dissenting:
This case requires us to continue the process of delineating the appropriate boundaries between the Supreme Court’s decisions in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The majority concludes that we should analyze Haynes’ ineffective assistance of counsel claim under the standard set forth in Cronic. Under this standard, the defendant need not establish that his attorneys’ conduct resulted in a prejudicial outcome. In reaching its conclusion, the majority argues that the concession of certain elements of a crime is not a trial strategy, but rather the constructive denial of counsel.
The majority opinion confuses the denial of counsel, which falls within the province of the Cronic exception, with ineffective assistance of counsel, which we evaluate under Strickland. Here, the defense attorneys’ concessions were an integral part of their strategy and never resulted in either the actual or constructive denial of representation as the majority contends. As such, the majority errs by applying the standard set forth in Cronic to the facts of this case.
In contrast to the majority, I find based on substantial authority that defense counsels’ concession of a lesser included offense did not result in a failure to submit the prosecution’s case to meaningful adversarial testing. Instead, it was a tactical decision, designed to provide Haynes with the best possible representation given the overwhelming evidence against him. Because defense counsel did not abandon their client by completely conceding his guilt, I would require Haynes to establish both defective assistance of counsel and prejudice under the two-part analysis of Strickland.
The test for determining ineffective assistance of counsel under Strickland requires, first, that the defendant establish that the counsel’s performance was deficient. See Andrews v. Collins, 21 F.3d 612, 621 (5th Cir.1994). When assessing whether an attorney’s performance was deficient, the court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689,104 S.Ct. 2052.
If the defendant can overcome this burden, Strickland requires him or her to also establish that the deficient performance resulted in prejudice. Id. at 687, 104 S.Ct. 2052. The Supreme Court’s decision in Cronic created a very limited exception to the application of Strickland’s two-part test for cases in which the defendant is denied completely the assistance of counsel. The Court held that prejudice will be presumed if the 'defendant can show either that he or she (1) was actively “denied counsel at a critical stage of the trail” or (2) was constructively denied counsel because his attorney “entirely [failed] to subject the prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S. at 659, 104 S.Ct. 2039. While easily stated, the Cronic exception often has proven difficult to apply (or not to apply) given the myriad of factual circumstances surrounding ineffective assistance of counsel claims.
Previous circuit court decisions have addressed the issue of when an admission of guilt by the defense constitutes constructive denial of counsel. Collectively, these decisions have erected a clear framework for distinguishing between the constructive denial of counsel and tactical concessions *766made by defense counsel at trial. Constructive denial of counsel occurs in cases in which the attorney concedes the only factual issues in dispute. In such cases, courts have applied the Cronic exception, reasoning that the government has not been held to its burden of persuading the jury that the defendant was guilty of the charged crime.1 When defense attorneys concede the only factual issues in dispute, they have ceased to represent their client. This constructive abandonment of their client produces the same types of structural defects, as well as the extreme risk of injustice, as the actual denial of counsel.
The second group of decisions addresses those situations in which defense counsel only admits the defendant’s guilt for lesser included offenses in order to win credibility with the jury or highlight the lack of evidence in other areas. In these examples, the circuit courts have found these partial concessions to be a tactical strategy and not a denial of the right to counsel. Therefore, they have analyzed them under the two-part Strickland test.2 These decisions reason that while attorneys may not completely surrender their client’s case, they may make tactical concessions in order to best represent their client. In other words, admitting certain issues at trial, even without the client’s consent, may result in ineffective assistance of counsel, but it is assistance nonetheless. While acknowledging the potential dangers posed by these admissions of guilt, the existing cases have, however, required the defendant to establish prejudice in cases where the defense attorney makes a decision to concede guilt for lesser offenses in order to obtain the favorable outcome on the principal charge. In doing so, they have recognized the fact that, in many instances, the evidence is so overwhelming that the most favorable result is not an acquittal, but a reduced sentence. If such concessions ultimately prove to be incorrect and prejudicial to their client, there is a remedy under the usual Strickland analysis for ineffective assistance.
The majority, in essence, maintains that this case is analogous to those decisions finding a constructive denial of counsel. Specifically, they find that defense counsel faded to challenge any element of the prosecution’s case with the notable exception of the intent element of the first degree murder charge. Pursuant to their reasoning, the decision to concede second degree murder and to focus solely on the intent element resulted in Haynes essentially receiving no assistance from his counsel at trial.
This reasoning unnecessarily blurs the distinction between the constructive denial *767of counsel and ineffective assistance of counsel. If Haynes’ attorneys had stated, against their client’s wishes, that he had decided to plead guilty, that action would have amounted to a forced guilty plea. The prosecution’s case would never be tested and Haynes would have been deprived of his presumption of innocence. This, however, is not what happened here. Haynes’ attorneys never conceded that he was guilty of first degree murder. Rather, they acknowledged that the evidence on particular elements of the offense was overwhelming. Haynes’ attorneys remained active at trial, probing weaknesses in the prosecution’s case on the issue of intent. Ultimately, their strategy proved effective in avoiding the death penalty for their client.
In our decision in Short, we recognized the potential benefits of a concession strategy. We stated: “counsel took the reasonable strategic approach of trying to establish his credibility with the jury and enhance his chances that the jury would accept his arguments on the more serious counts.” Short, 181 F.3d at 625. We should not turn an inquiry about the constructive denial of counsel into an evaluation of the defendant’s trial strategy. Here, the defense adopted a strategy to admit a lesser included offense, but it was a defense nonetheless. The proper inquiry is the effectiveness of such a tactic, and not its existence.
The majority attempts to distinguish those cases concluding that partial concessions of guilt are not denials of assistance of counsel by arguing first that the concessions in this case were made at a different stage of the proceedings. They also emphasize the fact that Haynes maintained his innocence throughout the trial whereas, in other cases, the defendant previously had confessed. Lastly, they focus on the fact that the defense adopted this strategy over the express objection of the defendant. These arguments basically amount to a claim that the decision to pursue, a concession strategy in the instant case was more aggressive than in other cases. The distinctions relied upon by the majority, however, ignore the fundamental issue in this case. We must ultimately decide whether, by adopting such a strategy, Haynes’ attorneys ceased to represent him at trial.
The.majority makes much of the fact that defense counsel opted to concede Haynes’ guilt in their opening statements and tailored their questioning of witnesses throughout trial to the lack of evidence on the intent issue. Again, I believe that the timing of admissions is a question of strategy properly evaluated under Strickland. Generally, the defense will wait until closing arguments to make any admissions. If, however, the defense counsel senses that there is an advantage to be gained, such as preempting the prosecution’s case, by conceding certain factual elements at the outset of the trial, this does not suddenly transform a trial strategy into the constructive denial of counsel. The timing of the concessions, like the decision to make the admissions, itself, is a tactical choice. Choosing to employ a radical tactic in the opening arguments may be risky, but Haynes’ attorneys could have reasonably concluded that this course would give their client the best opportunity to escape the death penalty. If, after reviewing the evidence, we found this decision to be overly aggressive and if we also concluded that, but for this decision, the outcome of the trial probably would have been different, only then should we grant Haynes a new trial.
The majority also focuses on the fact that Haynes continues to maintain his innocence. Again, this conflates the constructive denial of counsel with ineffective assistance. A concession strategy is ap*768propriate in cases where the overwhelming weight of evidence is against the defendant. This is the case whether the defendant has previously confessed to the crime or has steadfastly maintained his or her innocence. Haynes’ attorneys had to consider the totality of the evidence, including them client’s continuing declaration of innocence, in order to reach the decision to concede the lesser included offense of second-decree murder. ' What is crucial is that in making this strategic choice, they never ceased to represent Haynes. Rather, they pursued a strategy that was the most advantageous for their client given the circumstances. If the evidénce presented at trial did not warrant the approach taken, the two-part Strickland analysis provides Haynes with a remedy for such ineffective assistance.
Moreover, by not requiring Haynes to show prejudice, the majority creates the potential for grossly inconsistent outcomes. In most instances, if the evidence establishing a lesser included offense was not overwhelming enough to warrant a concession, the defendant can easily establish that his counsel’s performance was prejudicial. In cases such as this one, where the trial strategy probably benefitted the defendant by mitigating the substantial evidence arrayed against him, the defendant would have difficulty making the requisite showing under Strickland. If the majority’s reasoning is employed, courts will likely find a defendant was denied counsel in cases where the defendant actually bene-fitted from a concession strategy.
The majority also focuses on the fact that Haynes withheld his consent to the defense strategy. Again, this begs the question of whether Haynes was denied counsel at trial. The lack of Haynes’ consent to a particular strategy is simply not relevant to the issue of whether his attorneys abandoned him at trial. It is, however, important in ascertaining whether in representing him, Haynes’ attorneys did so effectively. The majority again errs by equating issues that concern the effectiveness of counsel with the constructive denial of counsel. The decision to pursue a trial strategy without Haynes’ consent, like the decision to pursue the concession strategy, is appropriately evaluated under Strickland.
Applying the two-part Strickland test to the facts of this case, I find that Haynes’ attorneys did not render ineffective assistance. The prosecution had' both videotape of the defendant and eyewitness testimony placing Haynes at the crime scene. DNA analysis established that his semen was found in the victim. The police found a knife with the victim’s blood on it. The police also located the victim’s wallet in Haynes’ home. Given the evidence, the strategy defense counsel adopted likely succeeded in obtaining the most favorable outcome for their client.
It is a plausible, however, that their failure to obtain Haynes’ consent to the strategy could constitute deficient performance under Strickland. Even assuming, however, that proceeding with this line of defense without Haynes’ consent constituted deficient performance, the result of the concession strategy was not prejudicial to the defendant per se. For Haynes to establish prejudice, he must “show that there is 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. Haynes has failed to establish that without the concession strategy, he would have been acquitted of first degree murder. Pervertedly, Haynes has succeeded in obtaining a new trial. In doing so, however, he has rejected the one strategy that saved his life. Today, he is one step closer to his executioner.
*769For the foregoing reasons, I would REVERSE the judgment of the district court.
. United States v. Swanson, 943 F.2d 107Ó (9th Cir.1991) ( "A lawyer who informs the jury that it is his view of the evidence that there is no reasonable doubt regarding the only factual issues that are in dispute has utterly failed to subject the prosecution's case to meaningful adversarial testing.”); Wiley v. Sowders, 647 F.2d 642, 650-51 (6th Cir.1981) (decided prior to Cronic and Strickland, but reaching a similar conclusion).
. United States v. Short, 181 F.3d 620, 624-5 (5th Cir.1999)(counsels statements, which did not admit guilt, but which implicated the defendant, were reasonable in light of the overwhelming evidence presented at trial); Lingar v. Bowersox, 176 F.3d 453, 458 (8th Cir.1999)("we conclude the decision to concede guilt of the lesser charge of second-degree murder was a reasonable tactical retreat rather than a complete surrender”); Underwood v. Clark, 939 F.2d 473, 474 (7th Cir.1991)(Posner, J.)(defense counsel's concession during closing arguments of a lesser included offense was “a sound tactic when the evidence is indeed overwhelming .. . and when the count in question is a lesser count, so that there is an advantage to be gained by winning the confidence of the jury.”); McNeal v. Wainwright, 722 F.2d 674, 676 (11th Cir.1984)(McNeal's attorney’s statements conceding manslaughter were tactical and did not constitute a forced plea).