dissenting.
I respectfully dissent. I would affirm the district court’s judgment granting the writ of habeas corpus because appellant did not receive effective assistance of counsel at the penalty phase of his trial. Laws v. Armontrout, No. 86-22140(3) (E.D.Mo. Dec. 15, 1986) (Memorandum Opinion). Consequently, I would remand the case to the state court for a new trial on the penalty phase only.
This is a death penalty case wherein defense counsel failed to conduct a reasonable investigation into appellant’s background and to present mitigating evidence in the bifurcated penalty stage of appellant’s trial. An experienced district court judge, after an extended hearing, found that counsel’s representation fell far below the standard of reasonableness and prejudiced appellant. Specifically, the court found that counsel (1) failed to investigate and present evidence about appellant’s military background and the effect his service in Viet-Nam had on him, (2) failed to make reasonable efforts to contact appellant’s family members and to present evidence from them, (3) failed to investigate and present evidence of appellant's prior psychological evaluations, and (4) failed to present any evidence as to the inappropriateness of the death penalty. On the basis of these findings, the district court concluded, and I agree, that there was a reasonable probability that, but for counsel’s ineffective representation, the result of the proceedings could have been different.
I agree that the right to counsel is limited to the right of effective assistance of *1423counsel, and by no means does it mean the right to acquittal. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) (Strickland). In Strickland, the Supreme Court articulated the following standard in determining the issue of ineffective assistance of counsel:
The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
Id. at 686, 104 S.Ct. at 2064. This benchmark has two components, the breach of duty by trial counsel and prejudice resulting therefrom. To establish the breach, counsel’s errors must be so serious and of such a magnitude as to be in violation of the sixth amendment guarantee to counsel. In this area we do not deal in absolutes, the test is one of reasonableness i.e., “the skill and diligence that a reasonably competent attorney would exercise under similar cir-cumstances_” Kellogg v. Scurr, 741 F.2d 1099, 1100 (8th Cir.1984); citing Thomas v. Lockhart, 738 F.2d 304, 307 (8th Cir.1984). Not only are we counseled to be deferential to trial counsel’s decisions, but we must also afford those decisions a strong presumption of correctness. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
Where the defendant’s life may be the penalty exacted by the state, I do not believe we ask too much of trial counsel that he or she make a reasonable investigation so that he or she can make and put before the court the best defense available to the defendant. The Strickland court specifically recognized the duty of a defense attorney to investigate:
[Cjounsel has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances....
466 U.S., at 691,104 S.Ct. at 2066 (emphasis added). The Supreme Court, in taking counsel to task for inadequate preparation, said:
[A] complete lack of pretrial preparation puts at risk both defendant’s right to an “ample opportunity to meet the case of the prosecution” ... and the reliability of the adversarial testing process.
Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 2589, 91 L.Ed.2d 305 (1986) (citations omitted).
Applying the standards and holding of Strickland and Kimmelman to the present case, it is obvious that appellant received ineffective assistance of counsel and was prejudiced thereby. The duty to advocate the defendant’s cause, including consulting with, defendant and bringing to bear such knowledge as will render the trial a reasonable adversarial process, Strickland, 466 U.S. at 668, 104 S.Ct. at 2052, mandates the trial counsel investigate and develop facts about the defendant’s background in an attempt to develop evidence to mitigate. Once counsel has completed such an investigation, then, and only then, woulud he or she be in a position to make a reasonable strategic decision whether or not to present the evidence.
In the present case, trial counsel had a telephone conversation with someone claiming to be appellant’s stepmother; this person indicated that none of appellant’s relatives wished to testify for appellant. Consequently, counsel failed to contact or meet with other relatives to discuss appellant’s background and thus failed to gather information concerning appellant’s Viet-Nam war experience and his post Viet-Nam personality change.
The majority relies primarily on the presumption of correctness to be accorded a state court’s finding of fact as the basis for its decision. While I do not dispute this proposition as a general legal proposition, the presumption of correctness does not apply to the state court’s determination of the effectiveness of counsel. In Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982), the Supreme Court held that the presumption of correctness accorded the factual findings of the state court under 28 U.S.C. § 2254(d) applies only to historical facts underlying counsel’s performance but not to the ultimate conclusion whether effective assist-*1424anee has been rendered. This latter conclusion is not a finding of fact binding on a federal court because effective assistance is a mixed question of law and fact. Thomas v. Lockhart, 738 F.2d at 307.
Thus, the district court had the duty to carefully examine the conclusion of the state court and to make “every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct and to evaluate the conduct from counsel’s perspective at the time.” Thomas v. Lockhart, 738 F.2d at 309; see Kellogg v. Scurr, 741 F.2d at 1101. Counsel may not immunize his or her performance from sixth amendment scrutiny by ¡labeling acts or omissions as trial strategy. Kellogg v. Scurr, 741 F.2d at 1102.
I do not take issue with the state court’s determination of historical facts. I accept for purposes of this analysis that trial counsel did the acts he testified to: he reviewed the 1981 psychiatric examination but did not consider the 1974 psychiatric examination and did not speak to the psychiatrist to determine the significance of appellant’s diagnosis, he spoke to a woman he believed to be appellant’s stepmother and may have spoken to appellant’s brother but couldn't remember their names, and he talked to one (or perhaps two) jurors to determine whether the testimony of community persons in behalf of appellant was effective.
It is these facts admitted by counsel (and accepted by the state court) that the district court subjected to an independent evaluation to determine if there was effective assistance of counsel. It is this independent evaluation which the majority wrongly rejected. The majority incorrectly applies the presumption of correctness not only to the historical facts found by the state court, but also to the state court’s conclusion that effective assistance was provided. See Sumner v. Mata, 455 U.S. at 597, 102 S.Ct. at 1306. Kellogg v. Scurr, 741 F.2d at 1102.
Granted, trial counsel put much store in his belief that the jury would never impose the death penalty because appellant was not the person who fired the gun and, therefore, did not deserve to die. Such a belief was totally unwarranted, considering the gruesome and calculated nature of the murders with which appellant was charged and his prior capital murder convictions. To disregard the reality and seriousness of the situation was unreasonable and contrary to professional norms. It also evidenced a complete lack of pretrial preparation and put at risk appellant's right to offer evidence of mitigating circumstances and undermines the reliability of the adversarial process. See Kimmelman, 106 S.Ct. at 2589.
The district court, in the present case, did not set the conviction aside; the court only ordered that the case be remanded for a new hearing on the penalty. Thus, appellant will not go free because trial counsel blundered. The only effect thus would be to grant appellant a new penalty hearing, which will be in accord with our notion of fair treatment before one’s life can be forfeited. I would affirm the district court.