concurring:
The court’s opinion in this case fully states the record evidence and persuasively demonstrates why the State court did not act unreasonably in applying Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to deny Wiggins relief on his first claim. As an additional reason for reaching this conclusion, I would note that from the condition of Florence Lacs’ apartment, a reasonable jury could find, beyond a reasonable doubt, that whoever ransacked Florence Lacs’ apartment and robbed her also murdered her. Because the evidence convincingly points to the fact that Wiggins robbed Lacs on April 15 and, within hours, was using the products of this robbery, the jury could reasonably And that Wiggins also murdered Lacs. Wiggins’ only explanation — -that he found Lacs’ Chevrolet on September 16 with the keys, credit cards, and a diamond ring in it — is belied by the fact that Wiggins is directly linked to the car and the credit cards during the evening of September 15.
*644I find the question of whether the State court reasonably applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to conclude that Wiggins received adequate assistance of counsel during the sentencing phase of his trial to be a closer call. Both of my colleagues are satisfied that the decision not to introduce mitigating evidence was consistent with a strategic decision made by Wiggins’ counsel not to imply any confession of guilt and to seek to have the jury hesitate on the death sentence because of a hoped-for hesitation on liability. It appears to me, however, that counsel could have had it both ways. He could have insisted on arguing liability and still have maintained that any sentence of death would be inconsistent with the mitigating circumstances of Wiggins’ miserable upbringing and marginal intelligence. But in the end, this may be only a luxury of hindsight. There is support in the record from which to conclude that Wiggins’ counsel’s decision was a tactical one and that it was not an unreasonable strategy to pursue. With less confidence, therefore, I also concur in the court’s opinion that the State court reasonably concluded that Wiggins was provided effective assistance of counsel during the sentencing phase of his trial.
In short, because the State court’s refusal to grant relief was neither contrary to clearly established federal law, as determined by the Supreme Court, nor involved an unreasonable application of that law, see 28 U.S.C. § 2254(d)(1), I agree that Wiggins’ petition should have been denied by the district court. Therefore, I concur in the thorough opinion prepared for the court by Judge Widener.