dissenting:
I respectfully dissent on the ground that the petitioner was denied the effective assistance of counsel in a number of particulars as required by the Sixth Amendment to the Constitution of the United States.
The district court, where the petition for a writ of habeas corpus was pending, ordered that an evidentiary hearing be conducted before a United States Magistrate stating:
... that the resolution of this issue would depend on the factual determination of several issues:
1. Whether petitioner told defense counsel before trial about other possible defense witnesses and documentary evidence;
2. Whether defense counsel made a reasonable investigation of such other witnesses and evidence;
3. The reasons, if any, for counsel’s not using that evidence;
4. Whether, at the time of petitioner’s trial, a reasonably competent attorney would have investigated and pursued expert testimony concerning the “battered spouse syndrome” [“bss”];
5. Whether defense counsel made such an investigation, or his reasons for not doing so, and
6. Whether, inter alia, defense counsel through incompetence or inadvertence, deprived petitioner of a substantial defense under Beasley v. United States, 491 F.2d 687 (6th Cir.1974).
An evidentiary hearing was held on May 25,1983, at which the petitioner testified. The petitioner’s trial counsel, Marshall Hill (“Hill”) also testified, as did Clinton Touchstone. David DeMouchel, who was offered by the petitioner as an expert witness on the standard of competence of criminal defense attorneys, was the final witness. [Footnote 1 omitted]. The parties subsequently filed posthearing briefs. The questions presented in Judge Cohn’s memorandum opinion will be discussed, in order, below.
1. Whether Petitioner Told Defense Counsel Before Trial about Other Possible Defense Witnesses and Documentary Evidence.
The trial transcript indicates that defense counsel called no witnesses to the stand other than the petitioner. At the eviden-tiary hearing, the petitioner stated that she gave Hill the names of several persons who could testify at trial and who had witnessed prior violence by Satchel against others. She stated that she told Hill that her children could also testify about past violence between Satchel and herself. She stated that Hill told her that he would call these persons as witnesses, but that several days before the trial Hill told her that he had changed his mind and that he would not call any other witnesses because he did not see the need to do so. The petitioner stated that several of these witnesses were present at the petitioner’s criminal trial, including Mr. and Mrs. Clinton Touchstone; Timothy Ross, the petitioner’s father; the petitioner’s children, Janet and Kerry; Timothy Ross, Jr., the petitioner’s brother; and the petitioner’s husband’s business partner, who was unnamed.
Clinton Touchstone testified at the hearing that he met the plaintiff through Satchel, whom he had known since 1962. Touchstone was aware of Satchel’s reputation for violence against women, and Satchel told Touchstone that he beat and threatened the petitioner, by holding a knife or pistol to the petitioner. Touchstone had seen bruises on the petitioner’s face and knees and had seen her limping. Touchstone also knew that Satchel had been violent against one Addie Henderson. Touchstone stated that he attended the petitioner’s trial and approached Hill to ask if he would be a witness at trial *330because he knew of Satchel’s history of violence. Hill told Touchstone that he would let him know if he needed any witnesses.
2. Whether Defense Counsel Made A Reasonable Investigation of Such Other Witnesses and Evidence
Hill did not talk to any witnesses other than Touchstone in court, or obtain copies of any police reports of any prior incidents of violence.
3. The Reasons, If Any, For Counsel’s Not Using That Evidence.
Hill testified at the hearing that the petitioner told him “early on” that Satchel had a history of violence against her. He did not remember if the petitioner gave him the names of witnesses to Satchel’s prior violence, but he did not attempt to interview any such witnesses. Even after the prosecutor extensively cross-examined the petitioner about the prior history of violence between the spouses, Hill did not reconsider this position.
Hill acknowledged that the prosecutor extensively commented on the lack of corroboration of the history of violence in his closing argument.2
Hill testified that he did not attempt to corroborate the petitioner’s testimony because he did not believe that the facts of this case formed the basis of a “bss” defense, and he thought that this evidence would weaken the defense of self-defense. Specifically, Hill stated that he had concluded that evidence of prior assaults would corroborate the prosecutor’s contention that the petitioner’s assault on Satchel was motivated by revenge.
(Magistrate’s Report App. pp. 25a-29a).
Petitioner’s attorney, Hill, was erroneous in his testimony before the magistrate in endeavoring to excuse his failure to call any witnesses to corroborate the testimony of his client, because he believed it would show that her defense against his last assault upon her was motivated by revenge. The fact is that Satchel, as stated in the majority opinion, had threatened to kill her and approached her with a knife in his hand. Surely she had a lawful right to defend herself and if she had not done so, she would have been stabbed to death by her husband’s knife.
The petitioner’s attorney did not even investigate the defense of “battered spouse syndrome” of which he had been advised. The majority, however, bases it decision entirely on the “battered spouse syndrome” and did not even consider or discuss the other failures of defense counsel to corroborate the testimony of petitioner with a multitude of other witnesses who were available and even present in the courtroom as to the past conduct of Satchel in beating and injuring his common law wife and other women and men.
The magistrate’s Report and Recommendation was carefully prepared and consists of 15 pages in which he adopted findings of fact and conclusions of law, and holds that petitioner had been deprived of the effective assistance of counsel.
The district judge, in a Memorandum and Order Granting Writ of Habeas, accepted the findings and recommendations of the magistrate and denied the exceptions filed thereto.
The factual findings of the magistrate adopted by the district court are binding on the majority, as they are supported by substantial evidence and are not clearly erroneous. The conclusions of law of the district court are also correct. I disagree with the majority that this is a mixed question of fact and law and that the majority can adopt findings of fact.
This requires affirmance of the judgment of the district court granting the writ of habeas corpus as the constitutional rights of petitioner were clearly violated.
The trial transcript indicates that in his closing argument, the prosecutor stated several times that no witnesses were called to the stand to corroborate the petitioner’s statements about prior assaults (tr. 4/20/78, pp. 18, 21, 32).