Sitting by Designation, dissenting.
In the penalty phase of his capital trial, counsel for Ivon Ray Stanley introduced no evidence. We now know that relatives and friends of the defendant could have given testimony that would have portrayed Stanley as a “uniquely individual human being [],” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion), perhaps worthy of the compassion of at least one member of the jury. The Court concedes that it “cannot say that this evidence would have had no impact on the jury,” ante, at 969 and that “[w]e ... do not know what [counsel’s] trial strategy was ...,” ibid. Yet, the death penalty is upheld because Stanley did not, at the evidentiary hearing held by the state post-conviction court, prove that counsel’s conduct was not the result of some reasonable trial strategy. Because I cannot agree with this allocation of the burden of proof, I respectfully dissent.
As an original matter, I should not have placed the burden of proof on Stanley to negative the possibility that his lawyer had made a tactical or strategic choice to *974present no evidence in mitigation. In general, the burden is and should be on anyone who seeks to overturn the judgment of a court having jurisdiction. And it is eminently fair to require a defendant who claims his lawyer was ineffective to come forward with specific complaints about what the lawyer failed to do, and with specific arguments about how this failure hurt his case. If the claim is, for example, that certain witnesses were not presented, the defendant should be required to show who they were and what they would have said if called to testify. That kind of evidence is readily accessible to the defendant, and probably to no one else, since defense witnesses in the penalty phase of a capital trial are likely to be family members, friends, or acquaintances. “Generally, the burden of proof is allocated to that party who has control of the evidence required to prove the claim raised in the action. In an action based on a claim of ineffective assistance of counsel due to a failure to produce evidence, this mitigating evidence is peculiarly within the control of the petitioner. Therefore, it is appropriate in such cases to allocate the burden of proof to the petitioner.” Washington v. Strickland, p. 1274 n. 23 (5th Cir.1982) (Unit B en banc) (Tjoflat, J., concurring). To this extent, Stanley has met his burden, and I do not understand the Court to hold otherwise.
The question of trial counsel’s strategy, or lack of it, is quite different. The lawyer himself is obviously the best witness on that subject, in many cases the only witness, but he is now in an adversary position vis-a-vis his former client. He may be unwilling to cooperate with present counsel. The very point of the proceeding is to challenge his professional conduct. He is much more likely to cooperate and consult with counsel for the State, whose object at the hearing will be to vindicate his conduct. It makes more sense, it seems to me, to put the burden of proof on the State, once a petitioner demonstrates some omission serious on its face, to call trial counsel as a witness to explain his or her reasons for what was done at the trial. “If in a given case the petitioner does not have access to the information necessary to sustain his burden of proof, the district court is of course free to make appropriate adjustments in the allocation of the burden.” Washington v. Strickland, supra, at 1261 n. 31. Here, the State did not call trial counsel as a witness; its brief in this Court does not suggest what counsel’s strategy was; we do not know what it was; and no court, state or federal, has ever found that counsel’s conduct was the result of a strategic decision. In this situation, if I were free to do so, I should hold that counsel was constitutionally ineffective and that petitioner should have a new trial. He would not be released from prison. There would simply be a new trial as to punishment, and the worst that could happen, from the point of view of the State, would be a sentence of life imprisonment.
Obviously my view of the proper allocation of the burden of proof is influenced in part by the fact that this is a death case. The more serious the consequences of a wrong decision, the more one wants to be careful to make the right one. That is what burden of proof is all about. Rules about presumptions and burdens of proof reflect one’s views about where the risk of loss ought to be placed, and about what kinds of mistakes are more tolerable than others. Presumptions are not usually applied in favorem mortis. It is not a novel proposition that judgments inflicting the penalty of death should be hedged about with greater safeguards. The very existence of bifurcated trials in death cases proves that, if proof be needed. It may be true that the same legal principles govern ineffectiveness of counsel in capital as in non-capital cases; it is also true that the seriousness of the charges is a factor to be considered in assessing counsel’s performance. Ante, at 962-963.1 It is not asking too much, when life is at stake, to require the State or counsel himself to explain a choice *975to present no evidence in mitigation. This is not a case, as I shall argue below, where counsel chose to present one line of testimony rather than another. Nor is it a case where a plausible strategic explanation readily suggests itself. “It is not enough,” as the Supreme Court said in another capital case involving the right to counsel, “to assume that counsel ... thought there was no defense and exercised [his] best judgment.” Powell v. Alabama, 287 U.S. 45, 58, 53 S.Ct. 55, 60, 77 L.Ed. 158 (1932) (emphasis supplied).
As I understand the en banc opinion in Washington v. Strickland, supra, however, it is the rule of this Circuit that if a lawyer fails to conduct a substantial investigation into one plausible line of defense, “[c]ourts presume, in accordance with the general presumption of attorney competence, that counsel’s actions are strategic.” Id. at 1257. It is, in general, up to the petitioning prisoner to rebut this presumption, by, for example, calling counsel as a witness to testify that his choice was not strategic. Sitting by designation as a judge of this Circuit, I am bound by that rule. Even so, there are at least three reasons why the presumption of strategic choice should not apply to the facts of this case.
First. This is not a case in which counsel discerned several plausible lines of defense and chose to make a substantial investigation of fewer than all of them. Here, counsel made no investigation whatever, so far as I can tell, of mitigating evidence. To be sure, the jury is free to consider, in mitigation, evidence already before it on the question of guilt or innocence, and counsel might choose not to repeat that evidence. But here a good deal of what could have been presented in mitigation was not repetitious at all. Counsel discussed the possibility of character witnesses with petitioner and his mother, and Stanley gave him some names, but the subject never came up again, and counsel did not discuss possible mitigating testimony with any of the other witnesses who later testified at the state habeas hearing. The Court does not claim that this “investigation,” if it can be called that, “satisfies the stringent requirements of Washington v. Strickland.” Ante, at 966. It seems to say, instead, that counsel could reasonably have chosen to pursue some other strategy. The difficulty with this reasoning is that counsel did not pursue any other line of defense. This is not a case, for example, of counsel’s choosing to call witnesses as to diminished mental capacity, instead of character witnesses. Here no witnesses at all were called. If counsel’s closing argument to the jury (of which more hereafter) is to be treated as a “strategy” or a “line of defense” that counsel chose in preference to character witnesses, it is still difficult to approve his choice as constitutionally effective lawyering. The closing argument, at best, was a simple plea for mercy, and character evidence would have helped that plea, not hurt it. There is nothing in the least inconsistent about calling character witnesses and then pleading for mercy. In short, this case should be governed by the Court’s statement in Washington, at 1252-53, that “permissible trial strategy can never include the failure to conduct a reasonably substantial investigation into a defendant’s one plausible line of defense.”2
Second. As the Court notes in Thomas, the companion case, 697 F.2d at 988 Ga.Code § 38-801(d) (recodified at § 24-10-24, 1982) requires the tender of a witness fee of ten dollars and mileage of 20 cents a mile with the service of a subpoena for the attendance of a witness. Stanley was eon*976victed in Decatur County, in the southwestern part of the State. He is in prison in Butts County, in central Georgia. State habeas must be brought in the county of incarceration, Ga.Code § 50-127 (recodified at § 9-14-43, 1982), and that is where Stanley’s two state habeas petitions were filed. Stanley has no money, and indigent habeas petitioners have no right to financial assistance under Georgia law. State v. Davis, 246 Ga. 200, 269 S.E.2d 461, cert. denied, 449 U.S. 1057, 101 S.Ct. 631, 66 L.Ed.2d 511 (1980); Pulliam v. Balkcom, 245 Ga. 99, 263 S.E.2d 123, cert. denied, 447 U.S. 927, 100 S.Ct. 3023, 65 L.Ed.2d 1121 (1980). Not even witness fees will be waived. Neal v. Smith, 226 Ga. 96, 98, 172 S.E.2d 684, 686 (1970) (Georgia laws do “not contemplate that the public shall bear the expense of bringing witnesses into court.”).
It is unjust for the State to deny petitioner the means to subpoena his trial counsel to testify at his state habeas hearing, and for the federal courts then to fault him for not showing, through the testimony of counsel, that counsel did not make a strategic choice. Surely this kind of disability, placed upon Stanley because of his poverty, should excuse his not meeting his burden of proof. He could have had witnesses subpoenaed at federal expense to testify before the federal habeas court, but the District Court declined to hold an evidentiary hearing. In Thomas an evidentiary hearing will be held on remand, and one of the points raised will presumably be that Thomas was not guilty of deliberately bypassing an available state procedure precisely because state law denied him the means of using that procedure. I would allow Stanley at least the same chance to establish an excuse for not meeting his burden of proof.
Third. The presumption that counsel’s choice was a strategic one can be rebutted not only “when trial counsel testifies credibly at an evidentiary hearing that his choice was not strategic,” but also “when certain of counsel’s actions do not conform to a general pattern of a rational trial strategy.” Washington v. Strickland, supra, at p. 1258. I think this record contains a substantial indication that the latter standard is met. In the course of his final address to the jury counsel said:
I have done my duty. I’ll walk out of this courtroom today feeling that I have even gone overboard against my friends, against those I sit in church with, against those I have sat in the lodge with, against those I have broken bread with.
We do not ljnow what counsel hoped to accomplish by these remarks. Perhaps he meant to say, “I have done my duty. Now you, the jury, should do yours by being merciful.” But the natural meaning of the words is quite different. They seem to be asking the jurors to forgive the lawyer, their fellow citizen, for taking the side of a criminal. They seem to be apologizing for the vigor of the defense counsel had offered. They raise the question whether counsel’s decision to present no evidence in mitigation, far from being a strategic choice, was rather motivated by a desire not to offend church and lodge by going any further “overboard” in Stanley’s cause. When a lawyer has a conflict of interest between two defendants, both of whom he is trying to represent, the conviction will be reversed without a showing of prejudice. See Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Here a conflict just as real seems to have existed in the lawyer’s mind. He had “gone overboard” in the guilt-or-innocence phase of the trial, and chose to present no evidence in the punishment phase. Here, just as “in a case of joint representation of conflicting interests[,] the evil ... is in what the advocate finds himself compelled to refrain from doing.” Holloway v. Arkansas, supra, 435 U.S. at 490, 98 S.Ct. at 1181.
The implications of counsel’s closing argument, it seems to me, are at least serious enough to neutralize any presumption that his decision to present no mitigating evidence was a reasonable strategic choice.
Perhaps my reconstruction of counsel’s possible motivation is unfairly harsh. If so, an evidentiary hearing on remand could set the record straight. The Court suggests *977that counsel, if he had made an investigation of character witnesses, might have decided that they would do Stanley more harm than good. Certainly that is true in the abstract. But there is very little concrete indication that character witnesses would have hurt Stanley’s chances in this case. Some evidence will almost always be better than none. With all deference, the Court’s reflections on Stanley’s lawyer’s possible mental processes are no more than speculation.
At the very least I would remand this case for an evidentiary hearing on why no evidence in mitigation was offered. I therefore respectfully dissent.
. Cf. Holtan v. Parratt, 683 F.2d 1163, 1170 (8th Cir.1982) (counsel’s ineffectiveness held prejudicial in a capital case in part “because of the dire consequences that would [otherwise] flow
. The only material difference between this case and Thomas v. Zant, 697 F.2d 977 (11th Cir.1983), also being decided today, is that in Thomas petitioner proffered in the District Court an affidavit of trial counsel that she did not “investigate or interview witnesses for the penalty phase of [the] trial. I made no preparation or presentation of any mitigation circumstances.” Thomas v. Zant, at 988. Very nearly the same thing can be said about Stanley’s trial counsel. Yet, Thomas will live, for the time being at least, but Stanley, if this Court has the last word, will die. They committed the same crime. It is true in Thomas, as it is here, that “[t]he present record contains no direct evidence of why trial counsel was not called to testify at the state habeas proceeding.” Id. at 988.