dissenting:
I dissent from that portion of the majority opinion that holds that the state habeas court fact-finding procedures were adequate to allow Birt a full and fair hearing on the denial of counsel issue.
I concur in that portion of Judge Hatch-ett’s dissent to the effect that the material facts concerning Birt’s right to choice of counsel were not adequately developed in the state court proceedings and that further evidentiary development in the federal district court is necessary to resolve this issue.
HATCHETT, Circuit Judge, with whom CLARK, Circuit Judge, joins, dissenting:
The majority holds that (1) the trial court failed to deny Birt his right to counsel of choice, and (2) Birt was not denied effective assistance of counsel. Finding no ineffective assistance, the majority failed to address the merits of Birt’s traverse jury challenge. I disagree with the majority’s holding in the *602above two claims. Consequently, I address the merits of the jury challenge claim.
COUNSEL OF CHOICE
The majority dismisses Birt’s right to counsel of choice claim by analyzing it as simply a motion for continuance in order to obtain a new lawyer. This analysis is clearly wrong in light of the fact that Birt never filed a motion for a continuance. The real issues are whether Birt waived his constitutional right to counsel of his choice and whether an evidentiary hearing is necessary to resolve that issue.
The sixth amendment, while not providing an absolute right, guarantees a defendant a fair opportunity to secure counsel of his choice. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932). The facts in this case show that the state trial court may have failed to afford Birt counsel of his choice.
Approximately three months before his arraignment, while incarcerated in a federal prison in Marion, Illinois, Birt notified the lawyer appointed by the Superior Court of Jefferson County, Georgia, that he wished to hire his own lawyer. At his arraignment, Birt continued his objection to Collins, the appointed counsel, and informed the court that, given the opportunity to speak with his wife, he would hire a lawyer. Birt stated time and again his objection to having Collins as appointed counsel. Birt and his family succeeded in obtaining a private lawyer, Eugene Reeves, to represent him at the upcoming trial. Reeves, Birt, and Collins, the appointed counsel, met for the first time at the Richmond County Jail on Sunday night, June 22, 1975, with the trial scheduled to begin the next morning.1
At the state habeas corpus hearing, Collins testified that Birt had decided to retain both lawyers. Birt testified to the contrary claiming he only desired Reeves to represent him at trial. Trial proceeded with Birt represented by both Collins and Reeves.2 Reeves never testified concerning the Sunday night conversations and events in the jail on June 22, 1975. Yet, the state habeas corpus court found that Birt had voluntarily accepted the assistance of both Collins and Reeves, thereby waiving his right to counsel of his choice. This finding was affirmed on appeal in the state courts. The district court presumed the factual findings entered by the state habeas corpus court to be correct and denied Birt an evidentiary hearing on his constitutional claim. The majority affirms this conclusion despite the absence of the critical witness, Reeves.
In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the Supreme Court delineated six situations where a federal evidentiary hearing is required even though a state court has previously entered factual findings.3 The fifth circumstance occurs when “the material facts were not adequately developed at the state court *603hearing.”4 372 U.S. at 313, 83 S.Ct. at 757, Coleman v. Zant, 708 F.2d 541, 545 (11th Cir.1983). To compel the district court to hold an evidentiary hearing based on the fifth circumstance, the petitioner must show the existence of two elements: “First, a fact pertaining to his federal constitutional claim was not adequately developed at the state court hearing and that the fact was ‘material’ ... and second, that failure to develop that material fact at the state proceeding was not attributable to petitioner’s inexcusable neglect or deliberate bypass.” Ross v. Hopper, 716 F.2d 1528, 1534-35 (11th Cir.1983); Thomas v. Zant, 697 F.2d 977, 986 (11th Cir.1983).
Birt has proved that material facts concerning his right to choice of counsel were not adequately developed in the state court proceedings. The primary issue is whether Birt waived his right to choice of counsel by failing to continue to voice his objection to both the retained lawyer and the court appointed lawyer representing him at trial. The only way to resolve this dispute is to elicit Reeves’s testimony concerning the conversation at the jail on June 22, 1975. The only evidence introduced at the state habeas corpus hearing was the contradictory testimony of Birt and Collins. Birt was unable to compel Reeves to attend the hearing and testify. The majority bases its holding that Birt waived his constitutional right upon a swearing match between Birt, a convicted felon, and Collins, his appointed lawyer and a former district attorney charged in Birt’s petition with rendering ineffective assistance of counsel. It is not difficult to imagine who would win the swearing match. Clearly, further evidentiary development in federal court is necessary to resolve this issue. Isaacs v. Zant, 709 F.2d 634, 635 n. 2 (11th Cir.1983).
Birt has also demonstrated that the failure to develop these material facts was not attributable to his inexcusable neglect or deliberate bypass. Birt could not have compelled Reeves to attend the state habeas corpus hearing because of the Georgia Statute restricting the enforcement of subpoenas to 150 miles from the courthouse where the habeas corpus proceeding was held. Ga.Code Ann. § 38-801(e) (revised and recodified at 24-10-211982).5
Reeves’s residence in Lawrenceville, Georgia, is more than 150 miles from Tatt-nell County, Georgia, where the state habe-as corpus hearing was held. Consequently, Reeves was outside the range of an enforceable subpoena. In Coleman v. Zant, 708 F.2d 541 (11th Cir.1983), this court stated that section 38-801(e) was a valid reason for the defendant’s failure to produce live witnesses. 708 F.2d at 548. Moreover, Birt’s ability to compel Reeves to file sworn affidavits or written interrogatories cannot be regarded as inexcusable neglect, because in Coleman v. Zant, the Eleventh Circuit held a defendant’s failure to file such affidavits or interrogatories did not constitute inexcusable neglect or deliberate bypass. 708 F.2d at 545. In this case, the majority not only fails to overrule that precedent; it simply ignores it.
Therefore, having satisfied both elements of the Townsend standard, Birt is entitled to an evidentiary hearing on the choice of counsel issue. Without Reeves’s testimony, the issue will never be fully developed. Birt will be executed without any judge, state or federal, learning what took place when two lawyers (one wanted, the other unwanted) met for a few minutes to prepare to save a man’s life.
INEFFECTIVE ASSISTANCE OF COUNSEL
The majority rightly says that we must look to the totality of the circumstances in order to determine whether counsel was *604ineffective. While it is true that Birt challenges his counsel’s representation in only one aspect, to wit: counsel failed to challenge the traverse jury pools, this aspect of Collins’s representation encompasses the whole of his ability to adequately represent his client. Counsel may have made a tactical decision not to challenge the traverse jury pool. Yet, counsel is ineffective in this case because his failure to investigate facts crucial to that issue rendered whatever investigation he may have performed and whatever tactical decision he made subject to his greater lack of substantive knowledge.
At the heart of any effective representation is the independent duty of counsel to investigate and prepare. Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir.1982). Collins could not investigate properly where he lacked the rudimentary knowledge of basic statistical figures regarding the traverse jury pool composition. Collins admitted his lack of knowledge in this matter. The Georgia Supreme Court made a factual finding that Collins “did not know the racial composition of the county.” Birt v. Hopper, 245 Ga. 221, 224, 265 S.E.2d 276, 278 (Ga.1980).
Since Collins could not intelligently investigate the factual basis for a traverse jury pool challenge, it is inconceivable that he could challenge the constitutionality of the traverse jury pool successfully. He lacked the ability to attempt such a challenge since he lacked the statistical knowledge upon which such a challenge rests.
In addition, even when told by persons responsible for filling the jury wheel that it was being filled by the addition of persons selected because they were friends, Collins failed to realize the constitutional significance of this information.
The definition of effective assistance of counsel, sufficient to satisfy the sixth amendment, is counsel “reasonably likely to render and rendering reasonable assistance .... ” Washington v. Strickland, 693 F.2d at 1243, 1250 (5th Cir. Unit B 1982) (emphasis added). See Scott v. Wainwright, 698 F.2d 427, 429-30 (11th Cir.1983) (counsel is ineffective where he failed to familiarize himself with the facts and relevant law); Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir.1981), cert. denied, 456 U.S. 992, 102 S.Ct. 2275, 73 L.Ed.2d 1288 (1982) (counsel must be familiar with the facts and the law in order to competently advise the defendant).
In this instance, Collins knew and recognized that the traverse jury pool was unconstitutionally composed. Collins testified that he was aware of a successful challenge to the composition of the traverse jury pool just a few months prior to the Birt trial. Collins testified that he planned to pursue a change of venue motion ip the event the <■ selected jury mirrored what he knew to be the unconstitutional composition of the traverse jury. We will address this matter further in the dissent.
In order to prevail after a finding of ineffective counsel, a claimant must also show prejudice, to wit: that counsel’s ineffectiveness resulted in actual and substantial disadvantage to the course of his defense. Washington v. Strickland, 693 F.2d at 1262. The majority intimates that Birt has been unable to establish prejudice because the jury selected for his trial was composed of a less constitutionally egregious mix of individuals than that mix found in the traverse jury pool.6 This view *605by the majority seems to suggest that a constitutional violation regarding a jury pool may be “cured” by subsequent happen-chance. The constitutional violation occurred with the composition of a traverse jury pool which substantially underrepresented blacks and women. See Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). The violations cannot be subsequently “cured” through the selection of a more representative jury due to luck. This holding by the majority is probably the most serious undermining of basic and well established constitutional law to be announced by the Eleventh Circuit. It is totally unsupported. It renders moot a constitutional challenge essential to the fair administration of justice.
In determining prejudice, we should look only to whether counsel’s ineffectiveness has resulted in actual disadvantage to the defendant’s case, not to whether that disadvantage has been altered by subsequent facts. Counsel’s failure to investigate the facts and the correct constitutional standards for traverse juries of necessity results in actual disadvantage to the course of a trial. Accordingly, I would find that Birt’s counsel was ineffective, and that Birt was prejudiced by that ineffectiveness.
In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Court held that where a state possesses a contemporaneous objection law a defendant is precluded from bringing his claim in the absence of a showing of both cause and prejudice. Ga.Code Ann. § 50-127(1) (recodified at § 9-14r-42(b)) states that a defendant waives his right to object to the composition of a traverse jury pool unless he can show in his petition for relief that cause exists for his being allowed to pursue the objection after his conviction. I find that Collins’s ineffective assistance constitutes cause sufficient to satisfy the Wainwright test. I also find that Collins’s failure to investigate the facts and correct constitutional standards for traverse juries resulted in actual disadvantage to the course of Birt’s trial, satisfying the prejudice requirement. The Wainwright v. Sykes test having been satisfied, the merits of Birt’s jury composition claim may be reviewed.
JURY COMPOSITION
Birt claims that the traverse jury pool from which his trial jury was selected substantially underrepresented blacks and women by percentages violative of both the sixth amendment right to a jury selected from a fair cross-section of the community and the fourteenth amendment guarantee of equal protection.
“Both in the course of exercising its supervisory powers over trials in federal courts and in the constitutional context, the court has unambiguously declared that the American concept of a jury trial contemplates a jury drawn from a fair cross-section of the community.” Taylor v. Louisiana, 419 U.S. at 526-27, 95 S.Ct. at 696. The Taylor Court stressed that the selection of a petit jury from a representative cross-section of the community is an essential component of a sixth amendment right to a jury trial. Criminal defendants in state courts may also challenge discriminatory selections of grand and petit juries through the equal protection clause of the fourteenth amendment. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); United States v. Perez-Hernandez, 672 F.2d 1380 (11th Cir.1982).
Birt, a white male, claims that the traverse jury pool from which his trial jury was selected substantially underrepresented blacks and women by percentages violative of his sixth amendment right to a jury selected from a fair cross-section of the community. Birt has standing to bring this claim. “Taylor was not a member of the *606excluded class; but there is no rule that claims such as Taylor presents may be made only by those defendants who are members of the group excluded from jury service.” Taylor 419 U.S. at 526, 95 S.Ct. at 695.
The requirements for a prima facie violation of the fair cross-section requirement of the sixth amendment were set down by the Supreme Court in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664,58 L.Ed.2d 579 (1979). In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to a systematic exclusion of the group in the jury selection process.
Both Taylor and Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940), emphasized that women and blacks respectively are distinctive groups in the community. As such, Birt’s allegation that the traverse jury pool substantially underrepresented blacks and women satisfies the first requirement in the test for a sixth amendment fair cross-section violation.
Census figures reveal that blacks represented 54.5% of the Jefferson County population and that women represented 52.5%. The traverse jury pool consisted of 21.6% blacks and 34.9% women. The statistics show an underrepresentation in the June, 1975, list of 32.9% for blacks and 17.6% for women. Birt has satisfied the second requirement in finding a sixth amendment violation. The representation of blacks and women in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community. The percentage disparities are sufficiently disproportionate to fall within the approximate boundaries delineated in other cases. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 532 (1970) (23%); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (14%); Preston v. Mandeville, 428 F.2d 1392 (5th Cir. 1970) (13.3%).
The underrepresentation of blacks and women on Jefferson County traverse jury pools over a period of time indicates systematic exclusion of these two groups. In the September, 1970, pool, the statistical disparity for blacks was 42.7%, for women 50.7%. In the January, 1972, pool, the disparity for blacks was 42.5%; the disparity for women was 49.2%. In the March, 1975, pool, the disparity for blacks was 40%; the disparity for women was 47.7%. Birt has thus satisfied the third and final requirement of a prima facie violation of the sixth amendment right to a fair cross-section.
Since Birt has made out a prima facie showing of an infringement of his sixth amendment right to a jury drawn from a fair cross-section of the community, the state bears the burden of justifying this infringement by showing that attainment of a fair cross-section is incompatible with a significant state interest. Duren, 439 U.S. at 367, 99 S.Ct. at 670. The State of Georgia has offered no evidence to justify this infringement. Birt’s right to a jury selected from a fair cross-section of the community was violated when his trial jury was selected from a traverse jury pool which substantially underrepresented blacks and women.
Birt also alleges that the underrepresen-tation of blacks and women on the traverse jury pool was violative of the fourteenth amendment guarantee of equal protection.
Thus, in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial under-representation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws as written or as applied. Hernandez v. Texas, 347 U.S. at 478-79, 98 L.Ed. 866, 74 S.Ct. 667 [at 670-71]. Next, the degree of underrepresentation must be proved by comparing the proportion of *607the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. Id., at 480, 98 L.Ed. 866, 74 S.Ct. 667 [at 671]. See Norris v. Alabama, 294 U.S. 587, 79 L.Ed. 1074, 55 S.Ct. 579 [(1935)].... Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Washington v. Davis, 426 U.S. at 241, 48 L.Ed.2d 597, 96 S.Ct. 2040 [at 2048]; Alexander v. Louisiana, 405 U.S. at 630, 31 L.Ed.2d 536, 92 S.Ct. 1221 [at 1225], Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the state to rebut that case.
Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). The Castaneda decision established the guidelines for proving a case of jury discrimination. United States ex rel. Barksdale v. Blackburn, 639 F.2d 1115, 1132 (5th Cir.1981) (en banc). The courts apply the above-stated equal protection test in cases involving both grand jury and petit jury discriminatory selection practices. Gibson v. Zant, 705 F.2d 1543, 1546 (11th Cir.1983).
The Eleventh Circuit has held that a white male can bring a claim of denial of equal protection in the exclusion of blacks and women from serving as grand jury foremen, even though he is neither black nor female. United States v. Cross, 708 F.2d 631 (11th Cir.1983). Birt, a white male, thus has standing to bring his claim that the traverse jury pool, in substantially underrepresenting blacks and women, violated the fourteenth amendment guarantee of equal protection.
Birt, as earlier detailed, has satisfied the first two steps in the Castaneda test for finding an equal protection violation. Birt has identified two distinct classes — women and blacks. Birt has shown a significant underrepresentation of blacks and women in the traverse jury pool.
Testimony of Jefferson County jury commissioners at the state habeas corpus hearing reveal that potential jurors were occasionally selected by accepting or rejecting names on the county voter registration lists based upon the commissioner’s personal knowledge of the individuals or their family background. Commissioner McGahee explained the process by which the jury lists were revised to remedy underrepresentation:
We took the voter registration list and went right back over it like we did before and just added, tried in our own mind of the people that we knew from the districts that we had to uh, to put what we thought would be an average pro rata share and I thought of blacks, females and teenagers, with no, no given percentage in mind .... Well from the voter registration lists what we had, we picked people that we though [sic] were suitable and would do a good job as a juror.
Castaneda, 430 U.S. at 512, 97 S.Ct. at 1289; Turner, 396 U.S. at 356, 90 S.Ct. at 538. For purposes of the third requirement for an equal protection violation, the subjective judgments of the Jefferson County jury commissioners clearly render the method of selection susceptible to possible abuse.
Birt has clearly established a prima facie case of an equal protection violation. The State of Georgia has offered no evidence in rebuttal. As such, it is clear that the substantial underrepresentation of blacks and women in the traverse jury pool was a violation of the fourteenth amendment guarantee of equal protection.
The substantial underrepresentation of blacks and women in the jury pools from which Birt’s trial jury was selected violates his sixth amendment right to a jury pool selected from a fair cross-section of the community and his fourteenth amendment guarantee of equal protection.
We clearly find support in the record for finding this constitutional violation. At the least, the majority should find cause and remand this case to the district court for an evidentiary hearing.
. The fact that the lawyers met for the first time on the eve of trial should point to the absolute need to hear the testimony of Reeves, not only on the choice of counsel issue but also on the state of preparedness of both lawyers.
Few experienced trial judges or lawyers would assert that two lawyers could adequately review evidence, determine their respective roles at trial, agree on instructions to the jury, decide upon cross-examination approaches, discuss direct examination approaches, and agree upon witnesses for the penalty phase of the trial in a couple of hours.
It is also inconceivable that neither lawyer, especially Reeves, never sought a continuance.
. The record indicates that Birt would send one lawyer out of the room while he discussed the representation matter with the other.
. The court stated:
A federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: if (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing.
Townsend, 372 U.S. at 313, 83 S.Ct. at 757.
. The sixth circumstance enunciated in Townsend was utilized by the panel in deciding Birt was entitled to an evidentiary hearing on his constitutional claims. Birt v. Montgomery, 709 F.2d 690, 696 (11th Cir.), vacated, Birt v. Montgomery, No. 82-8156 (11th Cir.1983). The absence of Reeves from the state habeas hearing entitled Birt to a hearing on either ground.
. Georgia Code Annotated § 38-801(e) was amended in 1980 to provide for statewide service of subpoenas. Acts 1980, pages 70-71.
. We note that neither the majority nor any of the parties argue that the trial jury, composed of four blacks and six women, meets the statistical proportions of those respective segments of the population at the time of trial. (Blacks composed 54.5% of the population; women composed 52.5% of the population. Women constituted 50% of the trial jury, however, and blacks constituted 33.3% of the jury.) Although the trial jury’s composition is closer to the actual proportional population figures than the traverse jury from which the jury was selected, we note that blacks were still underrepresented by over 20%.
The majority also suggests that Collins “gambled” on getting a jury he liked, rather than challenge the jury pool pre-trial. In light of the fact that the jury challenge is subjected to a cause and prejudice finding if not made pre-trial, it is a gamble that must lead to a finding of ineffectiveness of counsel.
*605The majority also suggests that the failure to challenge the jury pool is somehow related to the motion for change of venue. They are unrelated principles. One concerns itself with having a proper jury selected, the other concerns itself with what the properly selected jurors know about the facts of the case.