dissenting:
With all due respect, I would affirm.
It is inappropriate, in my view, for this court to adopt a per se rule in this situation. Per se rules often create more mischief than benefit. Whether or not a defendant has been prejudiced by the conduct or misconduct of counsel should remain a part of the basic factual equation in determining whether there has been ineffective assistance of counsel. Applying that rationale here, I would affirm the factual findings of the magistrate as being supported by credible substantial evidence and hold that they are not clearly erroneous. Fed.R.Civ.P. 52(a).
This court has determined that in order to establish a denial of the constitutional right to counsel, “[djefense counsel’s errors or omissions must reflect a failure to exercise the skill, judgment, or diligence of a reasonably competent criminal defense attorney.” Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir.1979), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). Our determination also included a requirement that these errors or omissions result directly in prejudice to the defendant. Id. This second requirement is necessary because the fact of error alone is not enough to establish a.denial of the constitutional right — the constitution does not guarantee representation that is infallible. Consequently, relief is to be granted “only if it appears that the defendant was prejudiced by counsel’s conduct.” Id. at 1331. (emphasis added)
Judicial review of a claim of ineffective assistance of counsel generally requires a two-step investigation consisting of a determination of whether counsel’s performance has fallen below an established standard of competence and, if so, where the claim is founded on specific acts and omissions of defense counsel at trial, the accused must establish that counsel’s errors prejudiced the defense. Ewing v. Williams, 596 F.2d 391 (9th Cir.1979) (citing Cooper v. Fitzharris, supra, at 1327). The initial inquiry in the instant matter resulted in a finding of ineffective performance by counsel; however, further inquiry as a result of our remand for hearing resulted in a finding that no prejudice had been demonstrated by defendant Javor. The majority relies, in part, on a finding made at the first hearing in 1980 where Javor refused to offer the trial transcript in evidence. This finding, and others, have been superseded by the findings and conclusions made after the more thorough hearing following our remand. It is improper to so rely.
Javor argues prejudice, as a matter of law, flowing from the sleeping of his retained counsel — an argument akin to the deprivation of counsel situation in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In Wainwright a per se rule was established, but established on much more compelling facts than those of the instant matter. This is not a case where counsel was denied by the court, as in Gideon, or where judicial or governmental conduct intervened to prevent counsel from being effective, nor is it a case where counsel was forced upon a defendant or selected by the court. This is a case where *836counsel was selected by the defendant as a matter of his own free choice. Javor did not complain about the shortcomings of his attorney to the judge during his trial; he did not discharge the attorney nor seek assistance from the court. The magistrate noted that the trial judge observed the sleeping attorney, but did not call a recess because the attorney would only doze off momentarily and then wake up. The magistrate also found that all of the “dozing” occurred during times when the court proceedings did not concern issues which applied to defendant Javor. Based on the evidence submitted at the hearing, the magistrate concluded that there was no showing that the defense counsel committed any error of trial tactics or strategy. He found that the record reflected no missed objection to inadmissible evidence, no lost defense, no failure to produce favorable available evidence, and no inability to fully argue the case to the jury. The magistrate referred to almost 50 instances in the record to support these conclusions. These are factual findings supported by the evidence and we should apply the clearly erroneous standard of review.
Moreover, as outlined in the majority opinion (at p. 832), Javor has had more than his day in court. In each prior appeal, he was represented by able counsel. In his next to the last appearance in this court, 467 F.2d 481 (again with able counsel), a panel unanimously affirmed the denial of his habeas corpus petition under 28 U.S.C. § 2255 wherein he claimed retained counsel was incompetent and he had received ineffective assistance of counsel. This court affirmed, stating:
“The critical factual determination on the competence of counsel was made after a comprehensive hearing in which the district court gave careful consideration to every point urged by petitioner. The findings against petitioner are supported by substantial evidence.”
467 F.2d at 482.
Under § 2255, a court is not required to consider successive motions for similar relief by the same prisoner. I suggest that the district court may have abused its discretion in considering the present petition and we seem to have contributed to it by our order remanding for further hearing.