dissenting.
In this capital case, the district court ordered resentencing based on ineffective assistance of counsel. The majority reverses the district court, finding that Doyle’s trial counsel rendered effective assistance during the penalty phase. I dissent because my review of the record does not produce any substantial evidence that Tenbrook, Doyle’s trial counsel, consulted the expert-witness psychiatrists regarding mitigating circumstances.
During trial, Tenbrook elicited testimony from three psychiatrists regarding Doyle’s low I.Q., his continuous drug use, and the mental effects of witnessing his brother’s death. At the penalty phase, when Ten-brook called Dr. Krieger as a defense witness, Dr. Krieger testified that he examined Doyle for competency to stand trial and for the insanity defense. Dr. Krieger also discussed Doyle’s drug use and the anger and depression that resulted from his brother’s death. Much later, Dr. Krieger stated in an affidavit that Tenbrook never requested an examination of Doyle for factors that would be useful in establishing mitigating circumstances during the penalty phase.
When called to testify during the penalty phase, Dr. McClure, another psychiatrist, testified about Doyle’s impulsive manner and his inability to control his conduct. At the end of the penalty phase, Tenbrook only briefly restated Dr. McClure’s findings regarding Doyle’s mental condition and his inability to control his conduct.
At the evidentiary hearing on ineffective assistance of counsel, Tenbrook testified that he discussed several issues with the psychiatrists prior to their examination of Doyle, including (1) Doyle’s understanding of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (2) the insanity defense; (3) Doyle’s competency to stand trial; and (4) the penalty phase. Tenbrook admitted that the penalty phase was not something he dwelled upon to any great length.1
The majority does not cite to any evidence specifically stating that Tenbrook requested psychiatric examination or consultation regarding mitigating circumstances. Instead, the majority relies upon the state court judge’s finding during the evidentia-ry hearing on ineffective assistance of counsel that Tenbrook in fact consulted with the psychiatrist regarding mitigating circumstances. Nothing substantial is in the record to support the majority’s finding and the state judge’s finding that Tenbrook requested psychiatric examination or consultation for purposes of establishing mitigating circumstances. Accordingly, I agree with the district court’s reversal based on ineffective assistance of counsel.
As the district court’s order states, Ten-brook never consulted with the expert regarding examination for mitigating circumstances. The district court found, “Doyle’s counsel never consulted with the experts regarding these [statutory mitigating factors] and he made no request for further examination once Doyle was convict-ed_ [H]e was handling his first bifurcated trial involving a sentencing phase. He admittedly did not dwell upon that second phase to any great extent.” Further*654more, Tenbrook testified during the eviden-tiary hearing that he did not request a separate psychiatric examination other than the one requested by the court which ordered an examination for competency and ability to stand trial.2 The district court also correctly stated that Tenbrook did not emphasize any mitigating circumstances during closing arguments of the guilt phase of the trial or during the penalty phase. The record in this case requires that the district court be affirmed in its holding that trial counsel was ineffective during the penalty phase. Therefore, I respectfully dissent.
. Q. Did you ask both of them [the court-appointed psychiatrists] when you talked to them initially to go in and they were there for the purpose of not just the competency at the initial portion of the trial insanity, but also regarding the penalty phase, did you tell them that's why they were going in there?
A. The penalty phase was one of the things we went over. It wasn't something that I dwelled upon to any great extent.
. Q. You never asked in this first degree case to specifically address the sentencing issues, go back and interview a second time, review their [the psychiatrists] data a second time?
A. We discussed the penalty phase issue before the guilt phase. No, sir. I didn’t send them back a second time in between.