dissenting in part and concurring in part.
The narrow issue before us is not whether Burris suffered ineffective assistance of counsel at the sentencing phase of his trial, but whether he is entitled to an evidentiary hearing before the federal courts make that determination. The majority says no. The key point is that, under the pre-AEDPA law that the majority correctly finds applicable, Judge Sharp said yes — a hearing is mandatory.
Judge Sharp nevertheless denied Burris a hearing, based on his conclusion that the AEDPA’s 28 U.S.C. § 2254(e)(2) governed. The majority has decided that the latter ruling is wrong; in this I agree. Section 2254(e)(2) applies only to state prisoners who, through their own fault, did not bring a constitutional claim to the attention of the state courts. 28 U.S.C. § 2254(d) does not apply either, for, as Judge Sharp noted, the “decision of the Supreme Court of Indiana cannot be considered a careful and well-reasoned opinion requiring deference under *261§ 2254(d).” Burris v. Parke, 948 F.Supp. 1310, 1321 (N.D.Ind.1996).
What then for Burris’s evidentiary hearing? Judge Sharp gave the answer under law that he mistakenly believed to be foreclosed — that a federal evidentiary hearing would be mandated:
The Seventh Circuit has held that upholding the failure of a state court to provide a petitioner with a full and fair hearing would reward that state court for its denial of due process. See Bracy v. Gramley, 81 F.3d 684, 693 (7th Cir.), petition for cert, filed (Sept. 23, 1996). In this case, the court finds that the courts of the State of Indiana failed to provide Burris with a full and fair hearing on his ineffective assistance claims. Thus, under the pre-AEDPA standards of Townsend and Kee-ney, because the Supreme Court of Indiana dismissed Burris’s PCR petition as successive without allowing for discovery, holding an evidentiary hearing or addressing the merits of Burris’s ineffective assistance claims which were before the court in the first instance, it would appear that this court would be mandated to hold the requested evidentiary hearing.
Id. at 1323 (emphasis supplied) (footnote omitted). The Indiana courts had never adequately heard Burris’s claims, and so Townsend obliged the district court to hear those claims itself. Id.1
Since, as the majority holds, the pre-AED-PA law applies, I agree with Judge Sharp’s conclusion that an evidentiary hearing is required. One may debate the merits of the ineffective assistance claim on the basis of the present record, but to do so is highly conjectural and an exercise in futility. As this court has often noted, the adequacy of the record is a crucial consideration in evaluating ineffective assistance claims. Cf. United States v. Draves, 103 F.3d 1328, 1335 (7th Cir.1997); United States v. McKenzie, 99 F.3d 813, 816 & n. 2 (7th Cir.1996). Here we are talking about a brain injury from a bullet and its significance as a mitigating factor. Any efforts to analyze this apparent source of brain damage on the present record are completely speculative. I find particularly simplistic the view that, since Burris’s lawyers portrayed him as bright and a good conversationalist, they would be disabled to explore his brain injury. The reality is that none of the advocates at oral argument could say anything specific about the brain injury, although none of them denied that he had suffered one.
Quite correctly, the majority holds that § 2254(e)(2) does not apply to Burris’s claim because the Indiana courts never accorded him an opportunity in the state courts to introduce evidence on the point. There was no “failure” on the part of the prisoner. Since Burris was not at fault and § 2254(e)(2) is not applicable, the crucial question is what law applies. The majority denigrates the authority of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), by observing that it was “overruled in part” by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), and “supersede!)!]” by § 2254(e). Maj. Op. at 259. This is the majority’s most serious error. What the majority does not point out is that the part of Townsend that Keeney overruled has no application here, because Burris was not at fault. See Spreitzer v. Peters, 114 F.3d 1435, 1456 n. 9 (7th Cir.1997). For the same reason, § 2254(e)(2), the only AEDPA provision that even arguably governs evidentiary hearings, has no bearing here — as the majority itself concludes. Hence, it is hard to see how Townsend is superseded. When the state courts have refused to hear the claim of a state prisoner, Townsend still binds us to ensure that the petitioner receives a hearing in federal court. The reason is the same today as it was thirty-three years ago:
State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamen*262tal liberties of the person, safeguarded against state action by the Federal Constitution. Simply because detention so obtained is intolerable, the opportunity for redress, which presupposes the opportunity to be heard, to argue and to present evidence, must never be totally foreclosed. It is the typical, not the rare, case in which constitutional claims turn upon the resolution of contested factual issues. Thus a narrow view of the hearing power would totally subvert Congress’ specific aim in passing the Act of February 5, 1867, of affording state prisoners a forum in the federal trial courts for the determination of claims of detention in violation of the Constitution.
Toumsend, 372 U.S. at 312, 83 S.Ct. at 756-57 (emphasis added) (citation omitted).
Judge Sharp ruled that the Indiana courts have “failed to provide Burris with a full and fair hearing on his ineffective assistance claims.”2 Burris, 948 F.Supp. at 1323. As Judge Sharp realized, Townsend therefore mandates that the district court hold an evi-dentiary hearing. The majority reverses this, based on unsound law and fragmentary facts.
I respectfully dissent and would vacate the judgment and remand for a hearing.
. Judge Sharp cited two separate grounds in Townsend that dictated a hearing for Burris’s claims: that “(3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing,” and that "(6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing.” Townsend, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963).
. Burris raises several related claims. His request for the appointment of a neuropsychologist would go hand in hand with the evidentiary hearing on his brain injury. The neuropsychologist’s participation in the hearing is necessary to make the hearing meaningful, and thus would meet the requirements of 21 U.S.C. § 848(q)(9). Further, the psychologist who examined Burris in 1991 believed at the time, incorrectly, that he was in possession of Burris’s complete medical file. He was not — and among the files missing were the reports of the brain damage at issue. We thus cannot know whether Burris's attorney should reasonably have investigated the brain damage. Whether he received ineffective assistance of counsel when his attorney failed to appeal an adverse and erroneous evidentiary ruling may also be ripe for exploration at a hearing, as might the sentencing judge’s erroneous conception of mitigation evidence.
Finally, in the face of affidavits from Burris’s attorney disavowing any particular reason at all for failing to investigate and present to the jury evidence of Burris's alleged neurological impairment, it is inappropriate for the majority to engage in conjecture (and praise) for the attorney’s "strategic" decisions.