dissenting.
Mikel Houston alleges that his trial attorneys, the prosecutor, and the trial judge orally agreed that, if Houston took a pretrial polygraph test, either side could introduce the results at trial. Houston took the test, passed it, but the favorable polygraph results were nonetheless inadmissible because the agreement was not in writing. See Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985), cert. denied, 482 U.S. 929, 107 S.Ct. 3213, 96 L.Ed.2d 700 (1987). Houston claims the failure of his counsel to get this deal in writing constitutes ineffective assistance of counsel. The majority disagrees, affirming the denial of habeas corpus relief, without a hearing, because “[t]he prosecution was under no obligation to make a written stipulation regardless of any alleged oral agreement.” I respectfully dissent.
When evaluating claims of ineffectiveness under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we are obliged “to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. at 2065. At the time of the alleged oral agreement, the State’s case was hardly overwhelming. Houston’s twelve-year-old daughter, then living with his ex-wife, has charged that he raped her by deviate sexual activity during two overnight visits to his home. Houston has de*830nied the charges, a medical examination has failed to support the second charge, and two family members present at the second occasion have corroborated Houston’s denial. (Indeed, one of those witnesses will eventually testify at trial that the daughter had falsely accused another family member of deviate sexual activity on another occasion.) In other words, the case would become a credibility contest between Houston and his daughter.
Under these circumstances, the agreement Houston alleges might well have had great appeal to Houston and both attorneys. If such an oral agreement was reached, then why did Houston’s allegedly inexperienced attorneys fail to get it in writing — was it because of some clever stratagem, or because they had not done their homework and did not know that their oral agreement was completely unenforceable? If they acted out of ignorance of Arkansas law, their failure to reduce their oral agreement to writing (or otherwise to preserve it on the record) can clearly constitute “actual ineffectiveness” under Strickland. See Betancourt v. Willis, 814 F.2d 1546 (11th Cir.1987).
The majority summarily rejects this ineffective assistance claim because the prosecutor had no obligation under state law to sign anything. In my view, this reasoning ignores the strong likelihood that, if Houston’s attorneys had pressed the point before he took the polygraph test, the prosecutor would have signed the agreement and the test results would then have been admissible at trial.
In the first place, it is fair to assume that the prosecutor would have reduced his oral agreement to writing because he wanted to obtain admissible polygraph evidence from the defendant in a rape trial. Second, even if the prosecutor saw no tactical advantage in making the test results admissible, I am troubled by the majority’s willingness to assume that he would have refused to put his oral agreement in writing simply because Arkansas law might have let him get away with that unprofessional maneuver.1 Finally, if the oral agreement was reached in the presence of the trial judge, as Houston alleges, it is reasonable to assume that the court might have intervened had the prosecutor resisted an effort by defense counsel to get the agreement in writing.
Thus, I conclude that Houston deserves a hearing under the actual ineffectiveness prong of Strickland. Of course, to prevail under Strickland, Houston must also establish prejudice, that is, “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. at 2068. Here, the Arkansas Supreme Court, the district court, and the majority all deny that the trial might well have gone differently had the favorable polygraph results been admitted. I disagree. After reviewing the trial transcript, I am persuaded that the Seventh Circuit’s resolution of a similar issue in McMorris v. Israel, 643 F.2d 458, 461 (1981), cert. denied, 455 U.S. 967, 102 S.Ct. 1479, 71 L.Ed.2d 684 (1982), should apply in this case:
The entire prosecution case rested on the testimony of the victim_ The defendant took the stand and denied any involvement in the crime. His credibility was the primary issue before the jury, and the jury’s verdict reflects its decision not to credit his testimony. Under these circumstances, a polygraph examination that bolstered the defendant’s credibility might easily have been decisive in securing an acquittal.
Indeed, the no-prejudice conclusion in this case is particularly ironic because the likelihood that juries will give too much weight to polygraph evidence is one reason why it is normally inadmissible in Arkansas. See State v. Bullock, 262 Ark. 394, 557 S.W.2d 193, 194 (1977).
For the above reasons, I would remand this case for an evidentiary hearing. At *831oral argument, counsel for the State asserted that trial counsel deny the existence of the alleged oral agreement. If true, that of course would end this case. But if there was an oral agreement, and if Houston’s trial attorneys had no good reason for not reducing it to writing, with the result that favorable polygraph results were rendered inadmissible at trial, then I cannot agree with the majority’s conclusion that Houston still fails to warrant relief under Strickland.
ORDER
April 29 1992.
The suggestion for rehearing en banc is granted. The panel opinion and the judgment of this Court previously entered are vacated. This case is set for argument before the Court en banc in St. Paul, Minnesota, on Tuesday, July 21, 1992. The parties may, but are not required to, file supplemental briefs. If such briefs are filed, they are to be simultaneously, and must be filed with the Clerk of this Court on or before Wednesday, July 1, 1992.
. For example, the Seventh Circuit’s new Standards for Professional Conduct include among the Lawyers’ Duties to Other Counsel:
6. We will adhere to all express promises and to agreements with other counsel, whether oral or in writing, and will adhere in good faith to all agreements implied by the circumstances or local customs.