dissenting:
Bad cases can generate bad law. In this case, Stano’s multiple confessions are disturbing for many reasons. For example, his relationship with one of the investigators and the alleged cooperation between defense counsel (not Pearl) and that detective cause serious concerns. The majority ruling, however, omits these issues. Without addressing Stano’s other appellate claims, the majority has elected to base its opinion on two permutations of the usual capital habeas corpus appellate issue, Sixth Amendment assistance of counsel.
The majority grants relief on speculative, alternative grounds that have no support in the record and are contradictory: self-representation and ineffective assistance of counsel. The first basis for relief found by the majority is a Faretta violation. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Faretta holds that a defendant proceeding pro se must engage in the necessary colloquy with the court to show that his decision is made voluntarily and knowingly. That procedure has no application in this case.
Stano did not proceed pro se because Pearl was his court-appointed lawyer at his request. Pearl counseled his client concerning the plea proceeding and the consequences of a guilty plea. He stressed to Stano that he had been unable to investigate fully the alleged murders because the State had not produced all of its evidence to him. Therefore, Pearl advised Stano not to plead guilty.
Stano had pled guilty previously. In 1981, he had entered guilty pleas to three counts of first-degree murder before the same judge. The State had agreed to life sentences in those cases. After discussing all aspects of the subject plea with Pearl, Stano decided that he wanted to enter a plea of guilty. The majority now holds that a competent, knowledgeable defendant cannot choose to plead guilty.
The majority holding on the basis of Far-etta is disconcerting in three respects: the manner in which the majority crafts its holding, its skewed interpretation and misapplication of Faretta, and the precedent established. Since Stano had court-appointed counsel and did not appear at the subject plea hearing pro se, the majority seems to find constructive notice and consequent loss of counsel in Pearl’s statement to the court that “I am not fully prepared at this time as his attorney to advise him with respect to the advisability of a trial or not.” Majority Opinion at 965 (emphasis by Majority). Referring to its Faretta analysis as the “first possibility” for its decision, the majority continues its speculative, hypothetical examination of the record as follows:
Mr. Pearl might well have meant (and the court might well have understood him to mean) that he could not serve as Stano’s attorney. In other words, Mr. Pearl might have been saying that he could not advise, i.e. represent, Stano as his attorney.
Of course, Mr. Pearl had already noted that Stano wanted to plead guilty and had also agreed “that certainly he has the right to do so.” By this, Mr. Pearl might well have meant that Stano could plead as he wanted but would be proceeding on his own without an attorney’s assistance. The effect of Mr. Pearl’s statement, then, was to force Stano to represent himself at the plea hearing.
*969Majority Opinion at page 966 (emphasis added). From this conjecture and postulated “effect,” the majority declares that Sta-no was “force[d]” to represent himself at the plea hearing and commences its Faret-ta analysis. The majority subsequently concludes that the plea proceedings were deficient because Stano did not clearly and unequivocally assert his right of self-representation and that the court did not make certain that Stano understood the ramifications of self-representation. This determination is a non sequitur.
The majority acknowledges that “Stano never made any statement that even resembled an assertion of his right to self-representation, let alone an assertion that reached the level of clarity and unequivo-calness required by Faretta.” Majority Opinion at page 966. It is evident from the record that this was not his intention, which necessarily precedes action. In this case, subjective determination of intent is inappropriate; the requisite, objective action required in order to trigger Faretta would have been Stano’s assertion of his right to self-representation.
After Pearl had disclosed completely his concerns regarding Stano’s guilty plea before review of all the evidence from the State as well as his client’s desire to plead guilty, the court questioned Stano as follows:
THE COURT: Mr. Stano, do you care to comment on what Mr. Pearl has just said?
THE DEFENDANT: No. I believe everything was quite sufficient that he said.
THE COURT: He stated things accurately?
THE DEFENDANT: Yes.
THE COURT: You’re in agreement with what he said?
THE DEFENDANT: Yes, sir.
Stano clearly concurred in his counsel’s representation of his election to plead guilty despite the lack of all evidence from the State. There is not even a faint suggestion of an assertion of self-representation by Stano. Instead, Stano’s intention, evidenced by his action, was to plead guilty. Based upon its own surmised reasoning, the majority has decided for Stano at this late date that he could have intended to assert his right of self-representation, or that he actually was proceeding pro se. If the trial court had discerned from any indication whatsoever that Stano was proceeding pro se, then it seems obvious that the Faretta inquiry would have been conducted given the court’s concern with ascertaining the positions of Pearl and Sta-no regarding the plea. I do not believe that this court should formulate factual conclusions with legal implications based upon gross speculation.
Furthermore, the majority’s application of Faretta is erroneous. While a defendant in a state criminal trial has a right under the Sixth and Fourteenth Amendments to proceed without counsel, this right does not attach until the defendant “ ‘knowingly and intelligently’ ” elects voluntarily to waive his constitutional right to assistance of counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)); Orazio v. Dugger, 876 F.2d 1508, 1512 (11th Cir.1989). The right to counsel is preeminent over the right to self-representation because the former attaches automatically and must be waived affirmatively to be lost, while the latter does “not attach unless and until it [i]s asserted.” Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir.1986) (emphasis in original), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 801 (1987); Brown v. Wainwright, 665 F.2d 607, 610 (Former 5th Cir.1982) (en banc).
The Eleventh Circuit has clarified the actions required of a defendant in order to assert to the trial court that he desires to proceed pro se, which necessitates the requisite inquiry by the court:
To invoke his Sixth Amendment right under Faretta a defendant does not need to recite some talismanic formula hoping to open the eyes and ears of the court to his request. Insofar as the desire to proceed pro se is concerned, petitioner must do no more than state his request, either orally or in writing, unambig*970uously to the court so that no reasonable person can say that the request was not made. In this Circuit, the court must then conduct a hearing on the waiver of the right to counsel to determine whether the accused understands the risks of proceeding pro se.
Dorman, 798 F.2d at 1366 (citation omitted) (emphasis added); see Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir.), cert. denied, 469 U.S. 966,105 S.Ct. 366, 83 L.Ed.2d 302 (1984). In Faretta, the defendant “clearly and unequivocally” declared to the trial judge weeks before trial that he wanted to represent himself without counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; see Fitzpatrick v. Wainwright, 800 F.2d 1057, 1064 (11th Cir.1986); Raulerson, 732 F.2d at 808. In response to this request, the judge conducted a sua sponte hearing to ascertain Faretta’s ability to conduct his own defense. Faretta, 422 U.S. at 808, 95 S.Ct. at 2528. It is evident that the trial judge understood that Faretta desired to proceed pro se because of a specific request by Faretta made to him. See, e.g., Orazio, 876 F.2d at 1509, 1512 (Petitioner informed the trial judge that he wanted to represent himself at a hearing pursuant to his court-appointed counsel’s request for withdrawal from representation.); Fitzpatrick, 800 F.2d at 1060-61, 1064-65 (Petitioner signed a waiver of his right to counsel before the court and reiterated verbally to the court that he understood that he was waiving his right to an attorney.); Dorman, 798 F.2d at 1360-62, 1366-67 (Petitioner filed motions pro se, informed the trial judge by letters of his desire to proceed pro se, and appealed to the state appellate court not only the trial judge’s denial of his pro se motions, but also that judge’s refusal to discharge the public defender and cited Faretta.)) United States v. Edwards, 716 F.2d 822, 824 (11th Cir.1983) (per curiam) (Defendant filed a motion seeking pro se representation and withdrawal of his public defender; the public defender also filed a motion requesting that defendant be allowed to represent himself.); see also Raulerson, 732 F.2d at 809 (quoting Brown, 665 F.2d at 612) (“Although a defendant need not ‘continually renew his request to represent himself even after it is conclusively denied by the trial judge,’ he must pursue the matter diligently.”). The Faretta ease law does not provide for proceeding pro se without assertion of the right of self-representation.
In this case, Stano made no oral or written request asserting his desire to proceed pro se. Indeed, the majority concedes that Stano “never actually requested to proceed pro se, nor does the record provide any indication that Stano understood he was proceeding in that capacity.” Majority Opinion at page 966. Even if this had been Stano’s intention, the right of self-representation had to be articulated or manifested to the court by an oral or written request in order to be recognized. Neither the trial judge nor this court is called upon to be clairvoyant. The majority’s ability to divine Stano’s possible intention does not meet the standard of a reasonable person’s understanding that a request for self-representation had been made. No one will be more astounded than Stano upon learning that he really did not want Pearl to represent him or that Pearl was not in fact his attorney.
Because Stano did not assert his right to proceed pro se, there was no need for the trial judge to conduct an inquiry to ensure that Stano realized the disadvantages of proceeding without counsel. The majority’s analysis is defective because it should not have progressed to the second Faretta requirement, the court’s failure to examine Stano as to the consequences of proceeding pro se, before being satisfied that the first requirement, Stano’s assertion of his right of self-representation actually had occurred. The majority’s faulting the trial court for not so inquiring of Stano is unsupported by Faretta. In my opinion, it would have been error for the trial court to engage in such an inquiry.
The majority decision, as it turns on Far-etta, has created a treacherous slippery slope. The majority has announced that the choice by an informed, counseled defendant to plead guilty is equivalent to proceeding pro se whenever his counsel dis*971agrees with that decision. Thus, the Far-etta doctrine has been expanded in application, and a trial court now must decipher when a defendant has been noticed constructively by his counsel that he is on his own or proceeding pro se. The majority has added yet another ground upon which to base an appeal and to mire further the already convoluted capital habeas corpus appellate process.
The “second possibility” relied upon by the majority for granting Stano relief is ineffective assistance of counsel pursuant to Cronic. United States v. Cronic, 466 U.S. 648, 665, 104 S.Ct. 2039, 2050, 80 L.Ed.2d 657 (1984). Under this alternative holding, Pearl remained as Stano’s attorney in the subject plea hearing, but he was unable to advise Stano because he had not received some discovery from the State. This is an incorrect statement of the recorded facts. Pearl did advise Stano; he counseled Stano not to plead guilty.
In Cronic, the defendant in a complex criminal case claimed that he was prejudiced by representation by a young, court-appointed real estate attorney, who had never tried a jury case and who was allowed twenty-five days for pretrial preparation versus four and one-half years that the government had to investigate the case. Rejecting Cronic’s contention that a presumption of prejudice resulted because of the lawyer’s youth and inexperience, the Supreme Court stated that “[ejvery experienced criminal defense attorney once tried his first criminal case.” Cronic, 466 U.S. at 665.104 S.Ct. at 2050. Since the Court determined that Cronic, a more egregious case factually than this case, was not a case “in which the surrounding circumstances make it unlikely that the defendant could have received the effective assistance of counsel,” I am baffled as to the majority’s basis for its decision on Cronic. 466 U.S. at 666, 104 S.Ct. at 2051. The majority apparently has adopted the reversed reasoning of the Tenth Circuit in Cronic. The suggested Cronic exceptions, based on prejudicial circumstances such as “complete denial of counsel,” are not present in this case. 466 U.S. at 658-59 & n. 24.104 S.Ct. at 2046-47 & n. 24.
Furthermore, the Eleventh Circuit has held that “ ‘Cronic represents a narrow exception which the Supreme Court has carved out of the general rule that a petitioner claiming ineffective assistance of counsel must demonstrate that he was prejudiced by specific alleged errors in his counsel’s performance. Consequently, the burden of proof under Cronic is a very heavy one.’ ” Stone v. Dugger, 837 F.2d 1477, 1479 (11th Cir.1988) (per curiam) (emphasis in original) (quoting Smith v. Wainwright, 777 F.2d 609, 620 (11th Cir.1985), cert. denied, 477 U.S. 905, 106 S.Ct. 3275, 91 L.Ed.2d 565 (1986)), cert. denied, — U.S. -, 109 S.Ct. 1354, 103 L.Ed.2d 821 (1989); see also Cronic, 466 U.S. at 658, 104 S.Ct. at 2046 (“[Bjecause we presume that the lawyer is competent to provide the guiding hand that the defendant needs, the burden rests on the accused to demonstrate a constitutional violation.” (citing Michel v. Louisiana, 350 U.S. 91, 100-01, 76 S.Ct. 158, 163-64, 100 L.Ed. 83 (1955))). In this case, the majority recognizes that a fully competent and experienced criminal lawyer, a public defender, was appointed to represent Stano. Moreover, the record shows that Pearl acted in every respect as competent counsel under the circumstances. Stano was arrested and charged. Pearl conferred with his client and attempted to obtain all available information. He advised Stano not to plead guilty because the State had not produced all of its evidence to him. Nevertheless, the majority labels his actions as actual or constructive denial of the assistance of counsel and bases its alternative holding on Cronic.
Although the majority’s ineffective assistance of counsel analysis founded on Cronic is extremely strained, reliance on Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is completely unavailing, and understandably was not addressed. The Supreme Court has held “that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); see Holmes v. United States, 876 F.2d 1545, 1551 (11th Cir.1989). That fa*972miliar test requires that a convicted defendant complaining of ineffective assistance of counsel must show: 1) “that counsel’s representation fell below an objective standard of reasonableness,” and 2) “that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694, 104 S.Ct. at 2065, 2068.
Hill clarified the Strickland second or “prejudice” requirement in the context of guilty pleas: “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. at 870; see also Holmes, 876 F.2d at 1551; Slicker v. Wainwright, 809 F.2d 768, 770 (11th Cir.1987) (These cases were remanded to the district court to determine if accurate, rather than incorrect, information by the attorney as to the length of sentence would have changed the defendant’s plea.). The majority does not acknowledge this Supreme Court and Eleventh Circuit authority. Properly, Pearl advised Stano not to plead guilty without review of all of the State’s evidence against him. Not only did Pearl give Stano sound legal advice, but also Stano would have preserved his right to trial if he had followed Pearl’s counsel.
Hill reiterated that “[t]he longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’” Hill, 474 U.S. at 56, 106 S.Ct. at 369 (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)). Pearl had counseled his client at every juncture, including this critical stage of pleading. His advice to Stano included not pleading guilty until all evidence from the State was available. There has been no issue in this case of Stano’s incompetence. After receiving optimal legal advice, Stano knowingly and deliberately decided to plead guilty. The majority concludes that the accused should not have made this decision. While this may have been so, the choice was Stano’s and not ours.
Stano was not acting without reasoned advice from experienced counsel; he simply refused to take it. While the majority emphasizes the inability of counsel to give Stano advice because Pearl did not have all of the State’s evidence, I focus on Stano’s decision and election to plead guilty. An attorney’s responsibility is to investigate and to evaluate his client’s options in the course of the subject legal proceedings and then to advise the client of the merit of each. Tafero v. Wainwright, 796 F.2d 1314, 1320 (11th Cir.1986) (per curiam), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 782 (1987); Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987). Pearl had informed Stano of all of the facts, including the absence of some State evidence, and he had advised his client not to plead guilty. There was nothing more that Pearl could have done. With this knowledge, Stano decided to plead guilty, despite his attorney’s advice to the contrary. When a defendant preempts his attorney’s strategy, he thereafter cannot claim ineffective assistance of counsel. Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985), cert. denied, 483 U.S. 1026, 107 S.Ct. 3248, 97 L.Ed.2d 774 (1987); Thompson, 787 F.2d at 1452; Foster v. Strickland, 707 F.2d 1339, 1343-44 (11th Cir.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984); see Alvord v. Wainwright, 725 F.2d 1282, 1289 (11th Cir.), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984). Pursuant to Strickland and the law of this circuit, I cannot find that Stano was denied effective assistance of counsel.
From the outset, the factual allegations in this case have troubled me greatly. The majority opinion exacerbates this concern because my research reveals no existing precedent on these facts for such an extension of Faretta based upon pure speculation, absolutely contrary to the record presented. For the reasons herein, I dissent.