concurring in part and dissenting in part.
I concur in the Court’s reversal of the holding of the District Court on Seehan’s verdict-form claim. I fully agree that that claim affords Seehan no basis for habeas relief.
As to the Court’s affirmance of the District Court’s grant of habeas relief on Seehan’s prosecutorial-misconduct claim, I respectfully dissent. Having reviewed the trial transcript, I am unable to agree that Seehan’s trial counsel was constitutionally ineffective in not objecting to the prosecutorial comments about which Seehan complains. I am satisfied that counsel’s performance in this regard was neither professionally incompetent nor prejudicial to Seehan’s case. Accordingly, Seehan’s claim does not satisfy either aspect of the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2062, 2064, 80 L.Ed.2d 674 (1984).
I start with the question of whether See-han has shown that any prejudice resulted from counsel’s omission. At trial, it was undisputed that Seehan had caused his two-year-old son’s death by smothering him with a pillow. Uncontradicted testimony established that to kill a child in this fashion would take anywhere from four to fifteen minutes. The state presented a strong ease, apparently found convincing by the jury, that Seehan killed his son to spite the child’s mother, who, having been physically abused by Seehan, was seeking a divorce from him and who had informed him she wanted custody of the boy.
But whatever the jury ultimately may have thought regarding Seehan’s motive, the fighting issue at trial was whether Seehan was sane when he took his son’s life. The trial spanned some eight days, starting on April 28, 1976, with counsel’s opening statements and concluding with the submission of the case to the jury on May 5, 1976. The trial record runs 540 pages, not including the reading of the instructions to the jury. A large portion of the trial was given over to the battle of the experts. Unlike the majority of this panel, I do not find the testimony of Seehan’s two expert witnesses particularly compelling, and I do not believe that the statements of the prosecutors upon which the majority relies for its result had any significant effect upon the jury’s verdict. The Iowa Court of Appeals, in affirming the denial of Seehan’s application for postconviction relief, Seehan v. State, 473 N.W.2d 208 (Iowa 1991) (table), concluded that the state’s evidence of Seehan’s guilt of first-degree murder was “overwhelming.” Seehan v. Iowa, No. 90-506, slip op. at 3 (Iowa May 16, 1991). My review of the record leaves me firmly convinced that this conclusion is correct. In short, Seehan has failed to establish the “prejudice” component of his ineffective assistance claim, ie., he has failed to show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, quoted in Lockhart v. Fretwell, — U.S. -, -, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993).
In addition, I cannot agree with the Court that Seehan’s trial counsel, who in my judgment rendered competent, and indeed admirable, service to Seehan throughout the trial, was constitutionally deficient in not objecting to the prosecutorial statements here in question. The Court’s opinion, although purporting not to do so, yanks these statements out of context and thus gives them a prominence and a significance they almost certainly did not actually have in the trial courtroom.
The Court, ante at 4, quotes from Story County Attorney Ruth Harkin’s opening statement to the jury, but fails to note that *393shortly before making the quoted remarks Harkin had cautioned the jury as follows:
In this case we have seventeen, or about seventeen witnesses that we intend to call. All of the witnesses will come in, and they will be coming in one by one; and they will not be present in the courtroom during the trial. And they will come up to this witness box, and they will present all of their evidence through this chair. All of the evidence that you will hear in this case will come from this place in the courtroom. It’s important to keep in mind that anything that I might say, anything that Mr. Parker [the assistant county attorney] might say, or anything that Mr. Brewer [the lead defense counsel] might say is not to be considered as any type of evidence in this case. All of the evidence that you are to consider comes strictly from the witnesses. We are merely advocates for our positions, and we are merely seeing that the evidence will be presented to you.
Trial Tr. at 5. The remarks by Harkin the Court finds offensive then begin on the very next page of the trial record. Harkin, who was pregnant, is said to have patted her belly while making these remarks. To me, given Harkin’s earlier statement, and .considering the desire of any competent counsel to avoid offending or alienating the jury, it is entirely understandable why Seehan’s counsel would refrain from objecting to Harkin’s brief comments about the dead child. In addition, it seems quite obvious to me that no lawyer in his right mind would have interrupted Har-kin’s statement to the jury with a request that she be admonished to refrain from patting her belly.
The Court, ante at 4, also quotes from the prosecution’s closing argument by Assistant County Attorney Richard Parker. But again, the Court’s opinion neglects to put the questioned remarks into proper context. In particular, the Court fails to point out that immediately following the quotation’s final paragraph containing language the Court underscores for emphasis, Parker had this to say to the jury:
My feelings aren’t important. It’s what you heard. I think that this evidence demands a guilty verdict. I think that it shows an intentional killing that we have shown malice, that we have shown premeditation, the time to think about it, deliberate about it, before or for four to fifteen minutes to retract. That’s a substantial amount of time to deliberate. If you are doing that sort of thing.
In short, I think the evidence is all there. I leave it in your hands.
Trial Tr. at 539-40. The Court also fails to point out that earlier in his closing argument Parker had unequivocally informed the jury that it was not to take his feelings into account:
I cannot tell you what I feel because it was not the evidence.. My comments to you this morning should not be considered as evidence. You were here, you heard every scrap of evidence from that chair that you can consider. The comments that Mrs. Harkin made to you, the comments that I make to you, the comments that Mr. Brewer made to you and will make to you should not be considered as evidénce. The statements that I make, and this is my only opportunity to really talk with you, are going to be my interpretations of the facts. I will not intentionally mislead you as to any of the evidence that I discuss in this ease. If you feel that I have misstated any of the evidence, disregard what I say. It will never be my intention to mislead you. But remember what is important is what you heard, the facts that you heard, not what I say and not what Mr. Brewer says.
The purpose of our argument here is merely to assist you in developing the theory of each of our respective sides. We are advocates. We represent a side, a different theory about the facts in this case.
Trial Tr. at 503-04. In addition, the Court fails to tell the reader that it has not set forth all the comments made by Parker in the first paragraph of the portion of his closing argument the Court quotes, ante at 4. This paragraph of Parker’s closing argument, without omissions, appears this way in the trial record:
Our duty as prosecutors in this case has been to present the evidence as we developed it to you. We have a different type of duty than you would anticipate. It’s different from that of a civil case in which lawyers represent one client or another. *394We represent the people of Iowa and Story County. In short, we represent you. We also represent the defendant because he is part of our society. Out [sic] duty is to ensure that he gets a fair trial. Our duty is to ensure that we have a just result.
Trial Tr. at 503. In my view, the last two sentences of the quoted paragraph, which the Court’s opinion omits, explain Parker’s statement about also representing the defendant and make it clear that he is doing no more than advising the jury of every prosecutor’s duty to proceed fairly and to seek a just result.
As with Harkin’s remarks in her opening statement, it is easy to see that a competent counsel could readily have chosen to refrain from objecting to any of Parker’s comments. Taken in context, Parker’s comments, like Harkin’s comments in her opening statement, were not clearly inappropriate, and to say, as the Court does, that, any of these comments were “patently inflammatory,” ante at 5, requires a great stretch of the imagination. It also requires a great stretch of the imagination to conclude, as the Court does, that defense counsel’s failure to object to these statements “fell outside the range of competent lawyering.” Id. In fact, the record shows that defense counsel recognized the emotional appeal of the state’s argument and chose to counter it with a forceful and emotional closing argument of his own. This was an entirely reasonable strategic choice and cannot properly be viewed as deficient lawyering.
Under Strickland, Seehan must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 466 U.S. at 687, 104 S.Ct. at 2064. This means that Seehan must overcome the “strong presumption” that in the circumstances of his case “the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). It seems clear to me that Seehan has fallen far short of making the necessary showing.
For the reasons stated, I conclude that Seehan has failed to establish either component of the Strickland standard, much less both of them. Thus his ineffective assistance claim must fail. Accordingly, I would reverse the District Court’s grant of habeas relief to Seehan and remand the case for entry of judgment denying the writ.
ORDER
Dec. 22, 1994.
The suggestion for rehearing en banc is granted. The judgment and opinion filed by the panel on October 4, 1994, are vacated. Having disqualified themselves from consideration or decision of this case, Judge Fagg and Judge Hansen did not vote on the suggestion for rehearing en banc.
This case is set for oral argument at 10:00 a.m. on Thursday, January 12, 1995, in the U.S. Court & Custom House in St. Louis, Missouri.