concurring in part and dissenting in part:
I respectfully dissent from the opinion of the court in Parts I and II and so much of Part V as concludes that a remand for an evidentiary hearing is necessary. I concur in Parts III and IV and the remainder of Part V.
In Part I, our panel concludes that there must be a remand to the district court for an evidentiary hearing to determine whether or not Porter’s trial counsel rendered ineffective service at sentencing and at re-sentencing. To put this issue into proper focus it is important to bear in mind these things: First, Porter was sentenced in 1978 and resentenced in 1981. Years later, with the benefit of hindsight, it is now suggested that counsel at Porter’s resentencing should have presented evidence of Porter’s background. What Porter proffers now as the better course for trial counsel to have taken would have been a course, I submit, calculated to have produced the death penalty. Second, at sentencing, trial counsel were appearing before the same jurors who had just convicted Porter of two gruesome, calculated and premeditated murders. On the day of the murders prior to the commission of the crimes, Porter had announced his intention to break into and enter a home for the purpose of burglary and his intention to leave no witnesses. Pursuant to that announced plan, he had broken into the home of Mr. and Mrs. Walwrath, 78 and 62 years old, respectively, had beaten them unmercifully and had “finished them off” by strangling each with an electric cord left tied tightly around their necks. He had ransacked the dwelling, stealing objects of value in the house and transporting them away in the victim’s automobile which he also stole. Third, it should be borne in mind that counsel now charged with inadequate assistance persuaded that same sentencing jury to recommend life imprisonment, the best recommendation obtainable from the jury after the conviction.
Although trial counsel achieved total success before the jury at sentencing, they did not succeed with the trial judge who overrode the jury recommendation and sentenced Porter to death. Porter’s present *944habeas counsel have discovered that which is well-nigh universally so — trial counsel might have presented the case differently at sentencing. However, after all these years, the only evidence to which habeas counsel points which was not used by trial counsel is evidence which trial counsel would have been ill-advised to have used. Counsel did not, at sentencing, present to the jury the whole story of Porter’s life leading up to his commission of these murders. Had that subject been opened up, it could not have been closed before the jury would have been made aware that Porter had been constantly anti-social since early childhood. It is now asserted that Porter’s trial counsel should have pointed out to the jury that this double murderer had been a poor student in elementary school, a discipline problem, and that his high school years were spent in various juvenile detention centers because he was unmanageable in a normal environment. It is contended that the jury should have been told, on Porter’s behalf, that in adulthood he was a heavy drug user and that, by his own admission, his adult anti-social activities and felony incarceration destroyed his marriage. This life story, it is contended, should have been presented together with evidence that Porter was intelligent and suffered from no neurological or cognitive defects. The notion that such a showing of rehabilitative failure over the years would have been mitigating seems premised upon the notion that this trial judge could have been persuaded that Mr. and Mrs. Wal-wrath were not battered and ultimately strangled to death by the defendant but, rather, by the social environment in which he had lived.
The record satisfies me that sentencing counsel’s failure to produce the evidence now tendered by habeas counsel was a tactical decision and a correct one. It is clear that counsel and the trial judge at sentencing and resentencing were fully aware that such testimony was admissible. Indeed, before resentencing, counsel had obtained from the trial judge an order that testimony by family members and, specifically, Porter’s mother would be accepted. Then, in a move that must have been a surprise to the state prosecutor, Porter’s attorney successfully persuaded the judge that the state supreme court’s remand for resentencing limited both the state and the defendant to impeachment of one witness who had testified by deposition. That argument was deliberately made by counsel who had clearly considered calling Porter’s mother and other family members. That this course of action was a tactical decision is abundantly clear.
Even if the omission of this testimony was not a tactical decision, we should not order a hearing on this subject unless we are persuaded that the omission creates a reasonable probability that the outcome of the proceeding would have been different had the evidence not been omitted. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Whether the lifelong anti-social characteristics of Porter were omitted at sentencing as a result of tactical decision or oversight, I could not conclude that the omission was, under that standard, prejudicial to Mr. Porter. I find myself in agreement with the Florida Supreme Court: “The current speculation that informing the judge and jury of Porter’s long history of juvenile delinquency and drug abuse would have mitigated the sentence is merely that, speculation. It is at least as likely that introducing this material would have damaged Porter as that it would have helped him.” Porter v. State, 478 So.2d 33, 35 (Fla.1985). Additionally, in light of the three aggravating factors found by the trial judge, the proffered mitigating evidence would not have affected the trial judge’s decision. Cf. Francois v. Wainwright, 763 F.2d 1188 (11th Cir.1985) (evidence of defendant’s impoverished childhood would not have changed sentencing outcome in light of aggravating circumstances).
In Part II, the panel concludes that an evidentiary hearing is required because of Porter’s mere assertion that his trial counsel was subject to a conflict of interests at the trial. I respectfully disagree. The short response to that assertion is that *945petitioner does not allege that his trial counsel was laboring under a conflict; he merely asserts that it is possible that a conflict may have existed.
Trial attorney Widmeyer was a public defender. He had been assigned to represent one Matha Thomas. While Thomas was incarcerated, appellant Porter was placed in the same jail. Porter confessed and boasted to Thomas that he had killed the two victims. When the prosecution learned of this, a statement was taken from Thomas. Attorney Widmeyer was assigned the defense of petitioner Porter. He learned that Thomas had reported Porter’s incriminating statements to the prosecution. Widmeyer called this to the attention of the court and was permitted to withdraw as counsel for Thomas.
At trial, Widmeyer forcefully cross-examined Thomas. In the eight years since Porter’s original trial, it has never been alleged that there was any question which could have been put to Thomas by Widmeyer not asked because of Widmeyer’s brief representation of Thomas. It is earnestly argued that there might have been a conflict and that, if there were, the conflict could possibly have inhibited Widmeyer’s cross-examination. Defendant, without any factual basis, merely alleges a hypothetical conflict existed. See Stevenson v. Newsome, 774 F.2d 1558, 1561 (11th Cir.1985) (“The possibility of conflict does not rise to the level of a sixth amendment violation.”), cert. denied, — U.S. -, 106 S.Ct. 1476, 89 L.Ed.2d 731 (1986). Defendant has failed to point to any “actual conflict of interest [which] adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). Appellant does not seek a hearing to prove the existence of a conflict; he seeks a hearing as an investigation aid to find out, nearly a decade after the event, if there might be some evidence upon which he could assert the existence of a conflict. In my view, that is not the purpose of a hearing on an issue in habeas corpus.
Were a conflict of interest alleged upon some reasonable basis, I should not hesitate to join in requiring a hearing. The existence of an actual conflict has not been alleged. In summary, the allegation of the petitioner’s complaint fails to allege sufficiently disputed facts so as to merit an evidentiary hearing. Such a hearing will have no impact upon the viability of Porter’s constitutional claims. See Hill v. Lockhart, 731 F.2d 568, 573 (8th Cir.1984), aff'd, — U.S. -, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Guice v. Fortenberry, 661 F.2d 496, 503 (5th Cir.1981) (en banc). I respectfully dissent from this remand.