dissenting:
I dissent.
When the prosecutor suggests a sentence of thirty years and the jury imposes one of ninety-nine years, something is wrong.
Here, the defense attorney stood mute while the prosecutor cross-examined appellant’s wife about premarital sexual activities with appellant. See Agee v. Wyrick, 546 F.2d 1324 (8th Cir. 1976) (per curiam). Still without a murmur of protest from defense counsel, the prosecutor in his closing argument maintained that Agee’s assault upon his victim in this case was “just the same as [that upon] the girl [his wife] that he [Agee] conceived a child with when he was twenty-four and she was fifteen.” At 499. Furthermore, counsel failed to object to the prosecutor’s introducing evi-denee of an uncounseled misdemeanor conviction.
Initially, we must separate questions of guilt and sentencing. The fact that overwhelming evidence justifies conviction does not render harmless the impermissible use of highly objectionable testimony, evidence and argument present in this case, which might enhance the severity of the sentence. After careful review of the record, I conclude that the unchecked prosecutorial vindictiveness and unfairness described above produced a clearly excessive sentence for a crime that called for a substantial jail term, but not one for ninety-nine years.
The record here demonstrates clear inadequacy of defense counsel. Indeed, defense counsel seemed to apologize to the jury for being present at the trial. This inadequacy deprived Agee of fair consideration by the jury on the issue of punishment and violated Agee’s sixth amendment right to effective assistance of counsel, made applicable to the several states by the due process clause of the fourteenth amendment. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
We noted in our prior opinion that the defendant’s attorney had no “plausible strategic reason for failing to object.” Agee v. Wyrick, supra, 546 F.2d at 1327. Additionally, we alluded to counsel’s inadequacy: “The record indicates some lack of diligence in protecting petitioner against charges that he was something of a sex maniac who preyed upon young girls.” Id. However, we deferred that issue to the Missouri courts because Agee had failed to exhaust state remedies.
The Missouri courts ultimately denied relief on technical grounds, not on the merits. Agee v. State, 562 S.W.2d 762 (Mo.App. 1978). The federal district court’s conclusion that the evidence in question did not *501affect the sentence cannot be justified in light of the prosecutor’s own evaluation of the case in his comments referred to in the majority opinion: “I hope the discussion is going to start at about thirty years as that is what the case is worth.” At 499.
Accordingly, I would grant Agee appropriate relief under a writ of habeas corpus from this unconstitutionally enhanced sen-fence.