.

However, when viewed in the light of the overwhelming evidence of guilt of a murder described as “one of the most atrocious and inhuman conceivable,” what in hindsight might appear desperate and unlikely of success becomes less startling in the face of the hopeless cause with which the lawyer was faced. But our thorough review of the record and consideration of the circumstances of the overwhelming evidence of Rickman’s guilt leave us, like the district court below, appalled by Livingston’s performance.

As we shall describe, Livingston combined a total failure to actively advocate his client’s cause with repeated expressions of contempt for his client for his alleged actions. The effect of all this was to provide Rickman not with a defense counsel, but with a second prosecutor. And while the State makes a claim that Livingston was pursuing a strategy of painting a picture of his client that would make the jury find him too pitiable to convict or sentence to death, this simply stretches imagination past the point of credulity.

Livingston succeeded in creating a loathsome image for Rickman — one that would make a juror feel compelled to rid the world of him.

Livingston’s abandonment of his client’s interests commenced almost immediately upon their first meeting: Livingston[] testified that after being assigned Rickman’s case, he interviewed Rickman and asked him if a statement he had given to the authorities was “true.” Livingston then stated that, after being told by Rickman that the statement was true, “From that point on, my defense was to persuade the District Attorney of Shelby County to allow Ronald Rickman to enter a plea of guilty and accept the life sentence.... ” Livingston assumed that there was no defense to the charge of first-degree murder and failed to conduct any investigation.

Livingston acknowledged that he only presented a defense at the sentencing phase of trial. With respect to the guilt phase of trial, he asserted, “There was no defense.” Accordingly, Livingston did not interview any witnesses, conduct any legal research, or obtain and review any records, including those regarding Rickman’s employment, education, mental health, social services contacts, military service, or prison experience. By Livingston’s account, he spent a total of sixteen hours preparing for Rickman’s trial. Livingston’s preparation consisted solely of interviews he conducted with Rickman.

Rickman, 864 F.Supp. at 699-700 (footnote and citations omitted). Livingston was not content with mere non-feasance, however. In addition to failing to construct any rational defense theory, he embarked on a course of attempting “ ‘to persuade the jury that his client, although judged legally competent to stand trial, [was], in fact, abnormal and should not be judged as a normal person.’” Id. at 700. According to Livingston, he “ ‘was trying 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.’ ” Id. It was what Livingston did in order to effect this purpose that is so stunning, and that correctly led the district court to conclude that Rickman was “[f]unctionally ... totally denied counsel even though his attorney [was] physically present during the proceedings.” Id. at 701. In our view, Rickman would have been better off to have been merely denied counsel; as it was, he had to endure attacks from his own attorney that equaled or exceeded those of the prosecution.

Had Livingston, despite eschewing an insanity defense, for which apparently there was no evidence, sought nevertheless to show, in the evidence, that Rickman was a “sick boy” we might characterize the effort as a weak tactic unlikely to succeed, but at least a tactic. But what he did instead was to convey to the jurors an unmistakable personal antagonism toward Rickman, characterized both by attacks on Rickman and by repeatedly eliciting information detrimental to Rickman’s interests.

Examples of the latter may be found in Livingston’s cross-examination of Mount, the go-between for Rick-man and Groseclose, during the guilt phase of the trial, as summarized by the district court: Livingston suggested to Mount that Mount had carefully planned out the crime with Rickman and the other co-defendants “to the nth degree,” listing the name of each co-defendant separately for greater emphasis.

Livingston reinforced the notion of planning despite proof which, suggested that the defendants entered the victim’s residence without a lethal weapon and may have lacked a coherent plan at that point as to how she was to be killed. Id. at 702. Likewise, Livingston questioned several different witnesses concerning a hand grenade detonator and a motorcycle jacket that allegedly belonged to Rickman. Rather than attempting to disassociate Rickman from these objects, Livingston’s questioning was aimed at linking Rickman to them and simultaneously demonstrating contempt for their owner.

But he went even further, presenting at least one witness to describe Rick-man’s threats to commit unrelated crimes. Livingston questioned Rickman’s girlfriend as follows: Q. Did Ron ever tell you he was going to blow somebody up with it? [referring to the grenade detonator] A. He was always threatening to bomb the 7-Eleven stores ... but I didn’t believe him. Q. What other crimes did he tell you he was going to commit that you didn’t believe? A. Is that really important? Q. Yes, ma’am. A.

He was always talking about catching some buildings on fire if he was mad at somebody_ One time he threatened to kill a person over me. Id. at 702-03. Of another witness, he asked, referring to the motorcycle jacket, “Do you think average red-blooded American boys wear something like this ... ?” Id. at 703. Then, with regard to the hand grenade detonator, he asked the same witness, “Do you think a normal red-blooded American boy would walk around with a live grenade? What do you think about that?” Id. Livingston’s attacks on Rickman took the form of portraying him as crazed and dangerous.

He repeatedly asked Mount, for example, whether Mount thought Rickman was “nuts,” and ridiculed Mount’s demurrer by saying, “You wouldn’t know a psychiatric case if you saw one, would you?” Id. at 702. Likewise, he asked Rickman’s girlfriend whether Rickman ‘act[ed] like a bull ... I mean, violent....” Id. She responded, “When he was mad, yes.” Id.

When another witness, a neighbor of Rickman’s and a member of the Marine Corps, testified that he considered Rickman to be a gentleman, Livingston ridiculed him as well, saying: “[Nineteen] years in the Marines and you would think that a man that looked like that was a gentleman?” Id. at 703. The district court viewed an exchange between Livingston and two witnesses who had seen Rickman in Deborah Groseclose’s car as best illustrating Livingston’s demonstrated contempt for his client. Livingston questioned the first witness as follows: Q. Did he appear to be intoxicated? A. I don’t think so. Q.

Did he appear to be under the influence of any type of narcotic drug? A. I really don’t know. Q. What about his eyes? Did he kind of have a wild, glassy look in his eyes? A. I didn’t look at his eyes. Q. You just looked at that grin on his face. A. Well, he just turned his head and smiled. I didn’t think anything of it.... Q. Normal looking fellow, wasn’t he? A. I guess so. Q. ... Yeah. You wouldn’t call somebody that looked like this a normal, average, American looking boy, would you? [demonstrating Rickman’s mug shot] A. In this day and time, yes. Q. ... Thank God, I’m abnormal. Id.

The second witness was questioned in a similar vein: Q. You haven’t been out on the street today then, have you? Woods is full of them, didn’t you know that? Guys that look like this. Long hair. Long beard.. Wild eyed. You know they’re out there, don’t you? I know they’re out there. A. Right. Q. Grinning. Like they just got out of somebody’s insane asylum. You know what I’m talking about, don’t you? A. I know what you’re talking about. Id.

Perhaps the most jarring evidence of Livingston’s patent hostility toward Rickman may be found in a soliloquy he pronounced during the sentencing proceeding, complete with an apology to the prosecutors for the crime: I know this young woman was put in the trunk of that ear. That’s no secret. I know that. And I’m not happy about it. No, sir. I’m not happy. I’m ashamed. I’m ashamed that we live in such a world.... I’m ashamed that this crime has been committed in our community. And I want the family of Debra [sic] Gro-seelose to know that. That I’m ashamed. I’m ashamed that this young woman died in this oven. Mr.

Miller, I’m ashamed. I’m ashamed, Mr. Stanton. I don’t condone murder. I know criminal defense lawyers suffer from what is called guilt by association. When I go to church Sunday, they are going to waylay me out at the Bellevue Baptist Church ... [T]hat wild man [Rickman] over there with the gloves on — look at him. He’s wild as a March hare, right now. He may take off after me in a minute. I don’t know. He’s crazy. I know he’s crazy. Because if he’s normal I can only say, thank you, God, I’m abnormal, an [sic] you are abnormal. Id. at 704 n. 9.

While our research reveals no eases in which a defense attorney behaved with this degree of hostility toward his client, it is quite clear that Livingston’s performance dispenses with the necessity 'of a separate showing of prejudice; it is, in this case, patently inherent. Courts have consistently treated similar behavior as an abandonment of the duty of loyalty, or as a conflict of interest. See United States v. Swanson, 943 F.2d 1070, 1074-75 (9th Cir.1991).

And courts have rightly viewed the equivalent of what Livingston did in this case to be worse than no representation at all: [A]n attorney who is burdened by a conflict between his client’s interests and his own sympathies to the prosecution’s position is considerably worse than an attorney with loyalty to other defendants, because the interests of the state and the defendant are necessarily in opposition. Osborn v. Shillinger, 861 F.2d 612, 629 (10th Cir.1988) (emphasis added); see Don v. Nix, 886 F.2d 208, 207 (8th Cir.1989); cf. Houchin v. Zavaras, 107 F.3d 1465, 1471 (10th Cir.1997).

We find it simply incredible that the most damaging images of Rickman came from his own attorney.. Livingston was not confronted with witnesses eager to label Rickman as “nuts” or “just ... out of somebody’s insane asylum”; he was not battling a prosecutor attempting to make irrelevant references to the hand grenade and the motorcycle jacket; he did not face an improper appeal to convict because of community sentiment in his opponent’s closing. All of these outrageous tactics were introduced by Livingston himself, Rickman’s own attorney.

Livingston succeeded in presenting a terrifying image of Rickman, and thereby aligned himself with the prosecution against his own client. Livingston’s behavior cannot be characterized as legitimate trial strategy; no rational individual could think that painting a picture of one’s client even more frightening than the prosecution could paint, would do anything other than doom the client. It is significant, too, that Livingston’s appalling tactics were employed during both the guilt and the sentencing phases.

If, as the state appellate court believed, Livingston began his abuse of Rickman only at sentencing, it might be more conceivable that he was just undertaking a desperate and poorly executed strategy. As it was, however, Livingston tried to convince the jury that Rickman was “subnormal,” violent, and with criminal propensities even as they were assessing whether he had in fact committed the crime. He went so far as to express personal sympathy for the prosecution and shame for representing Rickman.

If Livingston had been attempting to characterize Rickman as a hapless loser, or as someone who had suffered hard knocks through life, he might arguably have been pursuing a legitimate strategy. But his own testimony makes clear that Livingston had no such aim in mind: he simply wished to portray his client as vicious and abnormal. This is simply not a legitimate defense. Further, it is a portrayal that could only have encouraged the jury to put aside any doubts and convict speedily. The effect Livingston created was not one of pity for a pathetic Rickman, but one of hostility toward the hated and violent freak.

Thus, while there may be a gray area where an attorney simply is unsuccessful at depicting his client in a sympathetic light, this case plainly falls way outside those boundaries. And it is impossible to read Livingston’s statements and think that this was simply an inadvertent accident, a strategy gone awry. We obviously cannot read Livingston’s mind, but his performance was so outrageous that it is not necessary for us to decide whether we can impute actual bad faith to him.

If the effect he created was unintentional, it matters not to Rickman, who has been convicted and sentenced to death; it was just as fatal. We have approached this case with great caution, conscious of the important limitations of our role as a federal court reviewing in habeas the conclusions of the Supreme Court of the sovereign state of Tennessee— limitations we deeply respect. We recognize, too, the import of a decision that mandates another trial for an individual concerning whom there is little question as to his guilt of a killing committed 20 years ago.

But we are constrained to observe that what the Tennessee judiciary permitted to occur here was nothing less than the evisceration of the right-to-counsel that is guaranteed by the Sixth Amendment and as much a travesty for our entire judicial system as it is for Rick-man individually. The display of Rickman’s trial, if allowed to stand, would simply mock fundamental constitutional guarantees of “vital importance.” Strickland, 466 U.S. at 685, 104 S.Ct. at 2063.

The Court’s recognition that “ ‘the right to counsel is the right to the effective assistance of counsel,’ ” id. at 686, 104 S.Ct. at 2063 (emphasis added) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970)), would be devoid of meaning were counsel like Livingston deemed effective. IV. We conclude that Rickman was effectively deprived of counsel, in violation of the Sixth Amendment. Accordingly, we AFFIRM.