concurring.
I concur in the Court’s per curiam opinion on the requirement to exhaust state judicial remedies. Our judgment in effect remands the case to the state courts for further examination of the issues.1 I have now heard this case twice, once when it was argued before the panel and again when it was argued era bane, and I have studied it closely. In my view, after all is said and done in the state and federal courts, there must be a new trial. Because this case is complex, and the interplay of the factual and constitutional issues difficult to grasp immediately, I write separately to record for future reference if the *1414case should return to this Court and to provide assistance to my state court colleagues in Tennessee. While my opinions on these issues are of course not binding on the state courts, it is in the interest of best utilizing the extensive judicial resources that have been expended on this case to date to point out the problems with the case as I see them before it goes back to state court.
The issues in this case raise significant questions about whether O’Guinn’s rights were violated during the trial and pre-trial process. Collectively, the problems overwhelm the reliability of the conviction and raise a question as to whether O’Guinn is actually innocent of the Cupples murder, as he maintains. This was a terrible crime and it is understandable that the authorities in Tennessee were anxious to find and convict the perpetrator. However, regardless of O’Guinn’s guilt or innocence, he is entitled to a fair trial and vigilant protection of his constitutional rights. He received neither in this case. The facts and circumstances mandate that O’Guinn be provided with a new trial where his guilt or innocence can be tested fairly.
While no trial is perfect, the errors alleged in this case are not simply technical errors that had no impact on the outcome of the trial — they were egregious. When balanced against the weakness of the evidence used to convict O’Guinn, the errors weigh heavily. Those errors deserve to be examined fully on the merits. It is not a question of one’s views in favor of or in opposition to the death penalty as a theoretical matter. Such considerations are irrelevant. What matters is that the constitutional rights of a defendant have been seriously violated and these constitutional violations should not continue to go unaddressed.
I.
The Evidence Used to Convict O’Guinn Was Weak
Kenneth O’Guinn was convicted after a jury trial of murdering Sheila Cupples on May 24, 1981 in Jackson, Tennessee. I believe that the wrong man may have been convicted. The evidence used to convict O’Guinn was extremely weak: (1) No physical evidence ties O’Guinn to the victim or the murder scene. To the contrary, the only physical evidence found at the scene not associated with the victim were brown hairs that affirmatively did not belong to O’Guinn; (2) Only two witnesses claim to have seen O’Guinn with the victim the night of the murder and both lack credibility. One of those witnesses has recanted her testimony and the other witness, due to severe cognitive and mental problems, lacks any credibility whatsoever; and (3) The confessions given by O’Guinn, since recanted, lack reliability even on a cursory reading because O’Guinn’s statements, when not heavily coached by the police, were completely inconsistent with the facts known to the police about the murder. The reliability of the confessions is also suspect due to the impaired physical and mental state of O’Guinn at the time he gave them. This is the totality of the evidence used to convict O’Guinn.
Significantly, O’Guinn’s name did not surface for two years following the Cupples murder, despite investigation by the Jackson police and the Tennessee Bureau of Investigation. O’Guinn only came to the attention of the Tennessee authorities when he was arrested in Alabama on an unrelated charge. Not one of the many witnesses interviewed by law enforcement authorities in the weeks and months after the murder ever mentioned the name Kenneth O’Guinn or described him. The police interviewed many people who were at the bar the night of the murder and at that time no one identified him as being there. Furthermore, evidence gathered by the Tennessee authorities but withheld from O’Guinn’s trial counsel strongly indicates that others from the Jackson area may have been involved with or had knowledge of Sheila Cupples’ murder.
A. Eyewitnesses
The totality of the evidence against O’Guinn at trial consisted of two eyewitnesses and the confessions given by O’Guinn. That was the whole case. None of this evidence is trustworthy. Out of scores of people who saw the victim at a local bar the night of her murder, only two witnesses testi-*1415fled to having seen the victim with O’Guinn at the bar: one a man of admitted limited cognitive abilities and the second a woman who sought to curry favor with the police to mitigate her own legal troubles and later recanted her testimony and admitted in federal court to perjuring herself at O’Guinn’s trial.
Danny Dunn, one of the witnesses who testified against O’Guinn, is a man of low intelligence who cannot read and who attends a special facility due to his mental problems. In 1981, shortly after the murder, Mr. Dunn had given the police a description of the man he saw with Sheila Cupples at the Hat & Cane (the Jackson, Tennessee bar where Sheila was last seen alive) the night of her murder. He described a tall man (6’4”) with a medium build. This description is at odds with the physical description of Kenneth O’Guinn, who is 5’9” and weighed about 190 pounds at the time of the murder. The description given by Mr. Dunn fairly describes several of the “regulars” at the bar known to be friends of Sheila, including Bill Dix and Del Ehrett. Although Mr. Dunn stated that the man he saw with Sheila was not either of these men and that the man was a “complete stranger” to him, it should be noted that Mr. Dunn was unable to identify from photographs several of the other “regulars” at the bar who were friends of Sheila. Apparently, many of the “regulars” at the Hat & Cane were strangers to him as well. This is not surprising, as Mr. Dunn testified that he had been frequenting the Hat & Cane for only three weeks at the time of the murder and apparently did not know Sheila or any of her regular crowd very well. See generally Trial Testimony of D. Dunn, J.A. at 873-89 and Habeas Testimony of D. Dunn at 219, J.A. at 694.
Mr. Dunn’s trial testimony describing the person he saw that night with Sheila is not very compelling and indicates that the witness was confused and unsure about what he saw:
On cross-examination:
Q. Do you deny saying that the man was medium build?
A. No, sir, I didn’t say that did I?
Q. So if Agent Leach has down in his interview—
A. Well at that time I was probably back and forth about things, sir.
Q. Sir?
A. I said about that time I was probably back and forth about them [sic] things, sir.
Q. All right. Do you deny describing the man as dark headed?
A. He had dark hair at that time. ...
On redirect:
Q. [Defense counsel] asked you about dark hair ... What do you mean by [back and forth on that?] ...
A. It means in one way I was thinking one way and another way sometimes— sometimes my mind plays tricks, but at that time I did see the black hair.
Q. When you say it plays tricks, it would be fighter than darker sometimes? ...
A. Yes, sir....
On recross:
Q. “Sometimes my mind plays tricks[?]”
A. Yes, sir.
Trial Testimony of D. Dunn, J.A. at 886-89. This vacillating and confused testimony by a mentally defective witness is now the only direct evidence against O’Guinn that has not been recanted.2
The only other eyewitness to testify against O’Guinn at trial was Diana King (now Diana Pitsenbarger). She was employed by the Hat & Cane as a waitress at the time of the murder. Although no statement was taken from her during the initial investigation, *1416two years later (and shortly after O’Guinn’s indictment for the Cupples murder), Diana was arrested. Her connection to the Hat & Cane came to the attention of the police and prompted her statement and subsequent testimony. Ms. King testified at O’Guinn’s trial in 1985 that she danced with Mr. O’Guinn at the Hat & Cane the night of the murder and saw him there with Sheila. In 1991, however, Ms. King recanted the identification of O’Guinn she gave at trial. In recanting her testimony, Ms. King gave an affidavit in 1991 and testified at the habeas hearing in 1993 that she did not know Kenneth O’Guinn and would not have known whether he was in the Hat & Cane on the night of the murder. Ms. King testified at the habeas hearing that she lied at trial because the police had threatened to arrest her on some unrelated charges and she believed she would help herself if she cooperated with them.
Without any explanation, the District Court found Ms. King’s testimony not credible. In assessing her credibility, however, the motivation and circumstances behind her trial testimony must be examined. First, Ms. King’s name did not surface in the investigation and she was not interviewed about her knowledge of the case until two years after the murder. No contemporaneously-made record against which to evaluate her testimony exists. Instead, there is the testimony given by a woman two years after the murder who was looking to curry favor with the police and stated in her affidavit recanting her testimony that she would have said whatever they wanted to hear at that time. This does not make for a very compelling witness against O’Guinn. Ms. King’s motivations for cooperating with the police at that time are clear and the prosecutor’s need for a cooperative witness at that time is also clear. Conversely, Ms. King came forward voluntarily in 1991 to recant her testimony. She was under no threat from the police at that time and, unlike in 1985, there was no apparent motivation for her to lie in her affidavit.
In my judgment, the testimony of these two witnesses is virtually worthless. The only other evidence is O’Guinn’s confessions, which are just as unreliable.
B. The Confessions
On August 12,1983, after forty-two days of incarceration, numerous interrogations by at least three law enforcement officers from two ■ states, without the benefit of legal counsel, and in a weakened physical state due to illness, O’Guinn confessed to the murder of Sheila Cupples in a series of oral and written statements. The circumstances suggest that O’Guinn may have falsely confessed. At the time of the confessions, O’Guinn had previously sought help for serious mental and emotional problems. In addition, he was experiencing excruciating pain from numerous tooth extractions and other physical ailments. Due to the pain from the tooth extractions, for which he had not been given medication, O’Guinn had not been eating or sleeping properly prior to giving the confessions. O’Guinn’s physical condition alone makes the reliability of the confessions questionable. Furthermore, O’Guinn’s low intelligence and ninth-grade education call the reliability of the confessions into question and may have made him susceptible to the pressures exerted by the authorities.
The actual text of O’Guinn’s statements is the most telling evidence of how unreliable the confessions are. The information given by O’Guinn to the police about the murder simply did not comport with the information known to the police. In reading the confessions and statements, O’Guinn’s statements never “matched” what the authorities wanted him to say until the police prompted or led him. At the point that O’Guinn gave the confessions, he had been questioned and coached about the Cupples murder for weeks and had obtained quite a bit of knowledge from the police about the murder. His confessions reflect this in that they are stated in only the broadest terms, such as stating that he choked Ms. Cupples, information he had received from the police. Whenever O’Guinn was pushed to give details, he invariably gave information at odds with the actual facts and the police, not receiving the answer they wanted, would then coach O’Guinn until he said what they wanted.
The discrepancies in the details of the confessions are many. For example, when *1417asked what he did with Sheila’s clothing after the murder, O’Guinn said he threw them in the river. As Sheila was found with all her clothes, the police then asked O’Guinn if he threw all of her clothes in the river thus causing O’Guinn to try to rephrase his answer. O’Guinn also maintained that he strangled Sheila with his hands and that Sheila was wearing a blue long-sleeved shirt, when in fact Sheila was strangled with the pink halter-type shirt she was wearing. O’Guinn also stated that he killed Sheila at a service station when the evidence indicates that she was strangled in the field in which she was found.
The following is an example of the leading questions asked of O’Guinn and the coaxing in which the police engaged when he did not answer the way they wanted:
Q. Do you remember if you choked her with your hands or with something else, Kenneth?
A. With my hands.
Q. What else? Be honest with me now, you don’t con me ...
A. I cannot ... I cannot remember of using anything on her but my hands. That’s all I can remember.
Q. (Can’t understand tape)
A. I think, I’m not for sure now. I think ... I not for sure about I think I took her blouse and put it around her neck. She had a long sleeve blouse on and I think I used that around her neck.
Statement of K. O’Guinn at 3, J.A. at 269. This type of continued rephrasing of the questions and answers occurred for every point of the confessions until something approaching the desired answer was given. A careful reading of the statements demonstrates that O’Guinn was merely guessing at what the police wanted him to say, and he appeared to allow them to lead him where they wanted him to go. When the police would question his answers he would vacillate and then say either he didn’t remember or he wasn’t sure. O’Guinn gave virtually no details in the confessions that comport with the facts as the police understood them. See generally Statements of K. O’Guinn at J.A. 269-305.
The compromised physical and mental state of O’Guinn at the time of the confessions, as well as the form of the confessions, which resulted from a great deal of leading and suggestion on the part of the police, calls into question their reliability and the reliability of his conviction. In addition, as discussed below, the admissibility of the confessions is at issue because O’Guinn did not understand that he had the right to counsel during questioning. As the Supreme Court stated in 1964, ‘We have learned of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less rehable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” Escobedo v. Illinois, 378 U.S. 478, 488-89, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977 (1964).
C. Physical Evidence
The only physical evidence found at the crime scene that did not come from the victim were brown hairs that did not come from Kenneth O’Guinn. No fingerprints or other physical evidence were used to tie O’Guinn to the murder. 8/8/83 FBI Lab Report. (J.A. at 343) The police conducted two he detector tests and a voice stress test concerning the Cupples murder on O’Guinn in 1983. Based on these tests, the pohce determined that O’Guinn knew something about the Cupples murder. In fact, O’Guinn stated during the he detector tests that when he was staying with his brother, Robert O’Guinn, in 1982 he overheard Robert speak of killing a girl named Sheila.3
In sum, the few pieces of evidence pointing to O’Guinn are of questionable reliability. Accordingly, the legal errors that have been raised by O’Guinn must be carefully reviewed *1418in order to avert a possible miscarriage of justice.4
II.
Recent Passage of the Tennessee Post-Conviction Act Warrants a Remand to State Court
On May 10, 1995, the Tennessee Legislature adopted the Post-Conviction Procedure Act, which replaced Tennessee’s then-existing post conviction statute. Tennessee Public Act 1995, ch. 207, § 1, Tenn.Code Ann. §§ 40-30-201 to -222. I believe that the language of the new post-conviction statute is an additional reason for dismissing the federal habeas petition. The new law repeals the former Post-Conviction Procedure Act, Tenn.Code Ann. §§ 40-30-101 to -122, including the waiver provision found at § 40-30-112, and substitutes a number of different provisions stating that relief may be granted “when the conviction or sentence is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.Code Ann. § 40-30-203.
In this ease, a number of issues exist that the State seeks to preclude from review due to procedural default at the state court level, for example petitioner’s claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), his claim of ineffective assistance of trial and appellate counsel, his claim that his Fifth Amendment rights were violated, and his claim that the language in the Tennessee death penalty statute in effect at the time of his conviction was unconstitutionally vague. The State asserts that these claims have not been adjudicated on the merits by the state courts and that the federal court is procedurally barred from review of these claims and others. The changes made in the definitions of “waived” and “previously determined,” however, may affect consideration of O’Guinn’s claims in state court. See Tenn.Code Ann. § 40-30-206(g), (h).
III.
Exculpatory Information Was Withheld from the Defense
O’Guinn’s first Brady claim is that the State purposely prevented two witnesses who would have exculpated him from testifying (the Spears). This was the only one of O’Guinn’s Brady claims addressed by the District Court, which only briefly mentioned the issue and ruled, without explanation, against O’Guinn. 870 F.Supp. at 786. The District Court made no findings regarding the documentary claims. Because I believe this claim embodies one of the more serious constitutional errors in this case, I will discuss the merits of O’Guinn’s claim as I see them.
To prevail on this issue on the merits, O’Guinn must show (1) that the state withheld exculpatory evidence and (2) that the evidence was material. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). Shortly after O’Guinn’s trial, the Supreme Court stated a new standard for materiality of withheld evidence. “Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” 5 United States v. Bagley, 473 U.S. *1419667, 683, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481 (1985). Impeachment evidence, as well as exculpatory evidence, falls within the Brady rule. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The question of materiality looks not to whether the suppressed evidence would have resulted in acquittal, but whether in the absence of the information the defendant received a fair trial. United States v. Agurs, 427 U.S. 97, 111, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976) (emphasis added).
The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Bagley, 473 U.S. at 675, 105 S.Ct. at 3379-80. Brady simply recognizes the disparity in resources between the defendant and the State and attempts to level the playing field to some extent. Here, in addition to creating an unbalanced playing field, the failure to disclose documents may well have prevented the truth from being uncovered.
A recent Supreme Court case stated that, in assessing materiality, a reviewing court is to assess the collective effect the withheld evidence has in light of the evidence presented at trial. Kyles v. Whitley, — U.S. -, -, 115 S.Ct. 1555, 1569-70, 131 L.Ed.2d 490 (1995) (emphasis added). When such an assessment leads to a determination that undermines confidence in the trial’s outcome, the defendant is entitled to a new trial. Id. Thus, the weakness of the evidence in the State’s ease against O’Guinn makes the Brady issue particularly important. The evidence withheld from O’Guinn would likely have created a reasonable doubt in the minds of the jurors had they been made aware of even a fraction of it. Neither O’Guinn nor his counsel knew, should, or could have known about the information withheld. Although some of the names may have been available to O’Guinn’s trial lawyers, the importance of many of the people named in the documents as potential witnesses would not have been apparent without the statements and the other information possessed by the State.
In addition, trial counsel had only about two months to prepare for a capital case. Given the limited time and resources available to counsel, they were forced to choose a limited number of strategies on which to focus. Counsel for O’Guinn was led to believe that they received the entire O’Guinn file from prosecutors, not some “redacted” version containing only a portion of the materials. In light of their understanding that they had received the entire file, O’Guinn’s counsel had no reason to believe that the prosecution had any other evidence. They would therefore not have been aware that there was other exculpatory evidence, already uncovered, for which they should look. In addition, had counsel known of the information in the withheld documents, it is likely that part of their focus at trial would have changed.6 More important, the failure to turn over the documents left trial counsel unáble effectively to cross-examine or impeach certain witnesses. Here, the collective effect of the withheld evidence, particularly when juxtaposed against the relatively weak evidence at trial, undermines confidence in the guilty verdict. O’Guinn’s claim that the withheld evidence deprived him of his constitutional right to due process is well supported.
Police records that indicate that other persons had a motive and opportunity to commit the crime in question are, on their face, exculpatory and material, and thus, must be turned over to the defense. Evidence that the victim was last seen with someone other than the defendant, which is likely to raise a reasonable doubt in a juror’s mind and is *1420therefore both material and exculpatory, was withheld in this case. Another document that the prosecutor failed to turn over contains information that someone other than the defendant confessed to the murder. This evidence would also fall unquestionably within Brady and its progeny.
Due to the large number of statements not disclosed, only some of the most exculpatory and material documents from among those withheld are summarized below. These statements are material because (1) had defense counsel had access to this information prior to trial it is likely that the preparation for trial would have been different and (2) the testimony of certain witnesses might have been discredited, or at least questioned, raising a reasonable doubt as to O’Guinn’s guilt in a juror’s mind.
1. The victim’s cousin, Joannie Couples, threatened Sheila and her parents the week before the murder. As Sheila and her parents were leaving the Hat & Cane, Joannie brandished a knife, threatened to cut Sheila and/or Sheila’s mother and yelled as they left “I’ll kill you!” Interview of Pamela Johnson, TBI 11/2/81 (J.A. at 525-26); Sworn statement of Robert Strain, TBI report 11/10/81 (J.A. at 565-68); Sworn statement of James Earl Stanfill, TBI 1/4/82 (J.A. at 461-63); Interview with Phillip Tosh by TBI 5/25/83 (J.A. at 562-64). There is also evidence that Sheila and Joannie were fighting over Joannie’s ex-boyfriend, Dell Ehrett (AKA “Apple Jack”). Sworn statement of Pamela Jean Johnson, TBI 11/3/81 (J.A. at 532-35); Sworn statement of Dell Ehrett (J.A. at 458-60).
2. Four months after the murder, Joan-nie Cupples admitted to being involved with Sheila’s murder. Joannie confessed to Renee Dees that on the night of Sheila’s murder, persons in a blue van abducted Sheila and took Sheila to the Lakeview Motel.7 Joannie, Joannie’s mother, and Alice Fay Cox Stewart (also known as “Wagon”) were there. Ms. Dees indicated that it was her understanding from the conversation that “these subjects eventually did kill [Sheila].” Interview with Renee Dees, TBI 9/12/82 (J.A. at 558-59).
Ms. Dees’ statement is partially corroborated by several other withheld statements that are exculpatory of O’Guinn when viewed cumulatively or in relation to other information: (1) William Dix owns a blue van and came to the Hat & Cane that evening in the blue van with Alice Stewart, one of the women reportedly at the motel. Statement of William Dix, TBI 11/4/81 (J.A. at 514-16); Statement of Alice Stewart, TBI 11/4/81 (J.A. at 543-44); (2) an informant stated s/he saw Sheila getting ready to leave the Hat & Cane with Bill Dix the night of the murder. Jackson Police Handwritten Notes, dated 5/28/81 (J.A. at 372); (3) a woman informed the Jackson police that she saw a blue van and a car hit at approximately 1:00 a.m. in the parking lot of the Hat & Cane. Jackson Police Handwritten Notes, undated (J.A. at 370); (4) Patricia Moncier also stated that Joannie knew more than she was saying. Jackson Police Handwritten Note, undated (J.A. at 376) and (5) a patron of the Hat & Cane also stated that Sheila and Alice Stewart had been arguing at the bar earlier in the evening and when the patron saw Ms. Stewart the next day she had scratches on her neck. Interview with Johnnie Wayne Howard (AKA ‘Wildman”), TBI 11/2/81 (J.A. at 523-24).
3.Debbie and Michael Spear, patrons of the Hat & Cane, saw a man and woman scuffling in the parking lot about the time Sheila was last reported seen. The man said the woman was going with him whether she wanted to or not. The man was holding the woman close to him and then dragged her towards a blue van in the parking lot. The woman the Spears described matches that of Sheila Cupples (pink shirt, pink pants and glasses). The man left in a white and blue pickup truck with no tailgate. 11/2/81 State*1421ments of Michael and Debbie Spears (given to police separately) (J.A. at 527-29 and 530-31, respectively).8
Corroborating the statement of the Spears is the following: (1) Betty Porter said someone saw a man in the parking lot holding a woman in a headloek, dragging the woman across the lot as another woman pushed the captured woman from behind as the captured woman cried, “Please let me go.” Jackson Police Handwritten Notes, 6/3/81 (J.A. at 375) and (2) Del Ehrett owned a blue and white pick up truck with no tail gate at the time. Jackson Police Handwritten Notes, undated (J.A. at 377). As to Mr. Ehrett, police noted discrepancies in the alibi of Mr. Ehrett concerning his whereabouts between 1:00 a.m. and 3:00 a.m. the morning of the murder. See Interview of Del Ehrett, TBI 11/4/81 (J.A. at 458-60).
4. A Hat & Cane patron stated that he heard a man from Henderson, Tennessee state that he had Sheila killed for “narcing” on him. Sworn statement of Ricky Glenn Erwin, TBI 11/3/81 (J.A. at 536-38).
Whether these statements are true is not the issue for purposes of Brady. The issue is whether the existence of these statements should have been disclosed to the defense in order for O’Guinn to receive a fair trial. Had the contents of all or part of any of these statements been testified to at trial, it is very possible that a reasonable doubt could have been raised in a juror’s mind. Furthermore, I do not doubt that the strategy defense counsel used to defend O’Guinn was influenced by their lack of knowledge of other possible suspects and events. The trial might have taken a different course “had the defense not been misled by the prosecutor’s incomplete response.” Bagley, 473 U.S. at 683, 105 S.Ct. at 3384. It is up to defense counsel to go through the evidence, but it must have all the material evidence to do that job properly.
The State’s arguments that its failure to turn over these materials was unintentional are unavailing. The Supreme Court has held that where the withheld information is material to either guilt or punishment, like the information here, whether the state acted in good or bad faith is immaterial to whether a due process violation occurred. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. It is uncontested that O’Guinn’s trial counsel requested copies of any documents “that in whole or in part support the innocence of defendant and/or are exculpatory in nature....” It is uncontested that the state gave counsel what was represented as a complete file of the Cupples ease. Letter from D.A. Woodall to P. Martin, dated 11/21/84 (J.A. at 409). Counsel for O’Guinn testified that he copied the entire file that he was given except for a few photographs. It is uncontested that, based on a comparison of defense counsel’s file with documents O’Guinn received through discovery during the federal habeas process, many documents were withheld from O’Guinn before his trial. Thus, the withholding of material and exculpatory evidence creates a strong possibility that the outcome of the trial might have been different.
IV.
Ineffective Assistance of Counsel
A. O’Guinn’s Ineffective Assistance Claim Has Not Been Procedurally Defaulted
The state courts will now have before them this important issue, and they can decide whether to address it directly or whether to deem it previously determined or waived. The federal law on this subject should assist the state courts in this undertaking.
Habeas corpus, in general, provides for federal court review of constitutional claims that have been previously determined — in other words, there has been a ruling on the merits by the state courts. The federal courts may also review constitutional claims where it is unclear whether the claim has been previously determined. In contrast, where a claim has been decided on state *1422grounds, such as waiver or other procedural default, the federal courts will not review the claim (unless there is cause and prejudice for the default). In this case, the state court of appeals rejected a number of O’Guinn’s claims with the blanket statement that the claims had been “waived or previously determined.” Among these “waived or previously determined” claims was O’Guinn’s ineffective assistance of counsel claim. The State argued to this Court that the state court of appeals found the claim waived. The record demonstrates that there has been no statement by the state courts “clearly and expressly” resting the denial of the claim on a state procedural ground such as waiver.
In Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), the Supreme Court made it clear that procedural default does not bar consideration of a federal claim on habeas review unless the last state court rendering judgment in the case “clearly and expressly” states that its judgment rests on a state procedural bar. In that case, Harris filed a petition in Illinois state court for post conviction relief based on ineffective assistance of counsel. The state trial court dismissed the petition and the Illinois appeals court affirmed. The appeals court, while concluding that Harris could have raised his ineffective assistance claim on direct review, and stating that those issues that could have been presented on direct review are considered waived, went on to consider Harris’ claims on the merits. On federal habeas review of Harris’ claim, the Supreme Court concluded that the state court decision rested primarily on federal law because the Illinois appeals court did not “clearly and expressly” rely on waiver as a ground for rejecting Harris’ federal claim. Harris, 489 U.S. at 263, 109 S.Ct. at 1043 (“[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly1 states that its judgment rests on a state procedural bar.”). Similarly, in Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991), the Supreme Court held that
if the decision of the last state court to which the petitioner presented his federal claims fairly appeared to rest primarily on resolution of those [federal] claims, or to be interwoven with those claims, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the opinion.
Id.; see also Caldwell v. Mississippi, 472 U.S. 320, 327-28, 105 S.Ct. 2633, 2638-39, 86 L.Ed.2d 231 (1985) (presumption of federal jurisdiction on habeas review where state court’s decision appears to rest primarily on federal law, absent a clear and express statement that the decision is based on independent state grounds); Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476-77, 77 L.Ed.2d 1201 (1983) (same). The Court went on to clarify by stating that the presumption in Harris applies “where a federal court has good reason to question whether there is an independent and adequate state ground for the decision.” Coleman, 501 U.S. at 739, 111 S.Ct. at 2559.
The conclusion that O’Guinn’s ineffective assistance claim has not been waived is supported by the record. In its order concerning O’Guinn’s first post-conviction appeal, the state trial court found, sua sponte,
Petitioner did not assert that his trial attorneys in the State of Tennessee were ineffective either at trial or on appeal.... [T]here was no testimony elicited at the hearing which directly attacked the competency of Petitioner’s Tennessee counsel. Further, the Court finds affirmatively from the evidence that the Petitioner did receive the effective assistance of counsel as provided by Mr. Patrick Martin and Mr. Charles Farmer [O’Guinn’s Tennessee trial and direct appeal counsel].... The Court is of the opinion that Petitioner was provided with effective assistance of counsel and that both were experienced trial attorneys who represented Petitioner competently and ably at trial and on appeal.
O’Guinn v. State, No. C-87-23, Slip op. at 2 (Tenn.Cir.Ct. July 5,1988) (emphasis added). On appeal of this ruling, the Tennessee court of appeals spoke to the issue of the effectiveness of O’Guinn’s Alabama pre-trial counsel, noting that O’Guinn “finds no fault with trial counsel[’s failure to raise the ineffectiveness *1423of Alabama pre-trial counsel], indicating a belief that any ineffective assistance claim regarding his Alabama pre-trial counsel’s performance had been waived.” State v. O’Guinn, 786 S.W.2d 243, 246 (Tenn.Crim.App.1989). However, this statement in no way disturbs the trial court’s statement set out above.9
The record here simply cannot support the notion that O’Guinn’s Tennessee ineffective assistance of counsel claim has been deemed waived by the state courts. Although the Tennessee appeals court made the blanket statement that all of O’Guinn’s remaining claims (including the ineffective assistance of trial counsel claim) had been either “waived or previously determined within the meaning of T.C.A. § 40-30-112,” State v. O’Guinn, 1990 WL 58740, at *1 (Tenn.Crim.App. May 9, 1990), this statement by the Tennessee appeals court does not “clearly and expressly rely on an independent and adequate state ground” to decide the claim, as required by Harris and reaffirmed in Coleman. This blanket statement declining to review a number of claims, in fact, provides ample reason to question whether the denial of the ineffective assistance claim was based on waiver, a state ground, or a previous determination that counsel’s conduct did not violate O’Guinn’s constitutional rights, which a federal court must review on habeas. The language employed by the Tennessee court of appeals, looked at in light of the earlier pronouncements by the state courts regarding the first petition, gives a federal court good reason to question whether there is an adequate and independent state ground for the decision.
The conclusion that the claim has not been waived is also supported by the Supreme Court’s decision in Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). In Ylst, decided on the same day as Coleman, the Supreme Court stated that
where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion “fairly appear[s] to rest primarily on federal law,” ... we will presume that no procedural default has been invoked by a subsequent unexplained order that leaves the judgment or its consequences in place.
501 U.S. at 803, 111 S.Ct. at 2594. To the extent that the decision by the state court of appeals regarding O’Guinn’s second post conviction petition can be read to be “unexplained” due to its use of the words “waived or previously determined,” the only sources to which a federal reviewing court may refer are the earlier opinions from the first post conviction proceeding. These opinions simply cannot be read to “expressly” dismiss the claim of ineffective assistance of Tennessee counsel on procedural grounds. Furthermore, in this case, unlike in Coleman, the notion that the most plausible explanation for the state court’s dismissal is that the state court of appeals’ decision rested on state procedural law is simply not supported. The most plausible explanation — and the only one supported in the record — is just the opposite.
A federal court’s review of a claim of ineffective assistance of counsel is consistent with principles of federalism, comity and respect for the finality of state court rulings where the state court has not “clearly expressed” a state law basis for its views on the issue. Review of these claims does not in any way contravene the well-settled rule that federal courts should defer to state procedural default rules where they are clearly relied upon by the state court in determining a federal claim. The only state court to address directly O’Guinn’s ineffective assistance of counsel claim did not make the plain statement required under Harris. No subsequent state court disturbed that ruling. Given that lack of a “clear and express” *1424statement barring review of the claim in federal court on procedural grounds, the federal court has a duty to review ineffective assistance of counsel claims.
B. O’Guinn’s Received Ineffective Assistance of Counsel at Sentencing
As to the merits of O’Guinn’s claim, it is clear that O’Guinn’s counsel at sentencing was ineffective. In order to succeed in this claim, O’Guinn must show two things: first, that counsels’ performance was deficient, and second, that petitioner was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsels’ total failure to investigate O’Guinn’s background and the wealth of mitigating evidence that was there to be found, if they had bothered to look, amply satisfies these two requirements.
At the sentencing phase of a capital trial, the jury must consider the facts and circumstances of the crime and the character and background of the defendant. Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978). These facts and circumstances must include “any aspect of the defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Id. This is because “[t]he Eighth Amendment requires that the jury be able to consider and give effect to all relevant mitigating evidence offered by petitioner.” Boyde v. California, 494 U.S. 370, 377-78, 110 S.Ct. 1190, 1196, 108 L.Ed.2d 316 (1990). However, the Constitution does not merely require that whatever mitigating evidence proffered be considered, it also requires that counsel reasonably investigate the facts of defendant’s background and then present such evidence to the extent it is available. As in the guilt/innocence phase of trial, failure even to investigate or present mitigating evidence at sentencing may constitute ineffective assistance of counsel. Glenn v. Tate, 71 F.3d 1204, 1206-08 (6th Cir.1995) (counsel provided ineffective assistance where information not presented to jury as sentencing because counsel made virtually no attempt to prepare for sentencing phase); accord Blanco v. Singletary, 943 F.2d 1477, 1501-02 (11th Cir.1991), cert. denied, 504 U.S. 943, 112 S.Ct. 2282, 119 L.Ed.2d 207 (1992) (same).
Like many states, mitigation investigation in Tennessee is literally of life and death importance, for if the mitigating evidence is insufficient, the defendant is sentenced to death. In this case, each of O’Guinn’s two attorney’s thought the other was handling the investigation of mitigating evidence to be presented at the sentencing phase of the trial. As a result, virtually no mitigating evidence about O’Guinn was discovered or presented. O’Guinn’s sentencing hearing was conducted immediately after the guilty verdict was returned. Only one witness, O’Guinn’s mother, was called on behalf of O’Guinn and she was asked very general questions about O’Guinn’s childhood. A reading of the direct examination takes approximately 90 seconds and fills less than three pages of transeri.pt. This failure on the part of his attorneys goes beyond ineffective. It strikes closer to total incompetence. As the District Court noted:
The hearing on O’Guinn’s petition disclosed that Mr. Martin thought that Mr. Farmer would investigate the sentencing factors. Mr. Farmer thought he was only in charge of the sentencing argument, and no one investigated O’Guinn’s background. Considering the importance of a sentencing hearing, the failure to investigate and put on mitigating evidence amounts to the deficient performance of counsel.
870 F.Supp. at 785. This was no strategic choice not to present mitigating evidence, which would at least be defensible. Here, the attorneys utterly failed to even look for anything that would cause a jury to consider giving their client a life sentence rather than death.
The prejudice resulting from counsels’ failure to investigate and present mitigation evidence is clear. The District Court listed some of the evidence that could have been presented on behalf of O’Guinn:
In this case, had counsel investigated O’Guinn’s background and character, they could have presented strongly mitigating evidence based upon which the jury might have refused to impose the death penalty. *1425Summarizing this evidence, the jury would have considered that O’Guinn grew up in abject poverty. His parents abused his siblings and him both physically and sexually during their childhood. His parents brought alcoholism and criminal behavior into the family. O’Guinn ran away from home repeatedly to escape his home life. He suffered lasting emotional trauma when he accidentally killed a woman while driving a carnival truck. O’Guinn eventually married and worked regularly to support his wife and their three children, but he suffered additional emotional trauma when [his wife] had an affair with his father and broke up their marriage. There is additional evidence of the same character.
870 F.Supp. at 786. This “additional evidence” included neglect. The children were either left at home or kicked out of the house on a regular basis. O’Guinn was diagnosed as being near a nervous breakdown while still in grade school because of his parents’ actions. O’Guinn attempted to seek refuge at relatives’ homes because conditions were so poor at home. The bug infestation was so bad, according to testimony, that O’Guinn’s father was treated for an ear problem caused by “a large roach that had taken residence up inside [his] ear.” Superseding Petition for Writ of Habeas Corpus at 92 n. 47 (J.A. at 108). O’Guinn even plotted crimes with hopes of being caught because he believed prison life would be an improvement.
Based on this evidence and testimony adduced at the habeas evidentiary hearing, the District Court concluded:
The court finds that had the jury considered this evidence, there exists a reasonable probability that it would not have sentenced O’Guinn to die for the murder of Sheila Cupples. This establishes a prejudicial deficiency in counsel’s performance, which resulted in a violation of O’Guinn’s right to the effective assistance of counsel at sentencing.
870 F.Supp. at 786. These conclusions are entirely reasonable and go no further than the facts require. This is not a case where evidence of mitigating circumstances which might raise a reasonable doubt as to whether O’Guinn should be put to death was nonexistent. Nor did counsel make a reasoned decision to withhold the information for tactical reasons.
The failure to prepare adequately for the sentencing phase of the trial, coupled with the failure to present mitigating evidence, resulted in ineffective assistance of counsel at sentencing. In this case, what we know is that a man will die in Tennessee’s electric chair as a result of a decision made by jurors who, because of the utter carelessness of trial counsel, were missing crucial and constitutionally required evidence. This pitiful excuse for a mitigation hearing cannot be justified. It is now up to the state courts to determine whether they will revisit this issue.
Y.
The Confessions Were Not Knowingly and Intelligently Given, in Violation of O’Guinn’s Fifth Amendment Rights
In addition to the factual circumstances described above, which call into doubt the reliability of O’Guinn’s confessions, the legal question concerning admissibility of the confessions is also at issue. O’Guinn did not understand that he had the right to counsel during the questioning, and thus the confessions were not knowing and intelligent, in violation of the Fifth Amendment. This conclusion is based on the testimony of Investigator Duffey. At the Tennessee suppression hearing, Investigator Duffey stood by his earlier statement (made under oath at the Alabama suppression hearing) in which he admitted that he did not know how to obtain a lawyer for O’Guinn and where he admitted that, when he spoke to O’Guinn in July, he might have told O’Guinn that he could not have counsel until he went to court.
The Tennessee trial court made no specific finding whatsoever on this point. Although the Tennessee Supreme Court found that “implicit in the trial court’s findings is that Investigator Duffey never misrepresented defendant’s right to counsel,” State v. O’Guinn, 709 S.W.2d 561, 565 (Tenn.1986), this is merely speculation, as the transcript of the Tennessee suppression hearing reveals *1426that no such finding was ever made. In addition, contrary to the State’s assertions, the District Court did not rely on facts outside the record. Although reference was made by the District Court to testimony given at O’Guinn’s Alabama suppression hearing, the actual transcript of which was not entered into the record in Tennessee, the Tennessee suppression hearing transcript contains numerous specific references to the Alabama testimony. Investigator Duffey was confronted with the exact portions of his Alabama testimony to which the District Court made reference at the Tennessee hearing. It was entirely proper for the District Court to closely examine those portions of the Tennessee suppression hearing that referred to the previous Alabama testimony.
After holding a hearing, the District Court found the facts relevant to O’Guinn’s Fifth Amendment claim as follows: On July 4, 1983, O’Guinn was arrested by the Sheriffs Office of Madison County, Alabama for the rape and assault of an Alabama woman. Alex Duffey, an investigator with the Madison County Sheriffs Office, informed O’Guinn of his Miranda rights, which O’Guinn waived by signing a form, and began questioning him about the rape and assault. Several days later, in an effort to see if O’Guinn had any information about an unsolved 1982 Alabama murder, Investigator Duffey asked O’Guinn if he had ever killed anyone. O’Guinn stated that if he was to be questioned about murder he wanted to have an attorney present. Investigator Duffey erroneously informed O’Guinn that in order to have counsel appointed for him, O’Guinn would need to go to court. O’Guinn reasonably believed from this information that the only way he could obtain legal assistance was to be charged with murder, which would result in a court appearance where he could request court-appointed counsel.
O’Guinn could not make bond on the Alabama charge so he remained in prison. Upon learning that O’Guinn was from Jackson, Tennessee, Investigator Duffey contacted the Jackson Police Department on July 7, 1983. The Jackson police were told about the Alabama murder, despite the fact that O’Guinn had not been charged with that murder, and due to similarities between the Cup-ples murder and the Alabama murder, the Jackson, Tennessee Police decided to come to Alabama to question O’Guinn about the Cup-ples murder. On July 11, 1983, Investigator Blanton from the Jackson, Tennessee police traveled to Huntsville to question O’Guinn about the Cupples murder. Investigator Blanton conducted two lie detector tests and a voice stress test concerning the Cupples murder on O’Guinn outside the presence of an attorney.
Based on these tests, Investigator Blanton determined that O’Guinn knew something about the Cupples murder. In fact, O’Guinn stated during the lie detector tests that when he was staying with his brother, Robert O’Guinn, in 1982 he overheard Robert speak of killing a girl named Sheila.10 Based on this information, Investigator Blanton took a hair sample from O’Guinn. The hair sample did not match with the hair sample found on the body of Sheila Cupples.
Over the next month, investigators from both Alabama and Tennessee questioned O’Guinn repeatedly about the Alabama and Tennessee murders. On August 10, 1983, O’Guinn’s court-appointed attorney for the rape and assault charge, Mark Sandlin, told the investigators they could question O’Guinn on any matters unrelated to the rape and assault outside Mr. Sandlin’s presence.
On August 12, 1983, O’Guinn asked to see Investigator Duffey. Investigator Duffey again administered Miranda warnings and questioned O’Guinn about the murders. O’Guinn implicated himself in the Alabama murder and was charged. O’Guinn was also questioned on August 12, 1983, by Agent Leach of the Tennessee Bureau of Investigation. Agent Leach did not advise O’Guinn of his Miranda rights because Investigator Duf-fey told him that he had already done so that day. O’Guinn confessed to the Cupples murder that day.
At the Alabama suppression hearing, Investigator Duffey testified as follows concerning the events of July 1983:
On cross-examination:
*1427Q. Did [O’Guinn] not express to you, after you had advised him of his rights, or at the time you advised him, that because it was murder he felt he was going to need a lawyer?
A. He could have, I don’t remember but he could have.
Q. Is that not what you told Mr. O’Guinn on this occasion that yes, they would give him a lawyer when he got to court?
A. I may have told him that if he went to court that the courts would appoint him one.
State of Alabama v. O’Guinn, 462 So.2d 1052, 1058 (Ala.Crim.App.1985).
Further testimony at that Alabama suppression hearing by O’Guinn was as follows:
Q. Did you ever in any subsequent times when you were questioned by him, or other investigators, when you were advised of your rights prior to subsequent questioning, did you ask again for an attorney?
A. No, sir, because I had the understanding I had to go to court before I could get one.
Id. The Alabama court found that O’Guinn was effectively denied right to counsel. The Alabama state trial court suppressed O’Guinn’s statements relating to the crime, finding explicitly that O’Guinn’s waiver of his right to counsel was not knowing and intelligent, because he was misled by Investigator Duffey’s original statement that O’Guinn had no right to counsel without going to court. The Alabama court found this misapprehension infected all the subsequent questionings and any statements made in response to those questions could not be used against O’Guinn. State v. O’Guinn, 462 So.2d 1052, 1054 (Ala.Crim.App.1985). Apparently, O’Guinn was never tried for the Alabama murder.
O’Guinn also made a pretrial motion in the Tennessee trial court to suppress the four confessions given in the Cupples case, contending that Investigator Duffey misinformed him of his right to counsel and his waiver could not therefore be knowing and intelligent. At the Tennessee suppression hearing the following exchange occurred between Investigator Duffey and O’Guinn’s counsel:
On cross-examination:
Q. ... Do you remember the first time when you raised in your interview or interrogation of Mr. O’Guinn the possibility of committing a murder, either in Alabama or Tennessee?
A July the 4th.
Q. Now, isn’t it true that at a certain point in time that Mr. O’Guinn had indicated to you that if you were going to continue to discuss murder that he better have his lawyer present?
A. No, sir, not to my knowledge.
Q. Now it is correct that there was a hearing in Huntsville, Alabama before Judge Page regarding the Mueller [sic] murder case down there?
A Yes, sir.
Q. And in fact, it again was a suppression hearing; was it not?
A. Yes, sir.
Q. Now I’m going to ask you — show you a document first I suppose. I’ll ask you if you can recall in that [Alabama suppression] hearing that you made the statement that Mr. O’Guinn did say that or could have said that [he wanted a lawyer present]?
A. No, sir, I don’t remember saying that in the motion to suppress evidence down there. I was asked did he request an attorney and I told him not to my knowledge because in the interview on August the 12th of 1983, Kenneth Wayne O’Guinn was advised of his rights by me on tape, and he answered that he understood his rights. At no time to my knowledge did Kenneth Wayne ask for an attorney.
After an objection by the State as to relevancy, O’Guinn’s counsel, Mr. Martin, continues in an exchange with the court:
... At a point in time it was stated by [Investigator Duffey] that Mr. O’Guinn in fact when they were discussing the murders could have said, “I want a lawyer at this point,” ...
*1428Id. After another exchange with the lawyer for the State, Mr. Martin continues to question Duffey:
Q. Agent Duffey, this is what appears to be a cover page of a pre-trial motion to suppress in the Circuit Court if [sic] Madison County, Alabama, and along with that a page that is numbered RT-38 of that hearing_ Does this refresh your recollection that you did in fact indicate during that hearing that Mr. O’Guinn may have in fact asked for a lawyer when you began discussion of the murder case?
... [objection by State]
A. Yes, sir.
Q. Is that your testimony, Investigator Duffey?
A. Yes, sir. ... I’m not denying I made the statement. There was one statement that came out in the [Alabama] suppression motion, if Mr. O’Guinn had asked for an attorney, would I know how to have appointed him one. At that time I had to answer, no, sir, I did not know how.... At that time I was ignorant to the facts [of how to get a lawyer when someone requests one].
Q. But the point though here is, Investigator Duffey, that on the day you say [O’Guinn] could have made this statement to you about wanting an attorney, you did not cease your interrogation and did not go to the court to get an attorney.
A. I do not remember — On August the 12th when [O’Guinn] made the statement pertaining to this, it was placed on tape, and at no time to my knowledge did he ever ask for an attorney.
State of Tennessee v. O’Guinn, Hearing on Motion to Suppress (Jan. 3, 1985) at 30-36, J.A. at 779-85 (emphasis added).
Based on this testimony, one could reasonably conclude, as did the District Court, that (1) Duffey was standing by his earlier testimony (where he admitted he may have told O’Guinn that he could not get counsel until he went to court), and (2) Duffey was asserting that on August 12, O’Guinn never requested an Attorney. 870 F.Supp. at 783-84. Section 2254(d)(8)11 of the habeas statute states that factual findings made by the state court are presumed to be correct unless the factual determination is not supported by the record. The State contends, incorrectly I believe, that in arriving at this reasonable conclusion regarding the testimony of Investigator Duffey, the District Court (1) failed to defer to the state court’s factual findings and (2) improperly relied on information from the Alabama hearing that was not in the Tennessee state court record to find that O’Guinn’s waiver was not knowing and voluntary.
First, the District Court did not fail to defer to any Tennessee court factual ruling; it fulfilled its duty to ensure that the findings of the trial court were supported by the record, and in doing so, merely interpreted a totally vague finding in a manner consistent with the state court record. Although the state trial court had ruled the confessions admissible, it did not make any specific credibility findings or detailed findings of fact as to how it arrived at this conclusion, nor did it ever mention the fact that the Alabama state courts had previously ruled on this very same issue.12 On direct appeal, the Tennes*1429see Supreme Court stated, using the same record the District Court used to reach its findings:
Although the trial judge did not render detailed findings, as we would have preferred, it is obvious that the trial court accredited the testimony of the two law enforcement officers and not that of the defendant, that he was misinformed by investigator Duffey.... Implicit in the trial court’s findings is that investigator Duffey never misrepresented defendant’s right to counsel.
State v. O’Guinn, 709 S.W.2d 561, 565 (Tenn.1986). The Tennessee Supreme Court’s conclusion that the trial court made an “implicit” finding with regard to Duffey’s actions demonstrates the lack of an actual factual finding to which the District Court could defer. The Tennessee Supreme Court did not discuss or make findings about Duffey’s testimony at the Tennessee hearing, where he acknowledged that he might have told O’Guinn that he could not have counsel until he went to court. While deferring to the trial court’s assignment of credibility to Duffey, the District Court still had to make sense of his testimony in some way. Duffey’s first assertion was: “I’m not denying I made that statement [that T may have told him that if he went to court that the courts would appoint [a lawyer] for him.’].” Hearing on Motion to Suppress (Jan. 3, 1985) at 34 (J.A. at 783). Duffey’s second assertion was, “... On August 12th when [O’Guinn] made the statement pertaining to this, it was placed on tape, and at no time to my knowledge did he ever ask for an attorney.” Id. at 36 (J.A. at 785). If Duffey is telling the truth in both instances, then these statements can only mean that O’Guinn did not request a lawyer on August 12th, but that he might have requested one earlier. Thus, the District Court held, reasonably, that no findings could have been made by the Tennessee courts as to dates other than August 12. This is not a ease, as the State asserts, where the record supports two alternative findings and this Court is rejecting the state court’s finding in favor of its own findings. The District Court is simply giving meaning to the Tennessee opinions where those opinions do not make themselves perfectly clear as to a fact that is relevant to the legal ruling at hand: whether the confessions were knowing and intelligent.
Second, as the record clearly demonstrates, the testimony of Investigator Duffey at the Alabama hearing was explicitly referred to in the Tennessee hearing, and Duf-fey was confronted with and shown his earlier statements. The Alabama testimony, therefore, was a part of the state court record in this case and was properly considered by the District Court. Accordingly, even if the District Court did use the transcript it does not matter — the substance of the testimony could properly be used without referring to the actual transcript simply by reading Duffey’s testimony at the Tennessee hearing — material that is clearly part of the state court record. Even if it had not been a part of the record, the District Court made the alternate finding that if the Tennessee trial court did find the testimony at the suppression hearing between O’Guinn on the one hand and Duffey and Leach on the other in conflict, such a finding would be clearly erroneous under § 2254. 870 F.Supp. at 784 n. 10. The transcript contains sworn testimony, given under oath by a law enforcement officer that the Tennessee courts have found to be credible, and the testimony relates directly to one of the constitutional issues in this case. Thus, even if the State was correct that the Alabama testimony was not before the Tennessee Court, the testimony could be considered a new fact of which the District Court properly took judicial notice. Section 2254 does not prohibit the kind of review done here by the District Court and I agree with the District Court’s conclusion on this alternate ground as well.
I also agree with the District Court that the failure to suppress the confessions did not result in harmless error, as the confessions constitute the most damaging evidence at a trial where there was very little other evidence at all. As described above, no rea*1430sonable trier of fact would have found O’Guinn guilty beyond a reasonable doubt based solely on the other evidence at trial.
The Tennessee courts appear to have focused so far only on the fact that O’Guinn was advised of his Miranda rights numerous times during the questioning that led to his confessions. Counsel did not focus their attention more broadly. Because of this omission, the Tennessee courts apparently did not regard the earlier misinformation as legally relevant. In my opinion, the Tennessee courts should focus on this issue, as did the District Court. As the Alabama state court and the District Court correctly found, if the effect of the misinformation given to O’Guinn by Investigator Duffey on July 4, 1983, was never cured, none of these subsequent waivers were knowing and intelligent and each and every statement made by O’Guinn during the ensuing five-week period might have been a violation of his Fifth Amendment rights. Accordingly, I do not believe that O’Guinn’s confessions were knowingly and intelligently given.
YI.
In this case, the coached nature of the confessions and the circumstances under which they were obtained, coupled with the facial unreliability of the only two witnesses who can connect O’Guinn to this crime, is a pathetic amount of evidence on which to sentence a man to die. The egregious constitutional violations are overwhelming: a large quantity of material, exculpatory evidence was withheld from the defense (a claim which arose only as a result of this petition and the discovery which the petition permitted); trial counsel utterly failed to present any mitigating evidence at sentencing where ample evidence existed, in violation of O’Guinn right to effective assistance of counsel; and O’Guinn’s confessions were not given knowingly and intelligently because at the time he gave them he had been, and remained, misinformed about his right to counsel, a clear violation of his Fifth Amendment rights. While there may well be other violations of a constitutional magnitude that have not been addressed, the three analyzed here are more than sufficient to warrant a new trial for Kenneth O’Guinn.
. Judge Boggs’ dissenting opinion, finding "extreme oddity” in our disposition of this case, is itself an unusual judicial opinion. First, it fails to recognize that alternative arguments by litigants are the norm in cases in our legal system, including death penalty cases, and should not be rejected simply because different remedies are called for. There is no election of remedies requirement in habeas corpus cases and no policy disfavoring simultaneous arguments based on exhaustion and on the merits.
Second, Judge Boggs' opinion fails even to mention or take notice of the point that counsel for O’Guinn only found out about the Brady issue as a result of discovery conducted in the District Court after the proceedings in state court were completed. To fault O’Guinn's counsel for failing to raise "on at least three prior occasions” facts in the state court that the state district attorney failed to turn over to O'Guinn for many years is disingenuous, to say the least. How was counsel supposed to raise unknown facts in state court?
It is not the function of the federal courts to kowtow to the political passions of the day that decree that we supply only a swift execution without regard to whether the accused is guilty or received a fair trial. In the judicial arena, there is no traditional social value or constitutional principle requiring rapid execution or extinction of human life. To refer to O’Guinn’s legitimate exercise of his constitutional and statutory rights as an exercise in game theory — as ”try[ing] his luck in federal court” (a phrase removed from the galley proofs after this opinion was written) and "[drawing] another arrow from [his] quiver” — makes light of both O’Guinn’s life and the efforts of his counsel.
It is our job to make sure that the traditional principles of federalism are honored. It is our job to see that a life is not taken in the absence of a fair trial in which the constitutional rights granted to the accused are observed or to allow an execution while there remains a serious unanswered question about whether the accused is in fact guilty of the crime charged. The process of deliberation, reflection, trial, review and the elimination of error and uncertainty takes time, including the time it takes to review new evidence when it becomes necessary. The traditional deliberative process must be fully complied with in order to insure that innocent life and the attributes of human dignity are preserved in the face of the biological passion and hostility in our species that lead us to kill each other without reason. If this traditional process of deliberation and reflection takes time, we must take the time. In light of the fallibility of human judgment, it is better that even the life of a guilty man be spared for a few years while we make sure that we are not making another fatal mistake.
. The photographic lineup shown to Mr. Dunn two years after the murder was also questionable both as to its reliability and legality. When first asked by police to pick out the person he saw that night with Sheila at the bar, Mr. Dunn stated that he could not do so. After some coaching by the police and being told that the man was in custody and had confessed, Mr. Dunn picked O’Guinn out of a lineup that contained two pictures of O’Guinn, one with O’Guinn wearing prison-issue clothing. This suggestive identification might well constitute another violation of O’Guinn’s due process rights.
. Michael and Debbie Spears, who were at the Hat & Cane the night of the murder, identified Robert O'Guinn from a photo lineup as the person with whom they saw Sheila in the parking lot that night. Moreover, on July 15, 1983, a Tennessee grand jury indicted Robert O’Guinn for the Cupples murder. The pending indictment against Robert O'Guinn was dismissed, presumably due to the confessions given by Kenneth O’Guinn.
. The so-called "map” referred to at the end of section III. B. of Judge Batchelder's dissenting opinion does not support her argument. The "map” supports the view that O'Guinn did not know where the body was found and was simply making up the facts. He places the body on a road that runs east from Highway 45 when in fact the body was found at the end of Conrad Drive which runs West of 45 and is much further from the intersection of 1-40 and 45 than O'Guinn's map shows. O’Guinn had been told that the body was found on a side road near an interstate interchange with which he was familiar. Other than this fact, O’Guinn’s map does not get anything else right.
. At the time of O’Guinn's trial in early 1985, the standard for determining the materiality of suppressed evidence that was specifically requested was whether the evidence "might have affected the outcome of the trial." United States v. Agurs, 427 U.S. 97, 111, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976). As will be demonstrated below, the evidence suppressed here was material under Agurs, Bagley or Kyles v. Whitley, - U.S. -, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
. The record is not clear on exactly how much independent information O'Guinn's trial counsel had concerning many of the individuals named in the withheld documents. In the event that trial counsel did have independent knowledge of some of the information in the withheld documents and failed to pursue it, O’Guinn's claim of ineffective assistance of counsel at trial is even stronger. Workman v. Tate, 957 F.2d 1339, 1345 (6th Cir.1992) (failure by counsel to either investigate or interview promising witnesses constitutes negligence, not trial strategy); Blackburn v. Foltz, 828 F.2d 1177, 1183 (6th Cir.1987) (lawyer who had for no apparent reason failed to investigate a known and potentially important alibi witness had failed to provide effective assistance), cert. denied, 485 U.S. 970, 108 S.Ct. 1247, 99 L.Ed.2d 445 (1988).
. Joannie Cupples also contradicted her first statement when she said she had not been to the Lakeview Motel the night of the murder. Compare Statement of Joannie Cupples and Pam Johnson, Jackson Police 5/24/81 (J.A. at 351-53) with Statement of Joannie Cupples, TBI 11/5/81 (J.A. at 535-42). These two statements apparently were turned over to O’Guinn’s counsel. The significance of the discrepancy, however, may not have been readily apparent to defense counsel without benefit of the other evidence, much of it withheld, that Joannie may have been in some way involved with the murder.
. At the District Court hearing, the Spears testified regarding their failure to appear at O'Guinn’s murder trial to testify. The District Court found that this testimony was not credible. 870 F.Supp. at 786. The District Court’s credibility determination does not appear to extend to earlier statements the Spears made regarding their observations on the night of the murder.
. The fact that state law was also referenced in the order does not negate that the decision "fairly rests” on federal law and is therefore subject to this Court's review. Like Long, Caldwell and Harris, state law was invoked in the state court opinion in this case in some manner, but the state ground was not the "adequate and independent” ground necessary to preclude federal habe-as review. In Coleman, on the other hand, the Virginia Supreme Court clearly relied on state law to dismiss the petitioner’s appeal. Petitioner Coleman had filed his appeal outside of the thirty day limit and the Virginia Supreme Court explicitly granted the State’s motion for dismissal solely on state procedural grounds. That is not the case here.
. See supra n. 3.
. The statute provides in relevant part:
In any proceeding instituted in a Federal court by an application for a writ of habeas corpus ..., a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction ... shall be presumed to be correct, unless the applicant shall establish or it shall appear, or the respondent shall admit—
(8) or ... the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record.
28 U.S.C. § 2254(d)(8).
. The findings of the Tennessee trial court, in their entirety, are as follows:
Mr. O'Guinn takes the position that even though the rights were read to him, he felt that he couldn't have a lawyer until he actually went into court and he was told he might as well answer the questions they were asking him.
I think Mr. O'Guinn also mentioned the fact that one sentence of the Miranda warning was not read to him. The officers stated a number of times that they did read these statements, and it would be unusual for all of them to leave out that one point.
*1429I think the motion should be overruled and the State is going to be allowed to present these statements.
That’s all.
Tennessee Hearing on Motion to Suppress (Jan. 3, 1985) at 95 (J.A. at 844).
. The four groups of documents/statements allegedly contained evidence (1) that Joanie Cupples was involved in the murder of her cousin, Sheila Cupples; (2) that former Jackson police officer Richard Harper was involved in the murder; (3) that Sheila Cupples was killed because she was providing information about the distribution of illegal drugs; and (4) that Robert O’Guinn, petitioner's brother, was involved in the killing.